The institutions of the law of Scotland deduced from its originals, and collated vvith the civil, canon, and feudal- lavvs, and vvith the customs of neighbouring nations ... / by Sir James Dalrymple of Stair ...
         Stair, James Dalrymple, Viscount of, 1619-1695.
      
       
         
           1681
        
      
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         A61249
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         ESTC R42227
         24565362
         ocm 24565362
         109710
         
           
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             The institutions of the law of Scotland deduced from its originals, and collated vvith the civil, canon, and feudal- lavvs, and vvith the customs of neighbouring nations ... / by Sir James Dalrymple of Stair ...
             Stair, James Dalrymple, Viscount of, 1619-1695.
          
           2 v. in 1.
           
             Printed by the heir of Andrew Anderson ...,
             Edinburgh :
             1681.
          
           
             Each part has special t.p.
             Reproduction of original in the Harvard University Law Library.
          
        
      
    
     
       
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         eng
      
       
         
           Law -- Scotland.
        
      
    
     
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               THE
               INSTITUTIONS
               OF
               THE
               LAW
               OF
               SCOTLAND
               ,
               Deduced
               from
               its
               Originals
               ,
               and
               Collated
               vvith
               the
               Civil
               ,
               Canon
               ,
               and
               Feudal-Lavvs
               ;
               and
               vvith
               the
               Customs
               of
               Neighbouring
               Nations
               .
            
             
               The
               first
               PART
               .
            
             
               By
               Sir
               
                 JAMES
                 DALRYMPLE
              
               of
               STAIR
               ,
               PRESIDENT
               of
               the
               SESSION
               .
            
             
               EDINBURGH
               ,
               Printed
               by
               the
               Heir
               of
               
                 Andrew
                 Anderson
              
               ,
               Printer
               to
               His
               most
               Sacred
               
                 Majesty
                 ,
                 Anno
                 DOM.
              
               1681.
               
            
          
           
             
             
             
               To
               the
               KING
               .
            
             
               
                 May
                 it
                 Please
                 Your
                 Majesty
                 .
              
            
             
               I
               DO
               humbly
               present
               to
               Your
               MAJESTY
               a
               Summary
               of
               the
               Laws
               and
               Customes
               of
               Your
               ancient
               Kingdom
               of
               
                 SCOTLAND
                 ,
                 which
                 can
                 be
                 no
                 where
                 so
                 fitly
                 Placed
                 ,
                 as
                 under
                 the
                 Rayes
                 of
                 Your
                 Royal
                 Protection
                 :
              
               I
               am
               confident
               it
               will
               tend
               to
               the
               Honour
               and
               Renoun
               of
               Your
               MAJESTY
               ,
               and
               Your
               Princely
               Progenitors
               ,
               that
               You
               have
               Governed
               this
               Nation
               so
               long
               and
               so
               happily
               ,
               by
               such
               just
               and
               convenient
               Laws
               ,
               which
               are
               here
               offered
               to
               the
               view
               of
               the
               World
               ,
               in
               a
               Plain
               ,
               Rational
               ,
               and
               Natural
               Method
               ;
               In
               which
               ,
               Material
               Justice
               (
               the
               common
               Law
               of
               the
               World
               )
               is
               in
               the
               first
               place
               orderly
               deduced
               from
               self
               evident
               Principles
               ,
               thorow
               all
               the
               several
               private
               Rights
               thence
               arising
               :
               And
               in
               the
               next
               place
               ,
               the
               Expedients
               of
               the
               most
               Polite
               Nation
               ,
               for
               Ascertaining
               and
               Expeding
               the
               Rights
               and
               Interests
               of
               Mankind
               ,
               are
               Applyed
               in
               their
               proper
               places
               ;
               especially
               these
               which
               have
               been
               invented
               ,
               or
               followed
               by
               
                 this
                 Nation
              
               ;
               so
               that
               a
               great
               part
               of
               what
               is
               here
               offered
               ,
               is
               common
               to
               
                 most
                 Civil
                 Nations
              
               ,
               and
               is
               not
               like
               to
               be
               displeasing
               to
               the
               Judicious
               and
               Sober
               any
               where
               ,
               who
               dote
               not
               so
               much
               upon
               their
               own
               Customes
               ,
               as
               to
               think
               that
               none
               else
               are
               worthy
               of
               their
               notice
               .
               There
               is
               not
               much
               here
               asserted
               upon
               meer
               Authority
               ,
               or
               Imposed
               for
               no
               other
               Reason
               ,
               but
               
               
                 quia
                 majoribus
                 placuerunt
              
               ,
               but
               the
               Rational
               Motives
               inductive
               of
               the
               several
               Laws
               and
               Customes
               ,
               are
               therewith
               held
               forth
               :
               And
               though
               the
               Application
               of
               those
               common
               Rules
               ,
               to
               the
               varietie
               of
               Cases
               determined
               by
               our
               Statutes
               ,
               our
               ancient
               Customes
               ,
               and
               the
               more
               recent
               Decisions
               of
               our
               Supream
               Courts
               ,
               be
               peculiar
               to
               us
               ;
               Yet
               even
               the
               Quadrancy
               of
               these
               to
               the
               common
               Dictates
               of
               Reason
               and
               Justice
               ,
               may
               make
               them
               the
               less
               displeasing
               ;
               and
               that
               no
               Nation
               hath
               so
               few
               words
               of
               Art
               ,
               but
               that
               almost
               all
               our
               Terms
               are
               near
               the
               Common
               and
               Vulgar
               Acceptation
               ;
               Yea
               ,
               the
               Historical
               Part
               relating
               the
               Helps
               and
               Expedients
               for
               Clearing
               and
               Securing
               the
               Rights
               of
               Men
               out
               of
               the
               Word
               of
               GOD
               ;
               the
               Moral
               and
               Judicial
               Law
               contained
               therein
               ;
               the
               Civil
               ,
               Canon
               and
               Feudal
               Laws
               ,
               and
               many
               Customes
               of
               the
               Neighbouring
               Nations
               Digested
               ,
               as
               they
               fall
               in
               with
               the
               Common
               Rules
               of
               Justice
               ,
               may
               probably
               be
               acceptable
               to
               these
               who
               may
               ,
               and
               will
               allow
               time
               for
               their
               perusal
               ,
               
                 a
                 quaint
                 and
                 gliding
                 Stile
              
               ,
               much
               less
               the
               Flourishes
               of
               Eloquence
               ,
               the
               ordinary
               
                 Condiment
                 and
                 Vernish
                 ,
                 which
                 qualifie
                 the
                 pains
                 of
                 Reading
                 ,
              
               could
               not
               justly
               be
               expected
               in
               a
               Treatise
               of
               Law
               ,
               which
               of
               all
               Subjects
               doth
               require
               the
               most
               
                 Plain
                 and
                 Accurate
                 Expressions
              
               ;
               to
               ballance
               which
               ,
               the
               Nausiating
               burden
               of
               Citations
               ,
               are
               as
               much
               as
               can
               be
               left
               out
               .
            
             
               We
               do
               not
               pretend
               to
               be
               amongst
               the
               Great
               and
               Rich
               Kingdoms
               of
               the
               Earth
               ,
               yet
               we
               know
               not
               who
               can
               claim
               preference
               in
               Antiquity
               and
               Integrity
               ,
               being
               of
               one
               Blood
               and
               Lineage
               ,
               without
               mixture
               of
               any
               other
               people
               ,
               and
               have
               so
               continued
               above
               two
               thousand
               years
               ;
               during
               all
               which
               ,
               no
               forreign
               Power
               was
               ever
               able
               to
               setle
               the
               Dominion
               of
               a
               Strange
               Lord
               over
               us
               ,
               or
               to
               make
               us
               forsake
               our
               Allegeance
               to
               Your
               MAJESTIEs
               Royal
               Ancestors
               ,
               our
               Native
               and
               Kindlie
               Kings
               ;
               Whereas
               ,
               most
               of
               the
               other
               Kingdoms
               are
               Componds
               of
               Diverse
               Nations
               ,
               and
               have
               been
               subjugated
               to
               Princes
               of
               different
               and
               opposite
               Families
               ;
               and
               oftimes
               Forreigners
               .
               The
               great
               Monarchies
               which
               did
               design
               Universalitie
               ,
               are
               all
               broken
               in
               pieces
               ;
               and
               there
               is
               no
               Familie
               that
               can
               claim
               a
               just
               Title
               to
               Redintegrat
               any
               of
               them
               .
               There
               is
               no
               Emperor
               nor
               King
               ,
               
                 except
                 Your Self
              
               ,
               but
               knows
               to
               what
               other
               Families
               their
               Predecessors
               did
               Succeed
               ,
               and
               when
               ,
               and
               by
               what
               means
               It
               is
               evident
               what
               a
               mixture
               hath
               been
               in
               Greece
               and
               Italy
               ,
               in
               France
               and
               Spain
               ,
               in
               ENGLAND
               ,
               and
               elsewhere
               .
               This
               Nation
               hath
               not
               been
               obscure
               and
               unknown
               to
               the
               World
               ;
               but
               the
               most
               famous
               Nations
               have
               made
               use
               of
               our
               Arms
               ,
               and
               have
               still
               in
               grateful
               remembrance
               ,
               retained
               Trophies
               and
               Monuments
               of
               our
               Courage
               and
               
               Constancy
               .
               There
               be
               few
               Wars
               in
               Christendome
               ,
               wherein
               we
               have
               not
               had
               considerable
               Bodies
               of
               Souldiers
               ,
               Regimented
               and
               Commanded
               by
               themselves
               ,
               and
               oftimes
               general
               Officers
               Commanding
               them
               ;
               and
               whole
               Armies
               of
               Strangers
               ,
               with
               great
               Reputation
               and
               Gallantry
               ,
               which
               did
               advance
               them
               above
               the
               Natives
               of
               these
               Countreys
               where
               they
               served
               .
               Neither
               have
               we
               wanted
               the
               fame
               of
               Learning
               at
               home
               and
               abroad
               ,
               in
               the
               most
               eminent
               Professions
               ,
               
                 Divine
                 or
                 Humane
              
               .
               And
               as
               every
               where
               the
               most
               Pregnant
               and
               Active
               Spirits
               ,
               applie
               themselves
               to
               the
               Study
               and
               practice
               of
               Law
               ;
               so
               these
               that
               applyed
               themselves
               to
               that
               Profession
               amongst
               us
               ,
               have
               given
               great
               Evidence
               of
               sharp
               and
               piercing
               Spirits
               ,
               with
               much
               readiness
               of
               Conception
               ,
               and
               dexterity
               of
               Expression
               ;
               which
               are
               necessary
               Qualifications
               both
               of
               the
               Bench
               and
               Bar
               ,
               whereby
               the
               Law
               of
               this
               Kingdom
               hath
               attained
               to
               so
               great
               Perfection
               ,
               that
               it
               may
               without
               Arrogance
               be
               compared
               with
               the
               Laws
               of
               any
               of
               our
               neighbouring
               Nations
               ,
               for
               we
               are
               happy
               in
               having
               so
               few
               and
               so
               clear
               Statutes
               .
               Our
               Law
               is
               most
               part
               Consuetudinary
               ,
               
                 whereby
                 ,
                 what
                 is
                 found
                 inconvenient
                 is
                 Obliterat
                 and
                 forgot
                 :
              
               Our
               Forms
               are
               plain
               and
               Prompt
               ,
               whereby
               the
               generality
               of
               the
               Judicious
               ,
               have
               with
               little
               pains
               much
               insight
               in
               our
               Law
               ,
               and
               do
               with
               the
               more
               Security
               enjoy
               their
               Rights
               and
               Possessions
               ,
               which
               by
               our
               publick
               Records
               are
               better
               known
               then
               any
               where
               ,
               by
               which
               ,
               we
               may
               with
               the
               greatest
               assurance
               Trust
               our
               Purchase
               ,
               seing
               no
               Land-Right
               is
               effectual
               against
               Purchasers
               by
               Consent
               or
               by
               Law
               ,
               but
               where
               the
               ultimate
               perfection
               thereof
               ,
               by
               Seasing
               or
               other
               Evident
               ,
               is
               upon
               Record
               in
               Registers
               ,
               set
               apart
               for
               the
               several
               Rights
               ,
               without
               mixture
               of
               any
               other
               ,
               whereof
               there
               are
               Authentick
               Minute-books
               keeped
               ,
               with
               the
               Records
               in
               each
               Shire
               and
               Jurisdiction
               ,
               whereby
               with
               the
               least
               pains
               or
               expence
               ,
               all
               the
               Rights
               affecting
               any
               Land
               within
               the
               course
               of
               Prescription
               ,
               can
               easily
               be
               found
               .
               We
               are
               not
               Involved
               in
               the
               Labyrinth
               of
               many
               and
               large
               Statutes
               ,
               whereof
               the
               posterior
               do
               ordinarly
               Abrogate
               ,
               or
               Derogate
               from
               the
               prior
               ,
               that
               it
               requires
               a
               great
               part
               of
               a
               life
               to
               be
               prompt
               in
               all
               these
               Windings
               ,
               without
               which
               ,
               no
               man
               with
               sincerity
               and
               confidence
               ,
               can
               Consult
               or
               Plead
               ;
               much
               less
               can
               the
               Subjects
               by
               their
               own
               Industrie
               ,
               know
               where
               to
               rest
               ,
               but
               must
               give
               more
               implicite
               Faith
               to
               their
               Judges
               and
               Lawers
               ,
               then
               they
               need
               or
               ought
               to
               give
               to
               their
               Divines
               ;
               and
               we
               do
               always
               prefer
               the
               Sense
               to
               the
               subtility
               of
               Law
               ,
               and
               do
               seldom
               trip
               by
               niecities
               or
               formalities
               .
               The
               greatest
               Fixation
               and
               Improvement
               of
               our
               Law
               hath
               been
               by
               the
               Establishment
               of
               the
               Supream
               Civil
               Judicature
               of
               the
               Kingdom
               ,
               by
               King
               JAMES
               the
               fifth
               ,
               in
               the
               Institution
               of
               the
               Colledge
               of
               Justice
               ,
               consisting
               of
               fifteen
               ordinarie
               Senators
               ,
               in
               place
               of
               the
               Kings
               daily
               Council
               ,
               which
               followed
               His
               Residence
               and
               Court
               ,
               and
               of
               the
               Lords
               of
               Session
               ,
               who
               came
               in
               their
               place
               ,
               and
               were
               nominated
               of
               the
               Estates
               of
               Parliament
               Ambulatory
               ;
               
               and
               the
               Senators
               of
               the
               Colledge
               of
               Justice
               were
               Invested
               with
               the
               powers
               of
               both
               ,
               and
               their
               persons
               and
               the
               place
               of
               Judicature
               became
               fixed
               ,
               and
               hath
               so
               continued
               near
               the
               space
               of
               an
               hundred
               and
               fifty
               Years
               .
               This
               Court
               was
               much
               improven
               by
               Your
               MAJESTIEs
               Royal
               Grand-Father
               ,
               who
               delighted
               exceedingly
               in
               it
               ,
               and
               honouredit
               frequently
               with
               His
               Presence
               while
               He
               was
               in
               Scotland
               :
               So
               did
               Your
               Royal
               Father
               when
               He
               came
               to
               Scotland
               to
               be
               Crowned
               :
               And
               Your
               MAJESTY
               hath
               owned
               and
               encouraged
               it
               more
               then
               any
               .
            
             
               Your
               MAJESTY
               doth
               not
               demand
               or
               expect
               great
               Revenues
               from
               this
               Kingdom
               ;
               that
               which
               we
               can
               be
               useful
               in
               to
               Your
               MAJESTY
               ,
               is
               our
               personal
               Service
               ,
               and
               our
               firm
               adherence
               to
               Your
               Crown
               and
               Monarchy
               ,
               and
               to
               Your
               Royal
               Family
               ,
               in
               which
               we
               have
               a
               peculiar
               Interest
               ;
               and
               which
               no
               time
               can
               communicate
               to
               any
               of
               Your
               other
               Dominions
               ,
               which
               they
               neither
               can
               claim
               ,
               nor
               should
               invy
               that
               You
               are
               of
               our
               Nation
               ,
               and
               hath
               Governed
               us
               during
               twenty
               Centuries
               and
               more
               ,
               and
               by
               us
               You
               are
               the
               most
               Ancient
               King
               in
               the
               World
               ,
               which
               is
               the
               most
               Noble
               and
               Resplendent
               Jewel
               in
               Your
               Crown
               ;
               What
               Family
               on
               Earth
               can
               parallel
               that
               Motto
               ,
               which
               an
               hundred
               Years
               ago
               ,
               was
               Written
               about
               Your
               Royal
               Ensignes
               ,
               upon
               Your
               Palace
               ,
               
                 
                   —
                   Nobis
                   haec
                   invicta
                   miserunt
                
                 
                   Centum
                   sex
                   proavi
                   .
                
              
            
             
               Therefore
               Your
               Royal
               Family
               hath
               been
               betroathed
               to
               a
               Virgin
               Crown
               ,
               which
               never
               knew
               another
               Husband
               ;
               and
               though
               it
               hath
               been
               darkened
               with
               Clouds
               and
               Recesses
               ,
               yet
               never
               was
               ,
               and
               I
               hope
               never
               shall
               be
               in
               Widuity
               .
               The
               mutual
               Affection
               betwixt
               Your
               MAJESTIES
               Royal
               Family
               and
               this
               Nation
               ,
               is
               a
               prime
               Interest
               to
               both
               ,
               which
               should
               be
               much
               incouraged
               and
               improven
               :
               Your
               MAJESTY
               without
               just
               ground
               of
               Jealousie
               to
               Your
               other
               Kingdoms
               ,
               may
               own
               a
               peculiar
               Care
               of
               us
               ;
               and
               weought
               to
               〈◊〉
               a
               singular
               kindness
               to
               ,
               and
               confidence
               in
               Your
               MAJESTY
               ,
               and
               Your
               Royal
               Successors
               ;
               This
               might
               he
               so
               promoved
               ,
               that
               Your
               MAJESTY
               might
               by
               Treaties
               ,
               have
               Armies
               of
               this
               Nation
               abroad
               ,
               Intertained
               without
               Your
               Charge
               ,
               and
               ready
               at
               Your
               Call
               ,
               as
               You
               had
               Dowglas
               Regiment
               in
               France
               ,
               which
               might
               secure
               Your
               Peace
               at
               Home
               ,
               and
               make
               You
               stand
               in
               need
               of
               less
               Aids
               from
               Your
               People
               .
               You
               might
               also
               have
               thriving
               Plantations
               abroad
               ,
               if
               these
               who
               every
               year
               go
               from
               this
               Nation
               ,
               to
               seek
               their
               Fortunes
               abroad
               ,
               were
               directed
               and
               encouraged
               ;
               And
               it
               is
               certainly
               a
               great
               Interest
               to
               keep
               the
               Nation
               at
               Home
               ,
               in
               constant
               Affection
            
          
           
             
             
               
                 INDEX
                 of
                 the
                 TITLES
              
               of
               the
               whole
               BOOK
               ,
               with
               the
               SUMMARIES
               subjoyned
               .
            
             
               
                 PART
                 I.
                 
              
               
                 
                   
                     TITLE
                     I.
                  
                   Common
                   Principles
                   of
                   Law.
                   
                
                 
                   
                     1
                     DEscription
                     of
                     Law.
                     
                  
                   
                     2
                     Description
                     and
                     Division
                     of
                     Justice
                     .
                  
                   
                     3
                     Divine
                     Law.
                     
                  
                   
                     4
                     Reason
                     ,
                  
                   
                     5
                     Conscience
                     ,
                  
                   
                     6
                     Equity
                     .
                  
                   
                     7
                     Moral
                     Law.
                     
                  
                   
                     8
                     Positive
                     Laws
                     of
                     God.
                     
                  
                   
                     9
                     Judicial
                     Law.
                     
                  
                   
                     10
                     Law
                     of
                     Nations
                     .
                  
                   
                     11
                     Civil
                     Law.
                     
                  
                   
                     12
                     Feudal
                     Law.
                     
                  
                   
                     13
                     Canon
                     Law.
                     
                  
                   
                     14
                     The
                     reasons
                     of
                     Humane
                     Laws
                     .
                  
                   
                     15
                     The
                     Law
                     of
                     Scotland
                     .
                  
                   
                     16
                     Whether
                     Law
                     may
                     be
                     handled
                     as
                     a
                     rational
                     Discipline
                     ?
                  
                   
                     17
                     Three
                     common
                     principles
                     of
                     Equity
                     ,
                     and
                     three
                     of
                     positive
                     Law.
                     
                  
                   
                     18
                     Obedience
                     ,
                  
                   
                     19
                     Freedom
                     ,
                  
                   
                     20
                     Ingagement
                     .
                  
                   
                     21
                     Description
                     and
                     Division
                     of
                     Rights
                     .
                  
                   
                     22
                     Method
                     of
                     the
                     Civil
                     Law
                     ,
                     and
                     the
                     method
                     here
                     proposed
                     .
                  
                
              
               
                 
                   
                     TITLE
                     II.
                  
                   Of
                   Liberty
                   .
                
                 
                   
                     1
                     LIberty
                     described
                     .
                  
                   
                     2
                     Liberty
                     〈◊〉
                     from
                     Dominion
                     and
                     Obligations
                     .
                  
                   
                     3
                     The
                     Principle
                     whence
                     Liberty
                     ariseth
                     .
                  
                   
                     4
                     Restraint
                     and
                     Constraint
                     .
                  
                   
                     5
                     Liberty
                     is
                     bounded
                     by
                     Obedience
                     .
                  
                   
                     6
                     It
                     is
                     diminished
                     by
                     Delinquence
                     .
                  
                   
                     7
                     By
                     Ingagements
                     .
                  
                   
                     8
                     By
                     subjection
                     .
                  
                   
                     9
                     Liberty
                     is
                     lost
                     by
                     Bondage
                     .
                  
                   
                     10
                     Bondage
                     introduced
                     by
                     the
                     Law
                     of
                     Nations
                     .
                  
                   
                     11
                     Bondage
                     lawful
                     .
                  
                   
                     12
                     Manrent
                     .
                  
                   
                     13
                     Manumission
                     .
                  
                   
                     14
                     Patronage
                     .
                  
                   
                     15
                     The
                     condition
                     of
                     our
                     Servants
                     .
                  
                   
                     16
                     Injuries
                     agaiost
                     Liberty
                     ,
                     how
                     obviat
                     .
                  
                
              
               
                 
                   
                     TITLE
                     III.
                  
                   Of
                   Obligations
                   .
                
                 
                   
                     1
                     PErsonal
                     Rights
                     and
                     Obligations
                     described
                     .
                  
                   
                     2
                     Kinds
                     of
                     Obligations
                     .
                  
                   
                     3
                     Obediential
                     Obligations
                     described
                     .
                  
                   
                     4
                     Divided
                     .
                  
                   
                     5
                     Enumerat
                     .
                  
                   
                     6
                     Obligations
                     Natural
                     and
                     Civil
                     .
                  
                   
                     7
                     Obligations
                     principal
                     and
                     accessory
                     .
                  
                   
                     8
                     Obligations
                     pure
                     ,
                     conditional
                     ,
                     and
                     to
                     a
                     day
                     .
                  
                
              
               
                 
                   
                     TITLE
                     IV.
                  
                   Conjugal
                   Obligations
                   .
                
                 
                   
                     1
                     MArriage
                     a
                     divine
                     Contract
                     .
                  
                   
                     2
                     Whereby
                     Marriage
                     is
                     formally
                     constitute
                     .
                  
                   
                     3
                     Dissolution
                     of
                     Marriage
                     by
                     Death
                     .
                  
                   
                     4
                     Desertion
                     and
                     Adherence
                     .
                  
                   
                     5
                     
                       Jus
                       Mariti
                    
                     .
                  
                   
                     6
                     The
                     Husbands
                     Obligations
                     .
                  
                   
                     7
                     The
                     power
                     of
                     the
                     Husband
                     by
                     the
                     Civil
                     Law.
                     
                  
                   
                     8
                     By
                     the
                     Custom
                     of
                     neigbour
                     Nations
                     .
                  
                   
                     9
                     By
                     the
                     Custom
                     of
                     Scotland
                     .
                  
                   
                     10
                     The
                     Wife's
                     Escheat
                     .
                  
                   
                     11
                     The
                     Husband
                     's
                     concourse
                     .
                  
                   
                     12
                     A
                     Wife's
                     Obligation
                     null
                     .
                  
                   
                     13
                     A
                     Communion
                     of
                     Goods
                     and
                     Debts
                     .
                  
                   
                     14
                     Donations
                     betwixt
                     Man
                     and
                     Wife
                     revocable
                     .
                  
                   
                     15
                     Dissolution
                     of
                     Marriage
                     within
                     the
                     year
                     .
                  
                   
                     16
                     Divorce
                     .
                  
                   
                     17
                     Rights
                     arising
                     from
                     the
                     Dissolution
                     of
                     Marriage
                     .
                  
                   
                     18
                     Priviledges
                     of
                     Wives
                     .
                  
                
              
               
                 
                   
                     TITLE
                     V.
                  
                   Obligations
                   between
                   Parents
                   and
                   Children
                   .
                
                 
                   
                     1
                     OBligations
                     betwixt
                     Parents
                     and
                     Children
                     ,
                     are
                     Divine
                     by
                     the
                     Law
                     of
                     Nature
                     .
                  
                   
                     2
                     The
                     Power
                     of
                     Parents
                     over
                     their
                     Children
                     ,
                  
                   
                     3
                     In
                     Infancy
                     ;
                  
                   
                     4
                     In
                     Minority
                     ;
                  
                   
                     5
                     In
                     Majority
                     .
                  
                   
                     6
                     Oeconomical
                     Government
                     .
                  
                   
                     7
                     Provision
                     of
                     Children
                     .
                  
                   
                     8
                     Obligations
                     of
                     Children
                     to
                     their
                     Parents
                     .
                  
                   
                     9
                     Aliment
                     due
                     to
                     Parents
                     .
                  
                   
                     10
                     Obligations
                     mutual
                     of
                     Children
                     .
                  
                   
                     11
                     
                       Patria
                       potestas
                    
                     amongst
                     the
                     Romans
                     .
                  
                   
                     12
                     Amongst
                     other
                     Nations
                     ,
                     especially
                     as
                     lawful
                     Administrations
                     .
                  
                   
                     13
                     Forissawiliation
                     and
                     Emancipation
                     .
                  
                
              
               
                 
                 
                   
                     TITLE
                     VI.
                  
                   Obligations
                   of
                   Tutors
                   and
                   Curators
                   ,
                   Pupils
                   ,
                   Minors
                   ,
                   and
                   Persons
                   interdicted
                   .
                
                 
                   
                     1
                     THe
                     rise
                     of
                     Tutory
                     in
                     the
                     Law
                     of
                     Nature
                     .
                  
                   
                     2
                     Order
                     of
                     Tutory
                     by
                     the
                     Law
                     of
                     Nature
                     .
                  
                   
                     3
                     The
                     natural
                     Obligation
                     of
                     Tutors
                     :
                  
                   
                     4
                     Pupils
                     Obligations
                     to
                     their
                     Tutors
                     .
                  
                   
                     5
                     Kinds
                     of
                     Tutors
                     by
                     the
                     Common
                     Law.
                     
                  
                   
                     6
                     Tutors
                     Testamentar
                     .
                  
                   
                     7
                     Tutors
                     Testamentar
                     exclude
                     all
                     others
                     .
                  
                   
                     8
                     Tutors
                     of
                     Law
                     ,
                     who
                     ?
                  
                   
                     9
                     How
                     Tutors
                     of
                     Law
                     are
                     entered
                     ?
                  
                   
                     10
                     The
                     Time
                     within
                     which
                     they
                     must
                     enter
                     .
                  
                   
                     11
                     Tutors
                     Dative
                     .
                  
                   
                     12
                     Pre-Tutors
                     .
                  
                   
                     13
                     Factors
                     for
                     Tutors
                     .
                  
                   
                     14
                     Con-Tutors
                     .
                  
                   
                     15
                     Tutors
                     custody
                     of
                     the
                     Pupil's
                     Person
                     .
                  
                   
                     16
                     Tutors
                     authorizing
                     their
                     Pupils
                     .
                  
                   
                     17
                     Tutors
                     or
                     their
                     Factors
                     Rightsrelating
                     to
                     the
                     Pupils
                     ,
                     accresce
                     to
                     them
                     .
                  
                   
                     18
                     Tutors
                     can
                     only
                     do
                     necessary
                     ,
                     not
                     free
                     arbitrary
                     Deeds
                     ,
                     but
                     may
                     not
                     sell
                     Lands
                     .
                     
                       sine
                       authoritate
                       judicis
                    
                     .
                  
                   
                     19
                     Tutors
                     are
                     lyable
                     for
                     Annualrent
                     for
                     their
                     pupils
                     means
                     .
                  
                   
                     20
                     Tutors
                     are
                     conveenable
                     with
                     their
                     Pupils
                     ,
                     and
                     lyable
                     
                       in
                       quantum
                       intus
                       babent
                    
                     .
                  
                   
                     21
                     Tutors
                     Accompts
                     .
                  
                   
                     22
                     Tutors
                     are
                     lyable
                     for
                     exact
                     Diligence
                     ,
                     both
                     for
                     Intromission
                     and
                     Omission
                     .
                  
                   
                     23
                     Tutors
                     are
                     lyable
                     
                       in
                       solidum
                    
                     .
                  
                   
                     24
                     Tutory
                     how
                     finished
                     .
                  
                   
                     25
                     Tutors
                     of
                     Idiots
                     &
                     furious
                     Persons
                     :
                  
                   
                     26
                     Gesta
                     Tutarum
                     accrescunt
                     pupillis
                     .
                  
                   
                     27
                     Removing
                     or
                     suspect
                     Tutors
                     .
                  
                   
                     28
                     Duty
                     of
                     Pupils
                     to
                     their
                     Tutors
                     .
                  
                   
                     29
                     Rise
                     of
                     Curators
                     .
                  
                   
                     30
                     Curators
                     
                       ad
                       lites
                       &
                       negotia
                    
                     .
                  
                   
                     31
                     Minors
                     may
                     at
                     their
                     option
                     ,
                     choose
                     or
                     not
                     choose
                     their
                     Curators
                     .
                  
                   
                     32
                     Minors
                     Deeds
                     having
                     Curators
                     without
                     their
                     consent
                     are
                     
                       ipso
                       jure
                    
                     null
                     ,
                     
                       nisi
                       in
                       quantum
                       〈◊〉
                    
                     .
                  
                   
                     33
                     Curators
                     Consent
                     not
                     requisit
                     to
                     Later-Wills
                     .
                  
                   
                     34
                     Restitution
                     of
                     Minors
                     upon
                     
                       enorme
                       lesion
                    
                     .
                  
                   
                     35
                     Minor
                     non
                     tenetur
                     placuare
                     super
                     〈◊〉
                     paternam
                     .
                  
                   
                     36
                     Differences
                     betwixt
                     Tutors
                     and
                     Curators
                     .
                  
                   
                     37
                     Duty
                     of
                     Curators
                     .
                  
                   
                     38
                     Curators
                     ,
                     or
                     Interdictors
                     for
                     Prodigals
                     ,
                     or
                     lavish
                     Persons
                     .
                  
                   
                     39
                     Interdictors
                     constitute
                     
                       causâ
                       cognitâ
                    
                     .
                  
                   
                     40
                     Interdiction
                     by
                     Parents
                     Consent
                     :
                  
                   
                     41
                     Publication
                     and
                     Registration
                     of
                     Interdictions
                     .
                  
                   
                     42
                     Interdictions
                     extend
                     only
                     to
                     heritable
                     Rights
                     ,
                     not
                     Moveables
                     ,
                     nor
                     to
                     personal
                     Executions
                     .
                  
                   
                     43
                     Interdictions
                     are
                     only
                     competent
                     by
                     way
                     of
                     Reduction
                     .
                  
                   
                     44
                     Interdictions
                     cannot
                     be
                     taken
                     off
                     ,
                     but
                     by
                     authority
                     of
                     a
                     Judge
                     .
                  
                
              
               
                 
                   
                     TITLE
                     VII
                  
                   .
                   Restitution
                   .
                
                 
                   
                     1
                     REstitution
                     of
                     other
                     mens
                     Goods
                     a
                     natural
                     Obligation
                     .
                  
                   
                     2
                     Restitution
                     is
                     not
                     solely
                     an
                     effect
                     of
                     Property
                     .
                  
                   
                     3
                     Restitution
                     of
                     things
                     straying
                     ,
                     or
                     Waith
                     and
                     lost
                     .
                  
                   
                     4
                     Restitution
                     of
                     things
                     bonafide
                     acquired
                     ,
                     not
                     from
                     the
                     right
                     Owner
                     :
                  
                   
                     5
                     Restitution
                     of
                     things
                     recovered
                     from
                     Theeves
                     ,
                     Pirats
                     ,
                     and
                     Robbers
                     .
                  
                   
                     6
                     Restitution
                     not
                     competent
                     of
                     things
                     recovered
                     from
                     publick
                     Enemies
                     .
                  
                   
                     7
                     Restitution
                     of
                     things
                     
                       quae
                       cadunt
                       in
                       non
                       causam
                       ,
                       causâ
                       datâ
                       &
                       non
                       secutâ
                       .
                    
                  
                   
                     8
                     No
                     Restitution
                     of
                     things
                     given
                     
                       ob
                       turpem
                       causam
                    
                     .
                  
                   
                     9
                     Restitution
                     of
                     
                       indebite
                       soluta
                    
                     .
                  
                   
                     10
                     Restitution
                     reacheth
                     also
                     the
                     Fruits
                     not
                     consumed
                     .
                  
                   
                     11
                     Restitution
                     is
                     grounded
                     on
                     Having
                     ,
                     and
                     that
                     ceassing
                     without
                     fault
                     ,
                     the
                     Obligation
                     of
                     Restitution
                     ceasseth
                     .
                  
                   
                     12
                     Bonae
                     fidei
                     possessor
                     facit
                     fructus
                     consumptos
                     saos
                     .
                  
                   
                     13
                     Restitution
                     by
                     Heirs
                     .
                  
                   
                     14
                     From
                     Restitution
                     arises
                     the
                     Action
                     of
                     Exhibition
                     and
                     Delivery
                     .
                  
                   
                     15
                     Thence
                     arises
                     Division
                     of
                     things
                     common
                     without
                     Society
                     .
                  
                
              
               
                 
                   
                     TITLE
                     VIII
                  
                   .
                   Recompense
                   .
                
                 
                   
                     1
                     REcompense
                     or
                     Remuneration
                     ,
                     a
                     natural
                     Obligation
                     .
                  
                   
                     2
                     
                       Obligation
                       negotiorum
                       gestoram
                    
                     .
                  
                   
                     3
                     
                       Actio
                       directa
                       &
                       contraria
                       de
                       negotiis
                       gestis
                       .
                    
                  
                   
                     4
                     The
                     Diligence
                     of
                     Negotiators
                     .
                  
                   
                     5
                     The
                     natural
                     Obligement
                     to
                     recompense
                     ,
                     
                       in
                       quantum
                       locupletiores
                       facti
                       sumus
                    
                     .
                  
                   
                     6
                     
                       Actio
                       de
                       in
                       rem
                       verso
                    
                     .
                  
                   
                     7
                     Relief
                     due
                     to
                     those
                     who
                     satisfie
                     Obligations
                     ,
                     whereby
                     more
                     Persons
                     are
                     lyable
                     ,
                     
                       in
                       cosdem
                    
                     .
                  
                
              
               
                 
                   
                     TITLE
                     IX
                  
                   .
                   Reparation
                   :
                   where
                   of
                   Delinquences
                   ,
                   and
                   Damage
                   thence
                   arising
                   .
                
                 
                   
                     1
                     The
                     Obligation
                     of
                     Reparation
                     of
                     Damages
                     by
                     Delinquence
                     ,
                     ana
                     ural
                     Obligation
                     .
                  
                   
                     2
                     Delinquence
                     inters
                     the
                     Obligation
                     of
                     Punishment
                     ,
                     and
                     Reparation
                     of
                     the
                     injured
                     .
                  
                   
                     3
                     Damage
                     described
                     .
                  
                   
                     4
                     Kinds
                     of
                     Delinquence
                     .
                  
                   
                     5
                     Concurrers
                     in
                     Delinquence
                     ,
                     how
                     lyable
                     .
                  
                   
                     6
                     Special
                     kinds
                     of
                     Delinquence
                     by
                     our
                     Customes
                     .
                  
                   
                     7
                     〈◊〉
                     .
                  
                   
                     8
                     Extortion
                     ,
                     
                       vi
                       majori
                       &
                       metus
                       causâ
                    
                     .
                  
                   
                     9
                     Circumvention
                     by
                     Fraud
                     ,
                     
                       dolo
                       malo
                    
                     .
                  
                   
                     10
                     The
                     Edict
                     
                       de
                       dolo
                       malo
                    
                     :
                  
                   
                     11
                     Circumvention
                     rarely
                     inferred
                     by
                     Witnesses
                     .
                  
                   
                     12
                     Simulation
                     .
                  
                   
                     13
                     Collusion
                     .
                  
                   
                     14.
                     
                     The
                     effect
                     of
                     Fraud
                     ,
                     as
                     to
                     the
                     Party
                     contracting
                     .
                  
                   
                     15
                     Deeds
                     done
                     
                       in
                       fraudem
                       creditorum
                    
                     ,
                     contrair
                     the
                     Act
                     of
                     Parliament
                     ,
                     1621.
                     anent
                     Bankrupts
                     .
                  
                   
                     16
                     The
                     nature
                     of
                     Spuilzie
                     .
                  
                   
                     17
                     The
                     Title
                     of
                     Possession
                     .
                  
                   
                     18
                     Oath
                     
                       in
                       litem
                    
                     ,
                     in
                     Spuilzies
                     .
                  
                   
                     
                     19
                     Spullzies
                     elided
                     by
                     any
                     colourable
                     Title
                     ,
                     Warrand
                     ,
                     or
                     
                       bona
                       fides
                    
                     .
                  
                   
                     20
                     Spuilzie
                     elided
                     by
                     voluntar
                     Delivery
                     .
                  
                   
                     21
                     By
                     lawful
                     Poinding
                     .
                  
                   
                     22
                     Replyes
                     against
                     Poinding
                     .
                  
                   
                     23
                     Spuilzie
                     elided
                     by
                     Restitution
                     within
                     twenty
                     four
                     houres
                     .
                  
                   
                     34
                     Prescription
                     of
                     Spuilzies
                     .
                  
                   
                     25
                     Intrusion
                     and
                     Ejection
                     described
                     and
                     distinguished
                     .
                  
                   
                     26
                     Ejection
                     proper
                     to
                     the
                     natural
                     Possessor
                     :
                  
                   
                     27
                     Exceptions
                     against
                     Ejections
                     .
                  
                   
                     28
                     Molettation
                     .
                  
                   
                     29
                     Breach
                     of
                     Arrestment
                     and
                     Deforcement
                     :
                  
                   
                     30
                     Contravention
                     .
                  
                
              
               
                 
                   
                     TITLE
                     X.
                  
                   Obligations
                   Conventional
                   ,
                   by
                   Promise
                   ,
                   Paction
                   ,
                   and
                   Contract
                   .
                
                 
                   
                     1
                     THe
                     Original
                     of
                     Conventional
                     Obligatious
                     .
                  
                   
                     2
                     The
                     Acts
                     of
                     the
                     Will
                     ,
                     Desire
                     Resolution
                     and
                     Ingagement
                     ,
                     and
                     their
                     effects
                     .
                  
                   
                     3
                     Pollicitation
                     ,
                     or
                     Offer
                     ,
                     and
                     its
                     effects
                     .
                  
                   
                     4
                     Promise
                     .
                  
                   
                     5
                     Contracts
                     in
                     favours
                     of
                     third
                     Parties
                     valid
                     .
                  
                   
                     6
                     Pactions
                     :
                     and
                     how
                     Words
                     are
                     obligatory
                     .
                  
                   
                     7
                     Naked
                     Pactions
                     .
                  
                   
                     8
                     
                       Pactum
                       corvinum
                    
                     .
                  
                   
                     9
                     
                       Locus
                       penitentiae
                    
                     .
                  
                   
                     10
                     Promises
                     and
                     Pactions
                     are
                     morally
                     obligatory
                     by
                     Canon
                     Law
                     ,
                     and
                     our
                     Customes
                     .
                  
                   
                     11
                     Kinds
                     of
                     contracts
                     amongst
                     the
                     Romans
                     ,
                     with
                     the
                     Exception
                     
                       de
                       non
                       numerata
                       pecunia
                    
                     ,
                     and
                     Homologation
                     .
                  
                   
                     12
                     Distinction
                     of
                     Contracts
                     according
                     to
                     the
                     matter
                     .
                  
                   
                     13
                     Common
                     Requisits
                     to
                     Contracts
                  
                   
                     14
                     Permutative
                     Contracts
                     ,
                     and
                     the
                     equality
                     to
                     be
                     keeped
                     in
                     them
                     .
                  
                   
                     15
                     Latent
                     insufficiency
                     altereth
                     Contracts
                     .
                  
                   
                     16
                     How
                     far
                     Mutual
                     Contracts
                     are
                     effectual
                     to
                     Assignys
                     ,
                     without
                     performing
                     the
                     Cedents
                     part
                     .
                  
                   
                     17
                     Loan
                     comprehendeth
                     mutuum
                     and
                     commodatum
                     .
                  
                   
                     18
                     
                       In
                       mutuo
                       transfertur
                       dominium
                    
                     .
                  
                   
                     19
                     
                       Senatus
                       consultum
                       Macedonianum
                       &
                       Velleianum
                    
                     .
                  
                   
                     20
                     Mutuum
                     can
                     only
                     be
                     in
                     Fungibles
                     and
                     Quantities
                     .
                  
                   
                     21
                     Specialities
                     
                       in
                       mutuo
                    
                     ,
                     and
                     Bills
                     of
                     Exchange
                     .
                  
                   
                     22
                     Mutuum
                     stricti
                     juris
                     .
                  
                   
                     23
                     Commodatum
                     described
                     .
                  
                   
                     24
                     Borrowers
                     Diligence
                     .
                  
                   
                     25
                     Precarium
                     .
                  
                   
                     26
                     Commodatum
                     how
                     ended
                     .
                  
                   
                     27
                     Actions
                     arising
                     from
                     commodatum
                     .
                  
                   
                     28
                     Mandatum
                     ,
                     or
                     Commission
                     .
                  
                   
                     29
                     The
                     terms
                     of
                     Mandats
                     .
                  
                   
                     30
                     Acceptance
                     of
                     the
                     Mandatar
                     .
                  
                   
                     31
                     Mandats
                     in
                     things
                     lawful
                     .
                  
                   
                     32
                     Acceptance
                     must
                     be
                     freely
                     .
                  
                   
                     33
                     Mandats
                     are
                     personal
                     .
                  
                   
                     34
                     How
                     far
                     Mandatars
                     may
                     Intrust
                     others
                     .
                  
                   
                     35
                     Mandats
                     are
                     ambulatory
                     ,
                     and
                     revocable
                     by
                     the
                     Mandant
                     .
                  
                   
                     36
                     Mandatars
                     must
                     perform
                     ,
                     
                       in
                       forma
                       specifica
                    
                     .
                  
                   
                     37
                     Mandatars
                     Diligence
                     .
                  
                   
                     38
                     The
                     Ohligations
                     of
                     Maudatars
                     .
                  
                   
                     39
                     Kinds
                     of
                     Mandats
                     .
                  
                   
                     40
                     Tacit
                     Mandats
                     .
                  
                   
                     41
                     More
                     Mandatars
                     ,
                     how
                     far
                     they
                     may
                     act
                     severally
                     .
                  
                   
                     42
                     Whether
                     joynt
                     Mandatars
                     are
                     lyable
                     
                       in
                       solidum
                    
                     .
                  
                   
                     43
                     The
                     effect
                     of
                     general
                     Mandats
                     .
                  
                   
                     44
                     What
                     is
                     special
                     in
                     Offices
                     amongst
                     Mandats
                     .
                  
                   
                     45
                     Specialities
                     of
                     Trust
                     amongst
                     Mandats
                     .
                  
                   
                     46
                     Obligations
                     of
                     Exercitors
                     .
                  
                   
                     47
                     Obligations
                     of
                     Institors
                     .
                  
                   
                     48
                     The
                     nature
                     of
                     Custody
                     ,
                     or
                     depositum
                     :
                  
                   
                     49
                     Diligence
                     of
                     Depositars
                     .
                  
                   
                     50
                     
                       Nautae
                       caupones
                       stabularij
                    
                     .
                  
                   
                     51
                     Depositation
                     of
                     Writs
                     .
                  
                   
                     52
                     Sequestration
                     .
                  
                   
                     53
                     Consignation
                     and
                     Trust
                  
                   
                     54
                     Depositation
                     admits
                     uo
                     Compensation
                     .
                  
                   
                     55
                     But
                     admits
                     Retention
                     .
                  
                   
                     56
                     Joynt
                     Depositars
                     ,
                     how
                     far
                     lyable
                     .
                  
                   
                     57
                     The
                     nature
                     of
                     Pledge
                     ,
                     or
                     pignus
                     .
                  
                   
                     58
                     Specialities
                     in
                     Pledges
                     .
                  
                   
                     59
                     How
                     Pledges
                     may
                     become
                     irredeemable
                     .
                  
                   
                     60
                     Clauses
                     irritant
                     in
                     Pledges
                     .
                  
                   
                     61
                     Hypothecation
                     of
                     the
                     Crop
                     or
                     Goods
                     for
                     the
                     Rent
                     .
                  
                   
                     62
                     Hypothecation
                     of
                     the
                     Teinds
                     for
                     the
                     Teind-duty
                     or
                     Stipend
                     .
                  
                   
                     63
                     Exchange
                     and
                     Sale
                     ,
                     wherein
                     they
                     agree
                     and
                     differ
                     .
                  
                   
                     64
                     What
                     things
                     are
                     lyable
                     to
                     Sale
                     ,
                     and
                     of
                     buying
                     of
                     Pleas
                     by
                     the
                     Members
                     of
                     the
                     Colleege
                     of
                     Justice
                     .
                  
                   
                     65
                     Effect
                     of
                     Earnest
                     .
                  
                   
                     66
                     Reversion
                     of
                     things
                     sold.
                     
                  
                   
                     67
                     Clauses
                     irritant
                     ,
                     or
                     resolutive
                     in
                     Sale.
                     
                  
                   
                     68
                     Knowledge
                     of
                     Acquirers
                     of
                     an
                     anterior
                     incompleat
                     Right
                     ,
                     how
                     effectual
                     .
                  
                   
                     69
                     After
                     Sale
                     ,
                     before
                     Delivery
                     ,
                     to
                     whom
                     the
                     thing
                     perisheth
                     .
                  
                   
                     70
                     Location
                     described
                     ,
                     and
                     compared
                     with
                     Sale.
                     
                  
                   
                     71
                     Whether
                     Sterility
                     frees
                     from
                     the
                     Pension
                     .
                  
                   
                     72
                     The
                     effect
                     of
                     Vastation
                     .
                  
                   
                     73
                     Location
                     is
                     personal
                     ,
                     and
                     ceaseth
                     with
                     the
                     Constituent's
                     Right
                     .
                  
                   
                     74
                     Usury
                     ,
                     or
                     Annualrent
                     of
                     Mony.
                     
                  
                   
                     75
                     Annualrent
                     due
                     by
                     Law
                     ,
                     without
                     Paction
                     .
                  
                   
                     76
                     The
                     Conductor's
                     Obligation
                     .
                  
                   
                     77
                     The
                     Locator's
                     Obligation
                     .
                  
                   
                     78
                     The
                     effect
                     of
                     Society
                     .
                  
                   
                     79
                     The
                     matter
                     of
                     Society
                     .
                  
                   
                     80
                     The
                     nature
                     of
                     Society
                     and
                     Equality
                     therein
                     .
                  
                   
                     81
                     The
                     Power
                     of
                     the
                     Partners
                     in
                     Society
                     .
                  
                   
                     82
                     How
                     Society
                     ceasseth
                     .
                  
                   
                     83
                     Partners
                     acting
                     severally
                     ,
                     how
                     these
                     things
                     accresce
                     to
                     the
                     Society
                     .
                  
                   
                     84
                     Diligence
                     of
                     Partners
                     .
                  
                   
                     85
                     Contracts
                     mediat
                     and
                     immediat
                     .
                  
                   
                     86
                     Kinds
                     of
                     Cautioners
                     .
                  
                   
                     87
                     Cautioners
                     how
                     far
                     lyable
                     .
                  
                   
                     88
                     Cautioners
                     for
                     Executors
                     .
                  
                   
                     89
                     Cautioners
                     for
                     Tutors
                     and
                     Curators
                     .
                  
                   
                     90
                     Cautioners
                     for
                     the
                     Factors
                     in
                     Camphire
                     .
                  
                   
                     91
                     Cautioners
                     for
                     loosing
                     Arrestments
                     .
                  
                   
                     92
                     Cautioners
                     are
                     lyable
                     according
                     ,
                     by
                     the
                     Oath
                     of
                     the
                     Principals
                     .
                  
                   
                     93
                     Cautioners
                     as
                     Law
                     will.
                     
                  
                   
                     94
                     When
                     the
                     Cautioners
                     are
                     lyable
                     ,
                     and
                     the
                     Principal
                     not
                     .
                  
                   
                     95
                     Cautioners
                     when
                     lyable
                     
                       in
                       solidum
                    
                     .
                  
                   
                     
                     96
                     Relief
                     of
                     Cautioners
                     .
                  
                   
                     97
                     Effects
                     of
                     promissary
                     Oaths
                     .
                  
                   
                     98
                     〈◊〉
                     .
                  
                   
                     99
                     Interest
                     .
                  
                   
                     100
                     Profit
                     of
                     Performance
                     .
                  
                   
                     101
                     Time
                     of
                     Performance
                     .
                  
                   
                     102
                     Place
                     of
                     Performance
                     .
                  
                   
                     103
                     Manner
                     of
                     Performance
                     .
                  
                
              
               
                 
                   
                     TITLE
                     XI
                  
                   .
                   Liberation
                   from
                   Obligations
                   .
                
                 
                   
                     1
                     OBligations
                     ceass
                     by
                     contrary
                     Consent
                     ,
                     by
                     Discharge
                     ,
                     Declaration
                     ,
                     Renunciation
                     ,
                     or
                     
                       per
                       pactum
                       de
                       non
                       pentendo
                    
                     .
                  
                   
                     2
                     Three
                     subsequent
                     Discharges
                     liberat
                     from
                     preceedings
                     .
                  
                   
                     3
                     Payment
                     made
                     
                       bona
                       fide
                    
                     .
                  
                   
                     4
                     Confignations
                     ;
                  
                   
                     5
                     Acceptilation
                     ;
                  
                   
                     6
                     Compensation
                     ;
                  
                   
                     7
                     Retention
                     ;
                  
                   
                     8
                     Innovation
                     ;
                  
                   
                     9
                     Confusion
                     ;
                  
                
              
               
                 
                   
                     TITLE
                     XII
                  
                   .
                   Rights
                   Real
                   :
                   where
                   of
                   Community
                   ,
                   Possession
                   ,
                   Property
                   ,
                   Servitudes
                   ,
                   and
                   Pledges
                   .
                
                 
                   
                     1
                     THe
                     original
                     Dominion
                     of
                     Man
                     over
                     the
                     Creatures
                     .
                  
                   
                     2
                     What
                     Rights
                     are
                     heritable
                     ,
                     and
                     what
                     moveable
                     .
                  
                   
                     3
                     Moveable
                     and
                     heritable
                     Bonds
                     .
                  
                   
                     4
                     How
                     heritable
                     Obligations
                     become
                     moveable
                     and
                     return
                     to
                     be
                     heritable
                     .
                  
                   
                     5
                     The
                     Original
                     Community
                     of
                     Mankind
                     over
                     this
                     inferiour
                     World
                     ,
                     and
                     all
                     therein
                     .
                  
                   
                     6
                     What
                     remains
                     yet
                     common
                     to
                     Mankind
                     .
                  
                   
                     7
                     Grass
                     and
                     Fruits
                     on
                     High-wayes
                     are
                     publick
                     ,
                     not
                     common
                  
                   
                     8
                     In
                     Possession
                     what
                     is
                     facti
                     ,
                     what
                     is
                     juris
                     .
                  
                   
                     9
                     Possession
                     described
                     .
                  
                   
                     10
                     Possession
                     natural
                     and
                     civil
                     .
                  
                   
                     11
                     Possession
                     of
                     Moveables
                     .
                  
                   
                     12
                     Possession
                     of
                     the
                     Ground
                     .
                  
                   
                     13
                     Possession
                     by
                     Limits
                     and
                     Bounds
                     .
                  
                   
                     14
                     Possession
                     by
                     Occupation
                     ,
                     and
                     by
                     lifting
                     the
                     Profits
                     .
                  
                   
                     15
                     Symbolical
                     Possession
                     .
                  
                   
                     16
                     Possession
                     by
                     Reservation
                     .
                  
                   
                     17
                     Definition
                     of
                     Possession
                     .
                  
                   
                     18
                     Requisits
                     to
                     begin
                     Possession
                     .
                  
                   
                     19
                     Requisits
                     to
                     retain
                     Possession
                     .
                  
                   
                     20
                     How
                     Possession
                     is
                     troubled
                     ,
                     interrupted
                     ,
                     or
                     lost
                     .
                  
                   
                     21
                     Kinds
                     of
                     Possession
                     .
                  
                   
                     22
                     Lawful
                     Possession
                     gives
                     Right
                     to
                     continue
                     it
                     against
                     all
                     illegal
                     and
                     〈◊〉
                     Acts
                     contrary
                     thereto
                     .
                  
                   
                     23
                     
                       Bonae
                       fidei
                       possessor
                       facit
                       fructus
                       consumptos
                       suos
                       .
                    
                  
                   
                     24
                     This
                     not
                     extended
                     to
                     unlawful
                     Possessors
                     .
                  
                   
                     25
                     
                       Possessor
                       decennalis
                       &
                       triennalis
                       non
                       tenetur
                       docere
                       de
                       titulo
                       .
                    
                  
                   
                     26
                     Quinqutnnial
                     Possession
                     of
                     forefaulted
                     Persons
                     .
                  
                   
                     27
                     Possession
                     ,
                     to
                     what
                     Right
                     ascriveable
                     .
                  
                   
                     28
                     The
                     nature
                     of
                     Property
                     .
                  
                   
                     29
                     Property
                     by
                     Possession
                     of
                     things
                     common
                     .
                  
                   
                     30
                     Appropriation
                     by
                     Industry
                     .
                  
                   
                     31
                     First
                     Property
                     of
                     the
                     Ground
                     was
                     of
                     Houses
                     and
                     Wails
                     .
                  
                   
                     32
                     Next
                     of
                     Fields
                     and
                     Countreys
                     .
                  
                   
                     33
                     
                       Quae
                       nullius
                       sunt
                    
                     .
                  
                   
                     34
                     Appropriation
                     by
                     Accession
                     of
                     Birth
                     and
                     Fruits
                     .
                  
                   
                     35
                     Appropriation
                     by
                     〈◊〉
                     .
                  
                   
                     36
                     Appropriation
                     by
                     Specification
                     .
                  
                   
                     37
                     Appropriation
                     by
                     necessary
                     Conjunction
                     .
                  
                   
                     38
                     
                       De
                       tiguo
                       injuncto
                    
                     .
                  
                   
                     39
                     
                       Inaedificata
                       solo
                       cedunt
                    
                     .
                  
                   
                     40
                     Things
                     sown
                     and
                     planted
                     ,
                     haw
                     far-they
                     follow
                     the
                     Ground
                     .
                  
                   
                     41
                     Posseision
                     of
                     Moveables
                     presumes
                     property
                     .
                  
                   
                     42
                     Reprisals
                     .
                  
                   
                     43
                     Enemies
                     Goods
                     taken
                     in
                     War.
                     
                  
                   
                     44
                     Goods
                     of
                     Neuters
                     assisting
                     Enemies
                     become
                     Prise
                     .
                  
                
              
               
                 
                   
                     TITLE
                     XIII
                  
                   .
                   Infeftments
                   of
                   Property
                   .
                
                 
                   
                     1
                     THe
                     original
                     of
                     Fees.
                     
                  
                   
                     2
                     Feudal
                     Jurisdiction
                     ,
                     especially
                     of
                     the
                     King
                     in
                     Parliament
                     .
                  
                   
                     3
                     Feudal
                     Jurisdiction
                     of
                     Superiours
                     .
                  
                   
                     4
                     〈◊〉
                     .
                  
                   
                     5
                     Requisits
                     of
                     proper
                     Fees.
                     
                  
                   
                     6
                     Kinds
                     of
                     improper
                     Fees.
                     
                  
                   
                     7
                     
                       Dominium
                       directum
                    
                     essential
                     to
                     all
                     Fees.
                     
                  
                   
                     8
                     
                       Dominium
                       〈◊〉
                    
                     .
                  
                   
                     9
                     Fidelity
                     〈◊〉
                     necessary
                     .
                  
                   
                     10
                     Feudal
                     Contracts
                     .
                  
                   
                     11
                     Udal
                     Rights
                     .
                  
                   
                     12
                     Infeftment
                     what
                     it
                     signifies
                     .
                  
                   
                     13
                     How
                     Writ
                     is
                     necesiary
                     for
                     Infeftments
                     .
                  
                   
                     14
                     What
                     kinds
                     of
                     Writs
                     are
                     necessary
                     for
                     Infeftments
                     .
                  
                   
                     15
                     The
                     〈◊〉
                     of
                     formal
                     Charters
                     .
                  
                   
                     16
                     When
                     Instruments
                     of
                     Sealin
                     became
                     necessary
                     .
                  
                   
                     17
                     The
                     Tenor
                     of
                     formal
                     Seasins
                     .
                  
                   
                     18
                     The
                     essentials
                     necessary
                     in
                     Seasins
                     .
                  
                   
                     19
                     Seasins
                     must
                     have
                     Warrands
                     and
                     Adminicles
                     ,
                     and
                     what
                     these
                     are
                     .
                  
                   
                     20
                     Registration
                     of
                     Seasins
                     .
                  
                   
                     21
                     Registration
                     of
                     Ressignations
                     
                       ad
                       remanentiam
                    
                     .
                  
                   
                     22
                     Registration
                     of
                     the
                     Allowance
                     of
                     Apprisings
                     and
                     Adjudications
                     ,
                     Inhibitions
                     ,
                     and
                     Hornings
                     .
                  
                   
                     23
                     The
                     Attest
                     of
                     the
                     Nottar
                     and
                     two
                     Witnesses
                     ,
                     necessary
                     in
                     Seasins
                     .
                  
                   
                     24
                     Extracts
                     of
                     Seasins
                     not
                     probative
                     .
                  
                   
                     25
                     Transumpts
                     of
                     Seasins
                     .
                  
                   
                     26
                     Bounding
                     Infeftments
                     .
                  
                   
                     27
                     Base
                     Infeftments
                     ,
                     how
                     far
                     effectual
                     without
                     Possession
                     .
                  
                   
                     28
                     Infeftments
                     by
                     Confirmation
                     .
                  
                   
                     29
                     Infeftments
                     upon
                     Apprising
                     or
                     Adjudication
                     .
                  
                   
                     30
                     The
                     effect
                     of
                     Apprisings
                     or
                     Adjudications
                     with
                     a
                     Charge
                     .
                  
                   
                     31
                     Infeftments
                     Ward
                     .
                  
                   
                     32
                     Feus
                     of
                     Ward-lands
                     ,
                     how
                     far
                     valid
                     .
                  
                   
                     33
                     Infeftments
                     Blench
                     .
                  
                   
                     34
                     Infeftments
                     Feu
                     .
                  
                   
                     
                     35
                     The
                     annexed
                     Property
                     of
                     the
                     Crown
                     can
                     only
                     be
                     set
                     Feu
                     after
                     Dissolution
                     in
                     Parliament
                     .
                  
                   
                     36
                     Feus
                     of
                     the
                     annexed
                     property
                     set
                     with
                     diminution
                     of
                     the
                     retour'd
                     Duty
                     ,
                     are
                     null
                     .
                  
                   
                     37
                     Feus
                     of
                     Kirk-Lands
                     .
                  
                   
                     38
                     Infeftment
                     in
                     Burgage
                     .
                  
                   
                     39
                     Infeftment
                     in
                     Mortification
                     .
                  
                   
                     40
                     Manses
                     and
                     Gleebs
                     .
                  
                   
                     41
                     Conjunct
                     Infeftments
                     .
                  
                   
                     42
                     Infeftments
                     to
                     Heirs
                     substitute
                     .
                  
                   
                     43
                     Infeftments
                     Simple
                     and
                     Tailzied
                     .
                  
                   
                     44
                     Union
                     .
                  
                   
                     45
                     Erection
                     .
                  
                   
                     46
                     Warrandice
                     .
                  
                   
                     47
                     Tacit
                     Conditions
                     implyed
                     in
                     Ward-Lands
                     .
                  
                   
                     48
                     Tacit
                     Conditions
                     in
                     Warrandice
                     and
                     Relief
                     .
                  
                   
                     49
                     Tacit
                     Conditions
                     in
                     Infeftments
                     of
                     Offices
                     .
                  
                   
                     50
                     Tacit
                     Conditions
                     in
                     Excambion
                     .
                  
                   
                     51
                     Tacit
                     Conditions
                     in
                     Feus
                     .
                  
                   
                     52
                     Liferents
                     reserved
                     in
                     Infeftments
                     of
                     Property
                     .
                  
                   
                     53
                     Exceptions
                     in
                     Infeftments
                     ,
                     how
                     far
                     effectual
                     .
                  
                   
                     54
                     Faculties
                     reserved
                     in
                     Infeftments
                     .
                  
                   
                     55
                     Burthens
                     of
                     Sums
                     in
                     Infeftments
                     ,
                     how
                     far
                     effectual
                     .
                  
                   
                     56
                     The
                     effect
                     of
                     impossible
                     or
                     unlawful
                     Conditions
                     in
                     Infeftments
                     .
                  
                   
                     57
                     Conditions
                     inconsistent
                     are
                     null
                     .
                  
                   
                     58
                     Clause
                     
                       de
                       non
                       alienando
                    
                     in
                     Tailzies
                     .
                  
                   
                     59
                     Clauses
                     restrictive
                     and
                     irritant
                     in
                     Tailzies
                     .
                  
                   
                     60
                     Regalia
                     not
                     exprest
                     ,
                     are
                     not
                     carried
                     by
                     Infeftment
                     .
                  
                   
                     61
                     Regalia
                     are
                     carried
                     in
                     Barony
                     ,
                     though
                     not
                     exprest
                     .
                  
                   
                     62
                     Jurisdiction
                     and
                     Courts
                     .
                  
                   
                     63
                     Juriidiction
                     of
                     Baron
                     Courts
                     ,
                     how
                     far
                     restricted
                     .
                  
                   
                     64
                     Issues
                     of
                     Baron
                     Courts
                     belong
                     to
                     themselves
                     .
                  
                   
                     65
                     Infeftments
                     of
                     Constabulary
                     .
                  
                   
                     66
                     Fortalices
                     ,
                     how
                     far
                     extended
                     .
                  
                   
                     67
                     Forrestries
                     .
                  
                   
                     68
                     Hunting
                     of
                     Deer
                     ,
                     
                       inter
                       regalia
                    
                     .
                  
                   
                     69
                     Salmon-fishing
                     .
                  
                   
                     70
                     Cruves
                     .
                  
                   
                     71
                     Milns
                     .
                  
                   
                     72
                     Priviledge
                     of
                     Brewing
                     .
                  
                   
                     73
                     Part
                     and
                     Pertinent
                     .
                  
                   
                     74
                     Wood
                     and
                     Coal
                     .
                  
                   
                     75
                     Houses
                     and
                     Biggings
                     ,
                     and
                     Park
                     Dykes
                     .
                  
                   
                     76
                     Fowling
                     ,
                     Hunting
                     ,
                     and
                     Fishing
                     .
                  
                   
                     77
                     Cunningars
                     .
                  
                   
                     78
                     Dovecotes
                     .
                  
                   
                     79
                     Free
                     Ish
                     and
                     Entry
                     .
                  
                   
                     80
                     Herezelds
                     .
                  
                   
                     81
                     Steel-bow
                     Goods
                     .
                  
                   
                     82
                     The
                     effect
                     of
                     infeftments
                     ,
                     
                       in
                       possessorio
                    
                     .
                  
                   
                     83
                     The
                     effect
                     of
                     Infeftments
                     ,
                     
                       in
                       petitorio
                    
                     .
                  
                   
                     84
                     Inhibitions
                     and
                     their
                     effects
                     against
                     Infeftments
                     .
                  
                
              
               
                 
                   
                     TITLE
                     XIV
                  
                   .
                   Superiority
                   :
                   where
                   of
                   its
                   Casualities
                   ,
                   Non-Entry
                   ,
                   Relief
                   ,
                   Compositions
                   for
                   Entries
                   ,
                   Ward
                   ,
                   Marriage
                   ,
                   and
                   Liferent-Escheat
                   .
                
                 
                   
                     1
                     THe
                     Superior's
                     
                       dominium
                       directum
                    
                     .
                  
                   
                     2
                     How
                     Property
                     is
                     established
                     in
                     the
                     King.
                     
                  
                   
                     3
                     Superiors
                     may
                     exerce
                     all
                     Acts
                     of
                     Property
                     ,
                     except
                     against
                     their
                     Vassals
                     .
                  
                   
                     4
                     How
                     the
                     Property
                     coming
                     in
                     the
                     person
                     of
                     the
                     Superior
                     ,
                     is
                     established
                     .
                  
                   
                     5
                     Superiors
                     cannot
                     interpose
                     betwixt
                     them
                     and
                     their
                     Vassals
                     .
                  
                   
                     6
                     How
                     far
                     Superiors
                     need
                     to
                     instruct
                     their
                     Title
                     .
                  
                   
                     7
                     Superiors
                     have
                     personal
                     Action
                     against
                     Intrometters
                     with
                     the
                     Rent
                     of
                     the
                     Land
                     for
                     their
                     reddendo
                     .
                  
                   
                     8
                     They
                     have
                     also
                     real
                     Action
                     for
                     the
                     same
                     ,
                     by
                     poynding
                     of
                     the
                     Ground
                     .
                  
                   
                     9
                     Jurisdiction
                     of
                     Superiors
                     .
                  
                   
                     10
                     Superiority
                     carrieth
                     to
                     Heirs
                     and
                     singular
                     Successors
                     ,
                     all
                     bygone
                     Casualities
                     not
                     separat
                     by
                     Gifts
                     or
                     Decreets
                     .
                  
                   
                     11
                     Superiors
                     of
                     Kirk-Lands
                     need
                     not
                     instruct
                     a
                     Consent
                     to
                     the
                     Surrender
                     .
                  
                   
                     12
                     Superiors
                     must
                     receive
                     Apprisers
                     or
                     Adjudgers
                     ,
                     or
                     pay
                     the
                     Debt
                     ,
                     
                       salvo
                       jure
                       suo
                    
                     .
                  
                   
                     13
                     He
                     must
                     receive
                     the
                     King's
                     Donatar
                     upon
                     presentation
                     gratis
                     .
                  
                   
                     14
                     He
                     must
                     receive
                     his
                     Subvassal
                     ,
                     whom
                     his
                     immediat
                     Vassal
                     resuseth
                     to
                     enter
                     .
                  
                   
                     15
                     How
                     far
                     Superiors
                     may
                     extend
                     Gifts
                     of
                     their
                     own
                     Ward
                     against
                     their
                     Vassals
                     .
                  
                   
                     16
                     Superiors
                     need
                     not
                     accept
                     Resignation
                     or
                     Confirmation
                     ,
                     and
                     if
                     they
                     do
                     ,
                     it
                     is
                     
                       salvo
                       jure
                       suo
                    
                     .
                  
                   
                     17
                     Superiority
                     falling
                     to
                     more
                     persons
                     ,
                     the
                     eldest
                     Heir
                     or
                     greatest
                     Interest
                     only
                     receives
                     the
                     Vassals
                     .
                  
                   
                     18
                     Non
                     entry
                     falls
                     ,
                     when
                     Infeftment
                     is
                     not
                     renewed
                     by
                     every
                     Vassals
                     Heir
                     ,
                     or
                     singular
                     Successor
                     ,
                     or
                     upon
                     Resignation
                     .
                  
                   
                     19
                     Non-entry
                     falls
                     by
                     Reduction
                     or
                     Nullity
                     of
                     Infeftments
                     ,
                     or
                     Retours
                     .
                  
                   
                     20
                     Burgage
                     falls
                     not
                     in
                     Non-entry
                     ,
                     as
                     to
                     the
                     Burgh
                     or
                     particular
                     Persons
                     .
                  
                   
                     21
                     The
                     effect
                     of
                     the
                     general
                     Declarator
                     of
                     Non-entry
                     .
                  
                   
                     22
                     The
                     effect
                     of
                     Non-entry
                     ,
                     after
                     Citation
                     in
                     the
                     general
                     Declarator
                     .
                  
                   
                     23
                     Exceptions
                     against
                     Non-entry
                     ,
                     as
                     to
                     the
                     Feu-duty
                     or
                     retoured
                     Maill.
                     
                  
                   
                     24
                     Exceptions
                     against
                     Non-entry
                     ,
                     as
                     to
                     the
                     full
                     Rent
                     .
                  
                   
                     25
                     Whether
                     Non-entry
                     after
                     Ward
                     requires
                     Declarator
                     .
                  
                   
                     26
                     The
                     original
                     of
                     Relief
                     .
                  
                   
                     27
                     The
                     Custom
                     of
                     England
                     and
                     France
                     ,
                     as
                     to
                     Relief
                     .
                  
                   
                     28
                     The
                     quantity
                     of
                     Relief
                     with
                     us
                     .
                  
                   
                     29
                     Whether
                     Relief
                     be
                     due
                     during
                     Non-entry
                     .
                  
                   
                     30
                     Whether
                     Relief
                     is
                     due
                     when
                     the
                     Heir
                     is
                     entered
                     ,
                     whether
                     the
                     Fee
                     be
                     burdened
                     with
                     Conjunct-fee
                     or
                     Liferent
                     .
                  
                   
                     31
                     Relief
                     stops
                     not
                     the
                     Heir's
                     Seasin
                     .
                  
                   
                     32
                     Compositions
                     for
                     the
                     Entry
                     of
                     Apprisers
                     of
                     Adjudgers
                  
                   
                     33
                     The
                     original
                     of
                     Ward
                     .
                  
                   
                     34
                     The
                     effect
                     of
                     Ward
                     as
                     to
                     the
                     Heir's
                     person
                     .
                  
                   
                     35
                     The
                     effect
                     of
                     Ward
                     as
                     to
                     the
                     Fee.
                     
                  
                   
                     36
                     The
                     Restrictions
                     of
                     Ward
                     .
                  
                   
                     37
                     The
                     Value
                     of
                     the
                     Marriage
                     of
                     Heirs
                     of
                     Ward-Vassals
                     .
                  
                   
                     38
                     The
                     true
                     Interest
                     of
                     Superiors
                     in
                     the
                     Marriage
                     of
                     their
                     Vassals
                     .
                  
                   
                     39
                     The
                     single
                     Value
                     of
                     Marriage
                     ,
                     not
                     penal
                     but
                     favourable
                     .
                  
                   
                     40
                     Double
                     Value
                     penal
                     and
                     unfavourable
                     ,
                     with
                     the
                     exceptions
                     against
                     it
                     .
                  
                   
                     41
                     Single
                     Value
                     found
                     due
                     where
                     the
                     Heir
                     was
                     married
                     before
                     his
                     Predecessor
                     died
                     ,
                     by
                     precipitation
                     .
                  
                   
                     42
                     The
                     quantity
                     of
                     the
                     single
                     Value
                     in
                     Heirs
                     Male
                     or
                     Female
                     .
                  
                   
                     43
                     Marriage
                     is
                     
                       debitum
                       fundi
                    
                     .
                  
                   
                     44
                     It
                     belongs
                     to
                     the
                     eldest
                     Superior
                     .
                  
                   
                     45
                     The
                     Royal
                     Prerogative
                     prefers
                     the
                     King
                     to
                     all
                     others
                     ,
                     as
                     to
                     the
                     Marriage
                     of
                     the
                     Vassal
                     .
                  
                   
                     46
                     Marriage
                     is
                     due
                     by
                     the
                     Heirs
                     of
                     Apprisers
                     .
                  
                   
                     47
                     Exceptions
                     against
                     the
                     Value
                     of
                     Marriage
                     .
                  
                   
                     
                     48
                     The
                     rise
                     of
                     Liferent
                     Escheat
                     .
                  
                   
                     49
                     It
                     extends
                     to
                     all
                     kinds
                     of
                     Liferents
                     .
                  
                   
                     50
                     Liferents
                     of
                     Fees
                     not
                     having
                     Infeftment
                     ,
                     or
                     not
                     owing
                     Fidelity
                     to
                     a
                     Subject
                     ,
                     belong
                     to
                     the
                     King.
                     
                  
                   
                     51
                     Liferent
                     Escheat
                     of
                     Sub
                     vassals
                     ,
                     to
                     whom
                     they
                     belong
                     .
                  
                   
                     52
                     Liferent-Escheat
                     is
                     not
                     excluded
                     by
                     voluntary
                     Infeftment
                     after
                     Denounciation
                     ,
                     not
                     being
                     for
                     Im
                     plement
                     of
                     a
                     special
                     Obligement
                     to
                     infeft
                     before
                     Denounciation
                     .
                  
                   
                     53
                     Liferent-Escheat
                     is
                     excluded
                     by
                     Apprifing
                     for
                     Debts
                     anterior
                     to
                     the
                     Rebellion
                     ,
                     there
                     being
                     Infeftments
                     or
                     Charge
                     
                       in
                       cursu
                       rebellionis
                    
                     .
                  
                   
                     54
                     Liferent-Escheat
                     extends
                     not
                     to
                     Burgage
                     or
                     Mortification
                     .
                  
                   
                     55
                     But
                     extends
                     to
                     Ministers
                     Stipends
                     .
                  
                   
                     56
                     Liferent-Escheat
                     is
                     made
                     effectual
                     by
                     Declarator
                     .
                  
                
              
               
                 
                   
                     TITLE
                     XV.
                  
                   Annualrent
                   :
                   where
                   ,
                   of
                   Pensions
                   ,
                   and
                   Poinding
                   of
                   the
                   Ground
                   .
                
                 
                   
                     1
                     DEscription
                     of
                     Annualrent
                     .
                  
                   
                     2
                     The
                     rise
                     of
                     Annualrent
                     .
                  
                   
                     3
                     The
                     manner
                     of
                     constituting
                     Annualrents
                     .
                  
                   
                     4
                     The
                     kinds
                     of
                     Holding
                     of
                     Annualrents
                     .
                  
                   
                     5
                     Liferent-Escheat
                     of
                     Annualrenters
                     .
                  
                   
                     6
                     Kinds
                     of
                     Annualrents
                     amongst
                     the
                     English.
                     
                  
                   
                     7
                     The
                     difference
                     of
                     Feu-Annuals
                     ,
                     Ground-Annuals
                     ,
                     and
                     Top-Annuals
                     .
                  
                   
                     8
                     Poinding
                     of
                     the
                     Ground
                     .
                  
                   
                     9
                     The
                     extent
                     thereof
                     .
                  
                   
                     10
                     Who
                     must
                     be
                     cited
                     in
                     Poynding
                     of
                     the
                     Ground
                     .
                  
                   
                     11
                     The
                     effect
                     of
                     poynding
                     the
                     Ground
                     as
                     to
                     Ground
                     Rights
                     .
                  
                   
                     12
                     The
                     Order
                     of
                     poynding
                     Moveables
                     ,
                     by
                     several
                     Annualrenters
                     .
                  
                   
                     13
                     Annualrents
                     are
                     effectual
                     ,
                     personally
                     against
                     Intrometters
                     .
                  
                   
                     14
                     Annualrents
                     are
                     moveable
                     as
                     to
                     bygones
                     .
                  
                   
                     15
                     Extinction
                     of
                     Annualrents
                     .
                  
                   
                     16
                     Ecclesiastick
                     Pensions
                     affect
                     the
                     Benefice
                     .
                  
                   
                     17
                     Pensions
                     by
                     secular
                     Persons
                     ,
                     how
                     far
                     effectual
                     .
                  
                   
                     18
                     The
                     Kings
                     Pensions
                     are
                     not
                     arrestable
                     .
                  
                
              
               
                 
                   
                     TITLE
                     XVI
                  
                   .
                   Liferents
                   :
                   where
                   of
                   Conjunctfees
                   ,
                   Terces
                   ,
                   and
                   Liferents
                   by
                   the
                   Courtesie
                   of
                   Scotland
                   .
                
                 
                   
                     1
                     SErvitudes
                     personal
                     by
                     the
                     Roman
                     Law.
                     
                  
                   
                     2
                     Servitudes
                     personal
                     by
                     our
                     Custom
                     .
                  
                   
                     3
                     Clauses
                     of
                     Conquest
                     ,
                     of
                     Liferent
                     ,
                     or
                     Fee
                     of
                     Lands
                     acquired
                     during
                     Marriages
                     ,
                     how
                     far
                     extended
                     .
                  
                   
                     4
                     All
                     Liferents
                     must
                     be
                     
                       salva
                       rei
                       substantia
                    
                     .
                  
                   
                     5
                     Liferenters
                     are
                     burthened
                     with
                     Aliment
                     of
                     Heirs
                     .
                  
                   
                     6
                     Liferents
                     without
                     Infeftment
                     are
                     not
                     effectual
                     against
                     singular
                     Successors
                     .
                  
                   
                     7
                     The
                     effect
                     of
                     Assignations
                     to
                     Liferents
                     .
                  
                   
                     8
                     Liferents
                     are
                     not
                     prejudged
                     by
                     Tacks
                     or
                     other
                     Deeds
                     of
                     the
                     Feer
                     ,
                     being
                     posterior
                     .
                  
                   
                     9
                     What
                     Terms
                     do
                     belong
                     to
                     Liferenters
                     .
                  
                   
                     10
                     Conjunctfees
                     .
                  
                   
                     11
                     Liferenters
                     by
                     Conjunctfees
                     have
                     all
                     the
                     Casualities
                     of
                     Superiority
                     .
                  
                   
                     12
                     Terce
                     .
                  
                   
                     13
                     Services
                     of
                     Terces
                     .
                  
                   
                     14
                     Kenning
                     to
                     Terces
                     .
                  
                   
                     15
                     The
                     effect
                     of
                     Terces
                     .
                  
                   
                     16
                     The
                     extent
                     of
                     Terces
                     .
                  
                   
                     17
                     Exceptions
                     against
                     Terces
                     .
                  
                   
                     18
                     Burthens
                     of
                     Terces
                     .
                  
                   
                     19
                     Liferents
                     by
                     the
                     Courtesie
                     of
                     Scotland
                     .
                  
                   
                     20
                     Publick
                     Burthens
                     .
                  
                
              
               
                 
                   
                     TITLE
                     XVII
                  
                   .
                   Servitudes
                   real
                   .
                
                 
                   
                     1
                     REquisits
                     to
                     constitute
                     real
                     Servitudes
                     by
                     Consent
                     .
                  
                   
                     2
                     How
                     Prescription
                     constituteth
                     Servitude
                     .
                  
                   
                     3
                     How
                     far
                     Servitudes
                     ate
                     effectual
                     against
                     the
                     Superior
                     .
                  
                   
                     4
                     Extinction
                     of
                     Servitudes
                     .
                  
                   
                     5
                     Kinds
                     of
                     Servitudes
                     .
                  
                   
                     6
                     Servitudes
                     of
                     Support
                     .
                  
                   
                     7
                     Stillicides
                     .
                  
                   
                     8
                     Sinks
                     .
                  
                   
                     9
                     Servitudes
                     of
                     Prospect
                     or
                     Light.
                     
                  
                   
                     10
                     Wayes
                     .
                  
                   
                     11
                     Watering
                     .
                  
                   
                     12
                     Watergang
                     .
                  
                   
                     13
                     Feuelling
                     .
                  
                   
                     14
                     Pasturage
                     .
                  
                   
                     15
                     Thirlage
                     .
                  
                   
                     16
                     Several
                     wayes
                     of
                     constituting
                     Thirlage
                     .
                  
                   
                     17
                     Several
                     Cases
                     in
                     which
                     Thirlage
                     is
                     not
                     constitute
                     .
                  
                   
                     18
                     The
                     effect
                     and
                     extent
                     of
                     Thirlage
                     .
                  
                   
                     19
                     The
                     import
                     of
                     several
                     Clauses
                     of
                     Thirlage
                     .
                  
                   
                     20
                     
                       Invecta
                       &
                       illata
                    
                     ,
                     or
                     tholling
                     Fire
                     and
                     Water
                     .
                  
                   
                     21
                     Sequels
                     .
                  
                   
                     22
                     Miln-service
                     .
                  
                   
                     23
                     Priviledge
                     of
                     Milns
                     .
                  
                   
                     24
                     How
                     Thirlage
                     becomes
                     extinct
                     .
                  
                   
                     25
                     In
                     Multure
                     ,
                     Seed
                     and
                     Horse
                     Corn
                     ,
                     are
                     to
                     be
                     deduced
                     ,
                     but
                     no
                     other
                     expense
                     of
                     Labouring
                     .
                  
                   
                     26
                     Thirlage
                     constitute
                     by
                     a
                     Vassal
                     ,
                     not
                     effectual
                     against
                     the
                     Superior
                     .
                  
                   
                     27
                     Deductions
                     for
                     insufficiency
                     of
                     the
                     Miln
                     ,
                     breaking
                     down
                     of
                     the
                     Damm
                     ,
                     or
                     Frost
                     .
                  
                
              
               
                 
                   
                     TITLE
                     XVIII
                  
                   .
                   Teinds
                   :
                   where
                   of
                   Benefices
                   ,
                   Stipends
                   ,
                   Presentation
                   ,
                   Collation
                   ,
                   Institution
                   ,
                   Tacks
                   ,
                   Annats
                   ,
                   and
                   Patronage
                   .
                
                 
                   
                     1
                     TEinds
                     affect
                     all
                     Intrometters
                     ,
                     but
                     not
                     singular
                     Successors
                     .
                  
                   
                     2
                     The
                     rise
                     of
                     Teinds
                     .
                  
                   
                     3
                     The
                     first
                     division
                     of
                     〈◊〉
                     .
                  
                   
                     4
                     Whether
                     Teinds
                     be
                     
                       jure
                       divino
                    
                     .
                  
                   
                     5
                     Kinds
                     of
                     Teinds
                     .
                  
                   
                     6
                     We
                     have
                     no
                     personal
                     Teinds
                     ,
                     and
                     Vicarage
                     is
                     local
                     according
                     to
                     the
                     Custom
                     of
                     the
                     several
                     Places
                     .
                  
                   
                     7
                     What
                     Lands
                     are
                     Teind-free
                     .
                  
                   
                     8
                     Teinds
                     might
                     not
                     be
                     Feued
                     after
                     the
                     Lateran
                     Council
                     .
                  
                   
                     9
                     Teinds
                     are
                     not
                     annexed
                     to
                     the
                     Crown
                     .
                  
                   
                     10
                     Teinds
                     included
                     .
                  
                   
                     
                     11
                     Surrender
                     of
                     Teinds
                     to
                     the
                     King
                     ,
                     and
                     his
                     Decreet
                     arbitral
                     for
                     valuing
                     and
                     selling
                     thereof
                     .
                  
                   
                     12
                     Commission
                     for
                     Valuation
                     of
                     Teinds
                     .
                  
                   
                     13
                     Annuity
                     of
                     Teinds
                     .
                  
                   
                     14
                     The
                     Rule
                     for
                     valuing
                     Teinds
                     .
                  
                   
                     15
                     Benefices
                     .
                  
                   
                     16
                     
                       Decime
                       debentur
                       parocho
                    
                     .
                  
                   
                     17
                     Consent
                     of
                     the
                     Chapter
                     ,
                     Convent
                     ,
                     or
                     Prebend
                     ,
                     how
                     far
                     requisit
                     .
                  
                   
                     18
                     Diminution
                     of
                     the
                     Rental
                     of
                     Benefices
                     .
                  
                   
                     19
                     Consent
                     of
                     Patrons
                     .
                  
                   
                     20
                     Tacks
                     by
                     Colledges
                     .
                  
                   
                     21
                     The
                     present
                     condition
                     of
                     Teinds
                     .
                  
                   
                     22
                     Drawn
                     Teinds
                     .
                  
                   
                     23
                     Spuilzie
                     of
                     Teinds
                     and
                     Inhibitions
                     .
                  
                   
                     24
                     Rentalled
                     Teind
                     Bolls
                     .
                  
                   
                     25
                     The
                     Interest
                     of
                     Bishops
                     in
                     their
                     Benefices
                     .
                  
                   
                     26
                     The
                     Interest
                     of
                     Ministers
                     in
                     Benences
                     .
                  
                   
                     27
                     Kirks
                     patrimonial
                     or
                     〈◊〉
                     .
                  
                   
                     28
                     Presentation
                     and
                     Collation
                     .
                  
                   
                     29
                     The
                     effect
                     of
                     Possession
                     as
                     to
                     Benefices
                     and
                     Stipends
                     .
                  
                   
                     30
                     Stipends
                     allocat
                     and
                     unallocat
                     .
                  
                   
                     31
                     Teinds
                     change
                     as
                     the
                     Lands
                     are
                     in
                     Grass
                     ,
                     Corn
                     ,
                     or
                     other
                     Crop.
                     
                  
                   
                     32
                     Teinds
                     are
                     not
                     
                       debita
                       fundi
                    
                     .
                  
                   
                     33
                     The
                     legal
                     Terms
                     of
                     Benefices
                     and
                     Stipends
                     .
                  
                   
                     34
                     The
                     Annat
                     .
                  
                   
                     35
                     Patronage
                     .
                  
                
              
               
                 
                   
                     TITLE
                     XIX
                  
                   .
                   Tacks
                   where
                   of
                   Rentals
                   ,
                   tacite
                   Relocation
                   ,
                   and
                   Removing
                   .
                
                 
                   
                     1
                     THe
                     nature
                     of
                     Tacks
                     .
                  
                   
                     2
                     How
                     Tacks
                     become
                     as
                     real
                     Rights
                     ,
                     effectual
                     against
                     singular
                     Successors
                     .
                  
                   
                     3
                     Who
                     may
                     grant
                     Tacks
                     .
                  
                   
                     4
                     How
                     Tacks
                     may
                     be
                     ser.
                     
                  
                   
                     5
                     The
                     Tenor
                     or
                     Tacks
                     .
                  
                   
                     6
                     The
                     effect
                     of
                     Obligements
                     to
                     set
                     Tacks
                     .
                  
                   
                     7
                     Tacks
                     become
                     real
                     Rights
                     by
                     Possession
                     .
                  
                   
                     8
                     Tacks
                     in
                     Wadsets
                     after
                     Redemption
                     become
                     valid
                     .
                  
                   
                     9
                     The
                     extent
                     and
                     effects
                     of
                     Tacks
                     .
                  
                   
                     10
                     Tacks-men
                     in
                     Possession
                     need
                     not
                     dispute
                     the
                     Setter's
                     Right
                     ,
                     disputing
                     as
                     heritable
                     Proprietar
                     .
                  
                   
                     11
                     The
                     effect
                     of
                     Tacks
                     ,
                     whereof
                     the
                     Tack-Duty
                     is
                     payable
                     to
                     Creditors
                     .
                  
                   
                     12
                     Tacks
                     are
                     good
                     active
                     Titles
                     for
                     Maills
                     and
                     Duties
                     .
                  
                   
                     13
                     The
                     effect
                     of
                     Tacks
                     set
                     to
                     Husband
                     and
                     Wife
                     .
                  
                   
                     14
                     Kinds
                     of
                     Tacks
                     .
                  
                   
                     15
                     Rentals
                     .
                  
                   
                     16
                     The
                     effect
                     of
                     Assignations
                     or
                     Subtacks
                     of
                     Rentals
                     or
                     other
                     Tacks
                     .
                  
                   
                     17
                     The
                     effect
                     of
                     Sub-tacks
                     ,
                     as
                     to
                     Tutors
                     and
                     Donatars
                     .
                  
                   
                     18
                     The
                     effect
                     of
                     Rentals
                     in
                     Court
                     Books
                     ,
                     or
                     Rental
                     Books
                     only
                     .
                  
                   
                     19
                     The
                     endurance
                     of
                     Rentals
                     .
                  
                   
                     20
                     The
                     effect
                     of
                     Grassums
                     .
                  
                   
                     21
                     How
                     far
                     Rentals
                     become
                     void
                     by
                     Alienation
                     ,
                     Assignation
                     ,
                     or
                     Subtack
                     .
                  
                   
                     22
                     Defect
                     of
                     Subtacks
                     .
                  
                   
                     23
                     Tacit
                     Relocation
                     .
                  
                   
                     24
                     How
                     Tacks
                     fall
                     in
                     Escheat
                     .
                  
                   
                     25
                     Tacks
                     sleep
                     during
                     Ward
                     and
                     Non-entry
                     of
                     the
                     Setter
                     ,
                     and
                     are
                     valid
                     against
                     his
                     Liferent-Escheat
                     .
                  
                   
                     26
                     Tacks
                     are
                     
                       〈◊〉
                       juris
                    
                     ,
                     and
                     extend
                     not
                     to
                     Heirs
                     ,
                     or
                     voluntary
                     Assignys
                     ,
                     or
                     Subtacks
                     ,
                     or
                     Removing
                     ,
                     but
                     when
                     exprest
                     ,
                     except
                     Tacks
                     for
                     Liferent
                     or
                     equivalent
                     .
                  
                   
                     27
                     Tacks
                     without
                     Ish
                     are
                     null
                     .
                  
                   
                     28
                     How
                     far
                     Tacks
                     to
                     endure
                     till
                     a
                     Sum
                     be
                     payed
                     are
                     valid
                     .
                  
                   
                     29
                     Tacks
                     are
                     null
                     without
                     a
                     Tack-Duty
                     .
                  
                   
                     30
                     Tacks
                     are
                     valid
                     though
                     not
                     expressing
                     the
                     Entry
                     .
                  
                   
                     31
                     Tenents
                     must
                     labour
                     and
                     not
                     wast
                     or
                     open
                     the
                     Ground
                     for
                     any
                     Minerals
                     .
                  
                   
                     32
                     Tacks
                     become
                     void
                     by
                     two
                     years
                     not
                     payment
                     of
                     the
                     Tack-Duty
                     .
                  
                   
                     33
                     Or
                     for
                     not
                     finding
                     Caution
                     to
                     pay
                     the
                     Tack-duty
                     bygone
                     ,
                     and
                     in
                     time
                     to
                     come
                     .
                  
                   
                     34
                     Or
                     by
                     the
                     Tenents
                     Renounciation
                     .
                  
                   
                     35
                     By
                     contrary
                     Consent
                     of
                     both
                     Parties
                     .
                  
                   
                     36
                     By
                     Deeds
                     contrary
                     to
                     the
                     Tack
                     .
                  
                   
                     37
                     Or
                     by
                     Removing
                     .
                  
                   
                     38
                     Summary
                     Removing
                     without
                     warning
                     ,
                     in
                     what
                     Cases
                     .
                  
                   
                     39
                     The
                     old
                     way
                     of
                     removing
                     Tenents
                     .
                  
                   
                     40
                     Warning
                     of
                     Tenents
                     to
                     remove
                     .
                  
                   
                     41
                     The
                     active
                     Title
                     in
                     Removings
                     .
                  
                   
                     42
                     Exceptions
                     against
                     Removings
                     not
                     instantly
                     verified
                     ,
                     are
                     not
                     receiveable
                     till
                     Cautiou
                     be
                     found
                     for
                     the
                     violent
                     Profits
                     .
                  
                   
                     43
                     Defenses
                     against
                     Removing
                     and
                     Replys
                     thereto
                     .
                  
                   
                     44
                     Violent
                     Profits
                     .
                  
                   
                     45
                     Succeeding
                     in
                     the
                     vice
                     of
                     Tenents
                     removed
                     .
                  
                
              
               
                 
                   
                     TITLE
                     XX.
                  
                   Wadsetts
                   :
                   where
                   of
                   Reversion
                   ,
                   Regress
                   and
                   Redemption
                   .
                
                 
                   
                     1
                     Infeftments
                     for
                     satisfaction
                     of
                     Sums
                     Principal
                     and
                     Annual
                     ,
                     or
                     for
                     Relief
                     ,
                     are
                     proper
                     feudal
                     Impignorations
                     consisting
                     with
                     the
                     Disponer's
                     Property
                     .
                  
                   
                     2
                     The
                     Nature
                     of
                     Wadsets
                     .
                  
                   
                     3
                     The
                     Nature
                     of
                     Reversions
                     .
                  
                   
                     4
                     Kinds
                     of
                     Reversions
                     .
                  
                   
                     5
                     〈◊〉
                     requisit
                     in
                     Reversions
                     .
                  
                   
                     6
                     The
                     effect
                     of
                     Clauses
                     irritant
                     in
                     Reversions
                     .
                  
                   
                     7
                     Reversions
                     are
                     
                       stricti
                       juris
                    
                     .
                  
                   
                     8
                     Kinds
                     of
                     Wadsets
                     .
                  
                   
                     9
                     Proper
                     Wadsets
                     .
                  
                   
                     10
                     The
                     effect
                     of
                     Tacks
                     after
                     Redemption
                     ,
                     contained
                     in
                     Reversions
                     .
                  
                   
                     11
                     Improper
                     Wadsets
                     .
                  
                   
                     12
                     Regress
                     .
                  
                   
                     13
                     Discharges
                     of
                     Reversions
                     .
                  
                   
                     14
                     Wadsets
                     become
                     legally
                     extinct
                     by
                     Declarator
                     of
                     explring
                     thereof
                     ,
                     or
                     by
                     the
                     Order
                     and
                     Declarator
                     of
                     Redemption
                     .
                  
                   
                     15
                     The
                     Order
                     of
                     Redemption
                     of
                     Apprisings
                     or
                     Adjudications
                     .
                  
                   
                     16
                     The
                     Order
                     of
                     Redemption
                     by
                     conventional
                     Reversions
                     .
                  
                   
                     17
                     Premonition
                     .
                  
                   
                     18
                     Gonsignation
                     .
                  
                   
                     19
                     Declarators
                     of
                     Redemption
                     .
                  
                   
                     20
                     The
                     effect
                     of
                     Declarators
                     of
                     Redemption
                     .
                  
                   
                     21
                     Defenses
                     against
                     Declarators
                     of
                     Redemption
                     .
                  
                   
                     22
                     Requisition
                     .
                  
                   
                     23
                     How
                     far
                     other
                     Rights
                     may
                     be
                     reserved
                     in
                     Redemptions
                     ,
                     or
                     Renounciations
                     .
                  
                
              
               
                 
                 
                   
                     TITLE
                     XXI
                  
                   .
                   Extinction
                   of
                   Infeftments
                   :
                   where
                   of
                   Resignation
                   
                     ad
                     remanentiam
                  
                   ,
                   Recognition
                   ,
                   Disclamation
                   ,
                   Purpresture
                   ,
                   and
                   other
                   Feudal
                   Delinquences
                   .
                
                 
                   
                     1
                     THe
                     form
                     of
                     Resignations
                     
                       ad
                       remanentiam
                    
                     .
                  
                   
                     2
                     They
                     may
                     be
                     by
                     Procurators
                     ,
                     or
                     
                       propriis
                       manibus
                    
                     .
                  
                   
                     3
                     Instruments
                     of
                     Resignation
                     prove
                     not
                     without
                     a
                     Warrant
                     in
                     writ
                     .
                  
                   
                     4
                     Resignations
                     
                       ad
                       remanentiam
                    
                     ,
                     were
                     valid
                     without
                     Registration
                     ,
                     till
                     the
                     year
                     1669.
                     
                  
                   
                     5
                     Resignations
                     imply
                     all
                     Burthens
                     by
                     the
                     Vassal
                     affecting
                     the
                     Fee.
                     
                  
                   
                     6
                     Resignation
                     by
                     him
                     who
                     hath
                     no
                     Right
                     ,
                     with
                     consent
                     of
                     him
                     who
                     hath
                     Right
                     ,
                     how
                     far
                     effectual
                     .
                  
                   
                     7
                     How
                     far
                     Superiors
                     may
                     not
                     reject
                     Resignations
                     
                       ad
                       remanentiam
                    
                     .
                  
                   
                     8
                     How
                     Infeftments
                     become
                     extinct
                     by
                     Succession
                     as
                     Heir
                     ,
                     or
                     
                       singulari
                       titulo
                    
                     .
                  
                   
                     9
                     The
                     original
                     of
                     extinction
                     of
                     Fees
                     ,
                     not
                     by
                     the
                     Vassals
                     consent
                     ,
                     but
                     by
                     his
                     Deed.
                     
                  
                   
                     10
                     Recognition
                     by
                     Alienation
                     of
                     the
                     Ward
                     Fee.
                     
                  
                   
                     11
                     Recognition
                     by
                     Infeftments
                     
                       a
                       se.
                    
                     
                  
                   
                     12
                     Whether
                     Recognition
                     can
                     be
                     incurred
                     by
                     Deeds
                     in
                     minority
                     ,
                     or
                     on
                     Death-bed
                     .
                  
                   
                     13
                     Whether
                     Recognition
                     can
                     be
                     incurred
                     by
                     Sub-feudation
                     .
                  
                   
                     14
                     How
                     far
                     Feus
                     exceeding
                     the
                     Half
                     of
                     the
                     full
                     Rent
                     may
                     subsist
                     without
                     Recognition
                     .
                  
                   
                     15
                     In
                     what
                     Cases
                     other
                     Feus
                     of
                     Ward
                     lands
                     ,
                     infer
                     not
                     Recognition
                     .
                  
                   
                     16
                     Recognition
                     by
                     Alienation
                     ,
                     is
                     only
                     of
                     Lands
                     clearly
                     Ward
                     ,
                     simple
                     or
                     taxed
                     .
                  
                   
                     17
                     Recognition
                     is
                     not
                     incurred
                     ,
                     unless
                     the
                     major
                     part
                     be
                     alienat
                     .
                  
                   
                     18
                     Recognition
                     is
                     not
                     incurred
                     by
                     Alienations
                     to
                     the
                     Vassals
                     apparent
                     Heir
                     .
                  
                   
                     19
                     Whether
                     Recognition
                     be
                     incurred
                     by
                     Alienations
                     on
                     condition
                     that
                     the
                     Superior
                     consent
                     .
                  
                   
                     20
                     Inhibition
                     excludes
                     not
                     Recognition
                     .
                  
                   
                     21
                     Recognition
                     is
                     not
                     excluded
                     by
                     the
                     Vassals
                     drunkenness
                     ,
                     when
                     he
                     alienat
                     .
                  
                   
                     22
                     How
                     the
                     Superior's
                     Consent
                     may
                     be
                     adhibit
                     to
                     Alienations
                     to
                     shun
                     Recognition
                     .
                  
                   
                     23
                     How
                     far
                     the
                     Kings
                     Confirmation
                     without
                     a
                     novodamus
                     takes
                     off
                     Recognition
                     .
                  
                   
                     24
                     How
                     Recognition
                     is
                     taken
                     off
                     by
                     homologation
                     .
                  
                   
                     25
                     Recognition
                     excludes
                     all
                     Infeftments
                     ,
                     Tacks
                     ,
                     or
                     Servitudes
                     ,
                     by
                     the
                     Vassal's
                     Deed
                     without
                     the
                     Superior's
                     Consent
                     or
                     authority
                     of
                     Law.
                     
                  
                   
                     26
                     Servitudes
                     by
                     Prescription
                     are
                     not
                     excluded
                     by
                     Recognition
                     .
                  
                   
                     27
                     In
                     Recognitions
                     who
                     must
                     be
                     cited
                     ,
                     and
                     who
                     may
                     compear
                     .
                  
                   
                     28
                     The
                     Title
                     and
                     Order
                     in
                     Declarators
                     of
                     Recognition
                     .
                  
                   
                     29
                     Disclamation
                     ,
                     how
                     incurred
                     .
                  
                   
                     30
                     Purpresture
                     ;
                     how
                     incurred
                     .
                  
                   
                     31
                     Feudal
                     Delinquences
                     adduced
                     by
                     the
                     Feudists
                     for
                     resolving
                     Fees.
                     
                  
                   
                     32
                     Atrocious
                     Deeds
                     against
                     Vassals
                     Fidelity
                     to
                     their
                     Superiors
                     resolving
                     their
                     Fees.
                     
                  
                   
                     33
                     How
                     far
                     the
                     Ignorance
                     or
                     Weakness
                     of
                     the
                     Vassal
                     excuses
                     ,
                     with
                     other
                     exceptions
                     for
                     the
                     Vassal
                     .
                  
                   
                     34
                     Whether
                     the
                     Delinquence
                     of
                     the
                     Subvassal
                     infers
                     Recognition
                     .
                  
                
              
               
                 
                   
                     TITLE
                     XXII
                  
                   .
                   Prescription
                   .
                
                 
                   
                     1
                     PRescription
                     distinguished
                     and
                     described
                     .
                  
                   
                     2
                     Usucapion
                     .
                  
                   
                     3
                     The
                     several
                     times
                     required
                     to
                     Usucapion
                     or
                     Prescription
                     ,
                     by
                     the
                     Roman
                     Law.
                     
                  
                   
                     4
                     Requisits
                     to
                     Prescription
                     .
                  
                   
                     5
                     
                       Bona
                       fides
                    
                     requisit
                     to
                     Prescription
                     .
                  
                   
                     6
                     Whether
                     he
                     who
                     doubteth
                     of
                     his
                     Author
                     's
                     Right
                     be
                     in
                     bona
                     or
                     
                       mala
                       fide
                    
                     .
                  
                   
                     7
                     Evidences
                     of
                     
                       mala
                       fides
                    
                     .
                  
                   
                     8
                     The
                     Title
                     requisit
                     to
                     Prescription
                     .
                  
                   
                     9
                     The
                     Motives
                     inductive
                     of
                     Prescription
                     .
                  
                   
                     10
                     Exception
                     where
                     Prescription
                     took
                     no
                     place
                     by
                     the
                     Civil
                     Law.
                     
                  
                   
                     11
                     The
                     common
                     Rule
                     of
                     Prescription
                     with
                     us
                     .
                  
                   
                     12
                     The
                     beginning
                     of
                     Prescription
                     of
                     personal
                     Rights
                     with
                     the
                     extensions
                     thereof
                     .
                  
                   
                     13
                     Prescription
                     of
                     Moveables
                     .
                  
                   
                     14
                     Prescription
                     is
                     reckoned
                     
                       de
                       momento
                       in
                       momentum
                       per
                       tempus
                       continuum
                       .
                    
                  
                   
                     15
                     Prescription
                     of
                     heritable
                     Rights
                     .
                  
                   
                     16
                     Prescription
                     is
                     not
                     extended
                     against
                     the
                     Right
                     of
                     Superiority
                     .
                  
                   
                     17
                     Prescription
                     runs
                     not
                     for
                     Tenents
                     against
                     their
                     Masters
                     .
                  
                   
                     18
                     Prescription
                     runs
                     not
                     against
                     Minors
                     ,
                     but
                     there
                     is
                     no
                     exception
                     of
                     Mortifications
                     to
                     pious
                     uses
                     .
                  
                   
                     19
                     In
                     our
                     long
                     Prescription
                     
                       bona
                       fides
                    
                     is
                     not
                     required
                     .
                  
                   
                     20
                     The
                     Titles
                     requisit
                     in
                     Prescriptions
                     of
                     heritable
                     Rights
                     .
                  
                   
                     21
                     This
                     long
                     Prescription
                     secures
                     Wadsets
                     ,
                     Infeftments
                     for
                     Security
                     ,
                     Teinds
                     ,
                     and
                     long
                     Tacks
                     .
                  
                   
                     22
                     How
                     far
                     Teinds
                     can
                     prescribe
                     .
                  
                   
                     23
                     This
                     Prescription
                     extends
                     to
                     Patronage
                     and
                     Offices
                     .
                  
                   
                     24
                     And
                     to
                     Thirlage
                     and
                     all
                     Servitudes
                     .
                  
                   
                     25
                     This
                     Prescription
                     excludes
                     all
                     Action
                     and
                     ground
                     of
                     Reduction
                     and
                     Declarator
                     ,
                     if
                     the
                     essentials
                     of
                     the
                     Title
                     appear
                     .
                  
                   
                     26
                     The
                     several
                     ways
                     of
                     interruption
                     of
                     Prescription
                  
                   
                     27
                     The
                     way
                     of
                     Interruption
                     by
                     King
                     CHARLES
                     the
                     first
                     ,
                     as
                     to
                     special
                     Rights
                     of
                     the
                     Crown
                     ,
                     by
                     Letters
                     of
                     publication
                     .
                  
                   
                     28
                     The
                     annual
                     Prescription
                     of
                     the
                     priviledge
                     of
                     apparent
                     Heirs
                     
                       intra
                       annum
                       deliberandi
                    
                     .
                  
                   
                     29
                     The
                     biennial
                     prescription
                     of
                     the
                     preference
                     of
                     Diligences
                     of
                     the
                     Creditors
                     of
                     Defuncts
                     ,
                     to
                     the
                     Diligences
                     of
                     the
                     Creditors
                     of
                     the
                     Heir
                     .
                  
                   
                     30
                     Triennial
                     Prescription
                     of
                     Spuilzie
                     ,
                     Ejection
                     ,
                     Intrusion
                     ,
                     and
                     Succeeding
                     in
                     the
                     Vice
                     ,
                     Merchants
                     Compts
                     ,
                     House-maills
                     ,
                     and
                     Removings
                     .
                  
                   
                     31
                     Quadrennial
                     Prescription
                     of
                     the
                     priviledge
                     to
                     reduce
                     Deeds
                     of
                     Minors
                     
                       intra
                       quadrennium
                       utile
                    
                     .
                  
                   
                     32
                     Quinquennial
                     Prescription
                     of
                     Arrestments
                     ,
                     Ministers
                     Stipends
                     ,
                     Multures
                     ,
                     Rents
                     of
                     Tenents
                     removed
                     ,
                     and
                     legal
                     Reversion
                     of
                     special
                     Adjudications
                     .
                  
                   
                     33
                     Septennial
                     Prescription
                     of
                     old
                     Apprisings
                     ,
                     and
                     Summons
                     for
                     Interruption
                     .
                  
                   
                     34
                     Decennial
                     Prescription
                     of
                     late
                     Apprisings
                     ,
                     or
                     general
                     Adjudications
                     .
                  
                   
                     35
                     Prescription
                     of
                     
                       twenty
                       years
                    
                     of
                     holograph
                     Bonds
                     ,
                     Missives
                     ,
                     and
                     Subscriptions
                     in
                     Compt-books
                     ,
                     without
                     Witnesses
                     .
                  
                   
                     36
                     No
                     Prescription
                     runs
                     in
                     Minority
                     ,
                     except
                     Removings
                     ,
                     House-maills
                     ,
                     and
                     Merchant
                     Compts
                     .
                  
                
              
            
             
               
               
                 PART
                 II.
                 
              
               
                 
                   
                     TITLE
                     XXIII
                  
                   .
                   Assignations
                   :
                   Where
                   of
                   Arrestments
                   ,
                   and
                   Actions
                   for
                   making
                   forth-coming
                   .
                
                 
                   
                     1
                     THe
                     several
                     Conveyances
                     of
                     Rights
                  
                   
                     2
                     What
                     Rights
                     are
                     not
                     transmissible
                     .
                  
                   
                     3
                     The
                     rise
                     of
                     Assignations
                     .
                  
                   
                     4
                     The
                     tenor
                     of
                     Assignations
                     .
                  
                   
                     5
                     The
                     Conveyance
                     of
                     blank
                     Bonds
                     ,
                     &c.
                     
                  
                   
                     6
                     The
                     rise
                     and
                     effect
                     of
                     Intimations
                     .
                  
                   
                     7
                     The
                     several
                     wayes
                     of
                     Intimation
                     .
                  
                   
                     8
                     What
                     Assignations
                     are
                     perfected
                     by
                     Possession
                     ,
                     without
                     other
                     Intimation
                     .
                  
                   
                     9
                     Other
                     supplies
                     of
                     Intimation
                     .
                  
                   
                     10
                     Intimations
                     to
                     more
                     
                       correi
                       debendi
                    
                     .
                  
                   
                     11
                     Intimation
                     is
                     not
                     necessary
                     to
                     Rights
                     registrat
                     for
                     publication
                     ,
                     as
                     Reversions
                     ,
                     &c.
                     
                  
                   
                     12
                     Nor
                     to
                     Orders
                     of
                     Merchants
                     .
                  
                   
                     13
                     Nor
                     to
                     judicial
                     Assignations
                     ,
                     by
                     Apprisings
                     ,
                     &c.
                     
                  
                   
                     14
                     Nor
                     to
                     the
                     legal
                     Assignation
                     ,
                     
                       Jure
                       mariti
                    
                     ,
                     by
                     Marriage
                     .
                  
                   
                     15
                     Nor
                     against
                     the
                     Cedent's
                     Heirs
                     or
                     Executors
                     ,
                     even
                     though
                     Creditors
                     .
                  
                   
                     16
                     To
                     what
                     Rights
                     Assignations
                     extend
                     .
                  
                   
                     17
                     Assignations
                     carry
                     Inhibitions
                     following
                     on
                     the
                     Rights
                     assigned
                     ,
                     albeit
                     not
                     exprest
                     in
                     the
                     Assignation
                     .
                  
                   
                     18
                     In
                     what
                     Cases
                     the
                     Cedent's
                     Oath
                     proves
                     against
                     his
                     Astigny
                     .
                  
                   
                     19
                     Assignations
                     intimat
                     before
                     the
                     Cedent's
                     Death
                     ,
                     gives
                     summar
                     Execution
                     without
                     Confirmation
                     .
                  
                   
                     20
                     All
                     Exceptions
                     against
                     Cedents
                     before
                     Intimation
                     are
                     relevant
                     against
                     Assignys
                     to
                     personal
                     Rights
                     ,
                     or
                     Tacks
                     .
                  
                   
                     21
                     The
                     effect
                     of
                     Back-bonds
                     ,
                     Discharges
                     ,
                     or
                     Assignations
                     of
                     Dispositions
                     before
                     Infeftment
                     ,
                     or
                     Apprisings
                     during
                     the
                     Legal
                     .
                  
                   
                     22
                     Assignys
                     by
                     Tutors
                     have
                     no
                     Execution
                     till
                     the
                     Tutor-Counts
                     be
                     made
                     .
                  
                   
                     23
                     How
                     far
                     Assignys
                     to
                     mutual
                     Contracts
                     ,
                     may
                     be
                     debarred
                     till
                     performance
                     of
                     their
                     Cedent's
                     part
                     .
                  
                   
                     24
                     Arrestment
                     may
                     be
                     granted
                     by
                     all
                     Judges
                     ,
                     Superior
                     or
                     Inferior
                     ,
                     and
                     how
                     far
                     they
                     are
                     effectual
                     before
                     other
                     Courts
                     .
                  
                   
                     25
                     The
                     effect
                     of
                     Arrestments
                     made
                     in
                     the
                     Debitor's
                     own
                     hand
                     .
                  
                   
                     26
                     Arrestment
                     is
                     Personal
                     ,
                     and
                     doth
                     not
                     burthen
                     the
                     Successors
                     of
                     him
                     in
                     whose
                     hands
                     it
                     is
                     made
                     ,
                     but
                     is
                     valid
                     against
                     the
                     Successors
                     of
                     the
                     Debitor
                     .
                  
                   
                     27
                     Arrestment
                     is
                     not
                     effectual
                     for
                     ,
                     or
                     against
                     herltable
                     Sums
                     by
                     Infeftment
                     ,
                     but
                     against
                     the
                     same
                     ,
                     when
                     made
                     moveable
                     ,
                     or
                     any
                     other
                     moveable
                     Sums
                     .
                  
                   
                     28
                     Rents
                     or
                     Annualrents
                     are
                     alwayes
                     arrestable
                     .
                  
                   
                     29
                     The
                     effect
                     of
                     Arrestment
                     of
                     Rents
                     ,
                     Annualrents
                     ,
                     or
                     other
                     Sums
                     ,
                     laid
                     on
                     before
                     the
                     Term
                     of
                     payment
                     .
                  
                   
                     30
                     The
                     effect
                     of
                     Arrestment
                     laid
                     on
                     in
                     the
                     hands
                     of
                     Factors
                     .
                  
                   
                     31
                     Arrestment
                     extends
                     ,
                     only
                     to
                     the
                     Debts
                     ,
                     due
                     by
                     him
                     in
                     whose
                     hands
                     it
                     was
                     laid
                     on
                     .
                  
                   
                     32
                     Arrestment
                     makes
                     the
                     Subject
                     litigious
                     .
                  
                   
                     33
                     The
                     Order
                     and
                     Tenor
                     of
                     loosing
                     Arrestments
                     .
                  
                   
                     34
                     In
                     what
                     Cases
                     Arrestments
                     laid
                     on
                     for
                     Sums
                     due
                     by
                     Decreets
                     ,
                     are
                     loosable
                     or
                     not
                     .
                  
                   
                     35
                     The
                     effect
                     of
                     loosing
                     Arrestment
                     .
                  
                   
                     36
                     The
                     order
                     of
                     Actions
                     for
                     making
                     foorthcoming
                     .
                  
                   
                     37
                     Exceptions
                     in
                     the
                     Actions
                     for
                     making
                     foorthcoming
                     .
                  
                   
                     38
                     The
                     effect
                     of
                     Arrestments
                     for
                     making
                     moveable
                     Goods
                     foorthcoming
                     .
                  
                   
                     39
                     The
                     effect
                     of
                     Arrestment
                     of
                     Sums
                     .
                  
                   
                     40
                     He
                     to
                     whom
                     payment
                     is
                     made
                     after
                     Arrestment
                     ,
                     is
                     lyable
                     to
                     restore
                     .
                  
                   
                     41
                     The
                     Oath
                     of
                     Parties
                     in
                     whose
                     hands
                     Arrestment
                     is
                     made
                     ,
                     must
                     condescend
                     specially
                     what
                     they
                     then
                     owed
                     ,
                     and
                     when
                     they
                     payed
                     .
                  
                   
                     42
                     The
                     Decreet
                     for
                     making
                     foorthcoming
                     doth
                     only
                     transter
                     the
                     Right
                     to
                     the
                     Arrester
                     of
                     the
                     Goods
                     ,
                     or
                     Sums
                     arrested
                     .
                  
                   
                     43
                     But
                     Assignations
                     do
                     transfer
                     the
                     Right
                     when
                     intimat
                     ,
                     without
                     farther
                     Diligence
                     ,
                     and
                     so
                     is
                     preserable
                     to
                     all
                     posterior
                     Arrestments
                     ,
                     and
                     respect
                     is
                     had
                     to
                     priority
                     of
                     Hours
                     ,
                     if
                     exprest
                     in
                     the
                     Intimation
                     .
                  
                   
                     44
                     If
                     the
                     Arrestment
                     be
                     prior
                     to
                     the
                     Intimation
                     ,
                     〈◊〉
                     is
                     preferable
                     ,
                     not
                     faillng
                     Diligence
                     .
                  
                   
                     45
                     How
                     Assignations
                     are
                     completed
                     by
                     〈◊〉
                     ,
                     Citation
                     ,
                     Charge
                     ,
                     Possession
                     ,
                     or
                     Corroboration
                     .
                  
                   
                     46
                     The
                     preference
                     of
                     Arrestments
                     in
                     Competidon
                     .
                  
                
              
               
                 
                   
                     TITLE
                     XXIV
                  
                   .
                   Dispositions
                   :
                   where
                   of
                   Resignations
                   
                     in
                     favorem
                  
                   ,
                   Apprisings
                   ,
                   and
                   Adjudications
                   of
                   real
                   Rights
                   .
                
                 
                   
                     1
                     DIspositions
                     of
                     Property
                     carry
                     virtually
                     all
                     lesser
                     Rights
                     .
                  
                   
                     2
                     How
                     superveening
                     Rights
                     ,
                     belonging
                     to
                     Authors
                     ,
                     belong
                     to
                     their
                     singular
                     Successors
                     .
                  
                   
                     3
                     Dispositions
                     described
                     .
                  
                   
                     4
                     How
                     Dispositions
                     are
                     accomplished
                     in
                     Equity
                     .
                  
                   
                     5
                     How
                     by
                     the
                     Law
                     of
                     the
                     Romans
                     ,
                     and
                     other
                     civil
                     Nations
                     .
                  
                   
                     6
                     Possession
                     accomplisheth
                     real
                     Rights
                     .
                  
                   
                     7
                     Property
                     of
                     Moveables
                     is
                     presumed
                     from
                     Possession
                     .
                  
                   
                     8
                     Resignation
                     
                       in
                       favorem
                    
                     .
                  
                   
                     9
                     Dispositions
                     or
                     Assignations
                     by
                     those
                     who
                     have
                     no
                     Right
                     with
                     consent
                     of
                     those
                     who
                     have
                     ,
                     how
                     far
                     〈◊〉
                     .
                  
                   
                     10
                     Procuratories
                     or
                     infeftments
                     of
                     Resignation
                     ,
                     after
                     fourty
                     years
                     Possession
                     by
                     Charters
                     ,
                     need
                     not
                     be
                     produced
                     .
                  
                   
                     11
                     Infeftments
                     on
                     Resignation
                     carry
                     any
                     lesser
                     Right
                     in
                     the
                     Disponer
                     ,
                     though
                     not
                     exprest
                     .
                  
                   
                     12
                     The
                     effect
                     of
                     Resignations
                     accepted
                     by
                     the
                     Superior
                     ,
                     before
                     Infeftment
                     follow
                     thereon
                     .
                  
                   
                     
                     13
                     Superiors
                     are
                     not
                     obliged
                     to
                     receive
                     the
                     singular
                     Successors
                     of
                     the
                     Vassals
                     after
                     Infeftment
                     expede
                     ,
                     though
                     it
                     bear
                     to
                     the
                     Vassals
                     Heirs
                     and
                     Assignys
                     .
                  
                   
                     14
                     Apprisings
                     can
                     only
                     proceed
                     on
                     liquid
                     Sums
                     .
                  
                   
                     15
                     Apprisings
                     reach
                     all
                     heritable
                     Rights
                     ,
                     though
                     not
                     provided
                     to
                     Assignys
                     .
                  
                   
                     16
                     Apprisings
                     carry
                     all
                     personal
                     Rights
                     without
                     Intimation
                     .
                  
                   
                     17
                     The
                     rise
                     of
                     Infeftments
                     upon
                     posterior
                     Apprisings
                     .
                  
                   
                     18
                     Infeftments
                     may
                     be
                     obtained
                     summarly
                     upon
                     Apprisings
                     after
                     the
                     Debitor's
                     Death
                     .
                  
                   
                     19
                     The
                     effect
                     of
                     Apprisings
                     as
                     to
                     Non-entry
                     ,
                     Ward
                     ,
                     and
                     Liserent
                     Escheat
                     .
                  
                   
                     20
                     The
                     Denounciation
                     whereupon
                     Apprisings
                     follow
                     ,
                     renders
                     the
                     matter
                     litigious
                     ,
                     and
                     excludes
                     posterior
                     voluntary
                     Rights
                     .
                  
                   
                     21
                     Competition
                     of
                     Apprisings
                     .
                  
                   
                     22
                     The
                     effect
                     of
                     Apprisings
                     at
                     the
                     Instance
                     of
                     Superiors
                     against
                     their
                     own
                     〈◊〉
                     .
                  
                   
                     23
                     The
                     effect
                     of
                     Apprisings
                     at
                     to
                     Removings
                     ,
                     &
                     Maillsand
                     Duties
                     .
                  
                   
                     24
                     Allowance
                     of
                     Apprisings
                     .
                  
                   
                     25
                     Whether
                     Superiors
                     must
                     receive
                     Apprisers
                     ,
                     not
                     instructing
                     their
                     Authors
                     Right
                     .
                  
                   
                     26
                     The
                     quantity
                     of
                     the
                     year
                     's
                     Rent
                     due
                     to
                     Superiors
                     for
                     entering
                     Apprisers
                     .
                  
                   
                     27
                     What
                     course
                     is
                     competent
                     against
                     contumacious
                     Superiors
                     .
                  
                   
                     28
                     The
                     legal
                     Reversion
                     of
                     Apprisings
                     .
                  
                   
                     29
                     Apprisers
                     may
                     use
                     other
                     Diligence
                     for
                     their
                     payment
                     ,
                     though
                     the
                     Apprisings
                     were
                     expired
                     .
                  
                   
                     30
                     Nullities
                     of
                     Apprisings
                     .
                  
                   
                     31
                     Modification
                     of
                     exorbitant
                     Penalties
                     in
                     Apprisings
                     .
                  
                   
                     32
                     Apprising
                     sustained
                     without
                     a
                     Charge
                     for
                     the
                     sum
                     .
                  
                   
                     33
                     Apprising
                     sustained
                     ,
                     though
                     the
                     Letters
                     and
                     Executions
                     were
                     blank
                     as
                     to
                     the
                     Lands
                     ,
                     the
                     Messenger
                     who
                     denounced
                     ,
                     being
                     Judge
                     to
                     the
                     Apprysing
                     ,
                     in
                     which
                     they
                     were
                     filled
                     up
                     ,
                     which
                     was
                     a
                     more
                     solemn
                     Execution
                     .
                  
                   
                     34
                     An
                     Apprising
                     sustained
                     without
                     producing
                     the
                     Letters
                     of
                     Apprising
                     ,
                     being
                     long
                     before
                     ,
                     but
                     the
                     Instructions
                     of
                     the
                     Debt
                     were
                     found
                     necessary
                     to
                     be
                     produced
                     within
                     Prescription
                     .
                  
                   
                     35
                     An
                     Apprising
                     sustained
                     ,
                     though
                     by
                     Dispensation
                     at
                     a
                     privat
                     Place
                     ,
                     and
                     the
                     Court
                     of
                     Apprising
                     adjourned
                     .
                  
                   
                     36
                     An
                     Apprising
                     of
                     Rights
                     generally
                     ,
                     preferred
                     to
                     a
                     posterior
                     Apprising
                     of
                     the
                     Right
                     in
                     special
                     ,
                     being
                     an
                     Annualrent
                     .
                  
                   
                     37
                     Apprisings
                     become
                     extinct
                     by
                     Payment
                     ,
                     and
                     the
                     Debitors
                     Right
                     revives
                     without
                     new
                     Investiture
                     .
                  
                   
                     38
                     In
                     what
                     Cases
                     Apprisers
                     must
                     possess
                     ,
                     and
                     how
                     they
                     are
                     countable
                     .
                  
                   
                     39
                     What
                     Alterations
                     in
                     Apprysings
                     are
                     introduced
                     by
                     the
                     Act
                     of
                     Parliament
                     1661.
                     cap.
                     62.
                     as
                     to
                     the
                     indurance
                     of
                     the
                     Legal
                     ,
                     and
                     coming
                     in
                     
                       pari
                       passu
                    
                     .
                  
                   
                     40
                     Now
                     Apprisings
                     coming
                     in
                     the
                     Person
                     of
                     the
                     Debitor's
                     apparent
                     Heir
                     ,
                     are
                     satisfiable
                     from
                     him
                     or
                     his
                     Trustees
                     .
                  
                   
                     41
                     How
                     Apprisings
                     against
                     Parties
                     charged
                     to
                     enter
                     Heir
                     ,
                     are
                     redeemable
                     .
                  
                   
                     42
                     Legals
                     run
                     not
                     against
                     Minors
                     .
                  
                   
                     43
                     Apprisers
                     continuing
                     to
                     possess
                     after
                     the
                     Legal
                     ,
                     can
                     use
                     no
                     other
                     Diligence
                     ,
                     but
                     the
                     Sums
                     are
                     thereby
                     satisfied
                     ,
                     though
                     a
                     part
                     of
                     the
                     Lands
                     were
                     evicted
                     ,
                     the
                     rest
                     being
                     worth
                     the
                     whole
                     Sum.
                     
                  
                   
                     44
                     The
                     rise
                     of
                     Adjudications
                     .
                  
                   
                     45
                     The
                     Form
                     of
                     Adjudications
                     on
                     〈◊〉
                     to
                     be
                     Heir
                     .
                  
                   
                     46
                     Why
                     Adjudications
                     past
                     at
                     random
                     ,
                     and
                     the
                     〈◊〉
                     may
                     now
                     be
                     put
                     to
                     instruct
                     some
                     Interest
                     in
                     the
                     Debitor
                     .
                  
                   
                     47
                     What
                     Rights
                     are
                     affected
                     with
                     Adjudications
                     .
                  
                   
                     48
                     Superiors
                     must
                     receive
                     Adjudgers
                     ,
                     paying
                     a
                     years
                     Rent
                     ,
                     unless
                     they
                     pay
                     the
                     Creditor
                     ,
                     and
                     then
                     the
                     Superior
                     will
                     have
                     no
                     years
                     Rent
                     .
                  
                   
                     49
                     How
                     Adjudications
                     are
                     redeemable
                     :
                  
                   
                     50
                     Adjudications
                     may
                     be
                     for
                     the
                     apparent
                     Heir
                     's
                     own
                     Debt
                     .
                  
                   
                     51
                     How
                     Adjudications
                     become
                     extinct
                     .
                  
                   
                     52
                     The
                     form
                     and
                     effect
                     of
                     Adjudications
                     to
                     perfect
                     Dispositions
                     .
                  
                   
                     53
                     The
                     form
                     and
                     effect
                     of
                     the
                     partial
                     and
                     total
                     Adjudications
                     introduced
                     by
                     the
                     Act
                     of
                     
                       Parliament
                       ,
                       September
                    
                     6.
                     1672.
                     
                  
                
              
               
                 
                   
                     TITLE
                     XXV
                  
                   Confiscation
                   :
                   where
                   of
                   Single-Escheat
                   ,
                   Liferent-Escheat
                   ,
                   Shipwrack
                   ,
                   Waith-goods
                   ,
                   Treasure
                   ,
                   Forefaulture
                   ,
                   Bastardy
                   ,
                   and
                   Last-Heir
                   .
                
                 
                   
                     1
                     THe
                     Tenor
                     of
                     Letters
                     of
                     Horning
                     .
                  
                   
                     2
                     The
                     Executions
                     of
                     Horning
                     must
                     bear
                     the
                     Party
                     charged
                     personally
                     ,
                     or
                     at
                     his
                     Dwelling-House
                     designed
                     .
                  
                   
                     3
                     The
                     Execution
                     at
                     the
                     Dwelling-House
                     must
                     bear
                     six
                     Knocks
                     at
                     the
                     most
                     patent
                     Gate
                     ,
                     because
                     the
                     Messenger
                     could
                     get
                     no
                     entry
                     .
                  
                   
                     4
                     The
                     Knocks
                     must
                     be
                     audible
                     ,
                     that
                     those
                     within
                     may
                     hear
                     .
                  
                   
                     5
                     If
                     the
                     Messenger
                     get
                     entry
                     ,
                     the
                     delivery
                     of
                     a
                     Copy
                     to
                     any
                     of
                     the
                     Family
                     ,
                     is
                     sufficient
                     without
                     Knocks
                     ,
                     and
                     must
                     be
                     so
                     express'd
                     .
                  
                   
                     6
                     The
                     Dayes
                     requisit
                     for
                     the
                     Charge
                     beyond
                     the
                     Water
                     of
                     Dee
                     .
                  
                   
                     7
                     The
                     Denounciation
                     must
                     he
                     against
                     the
                     Party
                     ,
                     and
                     at
                     the
                     Mercat
                     Cross
                     of
                     the
                     Jurisdiction
                     where
                     he
                     dwells
                     .
                  
                   
                     8
                     The
                     Denounciations
                     must
                     bear
                     three
                     Oyesses
                     ,
                     or
                     the
                     equivalent
                     .
                  
                   
                     9
                     The
                     Execution
                     must
                     bear
                     three
                     blasts
                     of
                     the
                     Horn.
                     
                  
                   
                     10
                     The
                     Execution
                     must
                     be
                     stamped
                     .
                  
                   
                     11
                     The
                     Horning
                     must
                     be
                     registrat
                     ,
                     and
                     how
                     .
                  
                   
                     12
                     Denounciation
                     after
                     satisfaction
                     ,
                     hath
                     no
                     effect
                     .
                  
                   
                     13
                     The
                     effect
                     of
                     general
                     Letters
                     of
                     Horning
                     .
                  
                   
                     14
                     The
                     Order
                     and
                     Effect
                     of
                     Relaxation
                     from
                     the
                     Horn.
                     
                  
                   
                     15
                     The
                     Single-Escheat
                     and
                     extent
                     thereof
                     .
                  
                   
                     16
                     How
                     far
                     the
                     Denounced's
                     Debts
                     or
                     Deeds
                     ,
                     affect
                     his
                     escheat
                     Goods
                     .
                  
                   
                     17
                     Gifts
                     of
                     Escheat
                     ,
                     and
                     preference
                     thereof
                     .
                  
                   
                     18
                     Gifts
                     of
                     Escheat
                     not
                     expressing
                     the
                     particular
                     Horning
                     whereon
                     they
                     proceed
                     .
                  
                   
                     19
                     Gifts
                     of
                     Escheat
                     ,
                     though
                     bearing
                     Goods
                     to
                     be
                     acquired
                     ,
                     extend
                     but
                     to
                     those
                     acquired
                     within
                     a
                     year
                     after
                     the
                     Gift
                     .
                  
                   
                     20
                     Eicheats
                     within
                     Regality
                     .
                  
                   
                     21
                     In
                     what
                     Cases
                     Gifts
                     of
                     Escheat
                     are
                     held
                     simular
                     .
                  
                   
                     22
                     Who
                     must
                     be
                     called
                     in
                     the
                     general
                     Declarator
                     .
                  
                   
                     23
                     The
                     Titles
                     and
                     Tenors
                     of
                     general
                     Declarators
                     .
                  
                   
                     24
                     Exceptions
                     against
                     general
                     Declarators
                     .
                  
                   
                     
                     25
                     Special
                     Declarators
                     of
                     Escheat
                     .
                  
                   
                     26
                     Leferent-Escheat
                     .
                  
                   
                     27
                     Confiscation
                     of
                     Treasures
                     ,
                     Waith
                     ,
                     or
                     Shipwrack-Goods
                     .
                  
                   
                     28
                     Forefaulture
                     .
                  
                   
                     29
                     Several
                     kinds
                     of
                     Treason
                     by
                     Statute
                     .
                  
                   
                     30
                     Forefaulture
                     confiscats
                     without
                     the
                     burthen
                     of
                     the
                     Debcs
                     ,
                     or
                     Infeftments
                     ,
                     not
                     confirmed
                     by
                     the
                     King.
                     
                  
                   
                     31
                     How
                     far
                     Feus
                     are
                     effectual
                     against
                     Forefaulture
                     .
                  
                   
                     32
                     How
                     far
                     Tacks
                     of
                     forefault
                     Lands
                     are
                     effectual
                     .
                  
                   
                     33
                     Forefaulture
                     by
                     a
                     rescinded
                     Act
                     ,
                     was
                     burthened
                     with
                     the
                     Debts
                     and
                     Deeds
                     of
                     the
                     Rebel
                     .
                  
                   
                     34
                     Forefaulture
                     ,
                     when
                     ,
                     and
                     how
                     it
                     may
                     proceed
                     in
                     absence
                     .
                  
                   
                     35
                     How
                     far
                     the
                     Person
                     of
                     the
                     Rebel
                     gives
                     Right
                     to
                     the
                     Fisk.
                     
                  
                   
                     36
                     The
                     effect
                     of
                     Forefaulture
                     of
                     apparent
                     Heirs
                     .
                  
                   
                     37
                     In
                     what
                     Cases
                     Forefaulture
                     dishabilitats
                     .
                  
                   
                     38
                     How
                     far
                     the
                     Forefaulture
                     of
                     apparent
                     Heirs
                     may
                     be
                     extended
                     .
                  
                   
                     39
                     Explanation
                     of
                     the
                     Act
                     of
                     Parliament
                     1594.
                     cap.
                     202.
                     importing
                     burthening
                     of
                     Forfaultures
                     with
                     the
                     Debts
                     and
                     Deeds
                     of
                     the
                     Rebel
                     .
                  
                   
                     40
                     Forefaulture
                     is
                     not
                     reducible
                     upon
                     any
                     Nullity
                     ,
                     but
                     only
                     by
                     way
                     of
                     grace
                     .
                  
                   
                     41
                     How
                     far
                     Forefaulture
                     takes
                     effect
                     without
                     Declarator
                     .
                  
                   
                     42
                     What
                     Children
                     are
                     lawful
                     ,
                     and
                     what
                     Bastards
                     .
                  
                   
                     43
                     Declarator
                     of
                     Bastardy
                     .
                  
                   
                     44
                     The
                     effect
                     of
                     Bastardy
                     ,
                     as
                     to
                     Succession
                     .
                  
                   
                     45
                     Legitimation
                     and
                     effects
                     thereof
                     .
                  
                   
                     46
                     How
                     the
                     Debts
                     and
                     Deeds
                     of
                     the
                     Bastard
                     affect
                     his
                     Estate
                     .
                  
                   
                     47
                     
                       Ultimus
                       haeyes
                    
                     ,
                     and
                     the
                     difference
                     thereof
                     from
                     Bastardy
                     .
                  
                
              
               
                 
                   
                     TITLE
                     XXVI
                  
                   .
                   Succession
                   .
                
                 
                   
                     1
                     WHether
                     in
                     equity
                     there
                     be
                     a
                     Rule
                     in
                     Succession
                     .
                  
                   
                     2
                     That
                     Rule
                     is
                     the
                     express
                     will
                     ,
                     or
                     presumed
                     will
                     of
                     the
                     Defunct
                     .
                  
                   
                     3
                     The
                     first
                     Degree
                     of
                     Succession
                     by
                     the
                     presumed
                     will
                     of
                     Defuncts
                     .
                  
                   
                     4
                     Whether
                     in
                     equity
                     ,
                     there
                     be
                     Right
                     of
                     Representation
                     .
                  
                   
                     5
                     Failing
                     Descendents
                     ,
                     Ascendents
                     succeed
                     in
                     equity
                     :
                  
                   
                     6
                     Failing
                     both
                     ,
                     Brothers
                     and
                     Sisters
                     succeed
                     .
                  
                   
                     7
                     Failing
                     those
                     ,
                     the
                     nearest
                     agnat
                     succeeds
                     .
                  
                   
                     8
                     The
                     Succession
                     of
                     cognats
                     .
                  
                   
                     9
                     The
                     Jewish
                     Succession
                     ,
                     whereby
                     all
                     the
                     Sons
                     succeed
                     ,
                     and
                     exclude
                     the
                     Daughters
                     ,
                     and
                     the
                     eldest
                     Son
                     hath
                     a
                     double
                     Portion
                     .
                  
                   
                     10
                     Fathers
                     could
                     not
                     prejudge
                     the
                     primogeniture
                     of
                     their
                     eldest
                     Sons
                     .
                  
                   
                     11
                     By
                     the
                     Jewish
                     Succession
                     ,
                     failing
                     Descendents
                     ,
                     the
                     〈◊〉
                     passeth
                     to
                     Brethren
                     ;
                     and
                     these
                     failing
                     ,
                     to
                     Father's
                     Brethren
                     ;
                     and
                     failing
                     these
                     ,
                     to
                     the
                     nearest
                     Kiufman
                     .
                  
                   
                     12
                     Whether
                     in
                     the
                     Jewish
                     Succession
                     there
                     be
                     Right
                     of
                     Representation
                     .
                  
                   
                     13
                     Why
                     no
                     Females
                     but
                     Daughters
                     ,
                     succeed
                     among
                     the
                     Jews
                     .
                  
                   
                     14
                     Why
                     Parents
                     succeed
                     not
                     amongst
                     the
                     Jews
                     .
                  
                   
                     15
                     Succession
                     amongst
                     the
                     Romans
                     was
                     first
                     by
                     Testament
                     .
                  
                   
                     16
                     If
                     there
                     was
                     no
                     Heir
                     institute
                     by
                     Testament
                     ,
                     the
                     ancient
                     Roman
                     Law
                     called
                     all
                     the
                     Children
                     of
                     the
                     Family
                     unjorisfamiliat
                     ,
                     male
                     and
                     female
                     ,
                     (
                     not
                     excepting
                     adopted
                     Children
                     )
                     to
                     succeed
                     .
                  
                   
                     17
                     These
                     failing
                     ,
                     the
                     nearest
                     agnats
                     ,
                     (
                     but
                     no
                     Parents
                     )
                     thereby
                     succeed
                     .
                  
                   
                     18
                     The
                     Roman
                     Succession
                     by
                     the
                     praetorian
                     Law.
                     
                  
                   
                     19
                     Their
                     Succession
                     by
                     Justinian's
                     Novel
                     Constitution
                     .
                  
                   
                     20
                     In
                     Feudal
                     Succession
                     ,
                     the
                     first
                     Rule
                     is
                     the
                     express
                     will
                     of
                     the
                     Party
                     by
                     the
                     Investiture
                     .
                  
                   
                     21
                     The
                     next
                     Rule
                     is
                     ,
                     the
                     conjectured
                     Will
                     ,
                     according
                     to
                     the
                     nature
                     of
                     the
                     Fee.
                     
                  
                   
                     22
                     Primogeniture
                     now
                     established
                     by
                     common
                     custom
                     ,
                     in
                     Feudal
                     Rights
                     .
                  
                   
                     23
                     Succession
                     in
                     Scotland
                     ,
                     is
                     wholly
                     different
                     in
                     Moveables
                     and
                     Immoveabies
                     .
                  
                   
                     24
                     The
                     several
                     Degrees
                     of
                     Succession
                     in
                     Moveables
                     .
                  
                   
                     25
                     Succession
                     in
                     heritable
                     Rights
                     .
                  
                   
                     26
                     The
                     difference
                     betwixt
                     the
                     two
                     Successions
                     .
                  
                   
                     27
                     The
                     priviledge
                     of
                     Heirs
                     ,
                     not
                     to
                     be
                     prejudged
                     by
                     their
                     Predecessors
                     Deeds
                     on
                     Death-bed
                     .
                  
                   
                     28
                     What
                     is
                     estimat
                     Death-bed
                     .
                  
                   
                     29
                     Against
                     what
                     Rights
                     Death-bed
                     is
                     extended
                     .
                  
                   
                     30
                     Death-bed
                     annuls
                     no
                     Deeds
                     for
                     Causes
                     onerous
                     .
                  
                   
                     31
                     Dispositions
                     in
                     Testaments
                     ,
                     are
                     as
                     on
                     Death-bed
                     .
                  
                   
                     32
                     
                       Annus
                       deliberandi
                    
                     .
                  
                   
                     33
                     Kinds
                     of
                     Heirs
                     in
                     Scotland
                     .
                  
                   
                     34
                     No
                     place
                     for
                     Adopted
                     ,
                     or
                     Cognats
                     in
                     Succession
                     with
                     us
                     .
                  
                   
                     35
                     Parents
                     succeed
                     to
                     their
                     Children
                     ,
                     and
                     exclude
                     the
                     Parents
                     Collaterals
                     ,
                     or
                     those
                     representing
                     the
                     Collaterals
                     .
                  
                
              
               
                 
                   
                     TITLE
                     XXVII
                  
                   .
                   Heirs
                   .
                
                 
                   
                     1
                     APparent
                     Heirs
                     may
                     pursue
                     Exhibition
                     
                       ad
                       deliberandum
                    
                     .
                  
                   
                     2
                     They
                     may
                     desend
                     their
                     Predecessors
                     Rights
                     and
                     Possessions
                     ,
                     being
                     called
                     ,
                     or
                     compearing
                     for
                     their
                     Interest
                     ;
                     and
                     their
                     Executors
                     have
                     Right
                     to
                     the
                     Rents
                     of
                     those
                     years
                     they
                     were
                     apparent
                     Heirs
                     .
                  
                   
                     3
                     The
                     Aliment
                     of
                     Heirs
                     from
                     the
                     Donatars
                     ,
                     and
                     Liferenters
                     .
                  
                   
                     4
                     Heirs
                     not
                     entered
                     have
                     the
                     benefit
                     of
                     Clauses
                     ,
                     which
                     by
                     nature
                     import
                     ,
                     they
                     should
                     not
                     be
                     actual
                     Heirs
                     .
                  
                   
                     5
                     Heirs
                     have
                     Interest
                     in
                     all
                     Rights
                     granted
                     to
                     their
                     Predecessors
                     ,
                     though
                     not
                     mentioning
                     Heirs
                     ,
                     which
                     are
                     not
                     exclusive
                     of
                     Heirs
                     ,
                     by
                     their
                     Tenor
                     and
                     Nature
                     .
                  
                   
                     6
                     Heirs
                     have
                     the
                     benefit
                     of
                     all
                     Rights
                     heritable
                     ,
                     by
                     Destination
                     ,
                     or
                     having
                     a
                     future
                     tract
                     of
                     Time
                     ,
                     after
                     the
                     Defunct's
                     Death
                     .
                  
                   
                     7
                     Heirs
                     have
                     Right
                     to
                     Moveable
                     Heirship
                     ,
                     or
                     Obligements
                     for
                     Sums
                     wherein
                     Executors
                     are
                     excluded
                     .
                  
                   
                     8
                     Heirs
                     of
                     Line
                     ,
                     are
                     Heirs
                     generally
                     ;
                     their
                     interest
                     .
                  
                   
                     9
                     Heirship
                     Moveables
                     .
                  
                   
                     10
                     Heirs
                     of
                     Conquest
                     ,
                     their
                     Interest
                     .
                  
                   
                     11
                     Heirs
                     Portioners
                     ,
                     their
                     Interest
                     .
                  
                   
                     12
                     Heirs
                     Male
                     ,
                     of
                     Tailzie
                     ,
                     and
                     Provision
                     ,
                     their
                     interest
                     .
                  
                   
                     13
                     All
                     Heirs
                     are
                     lyable
                     passivè
                     for
                     the
                     Defunct's
                     Debt
                     ,
                     but
                     not
                     in
                     the
                     same
                     way
                     .
                  
                   
                     14
                     Heirs
                     portioners
                     ,
                     how
                     far
                     lyable
                     ?
                  
                   
                     15
                     The
                     effects
                     of
                     different
                     Provisions
                     ,
                     or
                     Obligations
                     by
                     Defuncts
                     ,
                     in
                     favour
                     of
                     divers
                     Heirs-portioners
                     .
                  
                   
                     16
                     Heirs
                     not
                     being
                     Portioners
                     ,
                     not
                     substitute
                     in
                     Bonds
                     ,
                     are
                     lyable
                     
                       in
                       solidum
                    
                     .
                  
                   
                     17
                     The
                     Order
                     by
                     which
                     Heirs
                     are
                     lyable
                     passivè
                     ,
                     and
                     may
                     be
                     discuss'd
                     .
                  
                   
                     18
                     Heirs
                     of
                     Tailzie
                     represent
                     not
                     the
                     Defunct
                     ,
                     in
                     Obligations
                     contrary
                     to
                     the
                     Terms
                     of
                     the
                     Tailzie
                     .
                  
                   
                     19
                     Heirs
                     of
                     Marriage
                     may
                     quarrel
                     their
                     Predecessors
                     Deeds
                     ,
                     being
                     meerly
                     gratuitous
                     in
                     their
                     prejudice
                     ,
                     but
                     not
                     such
                     as
                     are
                     onerous
                     ,
                     or
                     rational
                     Deeds
                     .
                  
                   
                     
                     20
                     Heirs
                     having
                     the
                     benefit
                     of
                     Discussing
                     ,
                     may
                     propone
                     the
                     Exception
                     ,
                     That
                     all
                     Parties
                     having
                     Interest
                     are
                     not
                     called
                     ,
                     without
                     instructing
                     the
                     Right
                     whereto
                     they
                     may
                     succeed
                     .
                  
                   
                     21
                     The
                     Exception
                     of
                     the
                     order
                     of
                     Discussing
                     ,
                     is
                     not
                     sustained
                     without
                     condescending
                     on
                     the
                     Heritage
                     ,
                     whereunto
                     the
                     anterior
                     Heir
                     may
                     succeed
                     :
                     and
                     what
                     Discussing
                     is
                     .
                  
                   
                     22
                     The
                     order
                     and
                     effect
                     of
                     a
                     general
                     Charge
                     to
                     enter
                     Heir
                     .
                  
                   
                     23
                     The
                     Order
                     and
                     Effect
                     of
                     a
                     special
                     Charge
                     to
                     enter
                     Heir
                     .
                  
                   
                     24
                     Renounciallon
                     to
                     be
                     Heir
                     ,
                     its
                     Order
                     and
                     Effect
                     .
                  
                   
                     25
                     The
                     Entry
                     of
                     Heirs
                     general
                     ,
                     and
                     effects
                     thereof
                     .
                  
                   
                     26
                     The
                     Entry
                     of
                     Heirs
                     upon
                     Precepts
                     of
                     
                       clare
                       constat
                    
                     .
                  
                   
                     27
                     The
                     Entry
                     of
                     Heirs
                     by
                     Hesp
                     and
                     Staple
                     within
                     Burgh
                     .
                  
                   
                     28
                     Entry
                     of
                     Heirs
                     by
                     Brieves
                     out
                     of
                     the
                     Chancery
                     .
                  
                   
                     29
                     To
                     whom
                     those
                     Brieves
                     are
                     directed
                     .
                  
                   
                     30
                     The
                     manner
                     of
                     citing
                     the
                     Inquest
                     ,
                     and
                     proclaiming
                     the
                     Brieve
                     .
                  
                   
                     31
                     Exceptions
                     competent
                     against
                     Members
                     of
                     Inquest
                  
                   
                     32
                     The
                     apparent
                     Heir's
                     Claim
                     .
                  
                   
                     33
                     Exceptions
                     against
                     the
                     Claim
                     .
                  
                   
                     34
                     First
                     Head
                     of
                     the
                     Brieve
                     .
                  
                   
                     35
                     The
                     second
                     Head
                     of
                     the
                     Brieve
                     .
                  
                   
                     36
                     The
                     third
                     Head
                     of
                     the
                     Brieve
                     .
                  
                   
                     37
                     The
                     fourth
                     Head
                     of
                     the
                     Brieve
                     .
                  
                   
                     38
                     The
                     fifth
                     Head
                     of
                     the
                     Brieve
                     .
                  
                   
                     39
                     The
                     sixth
                     Head
                     of
                     the
                     Brieve
                     .
                  
                   
                     40
                     The
                     seventh
                     Head
                     of
                     the
                     Brieve
                     .
                  
                   
                     41
                     The
                     Service
                     .
                  
                   
                     42
                     The
                     Retour
                     .
                  
                   
                     43
                     Reduction
                     of
                     Retours
                     by
                     a
                     Great
                     Inquest
                     .
                  
                   
                     44
                     Reduction
                     thereof
                     otherwise
                     .
                  
                   
                     45
                     Reduction
                     of
                     Retours
                     ,
                     how
                     competent
                     .
                  
                   
                     46
                     Precepts
                     out
                     of
                     the
                     Chancery
                     to
                     Superiors
                     to
                     infeft
                     .
                  
                   
                     47
                     Suspensions
                     of
                     the
                     Precepts
                     ,
                     and
                     the
                     Reasons
                     competent
                     therein
                     .
                  
                   
                     48
                     The
                     Certification
                     of
                     the
                     Loss
                     of
                     the
                     Superiority
                     ,
                     during
                     the
                     Life
                     of
                     the
                     Superiors
                     disobeying
                     .
                  
                   
                     49
                     Further
                     Reasons
                     of
                     Suspension
                     of
                     these
                     Precepts
                     .
                  
                   
                     50
                     Whether
                     the
                     Persons
                     nearest
                     at
                     the
                     Defunct's
                     Deceass
                     ,
                     may
                     be
                     entered
                     ,
                     where
                     a
                     nearer
                     is
                     
                       in
                       spt
                    
                     .
                  
                   
                     51
                     Who
                     are
                     Feers
                     of
                     Conjunct-Fees
                     ,
                     or
                     Provisions
                     substitute
                     .
                  
                   
                     52
                     The
                     Interest
                     of
                     Heirs
                     of
                     Provision
                     ,
                     and
                     import
                     of
                     Clauses
                     of
                     Conquest
                     ,
                     in
                     Contracts
                     of
                     Mariage
                     .
                  
                
              
               
                 
                   
                     TITLE
                     XXVIII
                  
                   .
                   Behaving
                   as
                   Heir
                   .
                
                 
                   
                     1
                     
                       GEstio
                       pro
                       baerede
                    
                     described
                     .
                  
                   
                     2
                     The
                     time
                     when
                     this
                     
                       passive
                       Title
                    
                     was
                     introduced
                     .
                  
                   
                     3
                     The
                     Reasons
                     of
                     introducing
                     it
                     .
                  
                   
                     4
                     The
                     latitude
                     used
                     in
                     this
                     Title
                     .
                  
                   
                     5
                     This
                     Title
                     not
                     competent
                     after
                     the
                     Intrometters
                     Death
                     ,
                     or
                     where
                     there
                     was
                     any
                     colourable
                     Title
                     .
                  
                   
                     6
                     Behaving
                     as
                     Heirs
                     by
                     Intromission
                     with
                     Heirship
                     ,
                     only
                     competent
                     against
                     Heirs
                     of
                     Line
                     .
                  
                   
                     7
                     Intromission
                     of
                     Tutors
                     or
                     Curators
                     infer
                     not
                     gestionem
                     against
                     the
                     Pupils
                     or
                     Minors
                     .
                  
                   
                     8
                     Cases
                     inferring
                     gestion
                     by
                     Intromission
                     with
                     the
                     Heirship-moveables
                     .
                  
                   
                     9
                     Exceptions
                     against
                     this
                     member
                     of
                     the
                     Title
                     .
                     As
                     first
                     ,
                     the
                     Pursuer
                     must
                     instruct
                     that
                     the
                     Defunct
                     was
                     either
                     Baron
                     ,
                     Prelat
                     ,
                     or
                     Burgess
                     ,
                     by
                     Infeftments
                     of
                     Lands
                     ,
                     or
                     Annualrents
                     .
                  
                   
                     10
                     The
                     2.
                     
                     Defense
                     against
                     Intromission
                     with
                     Heirship
                     Moveables
                     ,
                     and
                     vitious
                     Intromission
                     ,
                     That
                     the
                     Defunct
                     died
                     Rebel
                     ,
                     and
                     his
                     Escheat
                     gifted
                     before
                     intenting
                     the
                     Creditor's
                     Pursuit
                     .
                  
                   
                     11
                     The
                     3.
                     
                     Defense
                     ,
                     That
                     the
                     apparent
                     Heir
                     Intrometted
                     ,
                     by
                     a
                     Gift
                     to
                     himself
                     ,
                     or
                     to
                     his
                     behoose
                     .
                  
                   
                     12
                     The
                     4.
                     
                     When
                     Moveables
                     belonging
                     to
                     a
                     Defunct
                     remain
                     in
                     his
                     House
                     ,
                     whereunto
                     his
                     apparent
                     Heir
                     hath
                     Right
                     by
                     Infeftment
                     .
                  
                   
                     13
                     Gestion
                     by
                     intrometting
                     with
                     Lands
                     ,
                     Teinds
                     ,
                     or
                     Tacks
                     ,
                     wherein
                     the
                     Intrometter
                     might
                     be
                     Heir
                     .
                  
                   
                     14
                     Defenses
                     against
                     this
                     member
                     .
                  
                   
                     15
                     Gestion
                     by
                     intrometting
                     with
                     the
                     Defunct's
                     Charter
                     Chest.
                     
                  
                   
                     16
                     Item
                     ,
                     by
                     intromission
                     with
                     Sums
                     due
                     to
                     the
                     Desunct
                     ,
                     or
                     doing
                     any
                     Deed
                     ,
                     that
                     may
                     transmit
                     the
                     Defunct's
                     Right
                     .
                  
                   
                     17
                     This
                     passive
                     Title
                     excluded
                     ,
                     unless
                     established
                     in
                     the
                     Behaver's
                     Lifetime
                     .
                  
                   
                     18
                     How
                     far
                     Heirs
                     Portioners
                     ,
                     behaving
                     as
                     Heirs
                     are
                     lyable
                     ,
                     and
                     whether
                     behaving
                     as
                     Heir
                     excludes
                     the
                     benefit
                     of
                     Discussion
                     and
                     Relief
                     competent
                     to
                     Heirs
                     actually
                     entering
                     .
                  
                
              
               
                 
                   
                     TITLE
                     XXIX
                  
                   .
                   Lucrative
                   Successors
                   .
                
                 
                   
                     1
                     THe
                     rise
                     of
                     this
                     passive
                     Title
                     :
                  
                   
                     2
                     It
                     takes
                     place
                     though
                     the
                     Disposition
                     bear
                     Cause
                     onerous
                     ,
                     unless
                     it
                     be
                     otherwise
                     instructed
                     .
                  
                   
                     3
                     It
                     is
                     extended
                     to
                     Dispositions
                     in
                     Contracts
                     of
                     Marriage
                     ,
                     in
                     some
                     Cases
                     .
                  
                   
                     4
                     Lucrative
                     Dispositions
                     of
                     any
                     part
                     of
                     the
                     Heritage
                     infer
                     this
                     passive
                     Title
                     .
                  
                   
                     5
                     This
                     Title
                     is
                     extended
                     to
                     Dispositions
                     made
                     to
                     Oyes
                     ,
                     though
                     then
                     not
                     immediat
                     apparent
                     Heirs
                     ;
                     but
                     not
                     to
                     Brothers
                     ,
                     though
                     none
                     then
                     nearer
                     .
                  
                   
                     6
                     Whether
                     it
                     sufficeth
                     to
                     infer
                     this
                     Title
                     ,
                     that
                     the
                     Infeftment
                     was
                     after
                     the
                     Debt
                     ;
                     or
                     if
                     the
                     Disposition
                     whereon
                     the
                     Infeftment
                     proceeds
                     ,
                     must
                     also
                     be
                     after
                     .
                  
                   
                     7
                     Cases
                     in
                     which
                     this
                     Title
                     takes
                     no
                     place
                     .
                  
                
              
               
                 
                   
                     TITLE
                     XXX
                  
                   .
                   Executory
                   :
                   where
                   of
                   Testaments
                   ,
                   Codicills
                   ,
                   Legacies
                   ,
                   Relict`s
                   part
                   ,
                   Bairns
                   part
                   ,
                   Dead
                   's
                   part
                   ,
                   Confirmations
                   ,
                   and
                   Office
                   of
                   Executory
                   .
                
                 
                   
                     1
                     THe
                     Romans
                     carefulness
                     to
                     preserve
                     the
                     freedom
                     of
                     Testing
                     .
                  
                   
                     2
                     The
                     ancient
                     form
                     of
                     Testing
                     amongst
                     the
                     Romans
                     .
                  
                   
                     3
                     The
                     modern
                     form
                     of
                     Roman
                     solemn
                     Testaments
                     .
                  
                   
                     4
                     Their
                     nuncupative
                     Testaments
                     .
                  
                   
                     5
                     Their
                     military
                     Testaments
                     .
                  
                   
                     6
                     Requisits
                     for
                     Roman
                     Testaments
                     .
                  
                   
                     7
                     How
                     far
                     Sons
                     
                       in
                       familia
                    
                     could
                     Test.
                     
                  
                   
                     8
                     Persons
                     who
                     could
                     not
                     Test
                     :
                  
                   
                     9
                     Persons
                     who
                     could
                     not
                     be
                     institute
                     ,
                     or
                     substitute
                     .
                  
                   
                     10
                     Restriction
                     of
                     the
                     freedom
                     of
                     Testing
                     ,
                     in
                     favour
                     of
                     Children
                     .
                  
                   
                     11
                     The
                     Legittimes
                     of
                     Children
                     .
                  
                   
                     12
                     The
                     Falcidian
                     Portion
                     .
                  
                   
                     13
                     The
                     difference
                     of
                     the
                     Legittime
                     and
                     Falcidian
                     .
                  
                   
                     
                     14
                     The
                     Trebellianica
                     .
                  
                   
                     15
                     Fideicommissa
                  
                   
                     16
                     Codicills
                     .
                  
                   
                     17
                     Institution
                     of
                     Heirs
                     .
                  
                   
                     18
                     Substitution
                     .
                  
                   
                     19
                     Substitutions
                     vulgar
                     and
                     pupillar
                     .
                  
                   
                     20
                     Legacies
                     .
                  
                   
                     21
                     Legacies
                     are
                     void
                     if
                     the
                     Legatar
                     die
                     before
                     the
                     Testator
                     ,
                     or
                     if
                     the
                     Testament
                     be
                     void
                     ;
                     unless
                     there
                     be
                     therein
                     a
                     codicillar
                     Clause
                     .
                  
                   
                     22
                     The
                     Kinds
                     and
                     Effects
                     of
                     conditional
                     Legacies
                     ,
                     or
                     〈◊〉
                     .
                  
                   
                     23
                     Special
                     Legacies
                     .
                  
                   
                     24
                     Conditions
                     adjected
                     to
                     Legacies
                     in
                     〈◊〉
                     .
                  
                   
                     25
                     The
                     Inventary
                     .
                  
                   
                     26
                     Collation
                     .
                  
                   
                     27
                     
                       Jus
                       accrescendi
                    
                     .
                  
                   
                     28
                     The
                     Power
                     of
                     Testing
                     with
                     us
                     may
                     be
                     restricted
                     by
                     Contract
                     or
                     Paction
                     .
                  
                   
                     29
                     It
                     is
                     restricted
                     to
                     Moveables
                     ,
                     and
                     extends
                     to
                     no
                     heritable
                     Right
                     .
                  
                   
                     30
                     Wherein
                     the
                     Office
                     of
                     Executors
                     consists
                     .
                  
                   
                     31
                     The
                     nearest
                     Agnats
                     are
                     Successors
                     in
                     Moveables
                     to
                     the
                     Intestat
                     .
                  
                   
                     32
                     The
                     line
                     of
                     Succession
                     in
                     Moveables
                     .
                  
                   
                     33
                     The
                     Nomination
                     of
                     Executors
                     ,
                     and
                     Codicills
                     .
                  
                   
                     34
                     Solemnities
                     requisit
                     in
                     Testaments
                     with
                     us
                     .
                  
                   
                     35
                     The
                     Effects
                     of
                     Testaments
                     made
                     abroad
                     .
                  
                   
                     36
                     Verbal
                     Legacies
                     .
                  
                   
                     37
                     The
                     power
                     of
                     Testing
                     is
                     competent
                     to
                     Minors
                     having
                     Curators
                     ,
                     without
                     their
                     Consents
                     ,
                     and
                     to
                     Wives
                     without
                     their
                     Husbands
                     Consent
                     :
                     but
                     not
                     to
                     Pupills
                     ,
                     Idiots
                     ,
                     or
                     surious
                     Persons
                     .
                  
                   
                     38
                     Legacies
                     with
                     us
                     .
                  
                   
                     39
                     Legacies
                     and
                     Donations
                     
                       mortis
                       〈◊〉
                    
                     are
                     proportionally
                     abated
                     if
                     they
                     exceed
                     Dead
                     's
                     part
                     .
                  
                   
                     40
                     Whether
                     special
                     Legacies
                     will
                     be
                     so
                     abated
                     .
                  
                   
                     41
                     The
                     Effect
                     of
                     Legacies
                     of
                     things
                     not
                     in
                     the
                     power
                     of
                     the
                     Testator
                     .
                  
                   
                     42
                     The
                     Effect
                     of
                     Legacies
                     left
                     severally
                     .
                  
                   
                     43
                     The
                     Relict's
                     part
                     of
                     the
                     Executory
                     .
                  
                   
                     44
                     The
                     Bairns
                     part
                     .
                  
                   
                     45
                     What
                     Forisfamiliation
                     is
                     .
                  
                   
                     46
                     Collation
                     by
                     our
                     Custom
                     .
                  
                   
                     47
                     Sums
                     bearing
                     Annualrent
                     without
                     Clause
                     of
                     Inseftment
                     ,
                     fall
                     in
                     Executory
                     as
                     to
                     the
                     Defunct
                     and
                     his
                     Children
                     ,
                     but
                     not
                     as
                     to
                     the
                     Relict
                     .
                  
                   
                     48
                     Heirs
                     have
                     no
                     benfit
                     of
                     the
                     Bairns
                     part
                     ,
                     except
                     they
                     renounce
                     in
                     favour
                     of
                     the
                     remanent
                     Bairns
                     .
                  
                   
                     49
                     If
                     there
                     be
                     but
                     one
                     Child
                     unforisfamiliat
                     ,
                     the
                     same
                     is
                     both
                     Heir
                     and
                     Executor
                     ,
                     and
                     has
                     the
                     full
                     Bairns
                     part
                     .
                  
                   
                     50
                     The
                     Executory
                     is
                     divided
                     as
                     it
                     was
                     at
                     the
                     Desunct's
                     Death
                     ,
                     and
                     the
                     time
                     of
                     the
                     Confirmation
                     .
                  
                   
                     51
                     The
                     interest
                     of
                     the
                     nearest
                     of
                     Kin.
                     
                  
                   
                     52
                     Dead's
                     part
                     .
                  
                   
                     53
                     The
                     interest
                     of
                     Executors
                     nominat
                     ,
                     and
                     Dative
                     .
                  
                   
                     54
                     The
                     Order
                     of
                     confirming
                     Executors
                     .
                  
                   
                     55
                     How
                     Executors
                     nominat
                     in
                     England
                     are
                     admitted
                     here
                     .
                  
                   
                     56
                     Licences
                     to
                     pursue
                     .
                  
                   
                     57
                     Executors
                     interest
                     ,
                     as
                     to
                     the
                     Rent
                     the
                     year
                     the
                     Defunct's
                     died
                     .
                  
                   
                     58
                     Executors
                     have
                     Right
                     to
                     Steelbow
                     Goods
                     :
                  
                   
                     59
                     Co-executors
                     and
                     their
                     power
                     .
                  
                   
                     60
                     The
                     Effect
                     of
                     Executors
                     Assignations
                     before
                     Sentence
                     .
                  
                   
                     61
                     Executors
                     
                       ad
                       non
                       executa
                    
                     .
                  
                   
                     62
                     Executors
                     
                       ad
                       omissa
                       &
                       malè
                       appretiata
                    
                     .
                  
                   
                     63
                     Executors
                     Creditors
                     .
                  
                   
                     64
                     How
                     far
                     Executors
                     are
                     lyable
                     passivè
                     ,
                     and
                     of
                     their
                     Diligence
                     .
                  
                   
                     65
                     The
                     Relief
                     〈◊〉
                     Heirs
                     and
                     Executors
                     .
                  
                   
                     66
                     How
                     Executors
                     may
                     safely
                     pay
                     Creditors
                     .
                  
                   
                     67
                     What
                     time
                     Executors
                     have
                     to
                     do
                     Diligence
                     ,
                     before
                     they
                     be
                     lyable
                     to
                     Creditors
                     .
                  
                   
                     68
                     All
                     Executors
                     ,
                     and
                     Creditors
                     ,
                     doing
                     Diligence
                     within
                     six
                     months
                     of
                     the
                     Defunct's
                     Death
                     ,
                     come
                     in
                     
                       pari
                       passu
                    
                     .
                  
                   
                     69
                     After
                     six
                     months
                     ,
                     Creditors
                     come
                     in
                     according
                     to
                     the
                     priority
                     of
                     their
                     Diligence
                     .
                  
                   
                     70
                     Executors
                     paying
                     Relicts
                     ,
                     Bairns
                     ,
                     and
                     Legatars
                     ,
                     after
                     six
                     months
                     ,
                     and
                     before
                     Citation
                     of
                     Creditors
                     ,
                     are
                     secure
                     ;
                     and
                     the
                     Creditors
                     have
                     only
                     Repetition
                     against
                     these
                     .
                  
                   
                     71
                     Executors
                     after
                     obtaining
                     Bond
                     or
                     Decreet
                     ,
                     are
                     not
                     in
                     
                       pleno
                       dominio
                    
                     of
                     the
                     Defunct's
                     Goods
                     :
                     not
                     do
                     they
                     fall
                     under
                     the
                     Executor's
                     Escheat
                     ,
                     but
                     the
                     Defunct's
                     Creditors
                     are
                     preferable
                     to
                     the
                     Executor's
                     proper
                     Creditors
                     .
                  
                   
                     72
                     Executors
                     may
                     pay
                     priviledged
                     Debts
                     ,
                     at
                     any
                     time
                     .
                  
                   
                     73
                     Arrestments
                     hinder
                     the
                     Executor
                     to
                     prefer
                     any
                     Creditor
                     .
                  
                   
                     74
                     Compensation
                     is
                     not
                     competent
                     to
                     the
                     Defunct's
                     Debitors
                     ,
                     upon
                     Debts
                     due
                     by
                     the
                     Defunct
                     ,
                     assigned
                     after
                     the
                     Defunct's
                     Death
                     .
                  
                   
                     75
                     Exoneration
                     of
                     Executors
                     .
                  
                   
                     76
                     Exhausting
                     of
                     Executors
                     ,
                     how
                     competent
                     .
                  
                   
                     77
                     The
                     Diligence
                     necessary
                     to
                     liberat
                     Executors
                     :
                     Executors
                     are
                     not
                     obliged
                     to
                     depone
                     upon
                     their
                     Knowledge
                     of
                     the
                     Defunct's
                     Debt
                     ,
                     except
                     as
                     to
                     their
                     own
                     Share
                     .
                  
                   
                     78
                     How
                     far
                     Co-executors
                     are
                     conveenable
                     severally
                     .
                  
                   
                     80
                     Executors
                     surviving
                     ,
                     are
                     not
                     lyable
                     for
                     the
                     Share
                     of
                     the
                     deceased
                     in
                     so
                     far
                     as
                     they
                     executed
                     the
                     Testament
                     ,
                     and
                     lifted
                     their
                     part
                     .
                  
                   
                     81
                     Executors
                     are
                     lyable
                     for
                     the
                     Inventary
                     ,
                     without
                     proving
                     their
                     Intromission
                     .
                  
                   
                     82
                     Where
                     Testaments
                     are
                     to
                     be
                     confirmed
                     .
                  
                
              
               
                 
                   
                     TITLE
                     XXXI
                  
                   .
                   Vitious
                   Intromission
                   .
                
                 
                   
                     1
                     VItious
                     Intromission
                     only
                     a
                     passive
                     and
                     no
                     active
                     Title
                     ,
                     even
                     against
                     other
                     vitious
                     Intrometters
                     ,
                     without
                     Assignation
                     from
                     the
                     Creditors
                     .
                  
                   
                     2
                     Vitious
                     Intromission
                     is
                     the
                     most
                     extensive
                     palsive
                     Title
                     ,
                     reaching
                     not
                     only
                     those
                     who
                     migh
                     represent
                     the
                     Defunct
                     ,
                     but
                     all
                     other
                     Intromet
                     ters
                     .
                  
                   
                     3
                     The
                     reason
                     of
                     the
                     large
                     extent
                     of
                     this
                     Title
                     .
                  
                   
                     4
                     All
                     vitious
                     Intrometters
                     are
                     lyable
                     
                       in
                       solidum
                    
                     ,
                     and
                     conveenable
                     severally
                     .
                  
                   
                     5
                     Whether
                     vitious
                     Intromission
                     be
                     competent
                     by
                     Exception
                     ?
                  
                   
                     6
                     Vitious
                     Intromission
                     sustained
                     generally
                     ,
                     without
                     the
                     Pursuer's
                     Condescendence
                     .
                  
                   
                     7
                     Vitious
                     Intromission
                     is
                     only
                     competent
                     to
                     Creditors
                     .
                  
                   
                     8
                     How
                     far
                     vitious
                     Intromission
                     must
                     be
                     universal
                     .
                  
                   
                     9
                     Vitious
                     Intromission
                     is
                     excluded
                     ,
                     if
                     Executors
                     were
                     confirmed
                     before
                     Citation
                     ,
                     though
                     after
                     the
                     Intromission
                     .
                  
                   
                     
                     Whether
                     Executors
                     Creditors
                     ,
                     being
                     confirmed
                     ,
                     exclude
                     vitious
                     Intromission
                     pursued
                     thereafter
                     .
                  
                   
                     11
                     How
                     far
                     Confirmation
                     of
                     Executors
                     ,
                     although
                     after
                     Citation
                     ,
                     excludes
                     vitious
                     Intromission
                     .
                  
                   
                     12
                     Super-Intromission
                     .
                  
                   
                     13
                     Vitious
                     Intromission
                     how
                     far
                     excluded
                     by
                     Gift
                     of
                     Escheat
                     and
                     Declarator
                     .
                  
                   
                     14
                     Vitious
                     Intromission
                     is
                     excluded
                     ,
                     by
                     any
                     colourable
                     Title
                     ,
                     though
                     defective
                     .
                  
                   
                     15
                     The
                     Custom
                     of
                     England
                     as
                     to
                     Intromission
                     .
                  
                   
                     16
                     Vitious
                     Intromission
                     
                       sapit
                       delictum
                    
                     ,
                     and
                     is
                     only
                     competent
                     against
                     Intrometters
                     themselves
                     during
                     their
                     life
                     .
                  
                   
                     17
                     How
                     far
                     vitious
                     Intromission
                     is
                     excluded
                     by
                     acquiring
                     
                       bona
                       fide
                    
                     ?
                  
                
              
            
          
        
         
           
             
               
               
                 TITLE
                 I.
                 Common
                 Principles
                 of
                 Law.
                 
              
               
                 
                   1.
                   
                   Description
                   of
                   Law.
                   
                
                 
                   2.
                   
                   Description
                   and
                   division
                   of
                   Justice
                   .
                
                 
                   3.
                   
                   Divine
                   Law.
                   
                
                 
                   4.
                   
                   Reason
                   .
                
                 
                   5.
                   
                   Conscience
                   .
                
                 
                   6.
                   
                   Equity
                   .
                
                 
                   7.
                   
                   Moral
                   Law.
                   
                
                 
                   8.
                   
                   Positive
                   Laws
                   of
                   God.
                   
                
                 
                   9.
                   
                   Judicial
                   Law.
                   
                
                 
                   10.
                   
                   Law
                   of
                   Nations
                   .
                
                 
                   11.
                   
                   Civil
                   Law.
                   
                
                 
                   12.
                   
                   Feudal
                   Law.
                   
                
                 
                   13.
                   
                   Cannon
                   Law.
                   
                
                 
                   14.
                   
                   The
                   Reasons
                   of
                   Humane
                   Laws
                   .
                
                 
                   15.
                   
                   The
                   Law
                   of
                   SCOTLAND
                   .
                
                 
                   16.
                   
                   Whether
                   Law
                   may
                   be
                   handled
                   as
                   a
                   Rational
                   Discipline
                   ?
                
                 
                   17.
                   
                   Three
                   Common
                   Principles
                   of
                   Equity
                   ,
                   and
                   three
                   of
                   Positive
                   Law.
                   
                
                 
                   18.
                   
                   Obedience
                   .
                
                 
                   19.
                   
                   Freedom
                   .
                
                 
                   20.
                   
                   Ingagement
                   .
                
                 
                   21.
                   
                   Description
                   and
                   division
                   of
                   Rights
                   .
                
                 
                   22.
                   
                   Method
                   of
                   the
                   Civil
                   Law
                   ,
                   and
                   the
                   method
                   here
                   proposed
                   .
                
              
               
                 MY
                 Design
                 being
                 to
                 give
                 a
                 Description
                 of
                 the
                 Law
                 and
                 Customes
                 of
                 SCOTLAND
                 ,
                 such
                 as
                 might
                 not
                 only
                 be
                 profitable
                 for
                 Judges
                 and
                 Lawers
                 ,
                 but
                 might
                 be
                 pleasant
                 and
                 useful
                 to
                 all
                 persons
                 of
                 Honour
                 and
                 Discretion
                 ;
                 I
                 did
                 resolve
                 to
                 Raise
                 my
                 Thoughts
                 and
                 theirs
                 ,
                 to
                 a
                 distinct
                 Consideration
                 of
                 the
                 Fountains
                 and
                 Foundations
                 of
                 the
                 Peculiar
                 Laws
                 of
                 all
                 Nations
                 ,
                 which
                 Common
                 Reason
                 makes
                 Intelligible
                 to
                 the
                 Judicious
                 ,
                 when
                 plainly
                 and
                 orderly
                 proposed
                 :
                 And
                 therefore
                 ,
                 have
                 always
                 in
                 the
                 first
                 place
                 set
                 forth
                 ,
                 that
                 Common
                 Rule
                 of
                 material
                 Justice
                 ,
                 by
                 which
                 Mankind
                 ought
                 to
                 Govern
                 themselves
                 ,
                 though
                 they
                 had
                 no
                 Positive
                 Statutes
                 or
                 Customes
                 ;
                 and
                 then
                 shewing
                 how
                 these
                 are
                 thence
                 Introduced
                 .
                 I
                 have
                 therefore
                 chosen
                 the
                 Method
                 I
                 thought
                 fittest
                 for
                 this
                 Purpose
                 ,
                 and
                 the
                 Terms
                 most
                 Intelligible
                 in
                 common
                 use
                 ;
                 and
                 have
                 as
                 much
                 as
                 I
                 could
                 ,
                 forborn
                 the
                 Terms
                 of
                 Art.
                 No
                 man
                 can
                 be
                 a
                 knowing
                 
                 Lawer
                 in
                 any
                 Nation
                 ,
                 who
                 hath
                 not
                 well
                 pondered
                 and
                 digested
                 in
                 his
                 Mind
                 ,
                 the
                 Common
                 Law
                 of
                 the
                 World
                 ,
                 from
                 whence
                 the
                 Interpretation
                 ,
                 Extensions
                 and
                 Limitations
                 of
                 all
                 Statutes
                 and
                 Customs
                 must
                 be
                 brought
                 .
                 I
                 have
                 therefore
                 begun
                 with
                 the
                 Common
                 Principles
                 of
                 Law
                 ,
                 and
                 thence
                 have
                 laid
                 down
                 the
                 Method
                 I
                 follow
                 ,
                 and
                 have
                 Explained
                 the
                 general
                 Terms
                 ,
                 commonly
                 made
                 use
                 of
                 in
                 Law.
                 
              
               
                 There
                 is
                 no
                 Term
                 of
                 which
                 men
                 have
                 a
                 more
                 common
                 (
                 but
                 confused
                 )
                 apprehension
                 ,
                 than
                 what
                 Law
                 is
                 :
                 and
                 yet
                 there
                 be
                 few
                 Terms
                 harder
                 to
                 be
                 distinctly
                 conceived
                 or
                 described
                 .
                 The
                 clearest
                 Conception
                 of
                 it
                 I
                 can
                 find
                 ,
                 is
                 thus
                 ;
              
               
                 1.
                 
                 Law
                 is
                 the
                 Dictat
                 of
                 Reason
                 ,
                 determining
                 every
                 Rational
                 Beeing
                 to
                 that
                 which
                 is
                 congruous
                 and
                 convenient
                 for
                 its
                 Nature
                 and
                 Condition
                 ;
                 this
                 will
                 extend
                 to
                 the
                 determination
                 of
                 indifferency
                 of
                 all
                 Rational
                 Beeings
                 .
              
               
                 God
                 Almighty
                 ,
                 though
                 he
                 be
                 accountable
                 to
                 ,
                 and
                 controllable
                 by
                 none
                 ,
                 and
                 so
                 hath
                 the
                 absolute
                 freedom
                 of
                 his
                 Choice
                 ;
                 yet
                 doth
                 he
                 unchangeably
                 determine
                 himself
                 by
                 his
                 
                   Goodness
                   ,
                   Righteousness
                   and
                   Truth
                
                 ;
                 which
                 therefore
                 make
                 the
                 Absolute
                 ,
                 Soveraign
                 ,
                 Divine
                 Law
                 :
                 The
                 same
                 is
                 also
                 the
                 Law
                 of
                 all
                 Rational
                 Creatures
                 ,
                 by
                 which
                 they
                 ought
                 to
                 determine
                 and
                 rule
                 their
                 free
                 Actions
                 ;
                 but
                 the
                 congruity
                 and
                 conveniency
                 of
                 their
                 Nature
                 affords
                 them
                 other
                 Dictates
                 of
                 their
                 Reason
                 ,
                 which
                 quadrat
                 not
                 with
                 the
                 Divine
                 Nature
                 ;
                 such
                 as
                 Adoration
                 ,
                 Obedience
                 ,
                 common
                 to
                 Angels
                 and
                 Men.
                 And
                 Reason
                 doth
                 determine
                 Mankind
                 yet
                 further
                 from
                 the
                 conveniency
                 of
                 his
                 Nature
                 and
                 State
                 ,
                 to
                 be
                 humble
                 ,
                 penitent
                 ,
                 careful
                 and
                 diligent
                 for
                 the
                 preservation
                 of
                 himself
                 and
                 his
                 kind
                 ;
                 and
                 therefore
                 to
                 be
                 sociable
                 ,
                 and
                 helpful
                 ,
                 and
                 to
                 do
                 only
                 that
                 which
                 were
                 convenient
                 for
                 Mankind
                 to
                 be
                 done
                 ,
                 by
                 every
                 one
                 in
                 the
                 same
                 condition
                 ,
                 whereof
                 the
                 Rule
                 in
                 the
                 Gospel
                 is
                 an
                 excellent
                 Test
                 ,
                 
                   
                     Quodtibi
                     fierinon
                     vis
                     ,
                     alteri
                     ne
                     feceris
                     .
                  
                
              
               
                 Thence
                 also
                 are
                 the
                 three
                 Common
                 Precepts
                 in
                 the
                 Roman
                 Law
                 ,
                 
                   Honeste
                   vivere
                   ,
                   Alterum
                   non
                   ledere
                   ,
                   Suum
                   cuique
                   tribuere
                
                 ;
                 All
                 which
                 are
                 evidently
                 the
                 common
                 Interest
                 and
                 Advantage
                 of
                 mankind
                 .
              
               
                 This
                 is
                 that
                 Eternal
                 Law
                 which
                 cannot
                 be
                 altered
                 ,
                 being
                 founded
                 upon
                 an
                 unchangeable
                 Ground
                 ,
                 the
                 congruity
                 to
                 the
                 Nature
                 of
                 God
                 ,
                 Angels
                 and
                 Men
                 ;
                 and
                 therefore
                 God
                 cannot
                 deny
                 himself
                 ,
                 or
                 act
                 unsuitably
                 to
                 his
                 Divine
                 Perfections
                 :
                 And
                 therefore
                 it
                 is
                 said
                 ,
                 
                   Shall
                   not
                   the
                   Judge
                   of
                   all
                   the
                   Earth
                   do
                   justly
                   ?
                   And
                   that
                   it
                   is
                   impossible
                   for
                   God
                   to
                   lie
                
                 ;
                 Not
                 by
                 any
                 fatal
                 necessity
                 ,
                 as
                 if
                 he
                 had
                 not
                 power
                 and
                 freedom
                 enough
                 ,
                 but
                 because
                 his
                 Goodness
                 ,
                 Justice
                 and
                 Truth
                 ,
                 are
                 as
                 certain
                 by
                 his
                 free
                 Choice
                 ,
                 as
                 are
                 his
                 Omnipotency
                 and
                 Soveraignty
                 .
              
               
                 This
                 is
                 also
                 called
                 
                   the
                   Law
                   of
                   Nature
                
                 ,
                 because
                 it
                 ariseth
                 from
                 the
                 congruity
                 or
                 conveniency
                 of
                 Nature
                 ,
                 and
                 thence
                 is
                 known
                 by
                 the
                 Light
                 of
                 Nature
                 .
              
               
                 2.
                 
                 Correspondent
                 to
                 these
                 Dictats
                 of
                 Reason
                 ,
                 wherein
                 Law
                 consists
                 ,
                 which
                 are
                 in
                 the
                 Understanding
                 ;
                 There
                 is
                 an
                 Inclination
                 in
                 the
                 Will
                 to
                 observe
                 and
                 follow
                 these
                 Dictats
                 ,
                 which
                 is
                 Justice
                 :
                 and
                 therefore
                 it
                 is
                 described
                 ,
                 
                   Constans
                   &
                   perpetua
                   voluntas
                   suum
                   cuique
                   tribuendi
                   ,
                
                 where
                 ,
                 by
                 the
                 Will
                 ,
                 is
                 not
                 understood
                 the
                 Faculty
                 ,
                 but
                 the
                 Inclination
                 thereof
                 ,
                 determined
                 by
                 the
                 Law
                 ,
                 to
                 give
                 every
                 one
                 that
                 which
                 the
                 Law
                 declareth
                 to
                 be
                 due
                 ;
                 and
                 it
                 is
                 divided
                 into
                 Distributive
                 and
                 Commutative
                 Justice
                 .
              
               
                 Distributive
                 Justice
                 ,
                 is
                 the
                 Inclination
                 to
                 retribute
                 Rewards
                 to
                 the
                 Virtuous
                 ;
                 
                 and
                 Punishments
                 to
                 the
                 Vitious
                 ,
                 proportioned
                 to
                 their
                 actings
                 ,
                 which
                 is
                 now
                 almost
                 wholly
                 devolved
                 upon
                 Publick
                 Authority
                 ;
                 little
                 remaining
                 ,
                 but
                 Incouragement
                 and
                 Praise
                 to
                 the
                 Virtuous
                 ,
                 and
                 Discouragement
                 and
                 Discountenance
                 to
                 the
                 Vitious
                 .
              
               
                 Commutative
                 Justice
                 ,
                 is
                 the
                 Inclination
                 to
                 give
                 every
                 man
                 his
                 Right
                 ;
                 and
                 though
                 the
                 Name
                 is
                 taken
                 from
                 the
                 Interchange
                 of
                 private
                 Rights
                 ,
                 yet
                 it
                 reacheth
                 to
                 all
                 Prestations
                 ,
                 which
                 are
                 not
                 by
                 way
                 of
                 Reward
                 or
                 Punishment
                 .
              
               
                 There
                 being
                 nothing
                 here
                 proposed
                 but
                 the
                 private
                 Rights
                 of
                 Men
                 ,
                 it
                 is
                 only
                 requisite
                 to
                 consider
                 the
                 Laws
                 by
                 which
                 private
                 Rights
                 are
                 Constitute
                 ,
                 Conveyed
                 or
                 Destitute
                 ,
                 and
                 these
                 are
                 either
                 Divine
                 or
                 Humane
                 .
              
               
                 3.
                 
                 Divine
                 Law
                 is
                 that
                 mainly
                 which
                 is
                 Written
                 in
                 Mans
                 Heart
                 ,
                 according
                 to
                 that
                 of
                 the
                 Apostle
                 ,
                 
                   For
                   when
                   the
                   Gentiles
                   who
                   have
                   not
                   the
                   Law
                   ,
                
                 (
                 to
                 wit
                 ,
                 written
                 in
                 the
                 Word
                 )
                 
                   do
                   by
                   nature
                   the
                   things
                   contained
                   in
                   the
                   Law
                   ,
                   these
                   are
                   a
                   Law
                   unto
                   themselves
                   ,
                   which
                   sheweth
                   the
                   works
                   of
                   the
                   Law
                   written
                   in
                   their
                   hearts
                   ;
                   their
                   conscience
                   also
                   bearing
                   them
                   witness
                   ,
                   and
                   their
                   thoughts
                   in
                   the
                   mean
                   while
                   accusing
                   or
                   excusing
                   one
                   another
                
                 ;
                 This
                 is
                 called
                 the
                 Law
                 of
                 Nature
                 ,
                 because
                 it
                 is
                 known
                 Naturally
                 ,
                 either
                 immediately
                 ,
                 like
                 unto
                 these
                 Instincts
                 which
                 are
                 in
                 the
                 other
                 Creatures
                 ,
                 whereby
                 they
                 know
                 what
                 is
                 necessary
                 for
                 their
                 preservation
                 :
                 So
                 the
                 first
                 Principles
                 of
                 this
                 Natural
                 Law
                 are
                 known
                 to
                 men
                 ,
                 without
                 Reasoning
                 or
                 Experience
                 ,
                 without
                 Art
                 ,
                 Industry
                 or
                 Education
                 ,
                 and
                 so
                 are
                 known
                 to
                 men
                 every
                 where
                 through
                 the
                 World
                 ;
                 though
                 they
                 keep
                 no
                 Communion
                 nor
                 Intercourse
                 together
                 ,
                 which
                 is
                 an
                 unanswerable
                 demonstration
                 of
                 the
                 being
                 of
                 this
                 Law
                 of
                 Nature
                 .
                 It
                 is
                 said
                 to
                 be
                 written
                 in
                 the
                 Hearts
                 of
                 Men
                 ,
                 because
                 Law
                 useth
                 to
                 be
                 written
                 on
                 Pillars
                 or
                 Tables
                 ,
                 for
                 certainty
                 or
                 conservation
                 :
                 So
                 this
                 Law
                 is
                 written
                 by
                 the
                 Finger
                 of
                 God
                 upon
                 mans
                 Heart
                 ,
                 there
                 to
                 remain
                 for
                 ever
                 .
                 Such
                 are
                 the
                 common
                 practical
                 Principles
                 ,
                 that
                 God
                 is
                 to
                 be
                 obeyed
                 ,
                 Parents
                 honoured
                 ,
                 our selves
                 defended
                 ,
                 violence
                 repulsed
                 ,
                 Children
                 to
                 be
                 loved
                 ,
                 educate
                 and
                 provided
                 for
                 .
              
               
                 4.
                 
                 With
                 these
                 common
                 Principles
                 ,
                 With
                 which
                 God
                 hath
                 sent
                 Men
                 into
                 the
                 World
                 ;
                 he
                 gave
                 them
                 also
                 Reason
                 ,
                 that
                 thence
                 they
                 might
                 by
                 consequence
                 ,
                 deduce
                 his
                 Law
                 in
                 more
                 particular
                 Cases
                 ;
                 and
                 this
                 part
                 of
                 the
                 Natural
                 Law
                 ,
                 is
                 called
                 
                   the
                   Light
                   or
                   Law
                   of
                   Reason
                   .
                
                 It
                 is
                 called
                 by
                 
                   Solomon
                   ,
                   the
                   Candle
                   of
                   the
                   Lord
                   ,
                   searching
                   the
                   inward
                   parts
                   ,
                
                 Proverbs
                 20.
                 verse
                 27.
                 
              
               
                 5.
                 
                 This
                 Law
                 is
                 also
                 called
                 Conscience
                 ,
                 which
                 is
                 said
                 in
                 the
                 forecited
                 place
                 ,
                 to
                 bear
                 Witness
                 ,
                 and
                 thereby
                 our
                 thoughts
                 do
                 either
                 accuse
                 or
                 excuse
                 one
                 another
                 ,
                 according
                 to
                 the
                 Judgement
                 or
                 Testimony
                 we
                 have
                 of
                 our
                 own
                 Thoughts
                 ,
                 as
                 good
                 or
                 evil
                 ,
                 consonant
                 to
                 ,
                 or
                 dissonant
                 from
                 ,
                 the
                 Law
                 of
                 Nature
                 ,
                 
                   shining
                   in
                   the
                   heart
                
                 .
                 This
                 Natural
                 Law
                 ,
                 as
                 it
                 is
                 derived
                 from
                 these
                 Principles
                 ,
                 the
                 nearer
                 it
                 is
                 thereto
                 ,
                 it
                 is
                 the
                 clearer
                 ;
                 and
                 by
                 the
                 more
                 immediate
                 consequences
                 it
                 be
                 derived
                 ,
                 it
                 is
                 the
                 surer
                 :
                 for
                 as
                 the
                 Body
                 in
                 its
                 progressive
                 motion
                 ,
                 from
                 one
                 step
                 to
                 another
                 ,
                 walketh
                 surest
                 by
                 the
                 shortest
                 steps
                 ;
                 so
                 doth
                 the
                 Mind
                 in
                 deducing
                 this
                 Divine
                 Law
                 :
                 whence
                 it
                 is
                 ,
                 that
                 this
                 part
                 of
                 the
                 Law
                 of
                 Nature
                 is
                 not
                 equally
                 evident
                 to
                 all
                 men
                 ;
                 but
                 the
                 more
                 of
                 Reason
                 they
                 have
                 ,
                 the
                 more
                 clearness
                 they
                 have
                 of
                 it
                 ,
                 which
                 hath
                 made
                 men
                 of
                 Reason
                 ,
                 especially
                 these
                 who
                 have
                 exercised
                 themselves
                 in
                 the
                 inquiry
                 of
                 Right
                 ,
                 to
                 be
                 had
                 in
                 high
                 esteem
                 and
                 admiration
                 amongst
                 men
                 ,
                 who
                 ,
                 though
                 their
                 Invention
                 was
                 not
                 so
                 eminent
                 ,
                 yet
                 their
                 Judgement
                 closed
                 and
                 went
                 along
                 with
                 that
                 ,
                 as
                 having
                 a
                 native
                 Obligation
                 in
                 it
                 .
                 And
                 so
                 many
                 times
                 these
                 
                   responsa
                   prudentium
                
                 ,
                 have
                 been
                 received
                 with
                 as
                 much
                 Authority
                 ,
                 and
                 more
                 heartiness
                 for
                 Laws
                 ,
                 than
                 the
                 Dictates
                 of
                 Soveraigns
                 .
                 Cicero
                 in
                 his
                 Oration
                 ,
                 
                   Pro
                   Milone
                
                 ,
                 Doth
                 excellently
                 set
                 forth
                 and
                 distinguish
                 
                 
                   this
                   Natural
                   Law
                   ,
                   from
                   Positive
                   Law
                   ;
                   for
                   ,
                   saith
                   he
                   ,
                
                 Hac
                 non
                 scripta
                 sed
                 nata
                 lex
                 ,
                 quam
                 non
                 didicimus
                 ,
                 accepimus
                 ,
                 legimus
                 verum
                 ex
                 natura
                 ipsa
                 arripuimus
                 ,
                 hausimus
                 ,
                 expressimus
                 ,
                 ad
                 quam
                 non
                 docti
                 ,
                 sed
                 facti
                 ;
                 non
                 instituti
                 ,
                 sed
                 imbuti
                 sumus
                 ,
                 ut
                 si
                 vita
                 nostra
                 in
                 aliquas
                 insidias
                 ,
                 si
                 in
                 vim
                 ,
                 aut
                 in
                 tela
                 ,
                 aut
                 inimicorum
                 ,
                 aut
                 latronum
                 inciderit
                 ,
                 omnis
                 honesta
                 ratio
                 esset
                 expediendae
                 salutis
                 .
              
               
                 6.
                 
                 This
                 Law
                 of
                 Nature
                 is
                 also
                 called
                 Equity
                 ,
                 from
                 that
                 Equality
                 it
                 keeps
                 in
                 all
                 persons
                 ;
                 and
                 is
                 not
                 framed
                 or
                 fitted
                 for
                 the
                 Interest
                 of
                 any
                 ,
                 as
                 many
                 Laws
                 of
                 mens
                 choice
                 be
                 ;
                 from
                 the
                 rigour
                 whereof
                 ,
                 recourse
                 ought
                 to
                 be
                 had
                 to
                 this
                 Natural
                 Equity
                 :
                 for
                 though
                 mens
                 Laws
                 may
                 be
                 profitable
                 and
                 ne
                 ,
                 cessar
                 for
                 the
                 most
                 part
                 ;
                 yet
                 being
                 the
                 Inventions
                 of
                 frail
                 men
                 ,
                 there
                 occurs
                 many
                 ,
                 
                   casus
                   incogitati
                
                 ,
                 wherein
                 they
                 serve
                 not
                 .
                 But
                 Equity
                 takes
                 place
                 ,
                 and
                 the
                 Limitations
                 and
                 Fallancies
                 ,
                 Extensions
                 and
                 Ampliations
                 of
                 Humane
                 Laws
                 are
                 brought
                 from
                 Equity
                 ,
                 though
                 Equity
                 be
                 taken
                 some
                 times
                 for
                 the
                 moderation
                 of
                 the
                 extremity
                 of
                 Humane
                 Laws
                 ;
                 yet
                 it
                 doth
                 truly
                 comprehend
                 the
                 whole
                 Law
                 of
                 Nature
                 ;
                 otherwise
                 it
                 could
                 not
                 possibly
                 give
                 remeid
                 to
                 the
                 rigour
                 ,
                 and
                 extremity
                 of
                 positive
                 Laws
                 in
                 all
                 Cases
                 .
              
               
                 7.
                 
                 The
                 Law
                 of
                 Nature
                 is
                 also
                 termed
                 the
                 Moral
                 Law
                 ,
                 being
                 the
                 absolute
                 and
                 adequat
                 Rule
                 of
                 the
                 Manners
                 of
                 men
                 ,
                 for
                 all
                 times
                 ,
                 places
                 and
                 persons
                 ;
                 and
                 this
                 denomination
                 ,
                 it
                 hath
                 commonly
                 in
                 opposition
                 to
                 the
                 Judicial
                 and
                 Ceremonial
                 Law.
                 
              
               
                 The
                 Roman
                 Law
                 doth
                 sometime
                 take
                 the
                 Law
                 of
                 Nature
                 in
                 a
                 most
                 strict
                 sense
                 ,
                 as
                 it
                 excludeth
                 the
                 Law
                 of
                 Reason
                 ,
                 and
                 as
                 it
                 is
                 founded
                 in
                 the
                 Nature
                 of
                 man
                 ,
                 in
                 so
                 far
                 as
                 is
                 common
                 with
                 other
                 Animals
                 ;
                 and
                 therefore
                 they
                 define
                 it
                 to
                 be
                 
                   quod
                   natura
                   omnia
                   animalia
                   docuit
                
                 ,
                 as
                 the
                 conjunction
                 of
                 Male
                 and
                 Female
                 :
                 or
                 Marriage
                 ,
                 the
                 Procreation
                 or
                 Education
                 of
                 Children
                 ,
                 &c.
                 
                 But
                 even
                 in
                 that
                 Law
                 ,
                 the
                 Law
                 of
                 Nature
                 is
                 extended
                 and
                 distinguished
                 into
                 the
                 Original
                 and
                 Primitive
                 Law
                 ;
                 and
                 that
                 which
                 is
                 derived
                 thence
                 ,
                 such
                 ,
                 as
                 for
                 the
                 most
                 part
                 ,
                 is
                 the
                 Law
                 of
                 Nations
                 :
                 and
                 there
                 is
                 no
                 doubt
                 ,
                 but
                 there
                 is
                 more
                 of
                 the
                 Law
                 of
                 Nature
                 founded
                 in
                 the
                 rational
                 Nature
                 of
                 man
                 ,
                 as
                 he
                 is
                 a
                 rational
                 and
                 sociable
                 Creature
                 ;
                 and
                 even
                 that
                 which
                 appeareth
                 to
                 be
                 in
                 the
                 Sensitive
                 Nature
                 ,
                 is
                 truely
                 founded
                 in
                 the
                 Rational
                 Nature
                 ;
                 and
                 therefore
                 is
                 not
                 properly
                 communicable
                 unto
                 the
                 Beasts
                 ,
                 who
                 have
                 no
                 Law
                 but
                 their
                 natural
                 Instincts
                 ,
                 having
                 only
                 some
                 resemblance
                 to
                 the
                 Law
                 of
                 Nature
                 .
              
               
                 The
                 Law
                 of
                 Nature
                 ,
                 as
                 it
                 is
                 imprest
                 in
                 our
                 hearts
                 ;
                 so
                 in
                 the
                 goodness
                 of
                 God
                 ,
                 it
                 is
                 exprest
                 in
                 his
                 Word
                 ,
                 wherein
                 he
                 hath
                 not
                 only
                 holden
                 forth
                 these
                 Sacred
                 Mysteries
                 ,
                 which
                 could
                 only
                 be
                 known
                 by
                 Revelation
                 ,
                 as
                 having
                 no
                 Principle
                 in
                 Nature
                 from
                 whence
                 they
                 are
                 deducible
                 ;
                 but
                 also
                 ,
                 because
                 through
                 sin
                 and
                 evil
                 Custome
                 ,
                 the
                 Natural
                 Law
                 in
                 mans
                 Heart
                 was
                 much
                 defaced
                 ,
                 disordered
                 and
                 erroniously
                 deduced
                 :
                 he
                 hath
                 therefore
                 Re-printed
                 the
                 Law
                 of
                 Nature
                 in
                 a
                 viver
                 Character
                 in
                 the
                 scripture
                 ,
                 not
                 only
                 having
                 the
                 Moral
                 Principles
                 ,
                 but
                 many
                 conclusions
                 thence
                 flowing
                 ,
                 particularly
                 set
                 forth
                 .
                 This
                 Analogie
                 of
                 the
                 Law
                 of
                 Nature
                 ,
                 even
                 in
                 the
                 Hearts
                 of
                 Heathens
                 ,
                 and
                 as
                 it
                 is
                 set
                 down
                 in
                 the
                 Law
                 of
                 God
                 ,
                 evidenceth
                 sufficiently
                 ,
                 that
                 both
                 of
                 them
                 proceed
                 from
                 the
                 same
                 Omniscient
                 Author
                 .
              
               
                 8.
                 
                 Beside
                 this
                 natural
                 ,
                 necessar
                 and
                 perpetual
                 Law
                 ,
                 God
                 hath
                 also
                 given
                 to
                 men
                 voluntar
                 and
                 positive
                 Laws
                 ,
                 which
                 ,
                 though
                 not
                 at
                 the
                 pleasure
                 of
                 men
                 ,
                 yet
                 in
                 themselves
                 are
                 mutable
                 ;
                 and
                 as
                 they
                 had
                 a
                 beginning
                 ,
                 so
                 some
                 of
                 them
                 had
                 ,
                 and
                 others
                 of
                 them
                 shall
                 have
                 an
                 end
                 ,
                 when
                 the
                 occasion
                 ,
                 exigence
                 and
                 utility
                 for
                 which
                 they
                 were
                 constitute
                 ,
                 shall
                 cease
                 :
                 such
                 were
                 the
                 Ceremonial
                 Laws
                 ,
                 which
                 containing
                 a
                 Figurative
                 and
                 Typical
                 Administration
                 of
                 the
                 Worship
                 of
                 God
                 ,
                 shadowing
                 forth
                 Christ
                 and
                 his
                 Propitiatory
                 Sacrifice
                 
                 of
                 himself
                 ;
                 now
                 when
                 the
                 Sun
                 of
                 Righteousness
                 hath
                 arisen
                 ,
                 these
                 shadows
                 have
                 flown
                 away
                 ,
                 and
                 are
                 in
                 the
                 Scripture
                 repealed
                 ;
                 in
                 lieu
                 whereof
                 ,
                 is
                 the
                 outward
                 Order
                 of
                 the
                 Worship
                 and
                 Government
                 of
                 the
                 Christian
                 Church
                 ,
                 and
                 the
                 Laws
                 of
                 God
                 relating
                 thereto
                 ,
                 though
                 we
                 are
                 to
                 expect
                 no
                 change
                 of
                 them
                 while
                 Time
                 is
                 ,
                 and
                 are
                 as
                 binding
                 to
                 all
                 ,
                 to
                 whom
                 their
                 Lines
                 are
                 gone
                 ,
                 as
                 the
                 Natural
                 Law
                 ,
                 yet
                 are
                 they
                 no
                 part
                 of
                 it
                 ,
                 for
                 they
                 are
                 not
                 written
                 in
                 the
                 heart
                 of
                 man
                 ,
                 nor
                 deducible
                 by
                 Reason
                 from
                 any
                 such
                 Principle
                 .
                 Such
                 are
                 the
                 Sabboth
                 on
                 the
                 first
                 day
                 of
                 the
                 week
                 ,
                 the
                 particular
                 Offices
                 in
                 the
                 Church
                 ,
                 their
                 Authority
                 and
                 Maintainance
                 ;
                 for
                 though
                 the
                 Law
                 of
                 Nature
                 doth
                 teach
                 ,
                 that
                 God
                 is
                 to
                 be
                 acknowledged
                 and
                 adored
                 ,
                 yet
                 the
                 impowering
                 of
                 some
                 certain
                 persons
                 to
                 be
                 leaders
                 in
                 the
                 Publick
                 Adoration
                 ,
                 and
                 the
                 fixed
                 time
                 thereof
                 ,
                 either
                 as
                 it
                 was
                 under
                 the
                 Law
                 ,
                 or
                 as
                 it
                 is
                 under
                 the
                 Gospel
                 ,
                 cannot
                 be
                 reached
                 thence
                 ,
                 but
                 had
                 its
                 beginning
                 ,
                 and
                 hath
                 been
                 altered
                 .
                 Some
                 also
                 do
                 account
                 Marriage
                 ,
                 and
                 the
                 degrees
                 forbidden
                 in
                 Levit.
                 to
                 be
                 a
                 positive
                 Law
                 of
                 God
                 ,
                 though
                 they
                 acknowledge
                 it
                 ,
                 not
                 only
                 to
                 be
                 given
                 to
                 the
                 Jews
                 ,
                 but
                 to
                 all
                 men
                 ;
                 yet
                 the
                 natural
                 and
                 universal
                 aversion
                 of
                 Marriage
                 in
                 these
                 degrees
                 ,
                 and
                 abhorrence
                 of
                 that
                 brutish
                 commixtion
                 ,
                 without
                 discretion
                 of
                 degrees
                 ,
                 which
                 is
                 observed
                 in
                 all
                 Nations
                 ,
                 whom
                 corrupt
                 custome
                 hath
                 not
                 so
                 far
                 depraved
                 ,
                 as
                 to
                 forget
                 ,
                 not
                 only
                 this
                 ,
                 but
                 most
                 of
                 the
                 uncontroverted
                 Laws
                 of
                 Nature
                 ,
                 do
                 sufficiently
                 evince
                 the
                 contrair
                 ;
                 for
                 if
                 Parents
                 and
                 Posterity
                 be
                 all
                 accounted
                 as
                 one
                 Degree
                 ,
                 there
                 is
                 nothing
                 prohibited
                 by
                 the
                 Law
                 of
                 God
                 ,
                 but
                 the
                 very
                 next
                 degree
                 of
                 these
                 who
                 are
                 in
                 the
                 place
                 of
                 Parents
                 ,
                 as
                 Uncles
                 and
                 Aunts
                 ,
                 or
                 in
                 the
                 place
                 of
                 Children
                 ,
                 as
                 Nephews
                 ,
                 Neices
                 ,
                 or
                 Brethren
                 and
                 Sisters
                 ,
                 so
                 that
                 there
                 can
                 be
                 no
                 doubt
                 ,
                 but
                 the
                 prohibition
                 of
                 commixtion
                 of
                 Ascendents
                 and
                 Descendents
                 ,
                 is
                 purely
                 Natural
                 .
              
               
                 9.
                 
                 The
                 prime
                 Positive
                 Law
                 of
                 God
                 ,
                 is
                 the
                 Judicial
                 Law
                 ,
                 which
                 God
                 by
                 the
                 Ministry
                 of
                 Moses
                 ,
                 prescribed
                 to
                 the
                 People
                 of
                 Israel
                 ,
                 wherein
                 the
                 Lord
                 was
                 pleased
                 to
                 be
                 the
                 particular
                 Law-giver
                 ,
                 and
                 Judge
                 of
                 that
                 People
                 whom
                 he
                 had
                 chosen
                 from
                 among
                 all
                 Nations
                 ,
                 for
                 a
                 peculiar
                 People
                 to
                 himself
                 ,
                 and
                 to
                 whose
                 Inclinations
                 it
                 is
                 befitted
                 ;
                 there
                 are
                 not
                 a
                 few
                 who
                 esteem
                 the
                 Judicial
                 Law
                 oblieging
                 to
                 all
                 Nations
                 ,
                 mainly
                 ,
                 because
                 it
                 doth
                 not
                 appear
                 in
                 the
                 Gospel
                 ,
                 to
                 be
                 abolished
                 as
                 the
                 Ceremonial
                 Laws
                 are
                 ,
                 and
                 because
                 of
                 its
                 excellency
                 beyond
                 the
                 Laws
                 of
                 Heathens
                 ,
                 or
                 other
                 men
                 ,
                 who
                 might
                 not
                 only
                 err
                 in
                 expediency
                 ,
                 rendring
                 their
                 Laws
                 unprofitable
                 ;
                 but
                 also
                 might
                 make
                 them
                 unjust
                 and
                 inconsistent
                 with
                 the
                 Immutable
                 moral
                 Law
                 of
                 Nature
                 :
                 which
                 Reasons
                 do
                 sufficiently
                 infer
                 ,
                 that
                 in
                 the
                 constitution
                 of
                 Humane
                 Laws
                 ,
                 chief
                 respect
                 ought
                 to
                 be
                 had
                 to
                 the
                 Judicial
                 Laws
                 of
                 God
                 ;
                 and
                 they
                 assumed
                 where
                 the
                 Inclination
                 of
                 the
                 People
                 and
                 their
                 condition
                 ,
                 do
                 not
                 render
                 them
                 inconvenient
                 .
                 But
                 that
                 these
                 Laws
                 were
                 accommodate
                 unto
                 their
                 proper
                 temper
                 ,
                 is
                 evident
                 in
                 the
                 Law
                 ,
                 concerning
                 the
                 Bill
                 of
                 Divorcement
                 ,
                 which
                 beareth
                 ,
                 to
                 be
                 permitted
                 for
                 the
                 hardness
                 of
                 their
                 hearts
                 ,
                 which
                 was
                 natural
                 and
                 peculiar
                 to
                 them
                 ,
                 of
                 Jealousie
                 and
                 bitterness
                 against
                 their
                 Wives
                 ;
                 therefore
                 the
                 Lord
                 not
                 only
                 appointed
                 tryal
                 ,
                 neither
                 natural
                 ,
                 necessar
                 ,
                 nor
                 accustomed
                 elsewhere
                 ,
                 by
                 those
                 tokens
                 of
                 Virginity
                 ,
                 for
                 evidencing
                 the
                 Wifes
                 faithfulness
                 in
                 not
                 giving
                 a
                 polluted
                 Woman
                 for
                 a
                 chast
                 ;
                 but
                 also
                 the
                 extraordinar
                 and
                 miraculous
                 Tryal
                 ,
                 by
                 the
                 Water
                 of
                 Jealousie
                 ;
                 and
                 therefore
                 Christ
                 did
                 expresly
                 abrogate
                 that
                 Law
                 ,
                 and
                 shew
                 us
                 that
                 Moses
                 did
                 not
                 command
                 to
                 Divorce
                 ,
                 but
                 for
                 the
                 hardness
                 of
                 their
                 hearts
                 ,
                 only
                 permitted
                 it
                 ,
                 and
                 did
                 command
                 ,
                 that
                 when
                 the
                 Husband
                 would
                 put
                 away
                 his
                 Wife
                 ,
                 he
                 should
                 give
                 her
                 a
                 Bill
                 of
                 Divorce
                 ;
                 but
                 it
                 doth
                 not
                 follow
                 ,
                 that
                 the
                 Judicial
                 Law
                 is
                 in
                 it self
                 a
                 Law
                 to
                 all
                 Nations
                 ,
                 or
                 that
                 the
                 Lord
                 purposed
                 it
                 so
                 to
                 be
                 :
                 but
                 on
                 the
                 contrar
                 ,
                 it
                 appeareth
                 that
                 his
                 Purpose
                 was
                 only
                 to
                 
                 deliver
                 it
                 ,
                 for
                 a
                 peculiar
                 Law
                 to
                 Israel
                 ,
                 when
                 he
                 saith
                 ,
                 
                   What
                   Nation
                   is
                   so
                   great
                   ,
                   that
                   hath
                   Statutes
                   and
                   Judgements
                   sorighteous
                   ,
                   as
                   is
                   all
                   this
                   Law
                   which
                   I
                   set
                   before
                   you
                   this
                   day
                   ,
                
                 Deut.
                 4.
                 vers
                 .
                 8.
                 
                 And
                 again
                 ,
                 
                   he
                   sheweth
                   his
                   Word
                   unto
                   Jacob
                   ,
                   his
                   Statutes
                   and
                   Judgements
                   to
                   Israel
                   ,
                   he
                   hath
                   not
                   dealt
                   so
                   with
                   every
                   Nation
                   ,
                   and
                   as
                   for
                   his
                   Judgements
                   ,
                   they
                   have
                   not
                   known
                   them
                   ,
                
                 Psal.
                 147.
                 vers
                 .
                 19.
                 
                 And
                 therefore
                 the
                 same
                 Law
                 was
                 not
                 to
                 Israelits
                 and
                 to
                 Strangers
                 ,
                 even
                 to
                 Proselytes
                 ,
                 as
                 appeareth
                 in
                 the
                 matter
                 of
                 Usury
                 and
                 Bondage
                 ,
                 which
                 were
                 allowed
                 as
                 to
                 Strangers
                 ;
                 but
                 the
                 former
                 simply
                 forbidden
                 ,
                 and
                 the
                 latter
                 limited
                 as
                 to
                 Israelits
                 :
                 neither
                 is
                 there
                 any
                 necessity
                 of
                 an
                 abolition
                 express
                 of
                 this
                 Law
                 in
                 the
                 Gospel
                 ,
                 seing
                 it
                 was
                 not
                 given
                 to
                 all
                 Nations
                 ;
                 and
                 it
                 doth
                 yet
                 bind
                 the
                 Jews
                 ,
                 so
                 far
                 as
                 it
                 doth
                 not
                 build
                 upon
                 the
                 Ceremonial
                 Law
                 :
                 And
                 therefore
                 that
                 part
                 of
                 the
                 Judicial
                 Law
                 ,
                 which
                 is
                 founded
                 upon
                 ,
                 or
                 conducible
                 to
                 the
                 Moral
                 Law
                 ,
                 may
                 be
                 well
                 received
                 by
                 other
                 Nations
                 ,
                 to
                 whose
                 Inclinations
                 the
                 same
                 expediencies
                 will
                 agree
                 ,
                 as
                 most
                 of
                 the
                 Criminal
                 Laws
                 are
                 :
                 And
                 though
                 they
                 could
                 suit
                 with
                 the
                 frame
                 and
                 current
                 of
                 the
                 Laws
                 already
                 established
                 ,
                 yet
                 would
                 they
                 be
                 far
                 from
                 making
                 up
                 a
                 Law
                 to
                 rule
                 any
                 Nation
                 now
                 ,
                 after
                 mans
                 Pravity
                 hath
                 so
                 much
                 increased
                 Vice
                 and
                 Deceit
                 ,
                 that
                 which
                 was
                 sufficient
                 in
                 the
                 simplicity
                 of
                 these
                 times
                 ,
                 would
                 come
                 far
                 short
                 .
              
               
                 10.
                 
                 Humane
                 Law
                 is
                 that
                 ,
                 which
                 for
                 Utilities
                 sake
                 is
                 introduced
                 by
                 men
                 ,
                 which
                 is
                 either
                 by
                 tacit
                 consent
                 ,
                 by
                 consuetude
                 or
                 custome
                 ,
                 or
                 by
                 express
                 Will
                 or
                 Command
                 of
                 these
                 in
                 Authority
                 ,
                 having
                 the
                 Legislative
                 power
                 ,
                 and
                 these
                 were
                 ofttimes
                 written
                 ,
                 though
                 sometimes
                 also
                 they
                 were
                 not
                 written
                 ;
                 as
                 were
                 Licurgus
                 Laws
                 ,
                 which
                 not
                 only
                 were
                 not
                 written
                 ,
                 but
                 a
                 Law
                 against
                 it
                 ,
                 that
                 they
                 should
                 not
                 be
                 written
                 :
                 Hence
                 is
                 the
                 distinction
                 of
                 Laws
                 ,
                 in
                 written
                 and
                 unwritten
                 ,
                 because
                 of
                 their
                 Original
                 ;
                 for
                 ,
                 
                   ex
                   post
                   facto
                
                 ,
                 Customes
                 or
                 other
                 unwritten
                 Laws
                 may
                 be
                 written
                 by
                 private
                 persons
                 ;
                 but
                 they
                 were
                 not
                 at
                 first
                 written
                 by
                 the
                 Law
                 Giver
                 .
              
               
                 It
                 is
                 true
                 ,
                 the
                 Law
                 is
                 sometimes
                 strictly
                 taken
                 in
                 opposition
                 to
                 Custome
                 ,
                 as
                 it
                 comprehendeth
                 Equity
                 or
                 the
                 Natural
                 Law
                 ,
                 and
                 the
                 Edicts
                 and
                 Statutes
                 of
                 Nations
                 ,
                 and
                 their
                 Law
                 givers
                 .
                 And
                 sometimes
                 more
                 strictly
                 ,
                 as
                 in
                 the
                 Vulgar
                 Distinction
                 of
                 Law
                 ,
                 Statute
                 and
                 Custome
                 ;
                 in
                 which
                 ,
                 Law
                 signifieth
                 Equity
                 ,
                 or
                 the
                 Common
                 Law
                 ,
                 as
                 Statutes
                 and
                 Customes
                 do
                 the
                 peculiar
                 recent
                 Laws
                 of
                 several
                 Nations
                 .
                 And
                 though
                 that
                 be
                 only
                 the
                 Law
                 of
                 man
                 ,
                 which
                 is
                 voluntar
                 and
                 positive
                 ,
                 constitute
                 by
                 man
                 ;
                 yet
                 Equity
                 and
                 the
                 Natural
                 Law
                 ,
                 in
                 so
                 far
                 as
                 it
                 is
                 allowed
                 ,
                 declared
                 and
                 made
                 effectual
                 by
                 man
                 ,
                 is
                 in
                 so
                 far
                 accounted
                 among
                 the
                 Laws
                 of
                 men
                 .
              
               
                 The
                 Laws
                 of
                 men
                 are
                 either
                 common
                 to
                 many
                 Nations
                 ,
                 or
                 proper
                 to
                 one
                 Nation
                 ,
                 or
                 peculiar
                 to
                 some
                 Places
                 or
                 Incorporations
                 in
                 the
                 same
                 Nation
                 ;
                 as
                 were
                 the
                 Municipal
                 Laws
                 in
                 the
                 Roman
                 Republick
                 ;
                 and
                 such
                 are
                 still
                 in
                 most
                 Nations
                 ,
                 not
                 only
                 in
                 matters
                 of
                 lesser
                 moment
                 ,
                 but
                 in
                 the
                 highest
                 matters
                 of
                 private
                 Rights
                 ,
                 as
                 in
                 Succession
                 ,
                 which
                 is
                 diversified
                 in
                 many
                 Provinces
                 ,
                 in
                 
                   France
                   ,
                   Germany
                
                 ,
                 and
                 the
                 Netherlands
                 ,
                 and
                 England
                 ,
                 as
                 may
                 be
                 instanced
                 in
                 the
                 Gavil
                 kind
                 of
                 Kent
                 .
              
               
                 The
                 Law
                 common
                 to
                 many
                 Nations
                 ,
                 is
                 that
                 which
                 is
                 commonly
                 called
                 ,
                 the
                 Law
                 of
                 Nations
                 ,
                 which
                 stands
                 in
                 the
                 customs
                 owned
                 and
                 acknowledged
                 by
                 all
                 ,
                 or
                 at
                 least
                 the
                 most
                 civil
                 Nations
                 ,
                 which
                 for
                 the
                 most
                 part
                 ,
                 are
                 nothing
                 else
                 but
                 Equity
                 ,
                 and
                 the
                 Law
                 of
                 Nature
                 and
                 Reason
                 ;
                 though
                 in
                 part
                 also
                 ,
                 there
                 be
                 positive
                 Laws
                 introduced
                 ,
                 by
                 common
                 consent
                 of
                 Nations
                 ,
                 and
                 which
                 do
                 no
                 less
                 obliege
                 these
                 Nations
                 ,
                 as
                 importing
                 their
                 obligatory
                 consent
                 ,
                 then
                 do
                 the
                 customs
                 of
                 particular
                 Nations
                 and
                 Incorporations
                 :
                 Such
                 are
                 the
                 Laws
                 of
                 Captivity
                 and
                 Bondage
                 ,
                 of
                 these
                 taken
                 in
                 War
                 ,
                 the
                 safety
                 of
                 Ambassadors
                 ,
                 though
                 more
                 guilty
                 of
                 the
                 common
                 quarrel
                 ,
                 than
                 the
                 rest
                 of
                 the
                 Nations
                 
                 from
                 whom
                 they
                 are
                 sent
                 ;
                 yet
                 for
                 common
                 utilities
                 sake
                 ,
                 while
                 they
                 act
                 in
                 ,
                 and
                 conform
                 to
                 that
                 Capacity
                 ,
                 they
                 are
                 safe
                 ,
                 otherways
                 there
                 could
                 be
                 no
                 Commerce
                 ,
                 orderly
                 Indiction
                 of
                 War
                 or
                 Pacification
                 .
                 And
                 therefore
                 the
                 Romans
                 ,
                 when
                 they
                 had
                 to
                 do
                 with
                 barbarous
                 Nations
                 ,
                 who
                 did
                 not
                 acknowledge
                 this
                 Law
                 ,
                 did
                 send
                 their
                 Ambassadors
                 to
                 their
                 Borders
                 ,
                 and
                 there
                 did
                 require
                 Reparation
                 ,
                 and
                 denunce
                 War
                 because
                 they
                 could
                 safely
                 go
                 no
                 further
                 ;
                 and
                 for
                 the
                 same
                 reason
                 (
                 though
                 Slavery
                 be
                 against
                 the
                 Natural
                 Law
                 of
                 Liberty
                 )
                 yet
                 it
                 is
                 received
                 for
                 conveniency
                 by
                 the
                 Nations
                 ,
                 being
                 more
                 willing
                 to
                 lose
                 Liberty
                 than
                 Life
                 .
                 Such
                 also
                 are
                 the
                 Laws
                 of
                 Hospitality
                 ,
                 or
                 the
                 mutual
                 Trust
                 betwixt
                 the
                 Host
                 and
                 the
                 Guest
                 ,
                 whom
                 he
                 hath
                 willingly
                 received
                 in
                 his
                 House
                 ,
                 whereby
                 neither
                 of
                 them
                 can
                 act
                 any
                 thing
                 prejudicial
                 to
                 the
                 Life
                 or
                 Liberty
                 of
                 the
                 other
                 ,
                 while
                 in
                 that
                 relation
                 ;
                 though
                 otherwise
                 they
                 had
                 just
                 reason
                 ,
                 and
                 might
                 do
                 the
                 same
                 ;
                 yet
                 the
                 doing
                 of
                 it
                 then
                 ,
                 were
                 a
                 violating
                 of
                 the
                 Law
                 of
                 Nations
                 .
                 But
                 for
                 the
                 most
                 part
                 ,
                 the
                 Law
                 of
                 Nations
                 is
                 nothing
                 else
                 but
                 Equity
                 ,
                 and
                 the
                 Law
                 of
                 Nature
                 and
                 Reason
                 ,
                 which
                 standeth
                 as
                 the
                 common
                 Rule
                 among
                 men
                 ,
                 appointed
                 of
                 God
                 ,
                 by
                 which
                 they
                 may
                 know
                 ,
                 and
                 crave
                 each
                 from
                 other
                 their
                 Rights
                 ;
                 and
                 in
                 case
                 of
                 refusal
                 ,
                 may
                 vindicate
                 the
                 same
                 by
                 force
                 ,
                 wherein
                 they
                 are
                 still
                 regulat
                 by
                 the
                 common
                 Law
                 of
                 Reason
                 ,
                 and
                 the
                 Customs
                 of
                 Nations
                 ,
                 keeping
                 a
                 just
                 proportion
                 betwixt
                 the
                 Wrong
                 and
                 Reparation
                 ,
                 though
                 taken
                 by
                 force
                 :
                 And
                 not
                 like
                 Draco
                 ,
                 who
                 made
                 the
                 punishment
                 of
                 all
                 his
                 Laws
                 Death
                 ;
                 and
                 therefore
                 were
                 said
                 to
                 be
                 written
                 in
                 Bloud
                 ,
                 so
                 by
                 making
                 the
                 Issue
                 of
                 every
                 Quarrel
                 to
                 be
                 the
                 Conquest
                 of
                 the
                 debelled
                 ,
                 and
                 the
                 swallowing
                 up
                 of
                 all
                 their
                 Rights
                 ,
                 as
                 if
                 they
                 had
                 pactioned
                 to
                 put
                 them
                 all
                 upon
                 the
                 Issue
                 of
                 that
                 War
                 ;
                 whereas
                 there
                 is
                 nothing
                 in
                 question
                 by
                 either
                 Party
                 ,
                 but
                 the
                 striving
                 for
                 Reparation
                 of
                 that
                 Injury
                 which
                 the
                 one
                 owneth
                 ,
                 and
                 the
                 other
                 denyeth
                 to
                 acknowledge
                 as
                 an
                 Injury
                 ,
                 or
                 refuseth
                 Reparation
                 thereof
                 .
                 This
                 Law
                 is
                 chiefly
                 understood
                 ,
                 when
                 the
                 Common
                 Law
                 is
                 named
                 amongst
                 us
                 ;
                 though
                 the
                 English
                 so
                 name
                 the
                 common
                 Current
                 of
                 their
                 Civil
                 Law
                 ,
                 as
                 opposite
                 to
                 Statute
                 and
                 their
                 late
                 Customes
                 ,
                 which
                 is
                 sometimes
                 so
                 taken
                 with
                 us
                 :
                 and
                 oft-times
                 by
                 the
                 Common
                 Law
                 ,
                 we
                 understand
                 the
                 Roman
                 Law
                 ,
                 which
                 in
                 some
                 sort
                 is
                 common
                 to
                 many
                 Nations
                 .
              
               
                 11.
                 
                 The
                 Law
                 of
                 each
                 Society
                 of
                 People
                 under
                 the
                 same
                 Soveraign
                 Authority
                 is
                 called
                 ,
                 
                   The
                   Civil
                   Law
                   ,
                   or
                   the
                   Law
                   of
                   the
                   Citizens
                   of
                   that
                   Commonwealth
                
                 ;
                 though
                 that
                 now
                 be
                 appropriate
                 to
                 the
                 Civil
                 Law
                 of
                 the
                 Roman
                 Common-wealth
                 ,
                 or
                 〈◊〉
                 ,
                 as
                 the
                 most
                 excellent
                 .
                 And
                 because
                 of
                 that
                 Assinity
                 that
                 the
                 Law
                 of
                 Scotland
                 hath
                 with
                 it
                 ,
                 as
                 have
                 also
                 the
                 Laws
                 and
                 Customes
                 of
                 the
                 Chief
                 Nations
                 ,
                 to
                 which
                 the
                 Victorious
                 Arms
                 of
                 the
                 Romans
                 did
                 propagat
                 it
                 ,
                 and
                 its
                 own
                 worth
                 ,
                 even
                 after
                 the
                 ruine
                 of
                 the
                 Roman
                 Empyre
                 ,
                 which
                 hath
                 so
                 commended
                 it
                 ,
                 that
                 though
                 it
                 be
                 not
                 acknowledged
                 as
                 a
                 Law
                 ,
                 binding
                 for
                 its
                 Authority
                 ;
                 yet
                 as
                 a
                 Rule
                 ,
                 followed
                 for
                 its
                 Equity
                 :
                 it
                 shall
                 not
                 be
                 amiss
                 to
                 say
                 something
                 here
                 of
                 it
                 .
              
               
                 The
                 Romans
                 were
                 first
                 Governed
                 by
                 Kings
                 who
                 gave
                 them
                 Laws
                 ,
                 which
                 being
                 Collected
                 by
                 Papirius
                 ,
                 in
                 the
                 time
                 of
                 
                   Tarquinius
                   Superbus
                
                 ;
                 were
                 therefore
                 called
                 the
                 Papirian
                 Law
                 ,
                 Tarquinius
                 and
                 Monarchy
                 being
                 thrown
                 out
                 ,
                 the
                 Papirian
                 Law
                 Collected
                 in
                 his
                 Time
                 and
                 Name
                 ,
                 was
                 partaker
                 of
                 his
                 Hatred
                 ,
                 and
                 Contempt
                 of
                 the
                 People
                 ;
                 and
                 there
                 was
                 no
                 fixed
                 ,
                 nor
                 written
                 Law
                 among
                 the
                 Romans
                 ,
                 till
                 they
                 sent
                 the
                 
                   triumviri
                   ,
                   posthumus
                   ,
                   Maulius
                
                 and
                 Sulpitius
                 ,
                 to
                 the
                 Greek
                 Republick
                 ,
                 to
                 understand
                 the
                 Laws
                 of
                 these
                 Common-wealths
                 ,
                 and
                 thence
                 to
                 frame
                 a
                 Model
                 of
                 Government
                 ,
                 and
                 Laws
                 for
                 the
                 Roman
                 State
                 ,
                 which
                 they
                 did
                 ,
                 and
                 made
                 up
                 the
                 Law
                 of
                 the
                 twelve
                 Tables
                 ,
                 which
                 being
                 comprehended
                 in
                 few
                 Words
                 and
                 marrowy
                 Sentences
                 ,
                 all
                 Written
                 upon
                 twelve
                 Tables
                 ,
                 was
                 fixed
                 upon
                 the
                 most
                 publick
                 Mercat
                 place
                 
                 at
                 Rome
                 ,
                 that
                 they
                 might
                 be
                 easily
                 known
                 ,
                 and
                 keeped
                 in
                 mind
                 by
                 all
                 the
                 Citizens
                 .
              
               
                 These
                 were
                 so
                 acceptable
                 and
                 satisfactory
                 to
                 the
                 Romans
                 ,
                 that
                 they
                 have
                 been
                 the
                 Foundations
                 and
                 Principles
                 of
                 all
                 that
                 great
                 Body
                 of
                 Law
                 ,
                 which
                 afterwards
                 they
                 had
                 ;
                 all
                 which
                 was
                 ordered
                 to
                 that
                 Ancient
                 Law
                 ,
                 as
                 Extensions
                 and
                 Limitations
                 of
                 it
                 ,
                 which
                 was
                 done
                 at
                 first
                 by
                 parts
                 ,
                 by
                 the
                 Plebiscita
                 Laws
                 ,
                 Inacted
                 by
                 the
                 Suffrage
                 of
                 the
                 People
                 ,
                 or
                 by
                 the
                 
                   Senatus
                   Consulta
                
                 ,
                 or
                 by
                 the
                 Edicts
                 of
                 the
                 Pretor
                 .
                 or
                 by
                 the
                 Responses
                 of
                 the
                 Jurisprudents
                 ,
                 who
                 were
                 authorized
                 to
                 give
                 answer
                 in
                 dubious
                 Cases
                 ;
                 as
                 
                   Cornelius
                   ,
                   Nasica
                   ,
                   Fabauf
                   .
                   Cato
                   ,
                   Gallus
                   ,
                   Ariciusidius
                   ,
                   Manlius
                   ,
                   Scevola
                   ,
                   Crassus
                   ,
                   Iuventius
                   ,
                   Ulpianus
                   ,
                   Paulus
                   ,
                   Julianus
                
                 and
                 others
                 ;
                 and
                 when
                 the
                 Soveraign
                 Power
                 was
                 devolved
                 upon
                 the
                 Emperour
                 by
                 their
                 Edicts
                 ,
                 Rescripts
                 and
                 Decrees
                 ,
                 until
                 the
                 Roman
                 Law
                 increased
                 unto
                 so
                 great
                 a
                 bulk
                 ,
                 that
                 there
                 were
                 thousands
                 of
                 Books
                 of
                 Law
                 ,
                 in
                 which
                 the
                 Brevity
                 and
                 Perspicuity
                 of
                 the
                 twelve
                 Tables
                 was
                 then
                 lost
                 ,
                 as
                 now
                 the
                 body
                 of
                 them
                 ,
                 through
                 the
                 injury
                 of
                 time
                 has
                 perished
                 .
                 But
                 at
                 last
                 the
                 Emperour
                 Justinian
                 ,
                 did
                 by
                 the
                 pains
                 of
                 seventeen
                 Select
                 Jurisconsults
                 ,
                 pick
                 out
                 the
                 Marrow
                 of
                 all
                 the
                 Ancient
                 Laws
                 ,
                 and
                 digest
                 them
                 into
                 some
                 Method
                 ,
                 into
                 the
                 fifty
                 Books
                 of
                 the
                 
                   Digest
                   or
                   Pandects
                
                 ,
                 which
                 therefore
                 have
                 the
                 Authour
                 of
                 every
                 Law
                 prefixed
                 to
                 it
                 ;
                 he
                 did
                 also
                 by
                 Tribonian
                 and
                 others
                 ,
                 Collect
                 the
                 Rescripts
                 ,
                 Decrees
                 ,
                 and
                 all
                 the
                 Edicts
                 of
                 the
                 Emperours
                 ,
                 which
                 before
                 were
                 more
                 imperfectly
                 compiled
                 in
                 their
                 
                   Theodosian
                   Codex
                
                 ,
                 and
                 which
                 thereafter
                 he
                 perfeited
                 ,
                 and
                 named
                 the
                 
                   Justinian
                   Codex
                
                 ,
                 as
                 Posterior
                 Constitutions
                 of
                 the
                 Emperours
                 were
                 gathered
                 together
                 in
                 nine
                 Collations
                 ,
                 which
                 were
                 called
                 the
                 
                   Novel
                   Constitutions
                   .
                   Justinian
                
                 did
                 also
                 cause
                 frame
                 the
                 four
                 Books
                 of
                 the
                 Institutes
                 ,
                 as
                 the
                 Sums
                 and
                 Elements
                 of
                 the
                 whole
                 Law.
                 But
                 as
                 nothing
                 Humane
                 is
                 stable
                 ,
                 shortly
                 after
                 this
                 greatest
                 perfection
                 of
                 the
                 Roman
                 Law
                 ,
                 in
                 the
                 time
                 of
                 Phocas
                 the
                 Emperour
                 ,
                 who
                 Raigned
                 fourth
                 after
                 Justinian
                 ,
                 and
                 died
                 in
                 the
                 year
                 ,
                 565.
                 
                 The
                 Roman
                 Empire
                 being
                 opprest
                 by
                 the
                 Irruption
                 of
                 the
                 Gothes
                 and
                 Longobards
                 ,
                 the
                 Roman
                 Law
                 did
                 also
                 lye
                 under
                 Ashes
                 above
                 the
                 space
                 of
                 five
                 hundred
                 years
                 ,
                 until
                 a
                 new
                 shape
                 of
                 the
                 Roman
                 Empyre
                 ,
                 being
                 set
                 up
                 in
                 
                   Germany
                   ,
                   Lothaius
                
                 the
                 Emperour
                 ,
                 who
                 flourished
                 in
                 the
                 eleventh
                 Century
                 ,
                 did
                 again
                 revive
                 and
                 restore
                 the
                 Roman
                 Law
                 ,
                 which
                 thence
                 was
                 every
                 where
                 Taught
                 in
                 the
                 Schools
                 ,
                 and
                 inlarged
                 with
                 more
                 vast
                 heaps
                 of
                 Commentaries
                 and
                 Treatises
                 ,
                 then
                 were
                 these
                 of
                 the
                 Ancient
                 Lawers
                 ,
                 though
                 not
                 claiming
                 the
                 like
                 Authority
                 .
              
               
                 12.
                 
                 In
                 the
                 Interim
                 ,
                 did
                 the
                 Feudal
                 Law
                 or
                 Customs
                 take
                 rise
                 among
                 the
                 Longobards
                 ,
                 and
                 other
                 Nations
                 ,
                 who
                 having
                 expulsed
                 out
                 of
                 Italy
                 the
                 Roman
                 Empyre
                 ,
                 were
                 willing
                 to
                 change
                 their
                 Barbarity
                 ,
                 and
                 to
                 be
                 successours
                 to
                 the
                 Romans
                 in
                 Seats
                 and
                 Civility
                 ;
                 and
                 that
                 they
                 might
                 maintain
                 their
                 Conquests
                 ,
                 gave
                 out
                 all
                 their
                 Lands
                 to
                 their
                 Souldiers
                 and
                 Assecls
                 ,
                 as
                 Benefices
                 to
                 them
                 for
                 their
                 Service
                 ,
                 and
                 Assistance
                 in
                 their
                 Wars
                 :
                 the
                 example
                 of
                 which
                 ,
                 and
                 the
                 new
                 Interest
                 it
                 afforded
                 to
                 Soveraigns
                 ,
                 to
                 have
                 all
                 their
                 Territories
                 to
                 hold
                 of
                 themselves
                 ;
                 and
                 most
                 of
                 their
                 Subjects
                 by
                 that
                 new
                 relation
                 ,
                 to
                 become
                 their
                 Feudatars
                 and
                 Vassals
                 ,
                 hath
                 given
                 the
                 Feudal
                 Law
                 wings
                 ,
                 whereby
                 it
                 hath
                 spread
                 it self
                 over
                 most
                 of
                 the
                 World.
                 
              
               
                 13.
                 
                 In
                 the
                 declining
                 also
                 of
                 the
                 Roman
                 Empyre
                 ,
                 the
                 Bishop
                 of
                 Rome
                 having
                 mounted
                 himself
                 unto
                 the
                 Imperial
                 Eminence
                 of
                 Universal
                 Bishop
                 ,
                 did
                 in
                 imitation
                 of
                 the
                 Emperours
                 Cause
                 ,
                 Compile
                 the
                 Cannon
                 Law
                 ;
                 and
                 first
                 ,
                 that
                 part
                 which
                 is
                 called
                 Decretum
                 ,
                 which
                 was
                 perfeited
                 by
                 Gratian
                 the
                 Monk
                 ,
                 out
                 of
                 the
                 Fathers
                 ,
                 Doctors
                 and
                 Counsels
                 ,
                 though
                 much
                 thrown
                 and
                 vitiat
                 towards
                 the
                 Interests
                 and
                 Errours
                 of
                 the
                 Roman
                 Church
                 .
                 And
                 after
                 the
                 Decretals
                 
                 were
                 Compyled
                 by
                 Pope
                 Gregory
                 the
                 ninth
                 ,
                 out
                 of
                 the
                 Decretal
                 Epistles
                 of
                 the
                 Popes
                 ,
                 which
                 Boniface
                 the
                 eighth
                 augmented
                 by
                 addition
                 of
                 the
                 sixth
                 Book
                 of
                 the
                 Decretals
                 ;
                 The
                 first
                 whereof
                 ,
                 is
                 in
                 imitation
                 of
                 the
                 Digests
                 made
                 of
                 the
                 Sentences
                 of
                 the
                 ancient
                 Lawers
                 ;
                 and
                 it
                 out
                 of
                 the
                 Sentences
                 of
                 the
                 Fathers
                 ,
                 Doctors
                 and
                 Councils
                 of
                 the
                 Church
                 ;
                 and
                 the
                 latter
                 ,
                 in
                 resemblance
                 of
                 the
                 Codex
                 ,
                 compacted
                 of
                 the
                 Rescripts
                 of
                 the
                 Popes
                 ,
                 and
                 that
                 nothing
                 may
                 be
                 improportional
                 unto
                 the
                 Noval
                 Constitutions
                 ,
                 do
                 answer
                 the
                 Clementins
                 and
                 Extravagants
                 .
                 This
                 Pontifical
                 Law
                 extended
                 unto
                 all
                 persons
                 and
                 things
                 ,
                 belonging
                 to
                 the
                 Roman
                 Church
                 ,
                 and
                 separate
                 from
                 the
                 Laity
                 ,
                 all
                 things
                 that
                 may
                 relate
                 to
                 Pious
                 Uses
                 ,
                 or
                 which
                 may
                 be
                 claimed
                 to
                 be
                 under
                 the
                 protection
                 of
                 his
                 Holiness
                 ,
                 as
                 Orphans
                 ,
                 the
                 Will
                 of
                 Defuncts
                 ,
                 the
                 matter
                 of
                 Marriage
                 and
                 Divorce
                 ,
                 all
                 which
                 he
                 had
                 obtained
                 to
                 be
                 exempted
                 from
                 the
                 Civil
                 Authority
                 of
                 these
                 Soveraigns
                 ,
                 who
                 were
                 devoted
                 to
                 that
                 See.
                 These
                 things
                 being
                 holy
                 ,
                 were
                 not
                 to
                 be
                 temerat
                 by
                 the
                 profane
                 hands
                 of
                 Princes
                 or
                 free
                 people
                 ;
                 and
                 so
                 deep
                 hath
                 this
                 Canon
                 Law
                 been
                 rooted
                 ,
                 that
                 even
                 where
                 the
                 Popes
                 Authority
                 is
                 rejected
                 ;
                 yet
                 consideration
                 must
                 be
                 had
                 to
                 these
                 Laws
                 ,
                 not
                 only
                 as
                 to
                 these
                 by
                 which
                 Church
                 Benefices
                 have
                 been
                 erected
                 and
                 ordered
                 ,
                 but
                 as
                 to
                 these
                 which
                 contain
                 many
                 equitable
                 and
                 profitable
                 Laws
                 ,
                 which
                 ,
                 because
                 of
                 their
                 weighty
                 matter
                 ,
                 and
                 being
                 once
                 received
                 ,
                 may
                 more
                 fitly
                 be
                 retained
                 than
                 rejected
                 .
              
               
                 14.
                 
                 Before
                 we
                 come
                 to
                 the
                 Customes
                 of
                 Scotland
                 ,
                 there
                 lies
                 this
                 Block
                 in
                 the
                 way
                 of
                 all
                 Humane
                 Laws
                 ;
                 that
                 seing
                 ,
                 as
                 hath
                 been
                 said
                 ,
                 Equity
                 and
                 the
                 Law
                 of
                 Nature
                 and
                 Reason
                 is
                 perfect
                 and
                 perpetual
                 ,
                 all
                 Laws
                 of
                 mens
                 constitution
                 ,
                 seem
                 not
                 only
                 to
                 be
                 dangerous
                 ,
                 in
                 that
                 they
                 may
                 Impinge
                 upon
                 the
                 perfect
                 Law
                 of
                 God
                 ;
                 but
                 also
                 to
                 be
                 useless
                 and
                 unprofitable
                 ,
                 seing
                 men
                 may
                 live
                 better
                 ,
                 and
                 more
                 safely
                 by
                 the
                 Divine
                 Dictats
                 of
                 God
                 written
                 in
                 our
                 hearts
                 ,
                 than
                 by
                 the
                 devices
                 of
                 men
                 ,
                 so
                 that
                 it
                 may
                 be
                 thought
                 ,
                 that
                 those
                 ,
                 who
                 in
                 stead
                 thereof
                 ,
                 imbrace
                 the
                 Laws
                 of
                 men
                 ,
                 may
                 meet
                 with
                 the
                 reproof
                 of
                 the
                 Israelites
                 ,
                 who
                 were
                 said
                 
                   to
                   reject
                   God
                   from
                   raigning
                   over
                   them
                   .
                
                 This
                 Reason
                 is
                 so
                 pressing
                 ,
                 that
                 if
                 the
                 Law
                 of
                 Nature
                 ,
                 and
                 of
                 Reason
                 ,
                 were
                 equally
                 known
                 to
                 all
                 men
                 ,
                 or
                 that
                 the
                 Dispensers
                 thereofcould
                 be
                 found
                 so
                 knowing
                 and
                 so
                 just
                 ,
                 as
                 men
                 would
                 ,
                 and
                 ought
                 to
                 have
                 full
                 confidence
                 and
                 quietness
                 in
                 their
                 Sentences
                 ,
                 it
                 would
                 not
                 only
                 be
                 a
                 folly
                 ,
                 but
                 a
                 fault
                 to
                 admit
                 of
                 any
                 other
                 Law
                 ;
                 but
                 the
                 prime
                 Interests
                 of
                 men
                 being
                 to
                 enjoy
                 their
                 Rights
                 ,
                 not
                 only
                 in
                 safety
                 and
                 security
                 ,
                 but
                 in
                 confidence
                 and
                 quietness
                 of
                 mind
                 ,
                 that
                 they
                 may
                 clearly
                 know
                 what
                 is
                 their
                 Right
                 ,
                 and
                 may
                 injoy
                 the
                 same
                 :
                 Therefore
                 Humane
                 Laws
                 are
                 added
                 ,
                 not
                 to
                 take
                 away
                 the
                 Law
                 of
                 Nature
                 ,
                 and
                 of
                 Reason
                 ,
                 but
                 some
                 of
                 the
                 effects
                 thereof
                 ,
                 which
                 are
                 in
                 our
                 power
                 .
                 And
                 therefore
                 as
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 man
                 is
                 a
                 free
                 Creature
                 ,
                 yet
                 so
                 as
                 he
                 may
                 ingage
                 himself
                 ,
                 and
                 being
                 ingaged
                 by
                 the
                 same
                 Law
                 of
                 Nature
                 he
                 must
                 perform
                 :
                 so
                 mens
                 Laws
                 are
                 nothing
                 else
                 ,
                 but
                 the
                 publick
                 Sponsions
                 of
                 the
                 people
                 ,
                 which
                 therefore
                 ,
                 even
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 they
                 may
                 and
                 must
                 perform
                 ,
                 and
                 therefore
                 are
                 they
                 introduced
                 .
              
               
                 First
                 ,
                 For
                 clearing
                 and
                 condescending
                 on
                 the
                 Law
                 of
                 Nature
                 ,
                 and
                 of
                 Reason
                 ;
                 such
                 Laws
                 can
                 none
                 quarrel
                 ,
                 because
                 they
                 do
                 not
                 alter
                 ,
                 but
                 declare
                 Equity
                 ,
                 and
                 that
                 very
                 necessarily
                 ,
                 because
                 ,
                 though
                 Equity
                 be
                 very
                 clear
                 in
                 its
                 Principles
                 ,
                 and
                 
                   in
                   thesi
                
                 ;
                 yet
                 the
                 deduction
                 of
                 Reason
                 further
                 from
                 the
                 Fountain
                 ,
                 through
                 the
                 byass
                 and
                 corruption
                 of
                 Interest
                 ,
                 may
                 make
                 it
                 much
                 more
                 dubious
                 ,
                 
                   in
                   hypothesi
                
                 ,
                 when
                 it
                 comes
                 to
                 the
                 Decision
                 of
                 a
                 particular
                 Case
                 ,
                 in
                 all
                 its
                 Circumstances
                 ;
                 and
                 therefore
                 it
                 is
                 necessar
                 it
                 be
                 so
                 fixed
                 and
                 cleared
                 by
                 Statutes
                 and
                 Customs
                 ,
                 suitable
                 thereto
                 ,
                 that
                 the
                 people
                 may
                 be
                 secured
                 .
              
               
                 Secondly
                 ,
                 There
                 be
                 many
                 points
                 of
                 Rights
                 competent
                 to
                 men
                 in
                 Equity
                 ,
                 as
                 
                 it
                 may
                 be
                 more
                 profitable
                 for
                 the
                 people
                 to
                 forbear
                 the
                 pursuance
                 of
                 them
                 ,
                 than
                 to
                 be
                 at
                 the
                 trouble
                 and
                 expenses
                 of
                 the
                 pursuit
                 ;
                 as
                 when
                 Humane
                 Laws
                 do
                 cut
                 offmatters
                 of
                 less
                 concernment
                 ,
                 and
                 in
                 them
                 ,
                 rathertake
                 themselves
                 to
                 the
                 honesty
                 of
                 their
                 party
                 ,
                 than
                 to
                 compulsion
                 by
                 remeids
                 of
                 Law
                 ;
                 such
                 are
                 the
                 Remuneratory
                 Obligations
                 of
                 Gratitude
                 ,
                 and
                 the
                 inward
                 Obligations
                 of
                 the
                 Mind
                 ,
                 as
                 of
                 Affection
                 ,
                 Love
                 ,
                 Kindness
                 ,
                 &c.
                 according
                 to
                 the
                 Proverb
                 ,
                 
                   we
                   cannot
                   poind
                   for
                   unkindness
                
                 .
                 It
                 is
                 not
                 to
                 be
                 doubted
                 ,
                 but
                 there
                 be
                 more
                 such
                 obligations
                 ,
                 than
                 are
                 the
                 Obligations
                 relating
                 to
                 outward
                 performances
                 of
                 some
                 palpable
                 or
                 sensible
                 thing
                 ;
                 and
                 it
                 might
                 easily
                 appear
                 ,
                 what
                 vexation
                 it
                 might
                 breed
                 ,
                 if
                 not
                 only
                 the
                 latter
                 ,
                 but
                 also
                 the
                 former
                 might
                 all
                 be
                 pursued
                 ,
                 and
                 extorted
                 by
                 compulsion
                 of
                 Law.
                 And
                 none
                 can
                 think
                 the
                 Law
                 of
                 Nature
                 injured
                 ,
                 because
                 of
                 common
                 consent
                 ,
                 men
                 will
                 spare
                 themselves
                 the
                 labour
                 to
                 pursue
                 those
                 things
                 which
                 they
                 may
                 easily
                 dispense
                 with
                 ;
                 and
                 so
                 likewise
                 for
                 the
                 same
                 reason
                 ,
                 though
                 by
                 the
                 Moral
                 Law
                 ,
                 we
                 are
                 obliged
                 to
                 love
                 our
                 Neighbour
                 as
                 our Selves
                 :
                 From
                 whence
                 arise
                 Duties
                 of
                 Charity
                 and
                 Mercy
                 ,
                 Assistance
                 and
                 Relief
                 ;
                 yet
                 for
                 the
                 most
                 part
                 ,
                 men
                 do
                 not
                 compel
                 for
                 the
                 negative
                 of
                 these
                 Commands
                 ,
                 but
                 only
                 for
                 the
                 contrary
                 acts
                 of
                 Injury
                 ,
                 by
                 doing
                 evil
                 in
                 stead
                 of
                 good
                 .
              
               
                 Thirdly
                 ,
                 For
                 the
                 security
                 of
                 the
                 people
                 and
                 anticipation
                 of
                 Error
                 and
                 Fraud
                 ,
                 and
                 that
                 evident
                 probation
                 may
                 be
                 had
                 ,
                 Men
                 do
                 most
                 profitably
                 order
                 deeds
                 to
                 be
                 done
                 in
                 such
                 a
                 palpable
                 and
                 plain
                 form
                 ,
                 as
                 may
                 easily
                 appear
                 ;
                 in
                 which
                 there
                 can
                 be
                 no
                 injury
                 ,
                 seing
                 the
                 manner
                 of
                 doing
                 these
                 deeds
                 ,
                 is
                 free
                 ,
                 and
                 in
                 our
                 power
                 :
                 Thus
                 ,
                 though
                 the
                 dispositive
                 will
                 of
                 the
                 Proprietar
                 be
                 sufficient
                 to
                 alienate
                 any
                 thing
                 that
                 is
                 his
                 ,
                 and
                 to
                 constitute
                 the
                 Right
                 thereof
                 in
                 another
                 ;
                 Yet
                 by
                 the
                 Civil
                 Law
                 and
                 custome
                 of
                 most
                 Nations
                 ,
                 delivery
                 ,
                 or
                 apprehension
                 of
                 Possession
                 ,
                 for
                 conveying
                 the
                 Right
                 of
                 Goods
                 ;
                 and
                 Seasing
                 is
                 necessar
                 for
                 conveying
                 of
                 the
                 Rights
                 of
                 Lands
                 by
                 the
                 Feudal
                 Law
                 ;
                 and
                 so
                 by
                 our
                 Customs
                 ,
                 Assignations
                 are
                 not
                 effectual
                 to
                 transfer
                 Personal
                 Rights
                 ,
                 till
                 Intimation
                 follow
                 :
                 Our
                 Custome
                 also
                 appoints
                 Write
                 to
                 be
                 made
                 ,
                 where
                 it
                 is
                 easie
                 and
                 ordinar
                 to
                 be
                 done
                 :
                 and
                 therefore
                 as
                 the
                 penalty
                 of
                 the
                 neglect
                 ,
                 or
                 contempt
                 thereof
                 doth
                 exclude
                 Witnesses
                 ,
                 in
                 matters
                 of
                 importance
                 ,
                 and
                 admitteth
                 only
                 Write
                 ,
                 or
                 Oath
                 of
                 party
                 ,
                 in
                 cases
                 where
                 Write
                 is
                 accustomed
                 ;
                 So
                 the
                 Romans
                 ordained
                 ,
                 that
                 because
                 the
                 agreements
                 of
                 the
                 people
                 ,
                 when
                 they
                 stood
                 in
                 meer
                 Conference
                 ,
                 that
                 words
                 were
                 easie
                 to
                 be
                 mistaken
                 by
                 themselves
                 or
                 Witnesses
                 ;
                 that
                 therefore
                 the
                 parties
                 should
                 perfeit
                 such
                 Contracts
                 by
                 a
                 solemn
                 stipulation
                 ,
                 wherein
                 the
                 one
                 party
                 did
                 interrogat
                 ,
                 if
                 the
                 other
                 did
                 agree
                 to
                 such
                 terms
                 as
                 he
                 exprest
                 ,
                 and
                 the
                 other
                 immediatly
                 repeated
                 his
                 answer
                 ,
                 closing
                 with
                 him
                 in
                 terms
                 :
                 and
                 therefore
                 ,
                 if
                 they
                 did
                 not
                 so
                 stipulate
                 ,
                 they
                 refused
                 them
                 Action
                 upon
                 naked
                 paction
                 .
              
               
                 Fourthly
                 ,
                 Nations
                 for
                 the
                 flourishing
                 of
                 their
                 Families
                 ,
                 do
                 otherwise
                 dispose
                 of
                 their
                 Estates
                 and
                 Possessions
                 ,
                 and
                 their
                 Laws
                 do
                 order
                 them
                 otherways
                 than
                 the
                 Law
                 of
                 Nature
                 doth
                 ;
                 for
                 in
                 the
                 most
                 part
                 ,
                 the
                 Heretage
                 and
                 Succession
                 in
                 the
                 whole
                 Land-rights
                 belongs
                 to
                 the
                 eldest
                 Son
                 ,
                 as
                 Stem
                 and
                 Line
                 of
                 the
                 Family
                 ;
                 and
                 the
                 Parents
                 are
                 presumed
                 to
                 provide
                 the
                 rest
                 of
                 the
                 Children
                 with
                 competent
                 Portions
                 ;
                 though
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 the
                 Right
                 of
                 Succession
                 doth
                 belong
                 to
                 all
                 :
                 and
                 even
                 in
                 this
                 positive
                 Law
                 ,
                 altering
                 the
                 course
                 of
                 the
                 Law
                 of
                 Nature
                 ,
                 hath
                 its
                 example
                 from
                 the
                 Judicial
                 Law
                 of
                 God
                 ,
                 by
                 which
                 the
                 Males
                 exclude
                 the
                 Females
                 ,
                 and
                 the
                 eldest
                 hath
                 a
                 double
                 Portion
                 .
              
               
                 Fifthly
                 ,
                 According
                 to
                 the
                 humours
                 and
                 inclinations
                 of
                 People
                 ,
                 men
                 do
                 lay
                 the
                 heavier
                 penalties
                 upon
                 the
                 Transgression
                 of
                 such
                 Laws
                 as
                 stand
                 in
                 opposition
                 thereunto
                 ,
                 which
                 may
                 be
                 altered
                 when
                 these
                 inclinations
                 alter
                 .
                 And
                 
                 so
                 the
                 Lord
                 did
                 frame
                 the
                 Law
                 of
                 Moses
                 for
                 the
                 humors
                 of
                 that
                 People
                 ,
                 in
                 some
                 things
                 permitting
                 ,
                 without
                 punishing
                 the
                 transgression
                 of
                 the
                 most
                 palpable
                 and
                 weighty
                 Laws
                 of
                 Nature
                 ,
                 as
                 in
                 Poligamy
                 and
                 Divorce
                 ;
                 and
                 also
                 extending
                 the
                 proportion
                 of
                 Equality
                 ,
                 observed
                 in
                 the
                 Law
                 of
                 Nature
                 ,
                 in
                 Restitution
                 and
                 Retribution
                 ,
                 as
                 in
                 Theft
                 :
                 hence
                 it
                 appears
                 how
                 necessar
                 the
                 Laws
                 of
                 men
                 are
                 ;
                 yetsurely
                 they
                 are
                 most
                 happy
                 whose
                 Laws
                 are
                 nearest
                 to
                 Equity
                 ,
                 and
                 most
                 declaratory
                 of
                 it
                 :
                 And
                 lest
                 altering
                 of
                 the
                 effects
                 thereof
                 ,
                 except
                 in
                 cases
                 eminently
                 profitable
                 ,
                 like
                 unto
                 these
                 now
                 pointed
                 at
                 ;
                 yea
                 ,
                 and
                 the
                 Nations
                 are
                 more
                 happy
                 ,
                 whose
                 Laws
                 have
                 entered
                 by
                 long
                 custome
                 ,
                 wrung
                 out
                 from
                 the
                 Debates
                 upon
                 particular
                 Causes
                 ,
                 until
                 it
                 come
                 to
                 the
                 Consistence
                 of
                 a
                 fixed
                 and
                 known
                 Custome
                 ,
                 for
                 thereby
                 the
                 conveniencies
                 and
                 inconveniencies
                 through
                 a
                 tract
                 of
                 Time
                 ,
                 are
                 experimentally
                 seen
                 ;
                 so
                 that
                 which
                 is
                 found
                 in
                 some
                 cases
                 convenient
                 ,
                 if
                 in
                 other
                 cases
                 afterward
                 it
                 be
                 found
                 inconvenient
                 ,
                 it
                 proves
                 abortive
                 in
                 the
                 womb
                 of
                 Time
                 ,
                 before
                 it
                 attain
                 the
                 maturity
                 of
                 a
                 Law.
                 But
                 in
                 Statutes
                 ,
                 the
                 Lawgiver
                 must
                 at
                 once
                 ballance
                 the
                 conveniencies
                 and
                 inconveniencies
                 ,
                 wherein
                 he
                 may
                 ,
                 and
                 often
                 doth
                 fall
                 short
                 ,
                 and
                 there
                 do
                 arise
                 ,
                 
                   casus
                   Incogitati
                
                 ,
                 wherein
                 the
                 Statute
                 is
                 out
                 ,
                 and
                 recourse
                 must
                 be
                 had
                 to
                 Equity
                 .
                 But
                 these
                 are
                 best
                 which
                 are
                 approbatory
                 ,
                 or
                 correctory
                 of
                 experienced
                 Customs
                 ,
                 and
                 in
                 a
                 customary
                 Law
                 ,
                 though
                 the
                 people
                 run
                 some
                 hazard
                 at
                 first
                 of
                 their
                 Judges
                 Arbitriment
                 :
                 Yet
                 when
                 that
                 Law
                 is
                 come
                 to
                 a
                 fulness
                 and
                 consistence
                 ,
                 they
                 have
                 by
                 much
                 the
                 advantage
                 in
                 this
                 ,
                 that
                 what
                 custom
                 hath
                 changed
                 ,
                 is
                 thrown
                 away
                 ,
                 and
                 obliterat
                 without
                 memory
                 ,
                 or
                 mention
                 of
                 it
                 ;
                 but
                 in
                 Statutory
                 Written
                 Law
                 ,
                 the
                 Vestige
                 of
                 all
                 the
                 alterations
                 remain
                 ,
                 and
                 ordinarily
                 increase
                 to
                 such
                 a
                 Mass
                 ,
                 that
                 they
                 cease
                 to
                 be
                 Evidences
                 ,
                 and
                 Securities
                 to
                 the
                 people
                 ,
                 and
                 become
                 Labyrinths
                 ,
                 wherein
                 they
                 are
                 fair
                 to
                 lose
                 their
                 Rights
                 ,
                 if
                 not
                 themselves
                 ,
                 and
                 must
                 have
                 an
                 implicite
                 Faith
                 ,
                 in
                 these
                 who
                 cannot
                 comprehend
                 them
                 without
                 making
                 it
                 the
                 work
                 of
                 their
                 life
                 .
              
               
                 15.
                 
                 
                   Our
                   Customes
                
                 ,
                 as
                 they
                 have
                 arisen
                 mainly
                 from
                 Equity
                 ,
                 so
                 they
                 are
                 also
                 from
                 the
                 Civil
                 Canon
                 and
                 Feudal
                 Laws
                 ,
                 from
                 which
                 the
                 Terms
                 ,
                 Tenors
                 and
                 Forms
                 of
                 them
                 are
                 much
                 borrowed
                 ;
                 and
                 therefore
                 ,
                 these
                 especially
                 (
                 the
                 Civil
                 Law
                 )
                 have
                 great
                 weight
                 ,
                 namely
                 in
                 cases
                 where
                 a
                 custome
                 is
                 not
                 yet
                 formed
                 ;
                 but
                 none
                 of
                 these
                 have
                 with
                 us
                 the
                 Authority
                 of
                 Law
                 :
                 And
                 therefore
                 are
                 only
                 received
                 according
                 to
                 their
                 Equity
                 and
                 Expediency
                 ,
                 
                   Secundum
                   bonum
                   &
                   equum
                
                 ;
                 And
                 though
                 it
                 may
                 appear
                 from
                 some
                 Narratives
                 of
                 our
                 Statutes
                 ,
                 that
                 the
                 Parliament
                 doth
                 own
                 the
                 Civil
                 and
                 Canon
                 Law
                 ,
                 to
                 be
                 our
                 Law
                 ,
                 as
                 in
                 the
                 Revocation
                 of
                 King
                 James
                 the
                 fourth
                 ,
                 Parliament
                 1493.
                 c.
                 51.
                 where
                 it
                 is
                 said
                 ,
                 
                   and
                   since
                   it
                   is
                   permitted
                   by
                   the
                   constitution
                   of
                   Law
                   ,
                   Civil
                   and
                   Canon
                   ,
                   that
                   Minors
                   may
                   revoke
                   ,
                   Par.
                
                 1540.
                 cap.
                 80.
                 
                 So
                 likewise
                 Nottars
                 ,
                 Forgers
                 of
                 false
                 Writs
                 ,
                 are
                 ordained
                 to
                 be
                 punished
                 after
                 the
                 disposition
                 of
                 Common
                 Law
                 ,
                 Par.
                 1551.
                 cap.
                 22.
                 
                 And
                 in
                 the
                 Act
                 establishing
                 Religion
                 ,
                 all
                 Acts
                 contrair
                 ,
                 or
                 Constitutions
                 ,
                 Canon
                 ,
                 Civil
                 ,
                 or
                 Municipal
                 ,
                 are
                 abrogated
                 ,
                 Par.
                 1567.
                 cap.
                 31.
                 
                 Yet
                 these
                 amount
                 to
                 no
                 more
                 ,
                 then
                 that
                 these
                 Laws
                 are
                 an
                 example
                 ;
                 after
                 the
                 similitude
                 whereof
                 ,
                 the
                 Parliament
                 proceeded
                 .
                 And
                 though
                 in
                 the
                 cases
                 of
                 Falshood
                 ,
                 the
                 punishment
                 be
                 assumed
                 as
                 in
                 the
                 Civil
                 Law
                 ,
                 which
                 will
                 make
                 that
                 a
                 part
                 of
                 our
                 Law
                 ,
                 it
                 will
                 not
                 infer
                 that
                 in
                 so
                 far
                 it
                 was
                 our
                 Law
                 before
                 ,
                 much
                 less
                 in
                 the
                 whole
                 .
                 And
                 there
                 is
                 reason
                 for
                 the
                 Abrogation
                 of
                 the
                 Canon
                 Law
                 ,
                 at
                 the
                 establishing
                 of
                 the
                 Protestant
                 Religion
                 ;
                 because
                 in
                 the
                 Popish
                 Church
                 ,
                 it
                 was
                 held
                 as
                 an
                 Authoritative
                 Law
                 :
                 but
                 since
                 it
                 is
                 only
                 a
                 Law
                 as
                 to
                 these
                 Cases
                 ,
                 that
                 were
                 acted
                 by
                 it
                 when
                 it
                 was
                 in
                 vigour
                 ;
                 and
                 in
                 the
                 rest
                 only
                 as
                 our
                 Customes
                 assume
                 some
                 particulars
                 thereof
                 ,
                 according
                 to
                 the
                 weight
                 of
                 the
                 matter
                 :
                 But
                 for
                 the
                 full
                 Evidence
                 of
                 the
                 Contrair
                 ,
                 there
                 is
                 an
                 express
                 and
                 special
                 Statute
                 ,
                 declaring
                 
                 this
                 Kingdom
                 subject
                 only
                 to
                 the
                 Kings
                 Laws
                 ,
                 and
                 no
                 other
                 Soveraigns
                 Laws
                 ,
                 Par.
                 1425.
                 cap.
                 48.
                 
                 Par.
                 1503.
                 cap.
                 79.
                 
                 Yea
                 ,
                 the
                 Law
                 of
                 Scotland
                 regulats
                 the
                 Succession
                 ,
                 and
                 Rights
                 of
                 Scottish
                 men
                 in
                 Scotland
                 ,
                 though
                 dying
                 abroad
                 ,
                 being
                 resident
                 there
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 Collonel
                 Hendersons
                 Children
                 ,
                 who
                 having
                 died
                 in
                 Holland
                 ,
                 Legatted
                 upon
                 Heretable
                 Bonds
                 ,
                 according
                 to
                 the
                 custome
                 there
                 ;
                 yet
                 they
                 were
                 found
                 not
                 to
                 be
                 conveyed
                 by
                 Testament
                 ,
                 but
                 belonging
                 to
                 his
                 Heirs
                 ,
                 according
                 to
                 the
                 Law
                 of
                 
                   Scotland
                   ,
                   Dury
                
                 ,
                 9.
                 
                 Decemb.
                 1623.
                 
                 The
                 like
                 betwixt
                 Melvil
                 and
                 
                   Drummond
                   ,
                   Dury
                
                 ,
                 3.
                 
                 July
                 1634.
                 and
                 lately
                 ,
                 in
                 the
                 case
                 of
                 the
                 Executors
                 of
                 
                   Williami
                   Schaw
                
                 ,
                 Factor
                 at
                 London
                 ,
                 dying
                 there
                 ,
                 it
                 was
                 found
                 ,
                 that
                 a
                 Nuncupative
                 Testament
                 ,
                 confirmed
                 in
                 England
                 ,
                 being
                 contrair
                 to
                 the
                 Law
                 of
                 Scotland
                 ,
                 which
                 admits
                 of
                 none
                 such
                 ,
                 was
                 null
                 ,
                 and
                 the
                 nearest
                 of
                 Kin
                 preferred
                 to
                 the
                 Executor
                 ,
                 and
                 universal
                 Legatar
                 named
                 there
                 ,
                 January
                 the
                 19.
                 1665.
                 
                 
                   Schaw
                   contra
                   Lewens
                
                 ;
                 but
                 as
                 to
                 the
                 manner
                 of
                 Probation
                 ,
                 or
                 Subscription
                 ,
                 the
                 Law
                 of
                 the
                 Place
                 Regulates
                 .
                 Dury
                 ,
                 11.
                 
                 Decemb.
                 1627.
                 
                 
                   Falconer
                   contra
                
                 the
                 Heir
                 of
                 Beatty
                 ,
                 and
                 the
                 27.
                 
                 July
                 1623.
                 
                 
                   Gordoun
                   contra
                   Morley
                
                 ,
                 15.
                 
                 Feb.
                 1630.
                 
                 
                   Harper
                   contra
                   Jaffray
                
                 .
                 So
                 a
                 Bond
                 by
                 an
                 English
                 man
                 to
                 a
                 Scottish
                 man
                 ,
                 residing
                 there
                 ,
                 being
                 after
                 the
                 Style
                 of
                 England
                 ,
                 payment
                 thereof
                 was
                 found
                 probable
                 by
                 Witness
                 ,
                 and
                 by
                 the
                 Oath
                 of
                 the
                 Cedent
                 against
                 the
                 Assignay
                 ,
                 28.
                 
                 June
                 ,
                 1666.
                 
                 
                   Mcmorlan
                   contra
                   Melvil
                
                 ;
                 yet
                 a
                 Bond
                 granted
                 by
                 Scottish
                 men
                 to
                 an
                 English
                 man
                 in
                 England
                 ,
                 found
                 regulate
                 by
                 the
                 Law
                 of
                 Scotland
                 ,
                 and
                 not
                 to
                 be
                 taken
                 away
                 by
                 Witness
                 ,
                 being
                 after
                 the
                 Style
                 of
                 Scotland
                 ,
                 and
                 Registrable
                 in
                 
                   Scotland
                   ,
                   Decemb.
                
                 8.
                 1664.
                 
                 
                   Scot
                   contra
                   Henderson
                
                 and
                 Wilson
                 .
                 But
                 the
                 Law
                 of
                 England
                 and
                 other
                 Forraign
                 Nations
                 ,
                 is
                 matter
                 of
                 Fact
                 to
                 us
                 ,
                 probable
                 by
                 the
                 Declaration
                 of
                 the
                 Judges
                 there
                 .
                 January
                 18.
                 1676.
                 
                 
                   Cunningham
                   contra
                   Brown.
                
                 
              
               
                 The
                 Law
                 of
                 Scotland
                 ,
                 as
                 of
                 all
                 other
                 Nations
                 ,
                 at
                 first
                 ,
                 could
                 be
                 no
                 other
                 ,
                 than
                 
                   equum
                   &
                   bonum
                
                 ,
                 Equity
                 and
                 Expediency
                 ;
                 for
                 it
                 is
                 not
                 to
                 be
                 supposed
                 ,
                 that
                 any
                 Nation
                 at
                 their
                 first
                 association
                 and
                 owning
                 of
                 a
                 Government
                 ,
                 did
                 appoint
                 positive
                 Laws
                 ,
                 nor
                 could
                 they
                 have
                 Customes
                 anterior
                 to
                 their
                 Constitution
                 ;
                 and
                 yet
                 it
                 is
                 necessarily
                 implyed
                 ,
                 that
                 they
                 must
                 submit
                 to
                 ,
                 and
                 be
                 Governed
                 by
                 a
                 Law
                 ,
                 which
                 could
                 be
                 understood
                 no
                 other
                 ,
                 than
                 what
                 their
                 Soveraign
                 Authority
                 should
                 find
                 Just
                 and
                 Convenient
                 .
                 It
                 may
                 be
                 some
                 Cities
                 at
                 their
                 first
                 Constitutions
                 ,
                 might
                 have
                 enacted
                 Laws
                 ;
                 but
                 it
                 cannot
                 be
                 found
                 in
                 all
                 the
                 Records
                 of
                 Antiquity
                 ,
                 that
                 ever
                 any
                 Nation
                 or
                 Countrey
                 did
                 so
                 ,
                 whatsoever
                 be
                 said
                 of
                 the
                 Salique
                 Law
                 of
                 the
                 French
                 ,
                 which
                 they
                 hold
                 so
                 ancient
                 and
                 fundamental
                 :
                 It
                 is
                 either
                 fictious
                 or
                 long
                 posterior
                 to
                 their
                 constitution
                 ,
                 into
                 a
                 Nation
                 .
                 And
                 therefore
                 ,
                 as
                 in
                 Arbitriments
                 ,
                 parties
                 are
                 understood
                 to
                 submit
                 themselves
                 to
                 Arbiters
                 ,
                 
                   Secundum
                   Arbitrium
                   boni
                   viri
                
                 ;
                 So
                 Nations
                 of
                 old
                 submited
                 to
                 their
                 Princes
                 ,
                 choosing
                 rather
                 to
                 refer
                 their
                 Interests
                 and
                 Differences
                 to
                 the
                 Determination
                 of
                 their
                 Soveraign
                 ,
                 than
                 that
                 every
                 one
                 should
                 be
                 a
                 Judge
                 to
                 himself
                 ,
                 and
                 should
                 take
                 and
                 hold
                 by
                 force
                 ,
                 what
                 he
                 conceived
                 to
                 be
                 his
                 Right
                 ,
                 without
                 any
                 Superiour
                 Judge
                 than
                 himself
                 to
                 appeal
                 to
                 ,
                 and
                 thereby
                 live
                 in
                 perpetual
                 War
                 :
                 whence
                 Government
                 necessarily
                 implys
                 in
                 the
                 very
                 beeing
                 thereof
                 ,
                 a
                 yielding
                 and
                 submitting
                 to
                 the
                 Determination
                 of
                 the
                 Soveraign
                 Authority
                 ,
                 in
                 the
                 differences
                 of
                 the
                 People
                 ,
                 though
                 one
                 ,
                 or
                 either
                 party
                 should
                 conceive
                 themselves
                 injured
                 ,
                 that
                 thereby
                 private
                 opinion
                 may
                 give
                 place
                 to
                 publick
                 Authority
                 ,
                 although
                 they
                 had
                 natural
                 power
                 ,
                 sufficient
                 to
                 withstand
                 the
                 same
                 ;
                 otherways
                 they
                 behooved
                 to
                 dissolve
                 Authority
                 and
                 Society
                 ,
                 and
                 return
                 to
                 the
                 Soveraignity
                 of
                 their
                 private
                 judgement
                 ,
                 and
                 their
                 natural
                 force
                 ,
                 from
                 which
                 they
                 did
                 flie
                 unto
                 the
                 Sanctuary
                 of
                 Government
                 ;
                 which
                 though
                 it
                 may
                 sometimes
                 err
                 ,
                 yet
                 can
                 
                 be
                 nothing
                 like
                 to
                 these
                 continual
                 errors
                 ,
                 when
                 every
                 one
                 owns
                 himself
                 as
                 Soveraign
                 Judge
                 in
                 his
                 own
                 Cause
                 .
              
               
                 Next
                 unto
                 Equity
                 ,
                 Nations
                 were
                 ruled
                 by
                 Consuetude
                 ,
                 which
                 declareth
                 Equity
                 and
                 constituteth
                 Expediencies
                 .
                 In
                 the
                 third
                 place
                 ,
                 positive
                 Laws
                 of
                 Soveraigns
                 became
                 to
                 be
                 accustomed
                 ;
                 Customes
                 always
                 continuing
                 ,
                 and
                 proceeding
                 ,
                 so
                 that
                 every
                 Nation
                 under
                 the
                 name
                 of
                 Law
                 ,
                 understand
                 their
                 ancient
                 and
                 uncontroverted
                 Customs
                 ,
                 time
                 out
                 of
                 mind
                 ,
                 or
                 their
                 first
                 and
                 Fundamental
                 Law
                 :
                 So
                 the
                 Romans
                 accounted
                 their
                 Laws
                 of
                 the
                 twelve
                 Tables
                 ,
                 and
                 when
                 they
                 did
                 express
                 any
                 thing
                 to
                 be
                 
                   ipso
                   jure
                
                 ,
                 they
                 meaned
                 it
                 to
                 be
                 such
                 ,
                 by
                 that
                 ancient
                 Law
                 ,
                 in
                 opposition
                 to
                 their
                 recent
                 Customs
                 ,
                 introduced
                 by
                 their
                 Pretors
                 and
                 Constitutions
                 of
                 their
                 people
                 ,
                 Senat
                 and
                 Princes
                 .
                 The
                 English
                 also
                 ,
                 by
                 their
                 Common
                 Law
                 ,
                 in
                 opposition
                 to
                 Statute
                 and
                 recent
                 Customs
                 ,
                 mean
                 their
                 ancient
                 and
                 unquestionable
                 Customs
                 .
                 In
                 like
                 manner
                 we
                 are
                 ruled
                 in
                 the
                 first
                 place
                 ,
                 by
                 our
                 Ancient
                 and
                 Immemorial
                 Customs
                 ,
                 which
                 may
                 be
                 called
                 our
                 Common
                 Law
                 ,
                 though
                 sometimes
                 by
                 that
                 name
                 ,
                 is
                 understood
                 Equity
                 ,
                 which
                 is
                 common
                 to
                 all
                 Nations
                 ;
                 or
                 the
                 Civil
                 Roman
                 Law
                 ,
                 which
                 in
                 some
                 fort
                 is
                 common
                 to
                 very
                 many
                 .
                 By
                 this
                 Law
                 is
                 our
                 Primogenitur
                 ,
                 and
                 all
                 degrees
                 of
                 Succession
                 ,
                 our
                 Legittime
                 Portions
                 of
                 Children
                 ,
                 Communion
                 of
                 Goods
                 betwixt
                 Man
                 and
                 Wife
                 ,
                 and
                 the
                 division
                 thereof
                 at
                 their
                 death
                 ;
                 the
                 Succession
                 of
                 the
                 nearest
                 Agnats
                 ,
                 the
                 Terces
                 of
                 Relicts
                 ,
                 the
                 Life-rent
                 of
                 Husbands
                 by
                 the
                 Courtesie
                 ,
                 the
                 exclusion
                 of
                 Deeds
                 on
                 Death-bed
                 ,
                 which
                 are
                 anterior
                 to
                 any
                 Statute
                 ,
                 and
                 not
                 comprehended
                 in
                 any
                 ,
                 as
                 being
                 more
                 solemn
                 and
                 sure
                 than
                 these
                 .
              
               
                 In
                 the
                 next
                 place
                 are
                 our
                 Statutes
                 ,
                 or
                 our
                 Acts
                 of
                 Parliament
                 ,
                 which
                 in
                 this
                 are
                 inferiour
                 to
                 our
                 ancient
                 Law
                 ,
                 that
                 they
                 are
                 lyable
                 to
                 Defuetude
                 ,
                 which
                 never
                 Incroaches
                 on
                 the
                 other
                 .
                 In
                 this
                 ,
                 we
                 differ
                 from
                 the
                 English
                 ,
                 whose
                 Statutes
                 of
                 Parliament
                 ,
                 of
                 whatsoever
                 Antiquity
                 ,
                 remain
                 ever
                 in
                 Force
                 till
                 they
                 be
                 repealed
                 ,
                 which
                 occasions
                 to
                 them
                 many
                 sad
                 debates
                 (
                 publick
                 and
                 private
                 )
                 upon
                 old
                 forgotten
                 Statutes
                 .
                 But
                 with
                 us
                 ,
                 the
                 Lords
                 of
                 Session
                 ,
                 being
                 ,
                 by
                 their
                 Institution
                 ,
                 Authorized
                 with
                 Power
                 ,
                 to
                 make
                 Rules
                 and
                 Statutes
                 ,
                 to
                 be
                 observed
                 ,
                 in
                 the
                 manner
                 and
                 order
                 of
                 Proceeding
                 ,
                 and
                 Administration
                 of
                 Justice
                 ,
                 Par.
                 1537.
                 cap.
                 43.
                 
                 Par.
                 1540.
                 cap
                 93.
                 
                 Their
                 Decisions
                 are
                 final
                 and
                 irrevocable
                 ,
                 when
                 solenmly
                 done
                 ,
                 
                   in
                   foro
                   contradictorio
                
                 ;
                 and
                 thereby
                 ,
                 recent
                 Custome
                 or
                 Practique
                 is
                 established
                 ,
                 both
                 by
                 their
                 Acts
                 of
                 Sederunt
                 and
                 Decisions
                 ,
                 which
                 extend
                 ,
                 not
                 only
                 to
                 the
                 Interpretation
                 of
                 Acts
                 of
                 Parliament
                 ,
                 but
                 to
                 the
                 Derogation
                 thereof
                 ;
                 especially
                 so
                 far
                 as
                 concerns
                 the
                 Administration
                 of
                 Justice
                 ,
                 which
                 is
                 specially
                 committed
                 to
                 them
                 ,
                 whereby
                 all
                 the
                 old
                 Acts
                 of
                 Parliament
                 ,
                 concerning
                 the
                 forms
                 of
                 Process
                 ,
                 are
                 in
                 Desuetude
                 ,
                 and
                 in
                 several
                 points
                 more
                 recent
                 Statutes
                 ;
                 for
                 instance
                 ,
                 albeit
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 1621.
                 cap.
                 81.
                 
                 Reductions
                 of
                 Infeftments
                 are
                 appointed
                 to
                 be
                 sustained
                 by
                 exception
                 or
                 reply
                 ;
                 yet
                 the
                 Lords
                 seeing
                 that
                 this
                 is
                 inconsistent
                 with
                 the
                 necessar
                 and
                 ordinar
                 form
                 of
                 Process
                 ,
                 whereby
                 Rights
                 cannot
                 be
                 annulled
                 or
                 reduced
                 ,
                 till
                 the
                 parties
                 and
                 their
                 authors
                 be
                 called
                 ,
                 that
                 the
                 same
                 maybe
                 first
                 produced
                 ,
                 therefore
                 they
                 do
                 not
                 take
                 away
                 Infeftments
                 by
                 exception
                 or
                 reply
                 ,
                 notwithstanding
                 of
                 the
                 said
                 Statute
                 :
                 But
                 there
                 is
                 much
                 difference
                 to
                 be
                 made
                 betwixt
                 a
                 custome
                 by
                 frequent
                 Decisions
                 ,
                 and
                 a
                 simple
                 Decision
                 ,
                 which
                 hath
                 not
                 like
                 force
                 ,
                 especially
                 if
                 it
                 be
                 invested
                 with
                 many
                 Circumstances
                 of
                 Fact.
                 But
                 such
                 are
                 more
                 effectual
                 ,
                 if
                 they
                 be
                 in
                 any
                 abstract
                 point
                 of
                 Law.
                 Yet
                 frequent
                 agreeing
                 Decisions
                 ,
                 are
                 more
                 effectual
                 than
                 Acts
                 of
                 Sederunt
                 themselves
                 ,
                 which
                 do
                 easily
                 go
                 into
                 Desuetude
                 .
                 Where
                 our
                 ancient
                 Law
                 Statutes
                 ,
                 and
                 our
                 recent
                 Customs
                 and
                 Practiques
                 are
                 defective
                 ,
                 recourse
                 is
                 had
                 to
                 Equity
                 ,
                 as
                 the
                 first
                 and
                 universal
                 Law
                 ,
                 and
                 to
                 expediency
                 ,
                 whereby
                 Laws
                 are
                 drawn
                 in
                 consequence
                 ,
                 
                   ad
                   similes
                   casus
                
                 ;
                 but
                 if
                 it
                 appear
                 ,
                 
                 that
                 such
                 cases
                 have
                 been
                 of
                 purpose
                 omitted
                 by
                 the
                 Parliament
                 ,
                 the
                 Lords
                 will
                 not
                 extend
                 the
                 same
                 ,
                 as
                 albeit
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 1621.
                 cap.
                 6.
                 
                 Composition
                 to
                 Superiours
                 for
                 receiving
                 Apprisers
                 ,
                 be
                 appointed
                 ,
                 and
                 the
                 same
                 in
                 the
                 next
                 Act
                 omitted
                 ,
                 as
                 to
                 Adjudgers
                 .
                 Therefore
                 the
                 Lords
                 presuming
                 thence
                 ,
                 from
                 the
                 propinquity
                 of
                 these
                 Acts
                 ,
                 that
                 such
                 compositions
                 were
                 omitted
                 of
                 purpose
                 ,
                 they
                 would
                 not
                 extend
                 the
                 benefite
                 of
                 the
                 Superiour
                 to
                 a
                 composition
                 in
                 Adjudications
                 .
                 Dury
                 ,
                 21.
                 of
                 July
                 ,
                 1636.
                 
                 
                   Greirson
                   contra
                   Closburn
                
                 ,
                 but
                 now
                 it
                 is
                 extended
                 to
                 Adjudications
                 ;
                 that
                 in
                 these
                 ,
                 Superiour
                 hath
                 a
                 composition
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 23.
                 
                 Decemb.
                 1669.
                 
                 How
                 far
                 the
                 Civil
                 ,
                 Common
                 ,
                 or
                 Feudal
                 Law
                 have
                 place
                 with
                 us
                 ,
                 hath
                 been
                 already
                 said
                 .
                 But
                 it
                 is
                 not
                 to
                 be
                 thought
                 ,
                 that
                 the
                 Feudal
                 Law
                 is
                 our
                 proper
                 Law
                 ,
                 as
                 Craig
                 relates
                 ,
                 lib.
                 1.
                 dig
                 .
                 8.
                 
                   sect
                   .
                   per.
                
                 there
                 being
                 scarce
                 any
                 thing
                 as
                 a
                 Common
                 ,
                 Feudal
                 Law
                 ,
                 but
                 it
                 is
                 Local
                 and
                 customary
                 to
                 every
                 place
                 ,
                 and
                 doth
                 not
                 extend
                 to
                 the
                 half
                 of
                 our
                 Rights
                 :
                 Craig
                 doth
                 very
                 well
                 observe
                 ,
                 near
                 that
                 place
                 ,
                 that
                 these
                 Books
                 called
                 
                   Regiam
                   Majestatem
                
                 ,
                 are
                 no
                 part
                 of
                 our
                 Law
                 ,
                 but
                 were
                 compyled
                 for
                 the
                 Customs
                 of
                 England
                 ,
                 in
                 13.
                 
                 Books
                 ,
                 by
                 the
                 Earl
                 of
                 Chester
                 ,
                 and
                 by
                 some
                 unknown
                 and
                 inconsiderate
                 hand
                 ,
                 stollen
                 thence
                 ,
                 and
                 resarcinate
                 into
                 these
                 four
                 Books
                 ,
                 which
                 pass
                 amongst
                 us
                 ;
                 which
                 though
                 they
                 be
                 mentioned
                 ,
                 to
                 be
                 revised
                 and
                 reformed
                 with
                 our
                 former
                 ancient
                 Laws
                 ,
                 Par.
                 1425.
                 cap.
                 54.
                 
                 Par.
                 1487.
                 cap.
                 115.
                 yet
                 these
                 do
                 not
                 acknowledge
                 them
                 ,
                 as
                 already
                 become
                 our
                 Laws
                 ;
                 but
                 as
                 such
                 ,
                 as
                 by
                 alteration
                 thereof
                 ,
                 may
                 become
                 our
                 Law.
                 
              
               
                 The
                 Law
                 of
                 Scotland
                 in
                 its
                 nearness
                 to
                 Equity
                 ,
                 plainness
                 and
                 facility
                 in
                 its
                 Customes
                 ,
                 Tenors
                 and
                 Forms
                 ,
                 and
                 in
                 its
                 celerity
                 and
                 dispatch
                 in
                 the
                 Administration
                 and
                 Execution
                 of
                 it
                 ,
                 may
                 be
                 well
                 parralleled
                 with
                 the
                 best
                 Law
                 in
                 Christendom
                 ,
                 which
                 will
                 more
                 plainly
                 appear
                 ,
                 when
                 the
                 proportion
                 and
                 propinquity
                 of
                 it
                 to
                 Equity
                 shall
                 be
                 seen
                 .
              
               
                 16.
                 
                 Before
                 we
                 come
                 to
                 the
                 Common
                 Principles
                 of
                 Law
                 ,
                 this
                 Question
                 would
                 be
                 resolved
                 ,
                 
                   Whether
                   Law
                   may
                   ,
                   or
                   should
                   be
                   handled
                   as
                   a
                   Rational
                   Discipline
                   ,
                   having
                   Principles
                   from
                   whence
                   its
                   Conclusions
                   may
                   be
                   deduced
                   ?
                
                 Most
                 Lawers
                 are
                 for
                 the
                 Negative
                 part
                 ,
                 commonly
                 esteeming
                 Law
                 ,
                 especially
                 the
                 positive
                 and
                 proper
                 Laws
                 of
                 any
                 Nation
                 ,
                 incapable
                 of
                 such
                 a
                 deduction
                 ,
                 as
                 being
                 dependent
                 upon
                 the
                 will
                 and
                 pleasure
                 of
                 Law-givers
                 ,
                 and
                 introduced
                 for
                 Utilities
                 sake
                 ,
                 and
                 so
                 frequently
                 alterable
                 ,
                 that
                 they
                 cannot
                 be
                 drawn
                 from
                 prior
                 common
                 Principles
                 ,
                 and
                 keep
                 the
                 artificial
                 method
                 of
                 rational
                 Disciplines
                 ;
                 and
                 therefore
                 they
                 rest
                 satisfied
                 with
                 any
                 order
                 ,
                 whereby
                 the
                 particular
                 Heads
                 and
                 Titles
                 may
                 be
                 found
                 ,
                 whereunto
                 the
                 confused
                 Order
                 of
                 the
                 Civil
                 Law
                 (
                 which
                 is
                 the
                 greatest
                 blemish
                 in
                 it
                 )
                 hath
                 been
                 instrumental
                 ;
                 for
                 there
                 is
                 nothing
                 more
                 ordinar
                 for
                 learned
                 men
                 ,
                 than
                 to
                 maintain
                 their
                 Authors
                 ,
                 and
                 through
                 their
                 respect
                 to
                 them
                 ,
                 not
                 to
                 be
                 sensible
                 of
                 their
                 tollerable
                 Errors
                 .
                 There
                 is
                 little
                 to
                 be
                 found
                 among
                 the
                 Commentars
                 and
                 Treatises
                 upon
                 the
                 Civil
                 Law
                 ,
                 arguing
                 from
                 any
                 known
                 Principles
                 of
                 Right
                 ;
                 but
                 all
                 their
                 Debates
                 is
                 a
                 Congestion
                 of
                 the
                 Contexts
                 of
                 the
                 Law
                 ,
                 which
                 exceedingly
                 nauseates
                 delicate
                 ingines
                 ,
                 finding
                 much
                 more
                 work
                 for
                 their
                 memory
                 ,
                 than
                 judgement
                 in
                 taking
                 up
                 and
                 retaining
                 the
                 Lawgivers
                 Will
                 ,
                 rather
                 than
                 searching
                 into
                 his
                 reason
                 ;
                 yet
                 there
                 are
                 not
                 wanting
                 of
                 late
                 of
                 the
                 learnedest
                 Lawers
                 ,
                 who
                 have
                 thought
                 it
                 both
                 feasible
                 and
                 fit
                 ,
                 that
                 the
                 Law
                 should
                 be
                 formed
                 as
                 a
                 Rational
                 Discipline
                 ,
                 and
                 have
                 much
                 regrated
                 that
                 it
                 hath
                 not
                 been
                 effectuated
                 ;
                 yea
                 ,
                 scarce
                 attempted
                 by
                 any
                 ,
                 as
                 
                   Duarrenus
                   ,
                   de
                   ratione
                   discendi
                   docendique
                   juris
                   .
                
                 And
                 Grotius
                 in
                 his
                 Prologues
                 to
                 his
                 Learned
                 Treatise
                 ,
                 
                   de
                   jure
                   belli
                   &
                   pacis
                
                 ,
                 for
                 which
                 there
                 are
                 many
                 peregnant
                 Reasons
                 .
              
               
                 First
                 ,
                 As
                 we
                 have
                 hinted
                 before
                 ,
                 Equity
                 or
                 the
                 Law
                 of
                 Nature
                 ,
                 standeth
                 
                 wholly
                 in
                 these
                 Practical
                 Principles
                 ,
                 which
                 are
                 created
                 in
                 ,
                 and
                 with
                 the
                 Soul
                 of
                 Man
                 ,
                 and
                 arise
                 in
                 him
                 without
                 reasoning
                 or
                 debate
                 ,
                 as
                 naturally
                 as
                 the
                 Heat
                 doth
                 from
                 the
                 Fire
                 ,
                 or
                 the
                 Light
                 from
                 the
                 Sun
                 :
                 and
                 in
                 these
                 Rules
                 of
                 Righteousness
                 ,
                 which
                 are
                 deduced
                 thence
                 by
                 evident
                 Reason
                 ,
                 so
                 that
                 Law
                 is
                 Reason
                 it self
                 ,
                 as
                 it
                 is
                 versant
                 about
                 the
                 Rights
                 of
                 men
                 ,
                 and
                 therefore
                 called
                 the
                 Law
                 of
                 Reason
                 :
                 and
                 can
                 there
                 be
                 any
                 thing
                 more
                 congruous
                 to
                 a
                 natural
                 Discipline
                 ,
                 than
                 Reason
                 it self
                 ,
                 and
                 its
                 Principles
                 ?
              
               
                 Secondly
                 ,
                 God
                 in
                 his
                 Goodness
                 hath
                 given
                 man
                 more
                 radiant
                 Rays
                 of
                 Reason
                 ,
                 and
                 preserved
                 it
                 more
                 after
                 his
                 Fall
                 ,
                 about
                 his
                 Rights
                 ,
                 
                   meum
                   &
                   tuum
                
                 ,
                 than
                 in
                 any
                 other
                 Science
                 or
                 Knowledge
                 ,
                 which
                 for
                 the
                 most
                 part
                 are
                 dubious
                 and
                 conjectural
                 ,
                 and
                 attainable
                 only
                 with
                 great
                 pains
                 :
                 but
                 in
                 the
                 matters
                 of
                 Right
                 ,
                 a
                 man
                 of
                 Reason
                 ,
                 though
                 without
                 Education
                 ,
                 if
                 not
                 blinded
                 or
                 byassed
                 with
                 Affection
                 or
                 Interest
                 ,
                 or
                 marred
                 with
                 the
                 Statutes
                 and
                 Customes
                 of
                 men
                 ,
                 which
                 are
                 but
                 as
                 their
                 Contracts
                 and
                 matters
                 of
                 Fact
                 to
                 him
                 ,
                 would
                 be
                 able
                 to
                 discern
                 right
                 from
                 wrong
                 ,
                 though
                 he
                 cannot
                 be
                 so
                 distinct
                 ,
                 as
                 by
                 reflecting
                 on
                 his
                 own
                 Knowledge
                 ,
                 to
                 take
                 up
                 ,
                 and
                 hold
                 forth
                 the
                 Grounds
                 upon
                 which
                 he
                 doth
                 proceed
                 ,
                 or
                 to
                 reach
                 matters
                 of
                 Intricacy
                 or
                 Difficulty
                 ,
                 which
                 require
                 〈◊〉
                 Judgement
                 and
                 long
                 Experience
                 .
              
               
                 Thirdly
                 〈◊〉
                 Expostulate
                 and
                 Argue
                 with
                 men
                 ,
                 even
                 for
                 Moral
                 Duties
                 ,
                 from
                 their
                 Common
                 Principles
                 of
                 Righteousness
                 ,
                 which
                 their
                 Conscience
                 cannot
                 reject
                 ,
                 as
                 is
                 evident
                 every
                 where
                 in
                 his
                 Word
                 ;
                 and
                 therefore
                 ,
                 seing
                 the
                 Law
                 hath
                 such
                 Principles
                 ,
                 it
                 may
                 and
                 ought
                 to
                 be
                 held
                 forth
                 as
                 it
                 is
                 deduced
                 from
                 them
                 .
              
               
                 As
                 to
                 the
                 difficulties
                 which
                 seem
                 to
                 arise
                 from
                 the
                 variety
                 and
                 multiplication
                 of
                 positive
                 Laws
                 ,
                 it
                 will
                 say
                 nothing
                 ;
                 for
                 seing
                 positive
                 Law
                 is
                 only
                 to
                 declare
                 Equity
                 ,
                 or
                 make
                 it
                 effectual
                 ,
                 and
                 in
                 some
                 cases
                 to
                 lay
                 aside
                 the
                 effects
                 of
                 it
                 ,
                 for
                 the
                 profite
                 of
                 man
                 now
                 in
                 his
                 lapsed
                 estate
                 ,
                 it
                 may
                 be
                 easily
                 ordered
                 ,
                 by
                 bringing
                 it
                 to
                 the
                 parts
                 of
                 Equity
                 ,
                 whereunto
                 it
                 doth
                 relate
                 ;
                 and
                 as
                 a
                 mans
                 body
                 may
                 well
                 be
                 described
                 ,
                 though
                 it
                 be
                 not
                 naked
                 ,
                 and
                 in
                 its
                 pure
                 naturals
                 ,
                 and
                 have
                 its
                 hair
                 cut
                 and
                 ordered
                 ,
                 and
                 ornaments
                 upon
                 it
                 ;
                 all
                 which
                 will
                 fall
                 to
                 be
                 described
                 as
                 Appendicles
                 ,
                 to
                 the
                 several
                 parts
                 of
                 the
                 body
                 which
                 they
                 adorn
                 :
                 for
                 ,
                 Equity
                 is
                 the
                 body
                 of
                 the
                 Law
                 ,
                 and
                 the
                 Statutes
                 of
                 men
                 are
                 but
                 as
                 the
                 ornaments
                 ,
                 and
                 vestiture
                 thereof
                 ;
                 and
                 in
                 the
                 Explanation
                 of
                 every
                 part
                 of
                 it
                 ,
                 it
                 will
                 most
                 fitly
                 fall
                 in
                 :
                 But
                 the
                 best
                 demonstration
                 of
                 this
                 will
                 be
                 occular
                 ,
                 by
                 delineation
                 of
                 Equity
                 and
                 positive
                 Law
                 together
                 .
              
               
                 17.
                 
                 The
                 Principles
                 of
                 Law
                 are
                 such
                 as
                 are
                 known
                 without
                 arguing
                 ,
                 and
                 to
                 which
                 the
                 judgement
                 upon
                 apprehenosin
                 thereof
                 ,
                 will
                 give
                 its
                 ready
                 and
                 full
                 assent
                 ;
                 such
                 as
                 God
                 is
                 to
                 be
                 adorned
                 and
                 obeyed
                 ,
                 Parents
                 to
                 be
                 obeyed
                 and
                 honoured
                 ,
                 Children
                 to
                 be
                 loved
                 and
                 entertained
                 ;
                 and
                 such
                 are
                 these
                 common
                 Precepts
                 which
                 are
                 set
                 forth
                 in
                 the
                 Civil
                 Law
                 ,
                 to
                 live
                 honestly
                 ,
                 to
                 wrong
                 no
                 man
                 ,
                 and
                 to
                 give
                 every
                 man
                 his
                 Right
                 :
                 but
                 here
                 we
                 shall
                 speak
                 of
                 the
                 most
                 general
                 Principles
                 ,
                 which
                 have
                 influence
                 upon
                 all
                 the
                 Rights
                 of
                 men
                 ,
                 leaving
                 the
                 more
                 particular
                 ones
                 to
                 the
                 Rights
                 flowing
                 therefrom
                 .
              
               
                 The
                 first
                 Principles
                 of
                 Equity
                 are
                 these
                 ,
                 that
                 God
                 is
                 to
                 be
                 obeyed
                 by
                 man.
                 2.
                 
                 That
                 man
                 is
                 a
                 free
                 creature
                 ,
                 having
                 power
                 to
                 dispose
                 of
                 himself
                 and
                 of
                 all
                 things
                 ,
                 in
                 so
                 far
                 as
                 by
                 his
                 obedience
                 to
                 God
                 he
                 is
                 not
                 restrained
                 .
                 3.
                 
                 That
                 this
                 freedom
                 of
                 man
                 is
                 in
                 his
                 own
                 power
                 ,
                 and
                 may
                 be
                 restrained
                 by
                 his
                 voluntar
                 ingagements
                 ,
                 which
                 he
                 is
                 bound
                 to
                 fulfil
                 ,
                 or
                 take
                 them
                 up
                 more
                 Summarly
                 .
                 The
                 first
                 principles
                 of
                 Right
                 are
                 Obedience
                 ,
                 Freedom
                 and
                 Ingagement
                 .
              
               
                 There
                 are
                 also
                 three
                 prime
                 Principles
                 of
                 the
                 positive
                 Law
                 ,
                 whose
                 aim
                 and
                 
                 terest
                 is
                 the
                 profite
                 and
                 utility
                 of
                 man
                 ,
                 as
                 the
                 Natural
                 Law
                 is
                 ,
                 
                   in
                   equo
                
                 ,
                 so
                 the
                 positive
                 Law
                 is
                 ,
                 
                   in
                   bono
                
                 ,
                 or
                 utili
                 ;
                 and
                 upon
                 those
                 two
                 legs
                 doth
                 Justice
                 move
                 ,
                 in
                 giving
                 every
                 man
                 his
                 Right
                 :
                 If
                 man
                 had
                 not
                 fallen
                 ,
                 there
                 had
                 been
                 no
                 distinction
                 betwixt
                 bonum
                 and
                 equum
                 ;
                 nor
                 had
                 there
                 been
                 anything
                 more
                 profitable
                 ,
                 than
                 the
                 full
                 following
                 of
                 the
                 Natural
                 Law
                 :
                 but
                 man
                 being
                 now
                 depraved
                 ,
                 and
                 wanting
                 Justice
                 ,
                 or
                 that
                 willingness
                 to
                 give
                 every
                 man
                 his
                 Right
                 ,
                 and
                 apt
                 to
                 fraud
                 or
                 force
                 ;
                 therefore
                 ,
                 in
                 this
                 estate
                 it
                 is
                 profitable
                 for
                 him
                 ,
                 to
                 quite
                 something
                 of
                 that
                 which
                 by
                 equity
                 is
                 his
                 due
                 ,
                 for
                 peace
                 and
                 quietness
                 sake
                 ,
                 rather
                 than
                 to
                 use
                 compulsion
                 and
                 quarrelling
                 in
                 all
                 things
                 ,
                 and
                 to
                 find
                 out
                 expedients
                 ,
                 and
                 helps
                 to
                 make
                 equity
                 effectual
                 :
                 And
                 therefore
                 ,
                 to
                 make
                 up
                 societies
                 of
                 men
                 ,
                 that
                 they
                 may
                 mutually
                 defend
                 one
                 another
                 ,
                 and
                 procure
                 to
                 one
                 another
                 their
                 Rights
                 ,
                 and
                 also
                 to
                 set
                 clear
                 limits
                 to
                 every
                 mans
                 Property
                 ,
                 and
                 to
                 maintain
                 Traffick
                 and
                 Commerce
                 among
                 themselves
                 and
                 with
                 others
                 ;
                 so
                 that
                 the
                 three
                 Principles
                 of
                 Positive
                 Law
                 ,
                 may
                 be
                 Society
                 ,
                 Property
                 and
                 Commerce
                 .
                 The
                 Principles
                 of
                 Equity
                 are
                 the
                 efficient
                 cause
                 of
                 Rights
                 and
                 Laws
                 ;
                 the
                 Principles
                 of
                 Positive
                 Law
                 ,
                 are
                 the
                 final
                 causes
                 or
                 ends
                 ,
                 for
                 which
                 Laws
                 are
                 made
                 ,
                 and
                 Rights
                 constitute
                 and
                 ordered
                 ,
                 and
                 all
                 of
                 them
                 may
                 aim
                 at
                 the
                 maintenance
                 ,
                 flourishing
                 and
                 Peace
                 of
                 Society
                 ,
                 the
                 security
                 of
                 Property
                 ,
                 and
                 the
                 freedom
                 of
                 Commerce
                 ,
                 and
                 so
                 the
                 Narratives
                 of
                 Statutes
                 ,
                 do
                 commonly
                 bear
                 the
                 motives
                 introductory
                 ,
                 towards
                 some
                 of
                 these
                 Heads
                 .
              
               
                 18.
                 
                 Obedience
                 is
                 that
                 submission
                 and
                 sequacity
                 of
                 the
                 mind
                 and
                 will
                 of
                 man
                 ,
                 to
                 the
                 Authority
                 and
                 Will
                 of
                 his
                 Maker
                 ,
                 immediately
                 oblieging
                 without
                 any
                 tye
                 upon
                 him
                 by
                 himself
                 ,
                 intimate
                 to
                 him
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 Light
                 of
                 Reason
                 ,
                 and
                 the
                 Conscience
                 ,
                 whereby
                 man
                 distinguisheth
                 betwixt
                 Right
                 and
                 Wrong
                 ,
                 betwixt
                 what
                 is
                 Duty
                 ,
                 and
                 what
                 is
                 not
                 Duty
                 ;
                 hence
                 do
                 arise
                 these
                 Obligations
                 upon
                 man
                 ,
                 which
                 are
                 not
                 by
                 his
                 own
                 consent
                 or
                 ingagement
                 ,
                 nor
                 by
                 the
                 Will
                 of
                 Man
                 ,
                 but
                 by
                 the
                 Will
                 of
                 God
                 ;
                 and
                 therefore
                 ,
                 these
                 are
                 fitly
                 called
                 
                   Obediential
                   Obligations
                
                 .
                 The
                 first
                 and
                 most
                 general
                 of
                 these
                 ,
                 is
                 ,
                 
                   To
                   Love
                   the
                   Lord
                   our
                   God
                   with
                   all
                   our
                   heart
                   ,
                   and
                   our
                   Neighbour
                   as
                   our Selves
                   ;
                   upon
                   which
                
                 saith
                 our
                 Saviour
                 ,
                 
                   hangeth
                   all
                   the
                   Law
                   and
                   the
                   Prophets
                   ,
                
                 Matth.
                 22.
                 vers
                 .
                 40.
                 which
                 is
                 a
                 clear
                 demonstration
                 from
                 his
                 Mouth
                 ,
                 of
                 the
                 dependence
                 of
                 the
                 Moral
                 Law
                 ,
                 upon
                 this
                 Principle
                 :
                 such
                 are
                 also
                 the
                 Obligations
                 betwixt
                 Husband
                 and
                 Wife
                 ,
                 Parents
                 and
                 Children
                 ,
                 and
                 the
                 Obligations
                 of
                 Restitution
                 ,
                 Reparation
                 ,
                 and
                 Remuneration
                 ;
                 in
                 all
                 which
                 we
                 are
                 ingaged
                 ,
                 not
                 by
                 our
                 will
                 and
                 consent
                 ;
                 and
                 such
                 are
                 the
                 Obligations
                 ,
                 which
                 the
                 Civilians
                 call
                 
                   Quasi
                   ex
                   contractu
                
                 ,
                 because
                 they
                 find
                 them
                 Obligatory
                 ,
                 and
                 yet
                 not
                 by
                 Contract
                 ,
                 and
                 not
                 adverting
                 this
                 their
                 rise
                 from
                 Obedience
                 ,
                 reduce
                 them
                 to
                 Contracts
                 by
                 
                   a
                   quast
                
                 .
              
               
                 19.
                 
                 Where
                 Obedience
                 ends
                 ,
                 there
                 Freedom
                 begins
                 ,
                 and
                 man
                 by
                 Nature
                 is
                 Free
                 in
                 all
                 things
                 ,
                 where
                 this
                 Obedience
                 has
                 not
                 tyed
                 him
                 ,
                 until
                 he
                 obliege
                 himself
                 .
                 It
                 is
                 a
                 great
                 mercy
                 to
                 man
                 ,
                 that
                 God
                 hath
                 oblieged
                 him
                 only
                 in
                 a
                 few
                 necessar
                 moral
                 duties
                 ,
                 and
                 has
                 left
                 him
                 free
                 in
                 much
                 more
                 ,
                 without
                 any
                 tye
                 upon
                 him
                 ,
                 as
                 to
                 the
                 matter
                 ,
                 but
                 with
                 a
                 liberty
                 ,
                 
                   ad
                   contradictoria
                
                 ,
                 that
                 he
                 may
                 do
                 or
                 not
                 do
                 ;
                 and
                 
                   ad
                   contraria
                
                 ,
                 that
                 he
                 may
                 do
                 this
                 or
                 the
                 contrair
                 ,
                 providing
                 that
                 whatsoever
                 he
                 do
                 (
                 even
                 where
                 he
                 is
                 free
                 )
                 be
                 ordered
                 and
                 directed
                 to
                 the
                 Glory
                 of
                 God.
                 It
                 hath
                 been
                 the
                 opinion
                 of
                 some
                 ,
                 both
                 Learned
                 and
                 pious
                 ,
                 that
                 there
                 is
                 nothing
                 indifferent
                 ,
                 
                   in
                   actu
                   exercito
                
                 ;
                 or
                 as
                 it
                 is
                 invested
                 with
                 the
                 Circumstances
                 ,
                 but
                 that
                 then
                 every
                 thing
                 is
                 a
                 duty
                 or
                 a
                 sin
                 ,
                 and
                 that
                 because
                 all
                 things
                 must
                 be
                 done
                 to
                 the
                 Glory
                 of
                 God
                 ,
                 and
                 to
                 mutual
                 edification
                 ,
                 from
                 whence
                 there
                 is
                 no
                 exception
                 ,
                 and
                 so
                 are
                 not
                 free
                 ;
                 that
                 we
                 
                   must
                   make
                   account
                   of
                   every
                   idle
                   word
                
                 ;
                 and
                 that
                 we
                 are
                 oblieged
                 ,
                 
                   to
                   try
                   all
                   things
                   ,
                   and
                   to
                   hold
                   that
                   which
                   is
                   best
                   :
                
                 These
                 Reasons
                 indeed
                 conclude
                 ,
                 that
                 
                 there
                 is
                 nothing
                 free
                 ,
                 as
                 to
                 this
                 contradiction
                 ,
                 either
                 to
                 be
                 done
                 to
                 the
                 Glory
                 of
                 God
                 ,
                 or
                 not
                 ,
                 and
                 to
                 Edification
                 and
                 Use
                 ,
                 or
                 not
                 ;
                 but
                 do
                 not
                 conclude
                 that
                 there
                 is
                 duty
                 ,
                 or
                 necessity
                 in
                 the
                 matter
                 of
                 the
                 Action
                 it self
                 ,
                 of
                 which
                 ,
                 either
                 part
                 of
                 the
                 contradiction
                 may
                 be
                 chosen
                 ,
                 so
                 that
                 either
                 part
                 be
                 useful
                 and
                 ordered
                 to
                 the
                 Glory
                 of
                 God
                 ,
                 as
                 saith
                 the
                 Apostle
                 ,
                 
                   He
                   that
                   observeth
                   a
                   day
                   ,
                   observeth
                   it
                   to
                   the
                   Lord
                   ,
                   and
                   he
                   that
                   observeth
                   not
                   ,
                   doth
                   so
                   to
                   the
                   Lord.
                
                 And
                 likewife
                 in
                 that
                 undenyable
                 instance
                 of
                 Marriage
                 ,
                 wherein
                 the
                 Apostle
                 debating
                 of
                 the
                 conveniency
                 to
                 Marry
                 ,
                 or
                 not
                 to
                 Marry
                 ,
                 doth
                 conclude
                 so
                 ,
                 
                   that
                   he
                   that
                   Marrieth
                   doth
                   well
                   ,
                   but
                   he
                   that
                   Marrieth
                   not
                   doth
                   better
                
                 ;
                 whereby
                 both
                 parts
                 of
                 the
                 contradiction
                 are
                 approven
                 ;
                 and
                 that
                 which
                 is
                 less
                 profitable
                 ,
                 is
                 said
                 
                   to
                   be
                   well
                   done
                
                 :
                 Therefore
                 ,
                 there
                 is
                 a
                 great
                 difference
                 betwixt
                 duty
                 which
                 is
                 necessar
                 ,
                 and
                 wherein
                 we
                 are
                 oblieged
                 ,
                 though
                 we
                 mistake
                 or
                 be
                 wilfully
                 ignorant
                 by
                 the
                 very
                 weight
                 of
                 the
                 matter
                 ,
                 and
                 absoluteness
                 of
                 the
                 Command
                 ,
                 wherein
                 the
                 ordering
                 of
                 what
                 is
                 forbidden
                 to
                 Gods
                 Glory
                 ,
                 will
                 not
                 justifie
                 ,
                 as
                 
                   we
                   may
                   not
                   do
                   evil
                   ,
                   that
                   good
                   may
                   come
                   of
                   it
                
                 ;
                 as
                 those
                 who
                 killed
                 the
                 Apostles
                 ,
                 were
                 far
                 from
                 being
                 justified
                 ,
                 though
                 they
                 thought
                 
                   they
                   did
                   God
                   good
                   service
                   thereby
                   .
                
                 These
                 things
                 are
                 ,
                 
                   bona
                   honesta
                   ,
                   &
                   mala
                   inhonesta
                
                 ;
                 but
                 matters
                 of
                 expediency
                 ,
                 are
                 but
                 
                   bona
                   utilia
                
                 ,
                 or
                 ,
                 
                   mala
                   inutilia
                
                 ,
                 and
                 not
                 inhonesta
                 ;
                 and
                 therefore
                 ,
                 our
                 duty
                 in
                 these
                 ,
                 is
                 that
                 which
                 we
                 conceive
                 
                   most
                   to
                   be
                   for
                   the
                   Glory
                   of
                   God
                   ,
                   and
                   good
                   of
                   our selves
                   and
                   others
                
                 ;
                 but
                 if
                 we
                 do
                 mistake
                 ,
                 and
                 choose
                 that
                 which
                 is
                 less
                 expedient
                 for
                 these
                 ends
                 ,
                 we
                 are
                 free
                 .
                 God
                 seemeth
                 to
                 do
                 with
                 men
                 ,
                 as
                 Princes
                 do
                 with
                 their
                 Ambassadors
                 ,
                 to
                 whom
                 they
                 give
                 some
                 express
                 instructions
                 ,
                 wherein
                 they
                 have
                 no
                 latitude
                 in
                 their
                 Negotiations
                 ,
                 and
                 for
                 the
                 rest
                 to
                 do
                 as
                 they
                 shall
                 judge
                 most
                 fit
                 upon
                 the
                 place
                 ,
                 wherein
                 ,
                 if
                 acting
                 
                   bona
                   fide
                
                 ,
                 they
                 mistake
                 ,
                 and
                 do
                 not
                 that
                 which
                 is
                 most
                 fit
                 ,
                 they
                 are
                 not
                 culpable
                 .
                 So
                 man
                 being
                 sent
                 into
                 the
                 World
                 to
                 behold
                 the
                 Works
                 of
                 God
                 ,
                 and
                 to
                 Glorifie
                 him
                 ,
                 for
                 doing
                 whereof
                 ,
                 he
                 hath
                 some
                 Rules
                 written
                 in
                 his
                 Heart
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 and
                 in
                 the
                 Word
                 of
                 God
                 ,
                 and
                 for
                 the
                 rest
                 ,
                 is
                 allowed
                 to
                 do
                 as
                 he
                 conceiveth
                 most
                 conducible
                 thereto
                 ,
                 
                   that
                   whether
                   heeat
                   ,
                   or
                   drink
                   ,
                   or
                   whatsoever
                   else
                   he
                   do
                   ,
                   he
                   do
                   all
                   to
                   the
                   glory
                   of
                   God.
                
                 It
                 were
                 a
                 sad
                 Rack
                 to
                 the
                 Consciences
                 of
                 men
                 ,
                 if
                 their
                 errors
                 and
                 mistakes
                 in
                 the
                 matters
                 of
                 expediency
                 ,
                 were
                 to
                 lyeas
                 a
                 guilt
                 upon
                 their
                 Consciences
                 ,
                 but
                 that
                 
                   bona
                   fides
                
                 ,
                 or
                 ,
                 
                   conscientia
                   illesa
                
                 ,
                 so
                 much
                 spoken
                 of
                 in
                 the
                 Law
                 ,
                 is
                 that
                 which
                 cleareth
                 and
                 acquitteth
                 men
                 in
                 such
                 mistakes
                 .
              
               
                 From
                 this
                 Freedom
                 doth
                 arise
                 ,
                 not
                 only
                 our
                 Personal
                 Freedom
                 and
                 Liberty
                 ,
                 whereby
                 men
                 are
                 
                   sui
                   juris
                
                 ;
                 but
                 also
                 their
                 power
                 of
                 the
                 disposel
                 of
                 other
                 things
                 within
                 their
                 reach
                 ,
                 or
                 that
                 Dominion
                 (
                 which
                 God
                 hath
                 given
                 them
                 )
                 
                   over
                   the
                   Creatures
                
                 .
              
               
                 20.
                 
                 As
                 Freedom
                 began
                 ,
                 where
                 Obedience
                 ended
                 ;
                 so
                 Ingagement
                 begins
                 where
                 Freedom
                 ends
                 ;
                 it
                 being
                 our
                 voluntar
                 oblieging
                 of
                 our selves
                 ,
                 where
                 by
                 Nature
                 we
                 are
                 Free
                 ;
                 every
                 such
                 Obligation
                 ,
                 is
                 a
                 diminution
                 of
                 that
                 Freedom
                 ,
                 for
                 thereby
                 ,
                 we
                 are
                 either
                 restrained
                 from
                 that
                 power
                 of
                 disposel
                 of
                 the
                 Creatures
                 ,
                 or
                 may
                 be
                 constrained
                 to
                 some
                 performances
                 contrair
                 to
                 our
                 Natural
                 Liberty
                 .
                 Some
                 hold
                 it
                 not
                 lawful
                 for
                 us
                 ,
                 
                   To
                   give
                   away
                   our
                   Native
                   Freedoom
                   ,
                   in
                   whole
                   ,
                   or
                   in
                   part
                   ,
                   or
                   to
                   bind
                   our selves
                   where
                   God
                   has
                   left
                   us
                   free
                   ,
                   and
                   that
                   such
                   Ingagements
                   ,
                   except
                   where
                   they
                   are
                   profitable
                   for
                   us
                   ,
                   or
                   for
                   an
                   equivalent
                   cause
                   ,
                   are
                   not
                   obligatory
                
                 ;
                 which
                 shall
                 be
                 more
                 proper
                 to
                 debate
                 ,
                 when
                 we
                 come
                 to
                 the
                 Obligations
                 by
                 Paction
                 ,
                 Promise
                 ,
                 or
                 Contract
                 ,
                 all
                 which
                 do
                 arise
                 from
                 the
                 Principle
                 of
                 Ingagement
                 ;
                 but
                 it
                 shall
                 be
                 sufficient
                 here
                 ,
                 to
                 conclude
                 with
                 the
                 Law
                 ,
                 that
                 there
                 is
                 nothing
                 more
                 Natural
                 ,
                 than
                 to
                 stand
                 to
                 the
                 Faith
                 of
                 our
                 Pactions
                 ;
                 This
                 much
                 for
                 the
                 
                   Common
                   Principles
                   of
                   Law.
                
                 
              
               
                 21.
                 
                 As
                 to
                 the
                 Object
                 thereof
                 ,
                 the
                 formal
                 and
                 proper
                 Objects
                 of
                 Law
                 ,
                 are
                 the
                 
                 Rights
                 of
                 men
                 ;
                 a
                 Right
                 is
                 a
                 power
                 given
                 by
                 the
                 Law
                 ,
                 of
                 disposing
                 of
                 things
                 ,
                 or
                 exacting
                 from
                 persons
                 that
                 which
                 they
                 are
                 due
                 ;
                 this
                 will
                 be
                 evident
                 ,
                 if
                 we
                 consider
                 the
                 several
                 kinds
                 of
                 Rights
                 ,
                 which
                 are
                 three
                 ,
                 our
                 Personal
                 Liberty
                 ,
                 Dominion
                 ,
                 and
                 Obligation
                 ;
                 Personal
                 Liberty
                 ,
                 is
                 the
                 power
                 to
                 dispose
                 of
                 our
                 Persons
                 ,
                 and
                 to
                 live
                 where
                 ,
                 and
                 as
                 we
                 please
                 ,
                 except
                 in
                 so
                 far
                 ,
                 as
                 by
                 Obedience
                 ,
                 or
                 Ingagement
                 we
                 are
                 bound
                 :
                 Dominion
                 is
                 the
                 power
                 of
                 disposal
                 of
                 the
                 Creatures
                 in
                 their
                 Substance
                 ,
                 Fruits
                 and
                 Use
                 :
                 Obligation
                 is
                 that
                 which
                 is
                 correspondent
                 to
                 a
                 Personal
                 Right
                 ,
                 which
                 hath
                 no
                 proper
                 Name
                 ,
                 as
                 it
                 is
                 in
                 the
                 Creditor
                 ,
                 but
                 hath
                 the
                 Name
                 of
                 Obligation
                 ,
                 as
                 it
                 is
                 in
                 the
                 Debitor
                 ;
                 and
                 it
                 is
                 nothing
                 else
                 but
                 a
                 legal
                 tye
                 ,
                 whereby
                 the
                 Debitor
                 may
                 be
                 compelled
                 to
                 pay
                 ,
                 or
                 perform
                 something
                 ,
                 to
                 which
                 he
                 is
                 bound
                 ,
                 by
                 obedience
                 to
                 God
                 ,
                 or
                 by
                 his
                 own
                 consent
                 and
                 ingagement
                 ,
                 unto
                 which
                 Bond
                 the
                 Correlate
                 in
                 the
                 Creditor
                 is
                 the
                 power
                 of
                 exaction
                 ,
                 whereby
                 he
                 may
                 exact
                 ,
                 obtain
                 ,
                 or
                 compel
                 the
                 Debitor
                 to
                 pay
                 or
                 perform
                 what
                 is
                 due
                 ,
                 and
                 this
                 is
                 called
                 a
                 personal
                 Right
                 ,
                 as
                 looking
                 directly
                 to
                 the
                 person
                 oblieged
                 ;
                 but
                 to
                 things
                 indirectly
                 ,
                 as
                 they
                 belong
                 to
                 that
                 person
                 ;
                 So
                 Dominion
                 is
                 called
                 a
                 real
                 Right
                 ,
                 because
                 it
                 respecteth
                 things
                 directly
                 ;
                 but
                 persons
                 as
                 they
                 have
                 medled
                 with
                 these
                 things
                 ,
                 by
                 which
                 it
                 is
                 clear
                 ,
                 that
                 all
                 Rights
                 consist
                 in
                 a
                 Power
                 or
                 Faculty
                 ,
                 the
                 Act
                 whereof
                 is
                 Possession
                 ,
                 Injoyment
                 ,
                 or
                 Use
                 ,
                 which
                 is
                 a
                 matter
                 of
                 Fact
                 ,
                 and
                 no
                 point
                 of
                 Right
                 ,
                 and
                 which
                 may
                 be
                 ,
                 where
                 no
                 Right
                 is
                 ,
                 as
                 Right
                 may
                 be
                 ,
                 where
                 these
                 are
                 not
                 .
              
               
                 22.
                 
                 The
                 
                   Roman
                   Law
                
                 taketh
                 up
                 for
                 its
                 Object
                 ,
                 Persons
                 ,
                 things
                 and
                 Actions
                 ,
                 and
                 according
                 to
                 these
                 ,
                 orders
                 it self
                 ;
                 but
                 these
                 are
                 only
                 the
                 extrinsick
                 Object
                 and
                 matter
                 ,
                 about
                 which
                 ,
                 Law
                 and
                 Right
                 are
                 versant
                 ;
                 but
                 the
                 proper
                 Object
                 is
                 the
                 Right
                 it self
                 ,
                 whether
                 it
                 concerns
                 Persons
                 ,
                 Things
                 ,
                 or
                 Actions
                 ,
                 and
                 according
                 to
                 the
                 several
                 Rights
                 ,
                 and
                 their
                 natural
                 order
                 ,
                 the
                 order
                 of
                 〈◊〉
                 ,
                 may
                 be
                 taken
                 up
                 in
                 a
                 threefold
                 consideration
                 ;
                 First
                 ,
                 in
                 their
                 Constitution
                 and
                 Nature
                 .
                 Secondly
                 ,
                 in
                 their
                 Conveyance
                 ,
                 or
                 Translation
                 from
                 one
                 person
                 to
                 another
                 ,
                 whether
                 it
                 be
                 among
                 the
                 living
                 ,
                 or
                 from
                 the
                 dead
                 .
                 Thirdly
                 ,
                 in
                 their
                 Cognition
                 ,
                 which
                 comprehends
                 the
                 Tryal
                 ,
                 Decision
                 and
                 Execution
                 of
                 every
                 Right
                 ,
                 by
                 the
                 legal
                 remeids
                 ,
                 whereby
                 the
                 whole
                 method
                 may
                 be
                 clearly
                 thus
                 .
                 First
                 ,
                 of
                 the
                 Nature
                 of
                 the
                 several
                 Rights
                 ,
                 and
                 because
                 Liberty
                 standeth
                 in
                 the
                 midst
                 ,
                 betwixt
                 Obligations
                 of
                 Obedience
                 ,
                 which
                 are
                 anterior
                 ,
                 and
                 of
                 Ingagements
                 ,
                 which
                 are
                 posterior
                 ;
                 but
                 both
                 these
                 being
                 of
                 the
                 same
                 Nature
                 ,
                 must
                 be
                 handled
                 together
                 ;
                 and
                 therefore
                 Liberty
                 must
                 have
                 the
                 first
                 place
                 ;
                 and
                 next
                 ,
                 Obligations
                 Obediential
                 ,
                 and
                 then
                 Conventional
                 ;
                 and
                 after
                 these
                 ,
                 Dominion
                 in
                 all
                 its
                 parts
                 And
                 in
                 the
                 Second
                 place
                 ,
                 shall
                 follow
                 the
                 conveyance
                 of
                 these
                 several
                 Rights
                 .
                 And
                 Lastly
                 ,
                 Cognition
                 of
                 all
                 the
                 judicial
                 Process
                 and
                 Executions
                 :
                 Rights
                 ,
                 in
                 respect
                 of
                 the
                 matter
                 ,
                 are
                 divided
                 in
                 publick
                 and
                 private
                 Rights
                 ;
                 publick
                 Rights
                 ,
                 are
                 these
                 which
                 concern
                 the
                 State
                 of
                 the
                 Common-wealth
                 ;
                 private
                 Rights
                 ,
                 are
                 the
                 Rights
                 of
                 Persons
                 and
                 particular
                 Incorporations
                 ,
                 of
                 which
                 ,
                 in
                 their
                 places
                 .
              
            
             
               
               
                 TITLE
                 II.
                 Of
                 Liberty
                 .
              
               
                 
                   1.
                   
                   Liberty
                   described
                   .
                
                 
                   2.
                   
                   Liberty
                   distinct
                   from
                   Dominion
                   and
                   Obligations
                   .
                
                 
                   3.
                   
                   The
                   Principle
                   whence
                   Liberty
                   ariseth
                   .
                
                 
                   4.
                   
                   Restraint
                   and
                   Constraint
                   .
                
                 
                   5.
                   
                   Liberty
                   is
                   bounded
                   by
                   Obedience
                   .
                
                 
                   6.
                   
                   It
                   is
                   diminished
                   by
                   Delinquence
                   .
                
                 
                   7.
                   
                   By
                   Ingagements
                   .
                
                 
                   8.
                   
                   By
                   Subjection
                   .
                
                 
                   9.
                   
                   Liberty
                   is
                   lost
                   by
                   Bondage
                   .
                
                 
                   10.
                   
                   Bondage
                   introduced
                   by
                   the
                   Law
                   of
                   Nations
                   .
                
                 
                   11.
                   
                   Bondage
                   lawful
                   .
                
                 
                   12.
                   
                   Manrent
                   .
                
                 
                   13.
                   
                   Manumission
                   .
                
                 
                   14.
                   
                   Patronage
                   .
                
                 
                   15.
                   
                   The
                   condition
                   of
                   our
                   Servants
                   .
                
                 
                   16.
                   
                   Injuries
                   against
                   Liberty
                   ,
                   how
                   obviat
                   .
                
              
               
                 1.
                 
                 LIBERTY
                 is
                 that
                 Natural
                 Power
                 which
                 man
                 hath
                 of
                 his
                 own
                 person
                 ,
                 whence
                 a
                 Free
                 Man
                 is
                 said
                 to
                 be
                 
                   suae
                   potestatis
                   ,
                   in
                   his
                   own
                   power
                   ,
                
                 and
                 it
                 is
                 defined
                 in
                 the
                 Law
                 ,
                 to
                 be
                 a
                 Natural
                 Faculty
                 ,
                 to
                 do
                 that
                 which
                 every
                 man
                 pleaseth
                 ,
                 unless
                 he
                 be
                 hindred
                 by
                 Law
                 or
                 Force
                 .
              
               
                 2.
                 
                 That
                 there
                 is
                 such
                 a
                 Right
                 ,
                 distinct
                 from
                 the
                 Dominion
                 of
                 the
                 Creatures
                 ,
                 and
                 from
                 Obligation
                 ,
                 it
                 is
                 evident
                 from
                 this
                 ,
                 that
                 it
                 can
                 be
                 referred
                 to
                 none
                 of
                 these
                 ,
                 and
                 yet
                 is
                 the
                 most
                 native
                 and
                 delightful
                 Right
                 of
                 man
                 ,
                 without
                 which
                 ,
                 he
                 is
                 capable
                 of
                 no
                 other
                 Right
                 ;
                 so
                 Bondage
                 exeemeth
                 man
                 from
                 the
                 account
                 of
                 persons
                 ,
                 and
                 brings
                 him
                 rather
                 in
                 among
                 things
                 ,
                 
                   quae
                   sunt
                   in
                   Patrimonio
                   nostro
                
                 ,
                 and
                 the
                 incroachments
                 upon
                 ,
                 and
                 injuries
                 against
                 the
                 Right
                 of
                 Liberty
                 ,
                 of
                 all
                 others
                 ,
                 are
                 the
                 most
                 bitter
                 and
                 attrocious
                 ;
                 for
                 the
                 non-performance
                 of
                 Obligations
                 ,
                 or
                 Duties
                 to
                 us
                 ,
                 or
                 the
                 taking
                 away
                 ,
                 or
                 detaining
                 of
                 the
                 things
                 of
                 our
                 Property
                 ,
                 are
                 not
                 to
                 be
                 compared
                 with
                 the
                 laying
                 violent
                 hands
                 on
                 our
                 persons
                 .
              
               
                 3.
                 
                 This
                 Right
                 ariseth
                 from
                 that
                 Principle
                 of
                 Freedom
                 ,
                 that
                 man
                 hath
                 of
                 
                 himself
                 ,
                 and
                 of
                 other
                 things
                 beside
                 man
                 ,
                 to
                 do
                 in
                 relation
                 thereto
                 ,
                 as
                 he
                 pleaseth
                 ,
                 except
                 where
                 he
                 is
                 tyed
                 thereunto
                 by
                 his
                 Obedience
                 or
                 Ingagement
                 ,
                 and
                 this
                 part
                 of
                 it
                 which
                 concerneth
                 Personal
                 Freedom
                 ,
                 is
                 maintained
                 by
                 that
                 Common
                 received
                 Principle
                 in
                 the
                 Law
                 of
                 Nature
                 ,
                 of
                 self-defence
                 and
                 preservation
                 ,
                 for
                 as
                 Cicero
                 saith
                 in
                 his
                 Oration
                 ,
                 
                   Pro
                   Millone
                   ,
                   Haec
                   &
                   ratio
                   doctis
                   &
                   necessitas
                   barbaris
                   ,
                   &
                   mos
                   Gentibus
                   ,
                   &
                   feris
                   natura
                   ipsa
                   prescripsit
                   ,
                   ut
                   omnem
                   semper
                   vim
                   quacunque
                   ope
                   ,
                   a
                   corpore
                   ,
                   a
                   capite
                   ,
                   a
                   vita
                   sua
                   pro
                   pulsarint
                   .
                
                 And
                 as
                 saith
                 
                   Gains
                   ,
                   Adver
                   sus
                   periculum
                   naturalis
                   ratio
                   permittit
                   se
                   defendere
                   ,
                
                 which
                 is
                 only
                 to
                 be
                 extended
                 to
                 private
                 and
                 unlawful
                 violence
                 .
              
               
                 4.
                 
                 Opposite
                 unto
                 Liberty
                 are
                 Restraint
                 and
                 Constraint
                 ,
                 Restraint
                 hindereth
                 man
                 to
                 be
                 where
                 ,
                 and
                 go
                 whither
                 he
                 will
                 ;
                 and
                 Constraint
                 forceth
                 him
                 to
                 do
                 what
                 he
                 will
                 not
                 ;
                 Restraint
                 is
                 exercised
                 by
                 Imprisonment
                 and
                 Captivity
                 ,
                 or
                 in
                 the
                 hinderance
                 of
                 the
                 use
                 of
                 things
                 necessar
                 for
                 Life
                 ,
                 as
                 Meat
                 ,
                 Drink
                 ,
                 Sleep
                 ,
                 &c.
                 
                 Constraint
                 is
                 exercised
                 by
                 Beating
                 ,
                 Wounding
                 ,
                 or
                 the
                 like
                 Force
                 upon
                 the
                 Body
                 ,
                 or
                 the
                 fear
                 of
                 it
                 ,
                 whereby
                 any
                 thing
                 is
                 extorted
                 .
              
               
                 5.
                 
                 Though
                 Liberty
                 be
                 the
                 most
                 precious
                 Right
                 ,
                 yet
                 it
                 is
                 not
                 absolute
                 ,
                 but
                 limited
                 ;
                 First
                 ,
                 by
                 the
                 Will
                 of
                 God
                 ,
                 and
                 our
                 Obediential
                 Obligations
                 to
                 him
                 ,
                 and
                 to
                 men
                 by
                 his
                 Ordinance
                 ;
                 and
                 so
                 though
                 man
                 hath
                 power
                 of
                 his
                 own
                 person
                 ,
                 yet
                 hath
                 he
                 no
                 power
                 of
                 his
                 own
                 Life
                 ,
                 or
                 his
                 Members
                 ,
                 to
                 dispose
                 of
                 them
                 at
                 his
                 pleasure
                 ,
                 either
                 by
                 taking
                 away
                 of
                 his
                 Life
                 or
                 Amputation
                 ,
                 or
                 hurting
                 of
                 any
                 Member
                 by
                 himself
                 ,
                 or
                 by
                 giving
                 power
                 to
                 any
                 other
                 so
                 to
                 do
                 ,
                 unless
                 it
                 be
                 necessary
                 for
                 preserving
                 the
                 whole
                 ,
                 but
                 he
                 is
                 naturally
                 oblieged
                 to
                 God
                 to
                 maintain
                 his
                 Life
                 :
                 so
                 likewise
                 men
                 may
                 be
                 restrained
                 ,
                 or
                 constrained
                 by
                 others
                 ,
                 without
                 Incroachment
                 upon
                 the
                 Law
                 of
                 Liberty
                 ,
                 in
                 the
                 pursuance
                 of
                 other
                 Obediential
                 Obligations
                 ;
                 as
                 a
                 Husband
                 hath
                 power
                 to
                 restrain
                 his
                 Wife
                 ,
                 from
                 her
                 Liberty
                 of
                 going
                 where
                 she
                 will
                 ,
                 and
                 may
                 keep
                 her
                 within
                 the
                 bounds
                 of
                 conjugal
                 Society
                 ;
                 so
                 may
                 Parents
                 restrain
                 their
                 Children
                 ,
                 and
                 also
                 constrain
                 them
                 to
                 the
                 performance
                 of
                 moral
                 duties
                 ,
                 and
                 that
                 without
                 any
                 Ingagement
                 or
                 Law
                 ;
                 we
                 may
                 also
                 without
                 any
                 injury
                 ,
                 restrain
                 a
                 furious
                 person
                 ,
                 or
                 one
                 who
                 is
                 inferring
                 violence
                 to
                 himself
                 ,
                 in
                 his
                 Life
                 or
                 Limbs
                 ,
                 because
                 this
                 is
                 not
                 against
                 any
                 Act
                 of
                 his
                 lawful
                 Liberty
                 ,
                 and
                 is
                 done
                 as
                 a
                 duty
                 in
                 us
                 ,
                 of
                 Love
                 and
                 Mercy
                 :
                 But
                 in
                 matters
                 of
                 utility
                 and
                 profite
                 ,
                 where
                 the
                 Natural
                 Liberty
                 is
                 not
                 hemmed
                 in
                 with
                 an
                 Obligation
                 ,
                 there
                 ,
                 unless
                 by
                 his
                 own
                 delinquence
                 or
                 consent
                 ,
                 man
                 cannot
                 justly
                 be
                 restrained
                 ,
                 much
                 less
                 constrained
                 upon
                 pretence
                 of
                 his
                 utility
                 or
                 profite
                 ;
                 for
                 Liberty
                 ,
                 as
                 far
                 preferable
                 to
                 profite
                 ,
                 and
                 in
                 the
                 matter
                 of
                 utility
                 ,
                 every
                 man
                 is
                 left
                 to
                 his
                 own
                 choice
                 ,
                 and
                 cannot
                 without
                 injury
                 to
                 God
                 and
                 Man
                 ,
                 be
                 hindred
                 to
                 do
                 what
                 he
                 pleaseth
                 ,
                 or
                 be
                 compelled
                 to
                 do
                 what
                 he
                 pleaseth
                 not
                 ,
                 in
                 things
                 wherein
                 he
                 is
                 free
                 ,
                 as
                 Grotius
                 saith
                 ,
                 
                   De
                   jure
                   belli
                   ,
                   lib.
                
                 2.
                 cap.
                 22.
                 pag.
                 2.
                 
                 
                   Non
                   enim
                   si
                   quid
                   alicui
                   ntile
                   est
                   ,
                   id
                   statim
                   mihi
                   licet
                   ,
                   ei
                   per
                   vim
                   imponere
                   ,
                   nam
                   his
                   qui
                   rationis
                   ,
                   habent
                   usum
                   ,
                   libera
                   esse
                   debet
                   utilium
                   multilinimve
                   electio
                   ,
                   nisi
                   alterijus
                   quodam
                   in
                   eos
                   quaesitum
                   sit
                   .
                
              
               
                 6.
                 
                 Liberty
                 may
                 be
                 diminished
                 or
                 taken
                 away
                 by
                 our
                 Delinquence
                 ,
                 in
                 the
                 way
                 of
                 punishment
                 ,
                 for
                 seing
                 it
                 is
                 a
                 Right
                 in
                 our
                 own
                 power
                 ;
                 as
                 Goods
                 and
                 Debts
                 may
                 be
                 forfaulted
                 by
                 our
                 Delinquence
                 ,
                 so
                 may
                 our
                 Liberty
                 ,
                 in
                 whole
                 or
                 in
                 part
                 .
              
               
                 7.
                 
                 Thirdly
                 ,
                 our
                 Ingagements
                 do
                 commonly
                 import
                 a
                 Diminution
                 of
                 our
                 personal
                 Liberty
                 ,
                 but
                 much
                 more
                 ,
                 of
                 that
                 Natural
                 Liberty
                 of
                 things
                 without
                 us
                 ;
                 whence
                 it
                 is
                 that
                 the
                 Law
                 alloweth
                 personal
                 Execution
                 or
                 Restraint
                 ,
                 and
                 Incarceration
                 of
                 the
                 Debitors
                 Person
                 ,
                 until
                 he
                 do
                 all
                 the
                 deeds
                 that
                 are
                 in
                 his
                 power
                 ,
                 for
                 the
                 satisafction
                 of
                 his
                 Creditor
                 .
              
               
                 8.
                 
                 Liberty
                 is
                 diminished
                 by
                 subjection
                 unto
                 Authority
                 ;
                 for
                 as
                 man
                 by
                 Nature
                 
                 is
                 a
                 free
                 creature
                 in
                 his
                 own
                 power
                 ,
                 he
                 doth
                 then
                 become
                 in
                 the
                 power
                 of
                 others
                 ;
                 whether
                 it
                 be
                 in
                 the
                 power
                 of
                 a
                 Society
                 ,
                 where
                 the
                 suffrage
                 of
                 the
                 plurality
                 is
                 preferred
                 to
                 the
                 natural
                 and
                 free
                 choice
                 of
                 particular
                 persons
                 ,
                 or
                 whether
                 the
                 Authority
                 be
                 stated
                 in
                 a
                 few
                 persons
                 ,
                 or
                 in
                 one
                 Soveraign
                 ?
              
               
                 9.
                 
                 Fifthly
                 ,
                 Liberty
                 is
                 wholly
                 taken
                 off
                 by
                 Bondage
                 ,
                 Slavery
                 ,
                 or
                 Servitude
                 ,
                 which
                 is
                 Diametrically
                 opposite
                 to
                 Liberty
                 ;
                 for
                 as
                 Liberty
                 is
                 that
                 power
                 ,
                 by
                 which
                 men
                 are
                 
                   sui
                   juris
                
                 ,
                 so
                 by
                 Servitude
                 ,
                 they
                 became
                 
                   alieni
                   juris
                
                 ,
                 in
                 the
                 power
                 of
                 another
                 ,
                 unto
                 whom
                 they
                 became
                 as
                 the
                 rest
                 of
                 their
                 Goods
                 in
                 their
                 Patrimony
                 ,
                 and
                 are
                 possessed
                 by
                 them
                 ,
                 and
                 may
                 be
                 gifted
                 ,
                 legated
                 ,
                 sold
                 ,
                 and
                 otherways
                 disposed
                 of
                 at
                 their
                 pleasure
                 ,
                 l.
                 4.
                 
                   ff
                   .
                   de
                   statu
                   hominis
                   ,
                   l.
                   qui
                   in
                   servitute
                   ,
                   ff
                   .
                   deregulis
                   juris
                   ,
                
                 so
                 that
                 Masters
                 had
                 among
                 the
                 Romans
                 ,
                 and
                 almost
                 every
                 where
                 ,
                 power
                 of
                 Life
                 and
                 Death
                 of
                 their
                 Slaves
                 ,
                 l.
                 1.
                 
                   ff
                   .
                   de
                   his
                   qui
                   sunt
                   sui
                   vel
                   alieni
                   juris
                   ,
                
                 though
                 the
                 constitutions
                 of
                 the
                 Emperors
                 did
                 restrain
                 that
                 power
                 to
                 moderate
                 chastisement
                 ,
                 as
                 appears
                 by
                 the
                 former
                 Law
                 ,
                 §
                 .
                 2.
                 and
                 next
                 ensuing
                 Servants
                 being
                 wholly
                 their
                 Masters
                 ,
                 they
                 could
                 have
                 nothing
                 of
                 their
                 own
                 ,
                 
                   l.
                   acquiritur
                   de
                   acquirendo
                   rerum
                   Dominio
                
                 ;
                 so
                 that
                 their
                 peculium
                 ,
                 which
                 their
                 Masters
                 committed
                 to
                 them
                 ,
                 to
                 Negotiat
                 with
                 ,
                 was
                 wholly
                 in
                 their
                 Masters
                 power
                 ,
                 and
                 might
                 be
                 taken
                 away
                 at
                 his
                 pleasure
                 ,
                 l.
                 4.
                 
                   ff
                   .
                   de
                   peculio
                
                 ,
                 neither
                 could
                 they
                 be
                 lyable
                 to
                 any
                 Obligation
                 ,
                 
                   l.
                   nec
                   servus
                
                 41.
                 
                   ff
                   .
                   de
                   peculio
                
                 ;
                 neither
                 could
                 there
                 be
                 any
                 Civil
                 Action
                 for
                 ,
                 or
                 against
                 them
                 ,
                 
                   l.
                   in
                   personam
                   ,
                   ff
                
                 .
                 22.
                 
                   de
                   regulis
                   juris
                
                 ,
                 neither
                 could
                 they
                 be
                 Witnesses
                 ,
                 Procuratoss
                 ,
                 or
                 Arbiters
                 ,
                 
                   l.
                   cum
                   serv.
                   ff
                   .
                   de
                   regulis
                   juris
                
                 ;
                 yea
                 ,
                 and
                 they
                 were
                 accounted
                 as
                 no
                 body
                 ,
                 or
                 as
                 dead
                 men
                 ,
                 l.
                 32.
                 
                   de
                   Reg.
                   Jur.
                   l.
                
                 7.
                 
                   de
                   testib
                   .
                   l.
                
                 6.
                 
                 
                   Cod.
                   de
                   judiciis
                   ,
                   l.
                
                 7.
                 
                   de
                   recep
                   .
                   qui
                   arb
                
                 .
              
               
                 10.
                 
                 Bondage
                 was
                 introduced
                 by
                 the
                 Law
                 of
                 Nations
                 ,
                 and
                 it
                 is
                 among
                 the
                 positive
                 Laws
                 of
                 Nations
                 ,
                 settled
                 by
                 common
                 Consuetude
                 ,
                 and
                 it
                 took
                 first
                 place
                 in
                 the
                 these
                 who
                 were
                 taken
                 in
                 War
                 ,
                 who
                 being
                 under
                 the
                 power
                 of
                 their
                 enemies
                 Sword
                 ,
                 did
                 loss
                 their
                 Liberty
                 in
                 lieu
                 of
                 their
                 Life
                 ;
                 such
                 also
                 were
                 these
                 ,
                 who
                 sold
                 their
                 Liberty
                 ,
                 and
                 gave
                 it
                 up
                 ,
                 and
                 were
                 content
                 to
                 be
                 perpetual
                 Slaves
                 ,
                 as
                 were
                 the
                 Jewish
                 Bond-men
                 ,
                 whose
                 ears
                 were
                 pierced
                 with
                 an
                 Aul
                 ,
                 as
                 the
                 solemnity
                 of
                 their
                 perpetual
                 and
                 willing
                 Servitude
                 ,
                 the
                 offspring
                 of
                 Servants
                 remained
                 in
                 their
                 servile
                 condition
                 ;
                 and
                 by
                 the
                 Custome
                 of
                 Nations
                 ,
                 and
                 the
                 Roman
                 Law
                 ,
                 it
                 followed
                 the
                 Mother
                 and
                 not
                 the
                 Father
                 ,
                 
                   partus
                   sequitur
                   ventrem
                
                 ,
                 and
                 in
                 some
                 cases
                 ,
                 both
                 by
                 the
                 Judicial
                 Law
                 ,
                 and
                 the
                 Roman
                 Law
                 ,
                 free
                 Parents
                 might
                 sell
                 and
                 give
                 their
                 Children
                 into
                 Bondage
                 .
              
               
                 11.
                 
                 Bondage
                 ,
                 though
                 contrair
                 to
                 the
                 nature
                 of
                 Liberty
                 ,
                 yet
                 it
                 is
                 lawful
                 ;
                 Liberty
                 being
                 a
                 Right
                 alienable
                 ,
                 and
                 in
                 our
                 disposel
                 ,
                 so
                 that
                 the
                 Natural
                 Law
                 constitutes
                 us
                 free
                 ,
                 but
                 puts
                 no
                 necessity
                 on
                 us
                 ,
                 so
                 to
                 continue
                 ;
                 and
                 therefore
                 Servitude
                 is
                 both
                 approven
                 in
                 the
                 Old
                 Testament
                 ;
                 and
                 in
                 the
                 New
                 ,
                 it
                 is
                 cleared
                 against
                 that
                 obvious
                 Objection
                 ,
                 that
                 being
                 
                   made
                   free
                   by
                   Christ
                   ,
                   we
                   should
                   not
                   become
                   the
                   servants
                   of
                   men
                   ,
                
                 to
                 which
                 the
                 Apostle
                 answereth
                 ,
                 
                   Art
                   thou
                   called
                   ,
                   being
                   a
                   servant
                   (
                   or
                   slave
                   )
                   continue
                   so
                   ,
                   for
                   nevertheless
                   thou
                   art
                   Christs
                   freeman
                   :
                
                 But
                 yet
                 Christian
                 Lenity
                 and
                 Mercy
                 ,
                 hath
                 almost
                 taken
                 away
                 Bondage
                 ,
                 except
                 amongst
                 the
                 
                   Spaniards
                   ,
                   Portugals
                
                 ,
                 and
                 other
                 Christian
                 Nations
                 ,
                 bordering
                 upon
                 the
                 Turks
                 ,
                 where
                 ,
                 because
                 the
                 Turks
                 do
                 extreamly
                 exercise
                 Slavery
                 ,
                 especially
                 upon
                 Christians
                 ,
                 their
                 neighbours
                 do
                 the
                 like
                 ,
                 that
                 they
                 may
                 have
                 Slaves
                 to
                 exchange
                 with
                 Slaves
                 :
                 little
                 of
                 Slavery
                 remains
                 elsewhere
                 among
                 Christians
                 ,
                 except
                 the
                 Ascriptitii
                 ,
                 who
                 are
                 not
                 absolutely
                 Slaves
                 ,
                 but
                 they
                 and
                 their
                 Posterity
                 are
                 bound
                 to
                 several
                 Services
                 ,
                 to
                 Ferms
                 and
                 Villages
                 ,
                 to
                 which
                 ,
                 by
                 reason
                 thereof
                 only
                 ,
                 they
                 are
                 in
                 Bondage
                 ,
                 and
                 their
                 Masters
                 cannot
                 apply
                 them
                 to
                 other
                 Ferms
                 ,
                 or
                 to
                 other
                 Services
                 ,
                 but
                 those
                 are
                 fixed
                 to
                 ,
                 and
                 follow
                 those
                 Ferms
                 ,
                 and
                 they
                 are
                 conveyed
                 
                 therewith
                 ;
                 such
                 are
                 the
                 English
                 villains
                 ,
                 but
                 in
                 Scotland
                 there
                 is
                 no
                 such
                 thing
                 .
              
               
                 12.
                 
                 There
                 was
                 formerly
                 a
                 kind
                 of
                 Bondage
                 ,
                 called
                 Man-rent
                 ,
                 whereby
                 free
                 persons
                 became
                 the
                 men
                 or
                 Followers
                 of
                 these
                 who
                 were
                 their
                 Patrons
                 and
                 Defenders
                 ,
                 and
                 these
                 were
                 rather
                 
                   in
                   clientele
                
                 ,
                 than
                 in
                 Bondage
                 ,
                 but
                 it
                 is
                 utterly
                 abolished
                 ,
                 both
                 by
                 Act
                 of
                 Parliament
                 ,
                 1457.
                 cap.
                 78.
                 and
                 by
                 Custome
                 .
              
               
                 13.
                 
                 From
                 Servitude
                 arise
                 Manumission
                 ,
                 and
                 the
                 Right
                 of
                 Patronage
                 ;
                 Manumission
                 is
                 the
                 dimission
                 of
                 Servants
                 ,
                 and
                 the
                 making
                 of
                 them
                 Libertines
                 ,
                 whereby
                 they
                 become
                 Free
                 ,
                 but
                 with
                 remaining
                 thankfulness
                 ,
                 reverence
                 ,
                 and
                 obsequiousness
                 ,
                 and
                 some
                 other
                 Duties
                 and
                 Offices
                 ,
                 to
                 their
                 former
                 Masters
                 ,
                 then
                 become
                 their
                 Patrons
                 ,
                 and
                 if
                 in
                 these
                 they
                 failed
                 ,
                 they
                 forefaulted
                 their
                 new
                 acquired
                 Liberty
                 ,
                 and
                 returned
                 to
                 their
                 former
                 condition
                 of
                 Servitude
                 .
              
               
                 14.
                 
                 In
                 these
                 therefore
                 ,
                 stood
                 the
                 Right
                 of
                 Patronage
                 ,
                 and
                 from
                 this
                 condition
                 of
                 Libertines
                 ,
                 arose
                 that
                 distinction
                 of
                 men
                 ,
                 into
                 these
                 who
                 were
                 always
                 free
                 ,
                 who
                 were
                 called
                 ingenui
                 ,
                 and
                 in
                 these
                 who
                 were
                 bound
                 ,
                 who
                 were
                 called
                 servi
                 ,
                 and
                 in
                 these
                 of
                 a
                 middle
                 condition
                 ,
                 who
                 having
                 been
                 Slaves
                 ,
                 became
                 Free
                 ,
                 and
                 so
                 were
                 neither
                 fully
                 free
                 ,
                 but
                 had
                 some
                 duties
                 lying
                 upon
                 them
                 to
                 their
                 Patrons
                 ,
                 neither
                 were
                 fully
                 bound
                 as
                 Servants
                 .
              
               
                 15.
                 
                 The
                 Servants
                 which
                 now
                 retain
                 that
                 name
                 ,
                 are
                 judged
                 free
                 persons
                 ,
                 and
                 have
                 at
                 most
                 but
                 hired
                 their
                 labour
                 and
                 work
                 to
                 their
                 Masters
                 for
                 a
                 time
                 ,
                 which
                 is
                 a
                 Contract
                 betwixt
                 them
                 ;
                 of
                 which
                 afterward
                 .
              
               
                 16.
                 
                 The
                 Customs
                 of
                 this
                 Nation
                 have
                 little
                 peculiar
                 ,
                 in
                 relation
                 to
                 Liberty
                 directly
                 ,
                 but
                 the
                 injuries
                 done
                 against
                 the
                 same
                 ,
                 especially
                 constraint
                 ,
                 fall
                 under
                 the
                 consideration
                 of
                 Delinquencies
                 ,
                 and
                 are
                 so
                 punished
                 .
              
               
                 The
                 Romans
                 had
                 express
                 Laws
                 ,
                 
                   de
                   libero
                   homine
                   exhibendo
                
                 ,
                 and
                 
                   de
                   privatis
                   carceribus
                   inhibendis
                
                 ,
                 the
                 English
                 have
                 their
                 Action
                 of
                 false
                 Imprisonment
                 ,
                 determining
                 with
                 much
                 exactness
                 ,
                 in
                 what
                 cases
                 Imprisonment
                 is
                 lawful
                 ,
                 and
                 in
                 what
                 not
                 ,
                 and
                 how
                 remeidable
                 .
              
               
                 It
                 is
                 also
                 provided
                 in
                 the
                 Judicial
                 Law
                 ,
                 against
                 stealers
                 of
                 men
                 ;
                 but
                 amongst
                 us
                 ,
                 as
                 these
                 Crimes
                 are
                 very
                 rare
                 ;
                 so
                 ,
                 if
                 unlawful
                 Restraint
                 ,
                 or
                 unjust
                 Imprisonment
                 should
                 fall
                 out
                 ,
                 it
                 remains
                 among
                 Delinquencies
                 to
                 be
                 punished
                 according
                 to
                 the
                 Circumstances
                 and
                 Attrocity
                 ,
                 and
                 according
                 to
                 Equity
                 ,
                 and
                 thence
                 also
                 a
                 civil
                 Action
                 for
                 damnage
                 and
                 interest
                 ariseth
                 .
              
            
             
               
               
                 TITLE
                 III.
                 Of
                 Obligations
                 .
              
               
                 
                   1.
                   
                   Personal
                   Rights
                   and
                   Obligations
                   described
                   .
                
                 
                   2.
                   
                   Kinds
                   of
                   Obligations
                   .
                
                 
                   3.
                   
                   Obediential
                   Obligitions
                   described
                   .
                
                 
                   4.
                   
                   Divided
                   .
                
                 
                   5.
                   
                   Enumerat
                   .
                
                 
                   6.
                   
                   Obligations
                   Natural
                   and
                   Civil
                   .
                
                 
                   7.
                   
                   Obligations
                   Principal
                   and
                   Accessory
                   .
                
                 
                   8.
                   
                   Obligations
                   pure
                   ,
                   conditional
                   ,
                   and
                   to
                   a
                   day
                   .
                
              
               
                 RIGHTS
                 Personal
                 ,
                 or
                 Obligations
                 ,
                 being
                 in
                 Nature
                 and
                 Time
                 ,
                 for
                 the
                 most
                 part
                 anterior
                 to
                 ,
                 and
                 inductive
                 of
                 ,
                 Rights
                 〈◊〉
                 of
                 Dominion
                 and
                 Property
                 ,
                 do
                 therefore
                 come
                 under
                 consideration
                 next
                 unto
                 Liberty
                 .
              
               
                 1.
                 
                 The
                 same
                 Right
                 as
                 it
                 is
                 in
                 the
                 Creditor
                 ,
                 it
                 is
                 called
                 a
                 Personal
                 Right
                 ;
                 but
                 as
                 it
                 is
                 in
                 the
                 Debitor
                 ,
                 it
                 is
                 called
                 an
                 Obligation
                 ,
                 Debt
                 ,
                 or
                 Duty
                 ,
                 which
                 is
                 retained
                 as
                 the
                 more
                 proper
                 name
                 ,
                 
                   Inst.
                   de
                   Obligationibus
                   in
                   principio
                
                 .
              
               
                 Obligation
                 is
                 a
                 Legal
                 Tye
                 ,
                 by
                 which
                 we
                 may
                 be
                 necessitate
                 ,
                 or
                 constrained
                 to
                 pay
                 ,
                 or
                 perform
                 something
                 ;
                 this
                 Tye
                 lyeth
                 upon
                 the
                 Debitor
                 ,
                 and
                 the
                 power
                 of
                 making
                 use
                 of
                 it
                 ,
                 in
                 the
                 Creditor
                 ,
                 is
                 the
                 personal
                 Right
                 it self
                 ,
                 which
                 is
                 a
                 power
                 given
                 by
                 the
                 Law
                 ,
                 to
                 exact
                 from
                 persons
                 that
                 which
                 they
                 are
                 due
                 .
              
               
                 2.
                 
                 Obligations
                 by
                 the
                 Romans
                 ,
                 are
                 distinguished
                 in
                 four
                 kinds
                 ;
                 in
                 Obligations
                 ,
                 
                   ex
                   contractu
                   vel
                   ,
                   quasi
                   ex
                   contractu
                   maleficiovel
                   ,
                   quasi
                   ex
                   malificio
                   ,
                
                 which
                 distinction
                 insinuats
                 no
                 reason
                 of
                 the
                 cause
                 ,
                 or
                 rise
                 of
                 these
                 distinct
                 Obligations
                 ,
                 which
                 is
                 requisite
                 in
                 a
                 good
                 distinct
                 division
                 ;
                 and
                 therefore
                 ,
                 they
                 may
                 be
                 more
                 appositly
                 divided
                 ,
                 according
                 to
                 the
                 Principle
                 ,
                 or
                 Original
                 from
                 whence
                 they
                 flow
                 ;
                 in
                 Obligations
                 Obediential
                 and
                 by
                 Ingagement
                 ,
                 or
                 Natural
                 and
                 Conventional
                 ,
                 or
                 by
                 the
                 will
                 of
                 God
                 ,
                 and
                 by
                 the
                 will
                 of
                 man.
                 
              
               
                 3.
                 
                 
                   Obediential
                   Obligations
                
                 are
                 these
                 ,
                 which
                 are
                 put
                 upon
                 men
                 by
                 the
                 will
                 of
                 God
                 ,
                 not
                 by
                 their
                 own
                 wills
                 ,
                 and
                 so
                 are
                 Natural
                 ,
                 as
                 introduced
                 by
                 the
                 Law
                 
                 Nature
                 ,
                 before
                 any
                 addition
                 made
                 thereto
                 by
                 Ingagement
                 ,
                 are
                 〈◊〉
                 which
                 we
                 are
                 bound
                 to
                 perform
                 solely
                 by
                 our
                 obedience
                 to
                 God
                 ,
                 as
                 Conventional
                 Obligations
                 are
                 ,
                 such
                 as
                 we
                 are
                 bound
                 by
                 ,
                 and
                 through
                 our
                 own
                 will
                 ,
                 Ingagement
                 or
                 Consent
                 .
              
               
                 4.
                 
                 Obediential
                 Obligations
                 are
                 either
                 by
                 the
                 will
                 of
                 God
                 immediatly
                 ,
                 or
                 by
                 the
                 mediation
                 of
                 some
                 fact
                 of
                 ours
                 ;
                 such
                 are
                 Obligations
                 by
                 Delinquence
                 ,
                 whereby
                 we
                 become
                 bound
                 to
                 reparation
                 and
                 satisfaction
                 to
                 the
                 party
                 injured
                 ,
                 and
                 are
                 lyable
                 in
                 punishment
                 to
                 God
                 ,
                 which
                 may
                 be
                 exacted
                 by
                 these
                 who
                 have
                 his
                 Warrand
                 for
                 that
                 effect
                 ;
                 of
                 these
                 Obediential
                 Obligations
                 ,
                 there
                 be
                 some
                 which
                 tye
                 us
                 to
                 God
                 alone
                 ,
                 whereby
                 there
                 is
                 no
                 right
                 constitute
                 in
                 man
                 to
                 exact
                 the
                 same
                 as
                 his
                 own
                 due
                 ,
                 or
                 any
                 Warrand
                 or
                 Command
                 given
                 him
                 by
                 God
                 to
                 exact
                 them
                 on
                 his
                 behalf
                 ;
                 and
                 some
                 ,
                 though
                 they
                 constitute
                 not
                 a
                 right
                 in
                 man
                 ,
                 yet
                 man
                 is
                 commanded
                 and
                 warranted
                 to
                 vindicate
                 them
                 ;
                 as
                 the
                 Crimes
                 of
                 Witchcraft
                 ,
                 Blasphemy
                 ,
                 Beastiality
                 and
                 the
                 like
                 ,
                 for
                 which
                 there
                 is
                 an
                 express
                 Command
                 to
                 inflict
                 punishment
                 ,
                 though
                 there
                 be
                 no
                 injury
                 done
                 therein
                 to
                 man
                 ,
                 of
                 which
                 there
                 could
                 be
                 any
                 reparation
                 ;
                 for
                 the
                 Command
                 ,
                 
                   Thou
                   shalt
                   not
                   suffer
                   a
                   Witch
                   to
                   live
                   ,
                
                 takes
                 place
                 ,
                 though
                 the
                 Witch
                 have
                 committed
                 no
                 Malifice
                 against
                 the
                 Life
                 or
                 Goods
                 of
                 man
                 :
                 But
                 these
                 Obligations
                 being
                 among
                 the
                 publick
                 Rights
                 ,
                 belongs
                 to
                 the
                 Magistrate
                 ,
                 on
                 whom
                 is
                 devolved
                 that
                 Authority
                 ,
                 to
                 vindicate
                 for
                 God
                 ,
                 as
                 his
                 Vicegerent
                 :
                 We
                 shall
                 not
                 here
                 insist
                 on
                 them
                 ,
                 nor
                 on
                 these
                 other
                 Obligations
                 ,
                 whereby
                 no
                 right
                 of
                 execution
                 is
                 constitute
                 in
                 man
                 for
                 vindication
                 ,
                 &
                 
                   quae
                   solum
                   Deum
                   habent
                   ultorem
                
                 ,
                 (
                 being
                 only
                 now
                 about
                 the
                 private
                 Rights
                 of
                 men
                 )
                 such
                 are
                 the
                 Love
                 and
                 Fear
                 we
                 owe
                 to
                 God
                 ,
                 and
                 dependence
                 on
                 ,
                 and
                 confidence
                 in
                 him
                 .
              
               
                 5.
                 
                 We
                 shall
                 therefore
                 insist
                 only
                 on
                 the
                 Obediential
                 Obligations
                 that
                 are
                 betwixt
                 Husband
                 and
                 Wife
                 ,
                 Parents
                 and
                 Children
                 ,
                 Tutors
                 and
                 Pupils
                 ,
                 Curators
                 and
                 Minors
                 ,
                 and
                 the
                 Obligations
                 of
                 Restitution
                 and
                 Remuneration
                 ,
                 and
                 the
                 Obligations
                 of
                 Reparation
                 of
                 Delinquence
                 ,
                 and
                 damnage
                 ,
                 and
                 then
                 we
                 shall
                 proceed
                 to
                 Conventional
                 Obligations
                 .
              
               
                 〈◊〉
                 There
                 is
                 another
                 distinction
                 in
                 the
                 Law
                 of
                 Obligations
                 ,
                 viz.
                 Natural
                 and
                 Civil
                 ;
                 Natural
                 Obligations
                 are
                 these
                 ,
                 which
                 have
                 a
                 tye
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 and
                 do
                 raise
                 a
                 Right
                 in
                 the
                 person
                 to
                 whom
                 they
                 relate
                 ;
                 but
                 the
                 Civil
                 Law
                 ,
                 or
                 Customs
                 and
                 Constitutions
                 of
                 men
                 ,
                 do
                 not
                 second
                 them
                 with
                 legal
                 remedies
                 or
                 executions
                 ,
                 but
                 they
                 remain
                 only
                 as
                 bonds
                 upon
                 the
                 good
                 .
                 will
                 and
                 honesty
                 of
                 these
                 who
                 are
                 thereby
                 bound
                 .
              
               
                 First
                 ,
                 There
                 be
                 many
                 Natural
                 Obligations
                 which
                 have
                 no
                 civil
                 effect
                 ,
                 either
                 because
                 they
                 obliege
                 to
                 inward
                 duties
                 of
                 the
                 mind
                 ,
                 which
                 Law
                 doth
                 not
                 consider
                 ,
                 as
                 Cicero
                 saith
                 ,
                 
                   Philosophum
                   spectant
                   quae
                   mente
                   tenentur
                   ,
                   juridicum
                   quae
                   manu
                   tenentur
                   :
                
                 Or
                 ,
                 Secondly
                 ,
                 Because
                 though
                 they
                 obliege
                 to
                 outward
                 performances
                 ,
                 yet
                 the
                 manner
                 and
                 measure
                 is
                 left
                 to
                 the
                 discretion
                 and
                 arbitriment
                 of
                 the
                 oblieged
                 ,
                 as
                 before
                 hath
                 been
                 showen
                 ,
                 though
                 that
                 in
                 matters
                 of
                 expediency
                 or
                 utility
                 ,
                 there
                 be
                 an
                 Obligation
                 to
                 do
                 that
                 which
                 is
                 most
                 conducible
                 to
                 these
                 common
                 ends
                 ,
                 to
                 which
                 we
                 are
                 oblieged
                 ,
                 yet
                 in
                 the
                 particulars
                 ,
                 our
                 acting
                 ,
                 bonafide
                 ,
                 makes
                 us
                 free
                 :
                 Or
                 ,
                 Thirdly
                 ,
                 Because
                 ,
                 though
                 Absolute
                 Obligationslye
                 upon
                 the
                 oblieged
                 ,
                 yet
                 they
                 relate
                 to
                 duties
                 performable
                 to
                 God
                 ,
                 whereof
                 he
                 hath
                 given
                 no
                 power
                 nor
                 command
                 to
                 man
                 ;
                 that
                 there
                 be
                 some
                 such
                 Obligations
                 that
                 God
                 hath
                 authorized
                 or
                 commanded
                 man
                 to
                 vindicate
                 for
                 him
                 ,
                 and
                 not
                 all
                 such
                 ,
                 may
                 be
                 gathered
                 from
                 his
                 own
                 Judicial
                 Law
                 ,
                 in
                 which
                 many
                 such
                 are
                 exprest
                 ,
                 and
                 many
                 others
                 omitted
                 ;
                 though
                 these
                 Obligations
                 be
                 to
                 duties
                 relating
                 to
                 man
                 ,
                 yet
                 there
                 is
                 no
                 correspondent
                 Right
                 or
                 Power
                 of
                 Compulsion
                 in
                 man
                 ,
                 and
                 so
                 the
                 Creditor
                 is
                 God
                 ,
                 and
                 man
                 is
                 the
                 third
                 party
                 ,
                 to
                 whose
                 behoove
                 the
                 Obligation
                 is
                 imposed
                 ,
                 but
                 who
                 hath
                 neither
                 power
                 of
                 exaction
                 for
                 himself
                 ,
                 nor
                 of
                 vindication
                 for
                 God
                 ;
                 such
                 are
                 the
                 
                 Obligations
                 of
                 Beneficence
                 ,
                 generally
                 and
                 particularly
                 ;
                 of
                 Charity
                 to
                 the
                 poor
                 ,
                 assistance
                 to
                 these
                 in
                 hazard
                 ,
                 and
                 relief
                 of
                 the
                 oppressed
                 ;
                 for
                 Natural
                 Reason
                 will
                 teach
                 us
                 ,
                 that
                 though
                 these
                 do
                 naturally
                 obliege
                 us
                 ,
                 yet
                 they
                 in
                 whose
                 favours
                 they
                 are
                 ,
                 cannot
                 compel
                 us
                 ;
                 for
                 example
                 ,
                 we
                 are
                 bound
                 
                   is
                   give
                   alms
                   to
                   the
                   poor
                   ,
                
                 yet
                 none
                 will
                 affirm
                 ,
                 that
                 the
                 poor
                 can
                 extort
                 it
                 ,
                 or
                 take
                 it
                 by
                 force
                 .
                 It
                 is
                 true
                 ,
                 that
                 by
                 the
                 positive
                 Law
                 of
                 any
                 Nation
                 ,
                 by
                 their
                 Consociation
                 together
                 ,
                 there
                 is
                 in
                 the
                 very
                 Nature
                 of
                 the
                 association
                 ,
                 a
                 duty
                 of
                 assistance
                 for
                 the
                 common
                 interest
                 ,
                 into
                 which
                 they
                 are
                 associat
                 ;
                 but
                 that
                 is
                 not
                 a
                 Natural
                 ,
                 but
                 a
                 Voluntary
                 Obligation
                 flowing
                 from
                 their
                 voluntar
                 association
                 or
                 union
                 .
                 Likewise
                 ,
                 all
                 the
                 people
                 are
                 bound
                 to
                 concur
                 and
                 assist
                 legal
                 executions
                 ,
                 and
                 in
                 some
                 places
                 to
                 contribute
                 by
                 such
                 a
                 proportion
                 to
                 the
                 poor
                 ,
                 but
                 these
                 are
                 only
                 positive
                 Laws
                 ,
                 having
                 the
                 force
                 and
                 nature
                 of
                 Contracts
                 :
                 Legal
                 compulsion
                 is
                 also
                 laid
                 aside
                 in
                 matters
                 of
                 smallest
                 moment
                 ,
                 and
                 in
                 some
                 things
                 of
                 greater
                 importance
                 ,
                 wherein
                 a
                 way
                 of
                 procedor
                 is
                 prescribed
                 ,
                 and
                 as
                 a
                 penalty
                 of
                 none-observance
                 of
                 that
                 order
                 ,
                 legal
                 remedies
                 are
                 denyed
                 ,
                 when
                 done
                 any
                 other
                 way
                 ;
                 as
                 naked
                 pactions
                 among
                 the
                 Romans
                 were
                 ineffectual
                 ,
                 because
                 they
                 did
                 not
                 interpose
                 Stipulation
                 .
                 And
                 with
                 us
                 ,
                 agreements
                 requiring
                 Write
                 ,
                 are
                 ineffectual
                 ,
                 and
                 may
                 be
                 resiled
                 from
                 ,
                 unless
                 Write
                 be
                 interposed
                 ;
                 and
                 in
                 most
                 matters
                 of
                 importance
                 ,
                 Obligations
                 with
                 us
                 are
                 ineffectual
                 ,
                 unless
                 proven
                 by
                 Oath
                 of
                 Party
                 ,
                 or
                 Write
                 .
              
               
                 
                   Civil
                   Obligations
                
                 ,
                 are
                 these
                 which
                 have
                 a
                 civil
                 effect
                 and
                 execution
                 ,
                 though
                 perhaps
                 they
                 be
                 not
                 naturally
                 oblieging
                 ;
                 as
                 with
                 us
                 ,
                 an
                 Obligation
                 in
                 Write
                 ,
                 doth
                 Civilly
                 obliege
                 ,
                 and
                 hath
                 execution
                 at
                 the
                 Instance
                 of
                 the
                 Creditors
                 Heir
                 ,
                 or
                 Assignay
                 ,
                 though
                 the
                 Debt
                 was
                 payed
                 to
                 the
                 Cedent
                 ,
                 or
                 Defunct
                 ,
                 because
                 the
                 Debitor
                 hath
                 not
                 been
                 so
                 cautious
                 to
                 keep
                 a
                 Discharge
                 in
                 Write
                 ;
                 but
                 most
                 part
                 of
                 Obligations
                 ,
                 are
                 both
                 Natural
                 and
                 Civil
                 :
                 There
                 are
                 many
                 such
                 particular
                 Obligations
                 which
                 will
                 occur
                 in
                 their
                 proper
                 places
                 .
              
               
                 7.
                 
                 There
                 is
                 a
                 third
                 Distinction
                 of
                 Obligations
                 in
                 Principal
                 and
                 Accessory
                 ,
                 such
                 are
                 the
                 Cautionary
                 Obligations
                 of
                 Surety
                 and
                 Pledges
                 ,
                 which
                 are
                 accessory
                 to
                 all
                 other
                 Obligations
                 .
              
               
                 8.
                 
                 The
                 fourth
                 Distinction
                 of
                 Obligations
                 ,
                 is
                 in
                 these
                 which
                 are
                 Pure
                 ,
                 Conditional
                 ,
                 and
                 to
                 a
                 day
                 :
                 Conditional
                 Obligations
                 are
                 such
                 as
                 do
                 depend
                 upon
                 a
                 condition
                 ,
                 and
                 so
                 are
                 but
                 Obligations
                 in
                 hope
                 ,
                 till
                 the
                 condition
                 be
                 existent
                 ;
                 but
                 Obligations
                 to
                 a
                 day
                 ,
                 are
                 such
                 as
                 are
                 presently
                 binding
                 ,
                 but
                 the
                 effect
                 ,
                 or
                 execution
                 thereof
                 is
                 suspended
                 to
                 a
                 day
                 ,
                 betwixt
                 which
                 ,
                 there
                 is
                 this
                 main
                 difference
                 ,
                 that
                 in
                 Conditional
                 Obligations
                 ,
                 the
                 Condition
                 must
                 necessarily
                 be
                 uncertain
                 ,
                 either
                 as
                 being
                 in
                 the
                 power
                 of
                 mans
                 will
                 ,
                 or
                 an
                 accidential
                 event
                 :
                 For
                 if
                 the
                 Condition
                 be
                 a
                 thing
                 certainly
                 to
                 come
                 ,
                 though
                 it
                 may
                 be
                 conceived
                 under
                 the
                 Terms
                 of
                 a
                 Conditional
                 Obligation
                 ,
                 yet
                 it
                 is
                 indeed
                 an
                 Obligation
                 to
                 a
                 day
                 ,
                 as
                 if
                 Titius
                 be
                 oblieged
                 to
                 pay
                 Maevius
                 ten
                 Crowns
                 ,
                 if
                 an
                 Eclipse
                 shall
                 be
                 such
                 a
                 day
                 ;
                 upon
                 which
                 day
                 ,
                 by
                 the
                 certain
                 Rules
                 of
                 Astronomy
                 ,
                 it
                 is
                 known
                 that
                 it
                 is
                 to
                 be
                 ,
                 though
                 perhaps
                 it
                 was
                 uncertain
                 to
                 both
                 ,
                 or
                 either
                 party
                 ;
                 yet
                 it
                 is
                 not
                 a
                 conditional
                 Obligation
                 :
                 but
                 the
                 time
                 of
                 the
                 Eclipse
                 is
                 the
                 term
                 thereof
                 :
                 so
                 likewise
                 ,
                 if
                 the
                 condition
                 be
                 impossible
                 ,
                 
                   de
                   facto
                
                 ,
                 or
                 impossible
                 ,
                 
                   de
                   jure
                
                 ,
                 that
                 is
                 ,
                 unlawful
                 ,
                 (
                 
                   nam
                   id
                   possumus
                   quod
                   de
                   jure
                   possumus
                
                 )
                 then
                 ,
                 though
                 the
                 Obligation
                 be
                 conceived
                 in
                 Terms
                 Conditional
                 ;
                 yet
                 because
                 the
                 Condition
                 is
                 not
                 depending
                 ,
                 and
                 in
                 it self
                 uncertain
                 ,
                 the
                 Obligation
                 is
                 not
                 truely
                 Conditional
                 ,
                 but
                 is
                 void
                 and
                 elusory
                 in
                 the
                 case
                 of
                 the
                 legal
                 impossibility
                 of
                 the
                 Condition
                 ;
                 and
                 if
                 it
                 be
                 in
                 the
                 power
                 of
                 the
                 Creditor
                 ,
                 or
                 any
                 third
                 
                 party
                 ,
                 so
                 that
                 it
                 may
                 be
                 an
                 occasion
                 to
                 move
                 them
                 to
                 do
                 wrong
                 ,
                 the
                 Obligation
                 is
                 valide
                 and
                 pure
                 ,
                 and
                 the
                 Condition
                 is
                 void
                 ,
                 as
                 not
                 adjected
                 ,
                 
                   nam
                   conditio
                   Illicita
                   ,
                   est
                   quasi
                   non
                   adjecta
                
                 ;
                 Hence
                 it
                 appears
                 ,
                 that
                 such
                 Obligations
                 as
                 are
                 without
                 conditions
                 ,
                 are
                 pure
                 ,
                 and
                 such
                 are
                 simple
                 which
                 are
                 not
                 clogged
                 with
                 the
                 running
                 of
                 a
                 course
                 of
                 time
                 ,
                 the
                 adjection
                 whereof
                 is
                 always
                 in
                 favours
                 of
                 the
                 Debitor
                 ,
                 as
                 to
                 the
                 intervenient
                 time
                 ;
                 and
                 in
                 this
                 also
                 ,
                 in
                 favours
                 of
                 the
                 Creditor
                 ,
                 that
                 he
                 needs
                 use
                 no
                 Interpellation
                 ,
                 or
                 Requisition
                 for
                 performance
                 ,
                 
                   sed
                   dies
                   interpallat
                   pro
                   homine
                
                 ,
                 and
                 the
                 day
                 being
                 past
                 ,
                 the
                 Debitor
                 is
                 in
                 mora
                 ;
                 but
                 in
                 simple
                 obligations
                 ,
                 delay
                 is
                 only
                 upon
                 demand
                 ,
                 and
                 whensoever
                 it
                 is
                 required
                 ,
                 upon
                 non-performance
                 ,
                 the
                 Debitor
                 is
                 
                   in
                   mora
                
                 .
                 Obligations
                 ,
                 
                   ad
                   diem
                   incertum
                
                 ,
                 are
                 in
                 effect
                 Conditioal
                 ,
                 
                   nam
                   dies
                   incertus
                   ,
                   habetur
                   pro
                   conditione
                   ,
                
                 as
                 a
                 Sum
                 payable
                 at
                 such
                 an
                 age
                 ,
                 which
                 is
                 frequently
                 in
                 provisions
                 of
                 Children
                 ,
                 if
                 they
                 die
                 before
                 that
                 age
                 ,
                 the
                 sum
                 is
                 not
                 due
                 to
                 their
                 Representatives
                 ;
                 even
                 after
                 they
                 might
                 have
                 attained
                 that
                 age
                 ,
                 as
                 was
                 found
                 ,
                 January
                 ,
                 17.
                 1667.
                 
                 
                   Edgar
                   contra
                   Edgar
                   ,
                   February
                
                 ,
                 22.
                 1677.
                 
                 Belshes
                 of
                 
                   Toftes
                   contra
                   Belches
                
                 .
              
               
                 A
                 Conditional
                 Obligation
                 doth
                 necessarily
                 imply
                 an
                 uncertainty
                 and
                 dependence
                 of
                 the
                 effect
                 of
                 the
                 Obligation
                 ,
                 upon
                 the
                 existence
                 of
                 the
                 condition
                 ;
                 for
                 ,
                 if
                 the
                 Condition
                 fail
                 ,
                 the
                 Obligation
                 is
                 void
                 :
                 and
                 ofttimes
                 ,
                 Obligations
                 are
                 conceived
                 in
                 conditional
                 terms
                 ,
                 though
                 in
                 effect
                 there
                 be
                 no
                 uncertainty
                 of
                 the
                 condition
                 ,
                 as
                 to
                 the
                 beeing
                 thereof
                 ,
                 though
                 it
                 may
                 be
                 uncertain
                 ,
                 as
                 to
                 the
                 Contracters
                 knowledge
                 ;
                 as
                 in
                 Obligations
                 where
                 the
                 condition
                 is
                 made
                 of
                 something
                 past
                 ,
                 or
                 of
                 something
                 that
                 cannot
                 but
                 come
                 ;
                 the
                 coming
                 whereof
                 ,
                 is
                 the
                 Term
                 of
                 Performance
                 ,
                 and
                 not
                 a
                 Condition
                 ,
                 and
                 it
                 is
                 an
                 Obligation
                 to
                 a
                 day
                 ,
                 and
                 not
                 conditional
                 :
                 As
                 on
                 the
                 contrair
                 ,
                 a
                 Conditional
                 Obligation
                 may
                 be
                 ,
                 when
                 it
                 is
                 not
                 yet
                 conceived
                 in
                 Terms
                 Conditional
                 ,
                 as
                 when
                 it
                 is
                 conceived
                 to
                 a
                 day
                 ,
                 if
                 it
                 be
                 uncertain
                 ,
                 whether
                 by
                 the
                 course
                 of
                 Nature
                 that
                 day
                 will
                 ever
                 come
                 ,
                 it
                 is
                 no
                 Term
                 ,
                 but
                 a
                 Condition
                 .
                 These
                 uncertain
                 Conditions
                 are
                 of
                 two
                 kinds
                 ,
                 voluntar
                 ,
                 which
                 depends
                 upon
                 the
                 free
                 choice
                 of
                 some
                 persons
                 ;
                 and
                 casual
                 ,
                 which
                 depends
                 upon
                 the
                 casual
                 event
                 of
                 that
                 which
                 cannot
                 Naturally
                 be
                 foreknown
                 .
                 Amongst
                 voluntar
                 Conditions
                 ,
                 these
                 are
                 not
                 to
                 be
                 numbred
                 ,
                 which
                 consist
                 in
                 the
                 mutual
                 Obligations
                 of
                 the
                 Creditor
                 ,
                 which
                 he
                 is
                 positively
                 oblieged
                 to
                 perform
                 ,
                 and
                 so
                 are
                 not
                 looked
                 on
                 by
                 the
                 Contracters
                 ,
                 as
                 an
                 uncertain
                 event
                 in
                 his
                 choice
                 ;
                 and
                 therefore
                 ,
                 though
                 frequently
                 such
                 Obligations
                 in
                 mutual
                 Contracts
                 ,
                 are
                 conceived
                 by
                 way
                 of
                 provision
                 or
                 condition
                 ,
                 and
                 so
                 may
                 stop
                 the
                 effect
                 ,
                 or
                 execution
                 of
                 such
                 Obligations
                 ,
                 till
                 the
                 Creditors
                 part
                 be
                 performed
                 ;
                 yet
                 that
                 is
                 rather
                 as
                 the
                 failzie
                 ,
                 or
                 delay
                 of
                 the
                 mutual
                 cause
                 of
                 the
                 Obligation
                 ,
                 then
                 as
                 the
                 non-existence
                 of
                 the
                 condition
                 :
                 and
                 therefore
                 ,
                 such
                 Contracts
                 may
                 ,
                 and
                 ordinarily
                 do
                 reserve
                 execution
                 ,
                 by
                 Poynding
                 ,
                 and
                 Apprising
                 ,
                 before
                 the
                 performance
                 of
                 these
                 provisions
                 ;
                 which
                 executions
                 are
                 not
                 null
                 ,
                 but
                 will
                 be
                 preferred
                 by
                 their
                 dates
                 ,
                 to
                 others
                 proceeding
                 upon
                 pure
                 Obligations
                 ,
                 or
                 to
                 a
                 day
                 ,
                 after
                 the
                 day
                 is
                 past
                 ,
                 yea
                 ,
                 the
                 other
                 Creditors
                 cannot
                 object
                 the
                 non-implement
                 of
                 the
                 provisions
                 ,
                 except
                 they
                 had
                 interest
                 ,
                 in
                 so
                 far
                 as
                 the
                 fulfilling
                 thereof
                 would
                 be
                 to
                 their
                 behoove
                 ;
                 which
                 certainly
                 they
                 could
                 do
                 ,
                 if
                 they
                 were
                 proper
                 Conditions
                 ,
                 as
                 they
                 can
                 do
                 ,
                 when
                 the
                 condition
                 is
                 casual
                 ,
                 or
                 when
                 it
                 is
                 voluntar
                 ,
                 not
                 being
                 a
                 part
                 of
                 the
                 Creditors
                 mutual
                 Obliegement
                 .
              
               
                 In
                 like
                 manner
                 ,
                 the
                 end
                 and
                 intent
                 of
                 an
                 Obligation
                 ,
                 or
                 the
                 manner
                 of
                 performance
                 thereof
                 ,
                 is
                 ordinarily
                 exprest
                 as
                 a
                 condition
                 ,
                 though
                 these
                 be
                 not
                 real
                 conditions
                 ,
                 rendering
                 the
                 Obligation
                 uncertain
                 .
              
               
               
                 A
                 condition
                 is
                 ofttimes
                 implyed
                 in
                 an
                 Obligation
                 ,
                 though
                 it
                 be
                 not
                 exprest
                 ,
                 as
                 when
                 a
                 Tocher
                 is
                 promised
                 ;
                 this
                 tacit
                 condition
                 is
                 implyed
                 ,
                 if
                 the
                 Marriage
                 hold
                 ,
                 and
                 the
                 condition
                 may
                 either
                 be
                 exprest
                 ,
                 or
                 implyed
                 ,
                 as
                 relating
                 to
                 the
                 Contracting
                 ,
                 or
                 to
                 the
                 performing
                 of
                 the
                 Obligation
                 ;
                 as
                 if
                 the
                 Debitor
                 said
                 ,
                 on
                 such
                 conditions
                 I
                 shall
                 become
                 oblieged
                 ;
                 which
                 differeth
                 from
                 this
                 ,
                 that
                 I
                 obliege
                 my self
                 to
                 pay
                 ,
                 or
                 perform
                 ,
                 when
                 ,
                 or
                 upon
                 condition
                 that
                 such
                 things
                 shall
                 exist
                 ;
                 for
                 in
                 this
                 case
                 there
                 is
                 a
                 present
                 Contract
                 ,
                 though
                 the
                 effect
                 be
                 uncertain
                 :
                 and
                 therefore
                 Arrestment
                 ,
                 and
                 Inhibition
                 might
                 be
                 used
                 thereupon
                 :
                 But
                 in
                 the
                 former
                 ,
                 the
                 very
                 ingagement
                 is
                 uncertain
                 ,
                 as
                 if
                 one
                 should
                 promise
                 to
                 Titius
                 ,
                 if
                 he
                 maried
                 Maevia
                 ,
                 that
                 he
                 should
                 Contract
                 with
                 him
                 ,
                 for
                 such
                 a
                 Tocher
                 ,
                 before
                 such
                 a
                 Marriage
                 ,
                 Contracted
                 or
                 Solemnized
                 ,
                 neither
                 Arrestment
                 ,
                 nor
                 Inhibition
                 would
                 be
                 granted
                 thereupon
                 .
                 An
                 offer
                 hath
                 the
                 like
                 implyed
                 condition
                 of
                 the
                 other
                 parties
                 acceptance
                 ,
                 and
                 in
                 that
                 it
                 differs
                 from
                 an
                 absolute
                 promise
                 ;
                 so
                 that
                 if
                 the
                 acceptance
                 be
                 not
                 adhibit
                 presently
                 ,
                 or
                 within
                 the
                 time
                 exprest
                 in
                 the
                 offer
                 ;
                 in
                 which
                 the
                 other
                 party
                 hath
                 Liberty
                 to
                 accept
                 .
                 There
                 ariseth
                 no
                 Obligation
                 ,
                 as
                 was
                 found
                 ,
                 June
                 ,
                 25.
                 1664.
                 
                 
                   Alexander
                   Allan
                   contra
                
                 Mr.
                 
                   John
                   Collier
                
                 ;
                 and
                 in
                 mutual
                 Contracts
                 ,
                 the
                 one
                 party
                 subscrybing
                 ,
                 is
                 not
                 oblieged
                 till
                 the
                 other
                 subscribe
                 ,
                 as
                 being
                 his
                 acceptance
                 :
                 And
                 a
                 Cautioner
                 subscribing
                 ,
                 is
                 not
                 oblieged
                 ,
                 unless
                 the
                 principal
                 party
                 subscribe
                 ,
                 that
                 being
                 implyed
                 as
                 a
                 tacit
                 contradiction
                 of
                 his
                 being
                 Cautioner
                 .
              
            
             
               
               
                 TITLE
                 IV.
                 Conjugal
                 Obligations
                 .
              
               
                 
                   1.
                   
                   Marriage
                   a
                   Divine
                   Contract
                   .
                
                 
                   2.
                   
                   Whereby
                   Marriage
                   is
                   formally
                   constitute
                   .
                
                 
                   3.
                   
                   Dissolution
                   of
                   Marriage
                   by
                   Death
                   .
                
                 
                   4.
                   
                   Desertion
                   and
                   Adherence
                   .
                
                 
                   5.
                   
                   Jus
                   Mariti
                   .
                
                 
                   6.
                   
                   The
                   Husbands
                   Obligations
                   .
                
                 
                   7.
                   
                   The
                   power
                   of
                   the
                   Husband
                   by
                   the
                   Civil
                   Law.
                   
                
                 
                   8.
                   
                   By
                   the
                   Custome
                   of
                   Neighbour-Nations
                   .
                
                 
                   9.
                   
                   By
                   the
                   Custome
                   of
                   Scotland
                   .
                
                 
                   10.
                   
                   The
                   Wifes
                   Escheat
                   .
                
                 
                   11.
                   
                   The
                   Husbands
                   concourse
                   .
                
                 
                   12.
                   
                   A
                   Wifes
                   Obligation
                   null
                   .
                
                 
                   13.
                   
                   A
                   Communion
                   of
                   Goods
                   and
                   Debts
                   .
                
                 
                   14.
                   
                   Donations
                   betwixt
                   Man
                   and
                   Wife
                   revocable
                   .
                
                 
                   15.
                   
                   Dissolution
                   of
                   Marriage
                   within
                   the
                   year
                   .
                
                 
                   16.
                   
                   Divorce
                   .
                
                 
                   17.
                   
                   Rights
                   arising
                   from
                   the
                   Dissolution
                   of
                   Marriage
                   .
                
                 
                   18.
                   
                   Priviledges
                   of
                   Wives
                   .
                
              
               
                 THE
                 first
                 Obligations
                 God
                 put
                 upon
                 man
                 toward
                 man
                 ,
                 were
                 the
                 Conjugal
                 Obligations
                 ,
                 which
                 arose
                 from
                 the
                 Constitution
                 of
                 Marriage
                 before
                 the
                 Fall
                 ;
                 from
                 whence
                 have
                 arisen
                 ,
                 Rights
                 of
                 the
                 greatest
                 consequence
                 ;
                 as
                 of
                 the
                 Husbands
                 power
                 over
                 the
                 Wife
                 ,
                 and
                 her
                 Goods
                 ;
                 the
                 mutual
                 society
                 of
                 Families
                 ,
                 which
                 is
                 the
                 only
                 society
                 immediatly
                 Institute
                 of
                 God
                 ,
                 in
                 the
                 Law
                 of
                 Nature
                 ;
                 and
                 from
                 whence
                 ,
                 is
                 the
                 power
                 of
                 Parents
                 over
                 Children
                 ;
                 and
                 oeconomical
                 Government
                 of
                 Families
                 ,
                 which
                 of
                 all
                 other
                 is
                 the
                 most
                 absolute
                 ,
                 and
                 full
                 ,
                 extending
                 not
                 only
                 to
                 the
                 determination
                 of
                 Civil
                 Rights
                 ,
                 but
                 to
                 the
                 punishment
                 of
                 all
                 Crimes
                 ,
                 till
                 by
                 the
                 union
                 of
                 greater
                 Civil
                 Societies
                 ,
                 many
                 of
                 these
                 powers
                 have
                 been
                 devolved
                 upon
                 the
                 common
                 Authority
                 of
                 the
                 Societies
                 ;
                 and
                 therefore
                 ,
                 these
                 Obligations
                 do
                 deserve
                 the
                 first
                 consideration
                 .
              
               
               
                 1.
                 
                 Though
                 Marriage
                 seem
                 to
                 be
                 a
                 voluntar
                 Contract
                 by
                 ingagement
                 ,
                 because
                 the
                 application
                 of
                 it
                 is
                 ,
                 and
                 ought
                 to
                 be
                 of
                 the
                 most
                 free
                 consent
                 ;
                 and
                 because
                 in
                 matters
                 circumstantial
                 ,
                 it
                 is
                 voluntary
                 ,
                 as
                 in
                 the
                 Succession
                 of
                 the
                 Issue
                 ,
                 and
                 the
                 Provision
                 of
                 the
                 Wife
                 and
                 Children
                 ;
                 yet
                 ,
                 that
                 Marriage
                 it self
                 and
                 the
                 Obligations
                 thence
                 arising
                 ,
                 are
                 
                   Jure
                   divino
                
                 ,
                 it
                 appears
                 thus
                 ;
                 First
                 ,
                 Obligations
                 arising
                 from
                 voluntar
                 Ingagement
                 ,
                 take
                 their
                 Rule
                 and
                 Substance
                 from
                 the
                 will
                 of
                 Man
                 ,
                 and
                 may
                 be
                 framed
                 and
                 composed
                 at
                 his
                 pleasure
                 ;
                 but
                 so
                 cannot
                 Marriage
                 ,
                 wherein
                 it
                 is
                 not
                 in
                 the
                 power
                 of
                 the
                 Parties
                 ,
                 though
                 of
                 common
                 consent
                 ,
                 to
                 alter
                 any
                 Substantial
                 ,
                 as
                 to
                 make
                 the
                 Marriage
                 for
                 a
                 time
                 ,
                 or
                 take
                 the
                 power
                 over
                 the
                 Wife
                 from
                 the
                 Husband
                 ,
                 and
                 place
                 it
                 in
                 her
                 or
                 any
                 other
                 ;
                 or
                 the
                 right
                 of
                 Provision
                 or
                 Protection
                 of
                 the
                 Wife
                 ,
                 from
                 the
                 Husband
                 ,
                 and
                 so
                 of
                 all
                 the
                 rest
                 ;
                 which
                 evidently
                 demonstrateth
                 ,
                 that
                 it
                 ●s
                 not
                 a
                 Humane
                 ,
                 but
                 a
                 Divine
                 Contract
                 .
              
               
                 2.
                 
                 That
                 Marriage
                 ariseth
                 even
                 from
                 the
                 
                   Primitive
                   Law
                
                 of
                 Nature
                 ,
                 and
                 that
                 as
                 it
                 is
                 the
                 Conjunction
                 of
                 two
                 single
                 Persons
                 ;
                 is
                 evident
                 not
                 only
                 from
                 that
                 natural
                 Affection
                 ,
                 which
                 all
                 sorts
                 of
                 Men
                 in
                 all
                 places
                 of
                 the
                 World
                 (
                 where
                 no
                 common
                 Example
                 nor
                 Consent
                 can
                 reach
                 )
                 have
                 unto
                 a
                 married
                 Estate
                 .
                 But
                 as
                 the
                 Lawers
                 say
                 ,
                 that
                 it
                 is
                 founded
                 in
                 the
                 common
                 nature
                 of
                 Man
                 ,
                 with
                 other
                 Creatures
                 ,
                 who
                 have
                 a
                 resemblance
                 of
                 it
                 in
                 themselves
                 ,
                 and
                 it
                 is
                 given
                 for
                 the
                 very
                 Example
                 of
                 the
                 
                   Natural
                   Law
                
                 ,
                 as
                 contradistinct
                 from
                 the
                 Law
                 of
                 Reason
                 ,
                 and
                 Law
                 of
                 Nations
                 ;
                 for
                 most
                 part
                 of
                 the
                 living
                 Creatures
                 live
                 and
                 converse
                 in
                 pairs
                 ,
                 and
                 keep
                 the
                 common
                 Interest
                 of
                 their
                 off-spring
                 ,
                 as
                 is
                 clear
                 in
                 all
                 Fowles
                 ,
                 whose
                 Wings
                 have
                 freed
                 them
                 from
                 mans
                 comptrol
                 ,
                 and
                 many
                 of
                 the
                 Beasts
                 of
                 the
                 Field
                 :
                 And
                 it
                 is
                 like
                 ,
                 all
                 of
                 them
                 would
                 be
                 so
                 inclined
                 ,
                 if
                 their
                 natural
                 Liberty
                 were
                 not
                 restrained
                 by
                 Man
                 ,
                 by
                 pursuing
                 such
                 as
                 are
                 Wild
                 ,
                 and
                 making
                 use
                 of
                 the
                 Tame
                 ,
                 as
                 they
                 may
                 be
                 most
                 profitable
                 ,
                 preserving
                 most
                 of
                 the
                 Female
                 for
                 Increase
                 ,
                 and
                 Destroying
                 the
                 Male.
                 
              
               
                 3.
                 
                 The
                 Affection
                 of
                 the
                 Property
                 and
                 Chastity
                 of
                 Women
                 ,
                 and
                 Animosity
                 and
                 Jealousy
                 that
                 ariseth
                 in
                 Men
                 ,
                 naturally
                 upon
                 the
                 Breach
                 thereof
                 ,
                 doth
                 evince
                 ,
                 that
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 every
                 Man
                 ought
                 to
                 content
                 himself
                 with
                 his
                 own
                 Wife
                 ,
                 and
                 Women
                 not
                 be
                 common
                 :
                 for
                 as
                 no
                 Man
                 can
                 indure
                 the
                 communication
                 of
                 his
                 own
                 ,
                 so
                 it
                 must
                 necessarily
                 follow
                 ,
                 that
                 he
                 should
                 not
                 incroach
                 upon
                 others
                 Property
                 :
                 and
                 seing
                 Nature
                 holds
                 not
                 out
                 a
                 proportion
                 betwixt
                 the
                 Male
                 and
                 the
                 Female
                 ,
                 whereby
                 every
                 man
                 might
                 appropriat
                 more
                 ,
                 it
                 must
                 therefore
                 subsist
                 in
                 one
                 ;
                 and
                 so
                 was
                 the
                 first
                 Institution
                 by
                 God
                 ,
                 and
                 all
                 the
                 Posterior
                 Directions
                 in
                 his
                 Word
                 are
                 for
                 a
                 man
                 ,
                 and
                 his
                 Wife
                 ,
                 not
                 his
                 Wives
                 ;
                 and
                 as
                 the
                 man
                 hath
                 not
                 power
                 over
                 his
                 Body
                 ,
                 but
                 the
                 Wife
                 :
                 so
                 it
                 were
                 an
                 absurd
                 Inconsistency
                 ,
                 if
                 that
                 power
                 were
                 in
                 many
                 ,
                 and
                 so
                 behoved
                 to
                 resolve
                 in
                 a
                 management
                 by
                 the
                 common
                 consent
                 of
                 the
                 Wives
                 .
              
               
                 4.
                 
                 The
                 Degrees
                 in
                 which
                 Marriage
                 is
                 allowed
                 or
                 forbidden
                 are
                 ,
                 by
                 divine
                 Institution
                 ;
                 for
                 the
                 next
                 Degree
                 collateral
                 ,
                 is
                 only
                 forbidden
                 ;
                 for
                 of
                 Asscendents
                 and
                 Descendents
                 ,
                 there
                 is
                 properly
                 no
                 Degree
                 ,
                 the
                 great
                 Grandmother
                 ,
                 being
                 in
                 that
                 regard
                 as
                 near
                 as
                 the
                 Mother
                 ;
                 and
                 so
                 the
                 next
                 collateral
                 to
                 all
                 Ascendents
                 and
                 Descendents
                 is
                 in
                 the
                 same
                 Degree
                 with
                 Brothers
                 and
                 Sisters
                 ,
                 and
                 Uncles
                 and
                 Aunts
                 ,
                 Nephews
                 and
                 Nieces
                 ,
                 are
                 alike
                 in
                 the
                 Propinquity
                 of
                 Blood
                 ,
                 with
                 these
                 ,
                 and
                 the
                 great
                 Grandmother's
                 ,
                 Sister
                 ,
                 with
                 the
                 Mothers
                 Sister
                 ;
                 else
                 if
                 these
                 were
                 different
                 Degrees
                 ,
                 there
                 would
                 many
                 Degrees
                 interveen
                 betwixt
                 a
                 Person
                 and
                 his
                 great
                 Grand
                 Aunt
                 ;
                 But
                 that
                 there
                 is
                 a
                 natural
                 abhorrence
                 of
                 that
                 Promiscuous
                 Commixtion
                 of
                 Blood
                 ,
                 it
                 is
                 commonly
                 acknowledged
                 over
                 all
                 the
                 World
                 ,
                 as
                 to
                 all
                 Ascendents
                 and
                 Descendents
                 .
                 
                 And
                 as
                 to
                 the
                 next
                 Collaterals
                 ,
                 the
                 Word
                 of
                 God
                 cleareth
                 it
                 ,
                 not
                 to
                 have
                 been
                 a
                 
                   Positive
                   Law
                
                 given
                 to
                 the
                 Jews
                 ,
                 but
                 to
                 have
                 been
                 a
                 
                   Common
                   Law
                
                 to
                 the
                 Gentiles
                 also
                 :
                 and
                 therefore
                 ,
                 Lev.
                 18.
                 where
                 the
                 Degrees
                 of
                 Marriage
                 are
                 exprest
                 ,
                 and
                 unlawful
                 Commixtion
                 forbidden
                 ,
                 It
                 is
                 subjoyned
                 ,
                 v.
                 24
                 ,
                 25.
                 
                 
                   Defile
                   not
                   your selves
                   in
                   any
                   of
                   these
                   things
                   ,
                   for
                   in
                   all
                   these
                   the
                   Nations
                   are
                   defiled
                   ,
                   which
                   I
                   cast
                   out
                   before
                   you
                   ,
                   and
                   the
                   Land
                   is
                   defiled
                   ;
                   therefore
                   do
                   I
                   visit
                   the
                   Iniquity
                   thereof
                   upon
                   it
                   .
                
                 But
                 unless
                 these
                 Degrees
                 of
                 prohibite
                 Marriage
                 ,
                 were
                 a
                 part
                 of
                 the
                 Law
                 of
                 Nature
                 written
                 in
                 Man's
                 heart
                 ,
                 or
                 a
                 common
                 positive
                 Law
                 known
                 to
                 the
                 Nations
                 ;
                 the
                 Lord
                 ,
                 who
                 hath
                 declared
                 that
                 he
                 will
                 judge
                 men
                 by
                 that
                 Law
                 ,
                 which
                 is
                 known
                 ,
                 would
                 not
                 so
                 have
                 judged
                 the
                 Caananites
                 .
              
               
                 5.
                 
                 The
                 Perpetuitie
                 of
                 Marriage
                 is
                 also
                 evident
                 ,
                 by
                 our
                 Saviour's
                 Sentence
                 against
                 Arbitrary
                 Divorce
                 ,
                 which
                 was
                 permitted
                 by
                 the
                 Law
                 of
                 Moses
                 ,
                 for
                 the
                 hardness
                 of
                 that
                 Peoples
                 hearts
                 ;
                 but
                 the
                 Lord
                 cleareth
                 up
                 the
                 Ancient
                 Law
                 of
                 Nature
                 ,
                 
                   from
                   the
                   beginning
                   it
                   was
                   not
                   so
                
                 ;
                 which
                 sheweth
                 the
                 Perpetuity
                 of
                 that
                 Law
                 ,
                 and
                 that
                 it
                 was
                 before
                 the
                 Judicial
                 Law
                 ;
                 and
                 therefore
                 he
                 concludeth
                 ,
                 
                   that
                   whosoever
                   putteth
                   away
                   his
                   Wife
                   ,
                   except
                   for
                   Fornication
                   ,
                   is
                   an
                   Adulterer
                   .
                
              
               
                 11.
                 
                 For
                 understanding
                 of
                 these
                 
                   Conjugal
                   Rights
                
                 ,
                 it
                 will
                 be
                 necessar
                 ,
                 1.
                 
                 To
                 consider
                 the
                 Constitution
                 of
                 Marriage
                 .
                 2.
                 
                 The
                 Dissolution
                 of
                 it
                 .
                 3.
                 
                 The
                 Rights
                 and
                 Interests
                 thence
                 arising
                 :
                 For
                 the
                 first
                 ;
                 Marriage
                 is
                 defined
                 by
                 Modestinus
                 ,
                 to
                 be
                 the
                 Conjunction
                 of
                 Man
                 and
                 Woman
                 ,
                 to
                 be
                 Consorts
                 for
                 all
                 their
                 Life
                 ,
                 with
                 a
                 Communication
                 of
                 Rights
                 Divine
                 and
                 Humane
                 ,
                 l.
                 1.
                 
                   ff
                   .
                   de
                   ritu
                   .
                   nuptiarum
                
                 ;
                 so
                 the
                 essence
                 of
                 it
                 consists
                 in
                 the
                 
                   Conjugal
                   Society
                
                 ;
                 the
                 special
                 nature
                 of
                 which
                 Society
                 ,
                 appeareth
                 by
                 the
                 state
                 ,
                 Interest
                 ,
                 and
                 Terms
                 that
                 the
                 married
                 Persons
                 have
                 thereby
                 .
              
               
                 It
                 may
                 be
                 questioned
                 ,
                 whether
                 the
                 Conjunction
                 wherein
                 Marriage
                 consists
                 ,
                 be
                 a
                 Conjunction
                 of
                 mindes
                 by
                 mutual
                 consent
                 to
                 the
                 married
                 state
                 ;
                 and
                 that
                 whether
                 privatly
                 or
                 in
                 the
                 publick
                 Solemnity
                 ;
                 or
                 whether
                 rather
                 it
                 be
                 ,
                 a
                 Conjunction
                 or
                 Commixtion
                 of
                 Bodies
                 .
                 For
                 clearing
                 whereof
                 ,
                 consider
                 ,
                 that
                 it
                 is
                 not
                 every
                 consent
                 to
                 the
                 married
                 state
                 that
                 makes
                 Matrimony
                 ,
                 but
                 a
                 consent
                 
                   de
                   presenti
                
                 ,
                 and
                 not
                 a
                 promise
                 
                   de
                   futuro
                   Matrimonio
                
                 ;
                 for
                 this
                 Promise
                 is
                 only
                 the
                 Espousals
                 which
                 are
                 premised
                 to
                 Marriage
                 ,
                 and
                 that
                 so
                 solemn
                 an
                 Act
                 might
                 be
                 with
                 dew
                 Deliberation
                 ;
                 and
                 therefore
                 though
                 as
                 other
                 Promises
                 and
                 Pactions
                 ,
                 Espousals
                 be
                 naturally
                 obligatorie
                 and
                 effectual
                 also
                 by
                 the
                 Canon
                 Law
                 ,
                 whereby
                 the
                 espoused
                 Persons
                 may
                 be
                 compelled
                 to
                 perfect
                 the
                 Marriage
                 ,
                 unless
                 there
                 arise
                 some
                 eminent
                 Discoverie
                 of
                 the
                 Corruption
                 or
                 Pollution
                 of
                 either
                 Party
                 ,
                 or
                 defect
                 or
                 Deformity
                 ,
                 through
                 Sickness
                 or
                 some
                 other
                 Accident
                 .
                 
                   C.
                   de
                   literis
                   extravag
                   .
                   de
                   sponsalibus
                   ,
                   &
                   cap.
                
                 2.
                 
                   eodem
                   ,
                   c.
                   ult
                   ,
                   de
                   Conjug
                   .
                
                 yet
                 by
                 the
                 Civil
                 Law
                 ,
                 there
                 is
                 place
                 for
                 either
                 party
                 to
                 repent
                 and
                 renunce
                 the
                 Espousals
                 ,
                 l.
                 1.
                 
                 
                   Cod.
                   de
                   sponsalibus
                
                 ,
                 which
                 is
                 also
                 the
                 custom
                 of
                 this
                 Nation
                 ;
                 for
                 Marriage
                 uses
                 not
                 to
                 be
                 pursued
                 before
                 Solemnization
                 ,
                 
                   r●
                   integris
                
                 ,
                 so
                 that
                 the
                 matter
                 it self
                 consists
                 not
                 in
                 the
                 Promise
                 ,
                 but
                 in
                 the
                 present
                 Consent
                 ,
                 whereby
                 they
                 accept
                 each
                 other
                 as
                 Husband
                 and
                 Wife
                 ;
                 whether
                 that
                 be
                 by
                 words
                 expresly
                 ,
                 or
                 tacitly
                 by
                 marital
                 Cohabitation
                 ,
                 or
                 Acknowledgment
                 ,
                 or
                 by
                 natural
                 Commixtion
                 where
                 there
                 hath
                 been
                 a
                 Promise
                 or
                 Espousals
                 proceeding
                 ;
                 for
                 therein
                 is
                 presumed
                 a
                 conjugal
                 Consent
                 
                   de
                   present●
                
              
               
                 The
                 publick
                 Solemnity
                 is
                 a
                 matter
                 of
                 Order
                 ,
                 justly
                 introduced
                 by
                 positive
                 
                 Law
                 ,
                 for
                 the
                 certainty
                 ofso
                 important
                 a
                 Contract
                 ,
                 but
                 not
                 essential
                 to
                 Marriage
                 :
                 thence
                 arises
                 only
                 the
                 distinction
                 of
                 publick
                 and
                 solemn
                 ,
                 privat
                 or
                 clandestine
                 Marriages
                 ,
                 and
                 though
                 the
                 Contraveeners
                 may
                 be
                 justly
                 punished
                 ,
                 (
                 as
                 in
                 some
                 Nations
                 ,
                 by
                 the
                 Exclusion
                 of
                 the
                 Issue
                 of
                 such
                 Marriages
                 from
                 Succession
                 )
                 yet
                 the
                 Marriage
                 cannot
                 be
                 declared
                 void
                 ,
                 and
                 annulled
                 ;
                 and
                 such
                 exclusions
                 seem
                 very
                 unequal
                 against
                 the
                 innocent
                 Children
                 ,
                 But
                 by
                 our
                 Custome
                 ,
                 Cohabitation
                 ,
                 and
                 being
                 commonly
                 repute
                 Man
                 and
                 Wife
                 ,
                 validats
                 the
                 Marriage
                 ,
                 and
                 gives
                 the
                 wife
                 right
                 to
                 her
                 Terce
                 ,
                 who
                 cannot
                 be
                 excluded
                 therefrom
                 ,
                 if
                 she
                 were
                 reputed
                 a
                 lawful
                 Wife
                 ,
                 and
                 not
                 questioned
                 during
                 the
                 Husbands
                 life
                 ,
                 till
                 the
                 contrary
                 be
                 clearly
                 decerned
                 ,
                 Par.
                 1503.
                 cap.
                 77.
                 
                 So
                 also
                 ,
                 a
                 Contract
                 of
                 Marriage
                 was
                 found
                 valid
                 ,
                 against
                 the
                 Husbands
                 Heir
                 ,
                 though
                 the
                 Marriage
                 was
                 never
                 solemnized
                 in
                 Kirk
                 nor
                 Congregation
                 ,
                 
                   Hope
                   .
                   t.
                
                 Husband
                 &c.
                 
                   William
                   Barklay
                   contra
                   Anna
                   Naper
                
                 .
                 The
                 like
                 found
                 to
                 exclude
                 the
                 bastardy
                 of
                 the
                 Children
                 ,
                 by
                 the
                 Father
                 and
                 Mothers
                 ,
                 being
                 repute
                 Married
                 ,
                 and
                 keeping
                 house
                 and
                 society
                 together
                 ,
                 for
                 several
                 years
                 ;
                 
                   Nicolson
                   ,
                   de
                   Agnoscendis
                   liberis
                   ,
                   Brok
                   contra
                
                 but
                 the
                 contrair
                 was
                 found
                 ,
                 where
                 it
                 was
                 positively
                 proven
                 ,
                 that
                 the
                 Defunct
                 had
                 another
                 Wife
                 ,
                 
                   Ibid.
                   Archibald
                   Chirnside
                   contra
                   Isobel
                   Grieve
                
                 and
                 
                   John
                   Williamson
                
                 .
                 So
                 likewise
                 ,
                 in
                 the
                 former
                 case
                 ,
                 a
                 Contract
                 of
                 Marriage
                 was
                 found
                 valid
                 ,
                 and
                 the
                 Man
                 thereby
                 oblieged
                 to
                 Solemnize
                 the
                 Marriage
                 ,
                 seing
                 he
                 had
                 procreate
                 Children
                 with
                 the
                 Woman
                 ,
                 and
                 by
                 his
                 missives
                 had
                 acknowledged
                 he
                 had
                 Married
                 her
                 ,
                 though
                 by
                 a
                 Contract
                 ,
                 posterior
                 to
                 the
                 Contract
                 of
                 Marriage
                 ,
                 she
                 had
                 renunced
                 the
                 same
                 ,
                 
                   Nicol.
                   de
                   sponsalibus
                   ,
                   Barclay
                   contra
                   Janet
                   Kelly
                
                 ;
                 But
                 where
                 a
                 Man
                 by
                 his
                 Write
                 had
                 acknowledged
                 ,
                 that
                 such
                 a
                 Child
                 was
                 got
                 under
                 promise
                 of
                 Marriage
                 ,
                 and
                 promised
                 to
                 solemnize
                 the
                 same
                 ,
                 yet
                 the
                 Lords
                 ,
                 on
                 the
                 mans
                 alledgance
                 that
                 the
                 woman
                 had
                 born
                 a
                 Child
                 to
                 another
                 ,
                 and
                 her
                 answer
                 ,
                 that
                 it
                 behoved
                 to
                 be
                 presumed
                 his
                 ,
                 would
                 not
                 sustain
                 that
                 presumption
                 ,
                 without
                 instructing
                 their
                 conversing
                 together
                 ,
                 
                   medio
                   tempore
                   ,
                   January
                
                 31.
                 1665.
                 
                 
                   Christian
                   Barclay
                   contra
                   George
                   Baptie
                
                 .
                 It
                 was
                 also
                 found
                 lately
                 relevant
                 ,
                 for
                 validating
                 a
                 Contract
                 of
                 Marriage
                 ,
                 sixteen
                 years
                 Cohabitation
                 ,
                 and
                 being
                 repute
                 Man
                 and
                 Wife
                 ,
                 
                   Elizabeth
                   Grierson
                   contra
                
                 Laird
                 of
                 Craigdarroch
                 .
              
               
                 As
                 to
                 the
                 other
                 point
                 ,
                 though
                 the
                 commixtion
                 of
                 bodies
                 seem
                 necessar
                 for
                 the
                 constitution
                 of
                 Affinity
                 arising
                 from
                 Marriage
                 ;
                 yet
                 the
                 opinion
                 of
                 the
                 Canon
                 Law
                 is
                 true
                 ,
                 
                   consensus
                   ,
                   non
                   coitus
                   ,
                   facit
                   Matrimonium
                
                 ;
                 but
                 this
                 consent
                 must
                 specially
                 relate
                 to
                 that
                 Conjunction
                 of
                 Bodies
                 ,
                 as
                 being
                 then
                 in
                 the
                 consenters
                 capacity
                 ,
                 otherwise
                 it
                 is
                 void
                 ;
                 so
                 the
                 consent
                 of
                 persons
                 naturally
                 impotent
                 ,
                 or
                 of
                 dubious
                 Hermophradits
                 ,
                 where
                 the
                 one
                 Sex
                 doth
                 not
                 〈◊〉
                 predomine
                 ,
                 doth
                 not
                 make
                 Marriage
                 ,
                 and
                 the
                 common
                 essentials
                 of
                 consent
                 ,
                 must
                 also
                 here
                 be
                 observed
                 ,
                 so
                 that
                 ,
                 who
                 cannot
                 consent
                 ,
                 cannot
                 Marry
                 ,
                 as
                 Idiots
                 and
                 furious
                 Persons
                 ,
                 neither
                 they
                 who
                 have
                 not
                 the
                 use
                 of
                 Reason
                 ,
                 as
                 Infants
                 and
                 those
                 under
                 age
                 ,
                 who
                 are
                 not
                 come
                 to
                 the
                 use
                 of
                 diseretion
                 ,
                 unless
                 
                   malitia
                   suppleat
                   aetatem
                
                 ,
                 that
                 is
                 ,
                 when
                 the
                 person
                 is
                 within
                 the
                 years
                 of
                 Pupillarity
                 ,
                 commonly
                 established
                 in
                 Law
                 ,
                 to
                 be
                 fourteen
                 in
                 Males
                 ,
                 and
                 twelve
                 in
                 Females
                 ;
                 yet
                 seing
                 Marriage
                 is
                 an
                 Obligation
                 natural
                 ,
                 and
                 not
                 annullable
                 by
                 positive
                 Law
                 ;
                 as
                 to
                 it
                 ,
                 regard
                 must
                 be
                 rather
                 had
                 ,
                 whether
                 the
                 parties
                 be
                 truely
                 come
                 to
                 discretion
                 and
                 capacity
                 ,
                 whereof
                 commixtion
                 of
                 bodies
                 is
                 sufficient
                 evidence
                 :
                 And
                 this
                 also
                 is
                 the
                 sentence
                 of
                 the
                 Canon
                 Law
                 ,
                 
                   de
                   illic
                   .
                   cap.
                
                 9.
                 
                   ult
                   .
                   de
                   spons
                
                 .
                 Errors
                 also
                 in
                 the
                 Substantials
                 ,
                 make
                 void
                 the
                 consent
                 ,
                 unless
                 future
                 consent
                 superveen
                 ,
                 as
                 it
                 did
                 in
                 Jacob
                 ,
                 who
                 supposed
                 that
                 he
                 had
                 Married
                 ,
                 and
                 received
                 Rachel
                 ,
                 but
                 by
                 mistake
                 got
                 Leah
                 ;
                 yet
                 was
                 content
                 to
                 retain
                 her
                 ,
                 and
                 serve
                 for
                 the
                 other
                 also
                 .
                 But
                 Errors
                 in
                 qualities
                 ,
                 or
                 circumstances
                 vitiat
                 not
                 ,
                 as
                 if
                 one
                 supposing
                 he
                 had
                 Married
                 a
                 Maid
                 ,
                 or
                 a
                 chast
                 Woman
                 ,
                 had
                 Married
                 a
                 Whore
                 ;
                 So
                 then
                 ,
                 it
                 is
                 not
                 the
                 consent
                 of
                 Marriage
                 ,
                 
                 as
                 it
                 relateth
                 to
                 the
                 procreation
                 of
                 Children
                 that
                 is
                 requisite
                 ,
                 for
                 it
                 may
                 consist
                 ,
                 though
                 the
                 Woman
                 be
                 far
                 beyond
                 that
                 date
                 ;
                 but
                 it
                 is
                 the
                 consent
                 ,
                 whereby
                 ariseth
                 that
                 Conjugal
                 Society
                 ,
                 which
                 may
                 have
                 the
                 conjunction
                 of
                 Bodies
                 as
                 well
                 as
                 of
                 Minds
                 ,
                 as
                 the
                 general
                 end
                 of
                 the
                 Institution
                 of
                 Marriage
                 ,
                 is
                 the
                 solace
                 and
                 satisfaction
                 of
                 Man
                 ,
                 
                   For
                   the
                   Lord
                   saw
                   that
                   it
                   was
                   not
                   fit
                   for
                   him
                   to
                   be
                   done
                   ,
                   and
                   therefore
                   made
                   him
                   a
                   help
                   meet
                   for
                   him
                   :
                
                 Yet
                 though
                 this
                 capacity
                 should
                 never
                 be
                 actuat
                 ,
                 as
                 it
                 persons
                 ,
                 both
                 capable
                 ,
                 should
                 after
                 Marriage
                 live
                 together
                 ,
                 and
                 it
                 should
                 be
                 known
                 or
                 acknowledged
                 ,
                 that
                 all
                 their
                 lives
                 they
                 did
                 abstain
                 ,
                 yet
                 were
                 the
                 Marriage
                 〈◊〉
                 ,
                 as
                 to
                 the
                 Conjugal
                 Rights
                 on
                 either
                 paart
                 .
                 If
                 it
                 be
                 asked
                 ,
                 whether
                 the
                 consent
                 of
                 Parents
                 be
                 essential
                 to
                 Marriage
                 ?
                 the
                 common
                 Sentence
                 will
                 resolve
                 it
                 ,
                 
                   Multa
                   impediunt
                   matrimonium
                   contrahendum
                   ,
                   quae
                   non
                   dirimunt
                   contractum
                   ,
                
                 so
                 that
                 consent
                 is
                 necessary
                 ,
                 
                   necessitate
                   praecepti
                   ,
                   sed
                   non
                   necessitate
                   medii
                
                 ;
                 though
                 by
                 humane
                 Constitution
                 ,
                 such
                 Marriages
                 may
                 be
                 disalowed
                 ,
                 and
                 the
                 Issue
                 repute
                 as
                 unlawful
                 ,
                 but
                 the
                 Marriage
                 cannot
                 be
                 annulled
                 ,
                 l.
                 11.
                 
                   de
                   stat
                   .
                   hom
                   .
                   l.
                
                 13
                 §
                 .
                 6.
                 
                   de
                   Adult
                
                 ,
                 by
                 which
                 Laws
                 ,
                 not
                 only
                 the
                 Issue
                 of
                 such
                 Marriages
                 are
                 excluded
                 from
                 Succession
                 ,
                 but
                 the
                 Marriage
                 it self
                 insinuat
                 to
                 be
                 null
                 ,
                 which
                 humane
                 Constitutions
                 cannot
                 reach
                 ,
                 though
                 the
                 Magistrate
                 or
                 Minister
                 ,
                 Celebrator
                 of
                 the
                 Marriage
                 ,
                 may
                 refuse
                 to
                 proceed
                 without
                 consent
                 of
                 the
                 Parents
                 ;
                 as
                 by
                 the
                 Law
                 and
                 Custom
                 of
                 
                   Holland
                   ,
                   Art.
                
                 3.
                 
                 
                   Ord.
                   Pol.
                
                 It
                 is
                 statute
                 ,
                 that
                 before
                 the
                 Celebration
                 of
                 Marriage
                 ,
                 there
                 be
                 three
                 Proclamations
                 in
                 the
                 Church
                 ,
                 or
                 in
                 the
                 Court
                 ;
                 and
                 that
                 where
                 the
                 Parties
                 are
                 Minor
                 ,
                 they
                 be
                 not
                 married
                 without
                 consent
                 of
                 their
                 Parents
                 ;
                 and
                 where
                 they
                 are
                 both
                 Major
                 ,
                 Intimation
                 must
                 be
                 made
                 to
                 the
                 Parents
                 ,
                 and
                 if
                 they
                 appear
                 not
                 ,
                 their
                 consent
                 is
                 presumed
                 ;
                 and
                 if
                 they
                 do
                 appear
                 and
                 dissent
                 ,
                 they
                 must
                 condescend
                 upon
                 the
                 Reasons
                 ,
                 that
                 it
                 may
                 be
                 cognosced
                 whether
                 they
                 be
                 sufficient
                 or
                 not
                 :
                 And
                 if
                 the
                 Marriage
                 do
                 otherwayes
                 proceed
                 ,
                 they
                 account
                 it
                 null
                 .
                 Marriage
                 is
                 also
                 void
                 and
                 inconsistent
                 ,
                 when
                 contracted
                 within
                 the
                 Degrees
                 prescribed
                 Levit.
                 18.
                 whereby
                 the
                 next
                 Degree
                 Collateral
                 is
                 only
                 prohibit
                 ,
                 both
                 in
                 Consanguinity
                 and
                 Affinity
                 ,
                 which
                 makes
                 those
                 joyned
                 in
                 Affinity
                 ,
                 in
                 the
                 same
                 Degree
                 ,
                 as
                 being
                 by
                 Marriage
                 one
                 Flesh
                 ;
                 neither
                 can
                 Marriage
                 consist
                 where
                 either
                 Party
                 is
                 married
                 before
                 :
                 But
                 the
                 Exclusion
                 of
                 further
                 Degrees
                 by
                 the
                 Canon
                 Law
                 ,
                 as
                 of
                 Cousin-Germans
                 ,
                 or
                 of
                 certain
                 degrees
                 in
                 Affinity
                 Ecclsieastick
                 ;
                 or
                 the
                 prohibiting
                 Marriage
                 to
                 these
                 
                   in
                   sacris
                
                 ,
                 are
                 there
                 unlawful
                 Devices
                 ,
                 which
                 cannot
                 alter
                 this
                 divine
                 Contract
                 ,
                 but
                 become
                 a
                 Cheat
                 ,
                 putting
                 Parties
                 in
                 the
                 Pop's
                 power
                 ,
                 to
                 approve
                 or
                 disapprove
                 as
                 His
                 Avarice
                 or
                 Interest
                 leads
                 :
                 neither
                 do
                 the
                 Civil
                 Constitutions
                 of
                 Princes
                 ,
                 annul
                 or
                 dissolve
                 Marriage
                 ,
                 whatever
                 they
                 may
                 work
                 as
                 to
                 the
                 Interest
                 of
                 the
                 married
                 Persons
                 ,
                 or
                 their
                 Succession
                 ,
                 as
                 were
                 the
                 Prohibitions
                 of
                 Marriage
                 ,
                 between
                 those
                 of
                 consular
                 Dignity
                 ,
                 and
                 Plebeian
                 Persons
                 ,
                 between
                 Tuttors
                 and
                 their
                 Children
                 ,
                 and
                 Pupils
                 :
                 Yea
                 ,
                 between
                 Jews
                 and
                 Christians
                 ,
                 for
                 diversity
                 of
                 Religion
                 cannot
                 annul
                 it
                 .
              
               
                 2.
                 
                 The
                 Dissolution
                 of
                 Marriage
                 is
                 only
                 Natural
                 by
                 Death
                 ,
                 Adultery
                 ,
                 and
                 Desertion
                 ,
                 do
                 not
                 annul
                 the
                 Marriage
                 ,
                 but
                 are
                 just
                 occasions
                 upon
                 which
                 the
                 Persons
                 injured
                 may
                 annul
                 it
                 ,
                 and
                 be
                 free
                 ;
                 otherwayes
                 if
                 they
                 please
                 to
                 continue
                 ,
                 the
                 Marriage
                 remains
                 valid
                 .
                 All
                 do
                 agree
                 ,
                 that
                 Adultery
                 hath
                 some
                 Effect
                 upon
                 Marriage
                 ;
                 the
                 Canon
                 Law
                 doth
                 not
                 thereupon
                 dissolve
                 it
                 ,
                 that
                 the
                 Party
                 injured
                 may
                 be
                 free
                 to
                 marry
                 again
                 ,
                 but
                 only
                 granteth
                 Separation
                 .
                 But
                 our
                 Saviour's
                 Precept
                 cleareth
                 the
                 contrary
                 ;
                 who
                 in
                 Relation
                 to
                 the
                 Custom
                 that
                 then
                 was
                 of
                 Divorce
                 for
                 light
                 Causes
                 ,
                 resolves
                 ,
                 that
                 puting
                 away
                 was
                 not
                 lawful
                 ,
                 except
                 in
                 the
                 Cases
                 of
                 Adultery
                 ,
                 and
                 so
                 in
                 that
                 case
                 approves
                 the
                 Divorce
                 even
                 as
                 then
                 used
                 ,
                 Matth.
                 19.
                 v.
                 9.
                 
                 It
                 may
                 be
                 doubted
                 ,
                 whether
                 the
                 Adulterer
                 ,
                 after
                 the
                 Dissolution
                 of
                 the
                 Marriage
                 upon
                 
                 his
                 default
                 may
                 marry
                 again
                 :
                 But
                 though
                 Positive
                 Law
                 ,
                 as
                 a
                 Penalty
                 upon
                 Adulterers
                 ,
                 may
                 hinder
                 their
                 Marriage
                 with
                 the
                 Adulteress
                 or
                 otherwise
                 declare
                 such
                 Marriages
                 ,
                 as
                 to
                 Succession
                 and
                 civil
                 Effects
                 ,
                 void
                 ;
                 yet
                 ,
                 can
                 it
                 not
                 simply
                 annul
                 it
                 ;
                 and
                 as
                 to
                 any
                 other
                 person
                 they
                 may
                 Marry
                 .
                 With
                 us
                 ,
                 Marriage
                 betwixt
                 the
                 two
                 Committers
                 of
                 Adultery
                 ,
                 is
                 declared
                 null
                 ,
                 and
                 the
                 Issue
                 inhabilitat
                 to
                 succeed
                 to
                 their
                 Parents
                 ,
                 Parl.
                 1600.
                 cap.
                 20.
                 
                 But
                 otherwise
                 ,
                 the
                 person
                 guilty
                 may
                 again
                 marry
                 .
              
               
                 The
                 second
                 ground
                 of
                 Dissolution
                 of
                 Marriage
                 ,
                 is
                 ,
                 wilful
                 desertion
                 ,
                 which
                 is
                 grounded
                 upon
                 the
                 answer
                 of
                 the
                 Apostle
                 ,
                 1
                 Cor.
                 7.
                 15.
                 concerning
                 the
                 Marriages
                 of
                 Christians
                 with
                 Infidels
                 ,
                 which
                 he
                 declares
                 valide
                 ,
                 
                   unless
                   the
                   unbeliever
                   depart
                
                 ;
                 in
                 which
                 case
                 ,
                 he
                 declares
                 ,
                 
                   the
                   Christian
                   not
                   to
                   be
                   under
                   bondage
                   ,
                
                 which
                 cannot
                 have
                 any
                 speciality
                 to
                 the
                 party
                 deserted
                 ,
                 as
                 a
                 Christian
                 ;
                 and
                 therefore
                 ,
                 must
                 infer
                 a
                 general
                 Rule
                 ,
                 
                   that
                   all
                   Married
                   persons
                   ,
                   wilfully
                   deserted
                   ,
                   are
                   free
                
                 ;
                 but
                 this
                 seems
                 inconsistent
                 with
                 Christs
                 resolution
                 ,
                 making
                 Adultery
                 the
                 only
                 exception
                 ,
                 which
                 is
                 easily
                 cleared
                 ,
                 by
                 adverting
                 ,
                 that
                 Christs
                 determination
                 is
                 not
                 general
                 of
                 the
                 dissolution
                 of
                 Marriage
                 ,
                 but
                 of
                 
                   putting
                   away
                   by
                   divorce
                
                 ;
                 and
                 so
                 concludes
                 no
                 more
                 ,
                 
                   but
                   that
                   the
                   putting
                   away
                   of
                   the
                   wife
                   is
                   unlawful
                   ,
                   unless
                   for
                   Adultery
                   ,
                
                 but
                 the
                 wilful
                 deserter
                 is
                 not
                 put
                 away
                 ,
                 but
                 goeth
                 wilfully
                 away
                 ;
                 yet
                 whether
                 the
                 person
                 deserted
                 ,
                 or
                 put
                 away
                 ,
                 be
                 simply
                 free
                 by
                 the
                 dissolution
                 of
                 the
                 Marriage
                 ,
                 or
                 only
                 freed
                 from
                 the
                 bondage
                 of
                 adherence
                 ,
                 is
                 not
                 clear
                 from
                 that
                 Text
                 ,
                 1
                 Cor.
                 7.
                 15.
                 
                 For
                 from
                 Matth.
                 5.
                 32.
                 and
                 19.
                 9.
                 
                 Luke
                 16.
                 18.
                 
                 It
                 would
                 appear
                 ,
                 that
                 by
                 desertion
                 ,
                 the
                 Marriage
                 is
                 not
                 dissolved
                 ,
                 and
                 that
                 the
                 person
                 deserted
                 may
                 not
                 marry
                 again
                 ,
                 because
                 it
                 is
                 said
                 ,
                 
                   That
                   whosoever
                   marries
                   her
                   that
                   is
                   put
                   away
                   (
                   or
                   deserted
                   )
                   committeth
                   Adultery
                   .
                
              
               
                 By
                 the
                 
                   Law
                   of
                   Scotland
                
                 ,
                 dissolution
                 of
                 Marriage
                 for
                 non-adherence
                 ,
                 or
                 wilful
                 desertion
                 ,
                 is
                 expresly
                 ordered
                 ,
                 Parl.
                 1573.
                 cap.
                 55.
                 
                 
                   That
                   the
                   deserter
                   ,
                   after
                   four
                   years
                   wilful
                   desertion
                   ,
                   without
                   a
                   reasonable
                   cause
                   ,
                   must
                   be
                   first
                   pursued
                   and
                   decerned
                   to
                   adhere
                   ,
                   and
                   being
                   thereupon
                   denunced
                   ,
                   and
                   also
                   ,
                   by
                   the
                   Church
                   excommunicate
                   ,
                   the
                   Commissaries
                   are
                   warranded
                   to
                   proceed
                   to
                   divorce
                
                 ;
                 but
                 the
                 absence
                 will
                 not
                 be
                 accounted
                 a
                 wilful
                 desertion
                 ,
                 if
                 he
                 be
                 following
                 any
                 lawful
                 imployment
                 abroad
                 ,
                 and
                 content
                 to
                 accept
                 and
                 intertain
                 his
                 Wife
                 ,
                 for
                 she
                 is
                 oblieged
                 to
                 follow
                 him
                 .
              
               
                 3.
                 
                 The
                 rights
                 arising
                 from
                 Marriage
                 ,
                 are
                 the
                 
                   Jus
                   Mariti
                
                 ,
                 or
                 conjugal
                 power
                 of
                 the
                 Husband
                 over
                 the
                 Wife
                 ,
                 her
                 Person
                 and
                 Goods
                 ,
                 and
                 therewith
                 by
                 consequence
                 ,
                 the
                 obliegement
                 for
                 her
                 debts
                 .
                 2.
                 
                 His
                 power
                 ,
                 and
                 the
                 Wifes
                 security
                 ,
                 whereby
                 ,
                 during
                 the
                 marriage
                 she
                 cannot
                 obliege
                 her self
                 .
                 3.
                 
                 The
                 Husbands
                 obliegement
                 to
                 intertain
                 the
                 Wife
                 ,
                 and
                 provide
                 for
                 her
                 after
                 his
                 death
                 ,
                 and
                 her
                 interest
                 in
                 the
                 Goods
                 .
              
               
                 
                   Jus
                   Mariti
                
                 ,
                 as
                 a
                 Term
                 in
                 our
                 Law
                 ,
                 doth
                 signifie
                 the
                 right
                 that
                 the
                 Husband
                 hath
                 in
                 the
                 Wifes
                 Goods
                 ,
                 yet
                 it
                 may
                 well
                 be
                 extended
                 to
                 the
                 power
                 he
                 hath
                 over
                 her
                 person
                 ,
                 which
                 stands
                 in
                 that
                 oeconomical
                 power
                 and
                 authority
                 ,
                 whereby
                 the
                 Husband
                 is
                 Lord
                 ,
                 Head
                 and
                 Ruler
                 over
                 the
                 Wife
                 ,
                 by
                 the
                 express
                 Ordinance
                 of
                 God
                 ,
                 Gen.
                 3.
                 16.
                 
                 Where
                 the
                 Lord
                 says
                 to
                 
                   Eve
                   ,
                   Thy
                   desire
                   shall
                   be
                   towards
                   thy
                   Husband
                   ,
                   and
                   he
                   shall
                   rule
                   over
                   thee
                
                 ;
                 which
                 ,
                 though
                 it
                 may
                 seem
                 as
                 a
                 penalty
                 imposed
                 upon
                 her
                 ,
                 
                   for
                   being
                   first
                   in
                   the
                   transgression
                   ,
                
                 and
                 so
                 not
                 to
                 be
                 of
                 the
                 Natural
                 or
                 Moral
                 Law
                 ,
                 which
                 is
                 perpetual
                 ;
                 yet
                 it
                 is
                 no
                 more
                 than
                 a
                 consequence
                 of
                 the
                 Moral
                 Law
                 ,
                 whereby
                 Marriage
                 being
                 Institute
                 before
                 the
                 Fall
                 ,
                 
                   The
                   Woman
                   was
                   made
                   for
                   the
                   Man
                   ,
                   and
                   not
                   the
                   Man
                   for
                   the
                   Woman
                   :
                
                 And
                 therefore
                 ,
                 in
                 that
                 Conjugal
                 Society
                 ,
                 being
                 but
                 of
                 two
                 ,
                 the
                 determination
                 of
                 things
                 indifferent
                 ,
                 of
                 their
                 Interest
                 ,
                 behooved
                 to
                 be
                 in
                 the
                 Man
                 ,
                 and
                 he
                 to
                 have
                 in
                 so
                 far
                 the
                 Precedency
                 and
                 Government
                 of
                 the
                 Wife
                 ;
                 but
                 when
                 through
                 the
                 Fall
                 ,
                 the
                 greatest
                 measure
                 of
                 infirmity
                 besel
                 her
                 ,
                 as
                 being
                 first
                 in
                 
                 the
                 transgression
                 ,
                 whereby
                 
                   she
                   became
                   the
                   weaker
                   Vessel
                
                 :
                 there
                 was
                 need
                 ,
                 not
                 only
                 of
                 a
                 determination
                 in
                 things
                 free
                 ,
                 but
                 an
                 exaction
                 of
                 duties
                 ,
                 whereinto
                 she
                 became
                 less
                 knowing
                 and
                 willing
                 :
                 Therefore
                 ,
                 from
                 that
                 Consequence
                 ,
                 and
                 not
                 by
                 any
                 new
                 Imposition
                 ,
                 the
                 Man
                 became
                 to
                 have
                 Dominion
                 over
                 her
                 ,
                 and
                 power
                 to
                 make
                 her
                 do
                 these
                 duties
                 ,
                 which
                 in
                 her
                 Innocency
                 ,
                 she
                 would
                 have
                 done
                 of
                 her
                 own
                 accord
                 .
              
               
                 This
                 power
                 oeconomical
                 ,
                 as
                 hath
                 been
                 said
                 before
                 ,
                 did
                 naturally
                 comprehend
                 all
                 authority
                 ,
                 till
                 most
                 of
                 it
                 was
                 devolved
                 upon
                 Magistracy
                 ,
                 yet
                 by
                 this
                 power
                 the
                 Husband
                 may
                 still
                 contain
                 the
                 Wife
                 within
                 the
                 compass
                 of
                 the
                 conjugal
                 Society
                 ,
                 and
                 her
                 abode
                 and
                 domicile
                 followeth
                 his
                 ,
                 and
                 he
                 hath
                 right
                 to
                 recover
                 her
                 person
                 from
                 any
                 that
                 would
                 withdraw
                 ,
                 or
                 withhold
                 her
                 from
                 him
                 ,
                 except
                 in
                 the
                 case
                 of
                 an
                 allowed
                 Separation
                 ,
                 for
                 his
                 Injuries
                 and
                 Attrocities
                 ,
                 whereby
                 she
                 might
                 not
                 be
                 with
                 him
                 in
                 security
                 and
                 safety
                 .
              
               
                 From
                 this
                 power
                 the
                 Husband
                 hath
                 over
                 the
                 Wifes
                 person
                 ,
                 and
                 Conjugal
                 Society
                 involved
                 in
                 the
                 Nature
                 of
                 Marriage
                 ,
                 arises
                 the
                 Husbands
                 power
                 and
                 right
                 to
                 the
                 Goods
                 of
                 the
                 Wife
                 ,
                 whereby
                 ,
                 according
                 to
                 the
                 nature
                 of
                 Society
                 ,
                 there
                 is
                 a
                 community
                 of
                 Goods
                 betwixt
                 the
                 Married
                 persons
                 ;
                 which
                 Society
                 ,
                 having
                 no
                 determinate
                 proportion
                 in
                 it
                 ,
                 doth
                 resolve
                 into
                 an
                 equality
                 ;
                 but
                 so
                 ,
                 that
                 through
                 the
                 Husbands
                 oeconomical
                 power
                 of
                 Government
                 ,
                 the
                 administration
                 ,
                 during
                 the
                 Marriage
                 ,
                 of
                 the
                 whole
                 ,
                 is
                 alone
                 in
                 the
                 Husband
                 ,
                 whereby
                 he
                 having
                 the
                 sole
                 administration
                 and
                 unaccountable
                 ,
                 his
                 power
                 may
                 rather
                 seem
                 to
                 be
                 a
                 power
                 of
                 Property
                 ,
                 having
                 indeed
                 all
                 the
                 Effects
                 of
                 Property
                 ,
                 during
                 the
                 Conjugal
                 Society
                 ,
                 yet
                 is
                 no
                 more
                 than
                 is
                 exprest
                 .
              
               
                 This
                 right
                 of
                 the
                 Husband
                 in
                 the
                 Goods
                 of
                 the
                 Wife
                 ,
                 is
                 so
                 great
                 ,
                 that
                 hardly
                 can
                 it
                 be
                 avoided
                 by
                 the
                 pactions
                 of
                 parties
                 ,
                 whereby
                 if
                 any
                 thing
                 be
                 reserved
                 to
                 the
                 Wife
                 ,
                 during
                 the
                 Marriage
                 ,
                 to
                 be
                 peculiar
                 and
                 proper
                 to
                 her
                 ,
                 excluding
                 the
                 
                   Jus
                   Mariti
                
                 :
                 Yet
                 the
                 very
                 Right
                 of
                 Reservation
                 becoming
                 the
                 Husbands
                 ,
                 
                   Jure
                   Mariti
                
                 ,
                 makes
                 it
                 elusory
                 and
                 ineffectual
                 ,
                 as
                 always
                 running
                 back
                 upon
                 the
                 Husband
                 himself
                 ,
                 as
                 Water
                 thrown
                 upon
                 an
                 higher
                 ground
                 ,
                 doth
                 ever
                 return
                 ;
                 And
                 therefore
                 a
                 Wife
                 ,
                 before
                 her
                 Contract
                 of
                 Marriage
                 ,
                 having
                 disponed
                 a
                 part
                 of
                 her
                 Joynture
                 ,
                 and
                 taken
                 a
                 Back-bond
                 for
                 imploying
                 of
                 it
                 for
                 the
                 use
                 of
                 her
                 future
                 Spouse
                 and
                 Family
                 joyntly
                 ,
                 though
                 the
                 Husband
                 by
                 his
                 Contract
                 of
                 Marriage
                 ,
                 renunced
                 his
                 right
                 thereto
                 ;
                 yet
                 he
                 was
                 found
                 to
                 have
                 the
                 power
                 to
                 mannage
                 it
                 ,
                 to
                 the
                 use
                 of
                 the
                 Family
                 ,
                 February
                 the
                 9.
                 1667.
                 
                 Lord
                 Collingtoun
                 and
                 
                   Ratho
                   contra
                
                 Tennants
                 of
                 Innerteil
                 ,
                 and
                 Lady
                 Collingtoun
                 ,
                 nevertheless
                 by
                 private
                 pactions
                 ,
                 the
                 interest
                 and
                 division
                 of
                 the
                 Goods
                 of
                 Married
                 persons
                 ,
                 after
                 the
                 dissolution
                 of
                 the
                 Marriage
                 ,
                 may
                 be
                 according
                 to
                 their
                 pleasure
                 ,
                 as
                 they
                 agree
                 :
                 and
                 Alimentary
                 Provisions
                 ,
                 in
                 case
                 of
                 necessary
                 Separation
                 ,
                 are
                 so
                 personal
                 to
                 the
                 Wife
                 ,
                 that
                 
                   inhaerent
                   ossibus
                
                 ,
                 and
                 recur
                 not
                 to
                 the
                 Husband
                 or
                 his
                 Creditors
                 .
              
               
                 Besides
                 the
                 Obligations
                 of
                 the
                 married
                 persons
                 ,
                 which
                 are
                 naturally
                 in
                 the
                 minds
                 and
                 affections
                 of
                 each
                 to
                 other
                 ,
                 there
                 is
                 outwardly
                 the
                 Obligation
                 of
                 Co-habitation
                 ,
                 or
                 Adherence
                 ,
                 of
                 which
                 formerly
                 ;
                 and
                 the
                 Obligation
                 of
                 the
                 Husband
                 to
                 Aliment
                 ,
                 and
                 provide
                 for
                 the
                 Wife
                 in
                 all
                 necessars
                 ,
                 for
                 her
                 Life
                 ,
                 Health
                 and
                 Ornament
                 ,
                 according
                 to
                 their
                 means
                 and
                 quality
                 ,
                 to
                 which
                 he
                 is
                 naturally
                 bound
                 ,
                 though
                 he
                 had
                 no
                 means
                 ,
                 but
                 were
                 to
                 acquire
                 the
                 same
                 ,
                 
                   For
                   he
                   that
                   provides
                   not
                   for
                   his
                   own
                   Family
                   ,
                   is
                   worse
                   than
                   an
                   Infidel
                
                 ;
                 yet
                 the
                 Civil
                 effect
                 thereof
                 ,
                 is
                 only
                 to
                 give
                 Aliment
                 and
                 Intertainment
                 ,
                 according
                 to
                 the
                 mans
                 means
                 and
                 quality
                 ,
                 and
                 so
                 he
                 is
                 civilly
                 bound
                 ,
                 
                   quoad
                   potest
                
                 ;
                 hence
                 it
                 is
                 ,
                 that
                 the
                 Aliment
                 ,
                 or
                 Furnishing
                 of
                 the
                 Wife
                 ,
                 is
                 a
                 Debt
                 of
                 her
                 Husbands
                 ,
                 not
                 
                 only
                 for
                 what
                 is
                 furnished
                 by
                 Merchants
                 and
                 others
                 ,
                 
                   hoc
                   nomine
                
                 ,
                 in
                 the
                 Husbands
                 Life
                 ,
                 but
                 even
                 her
                 Mournings
                 after
                 his
                 Death
                 ,
                 if
                 it
                 be
                 proper
                 for
                 her
                 quality
                 to
                 have
                 Mournings
                 ,
                 burden
                 the
                 Executors
                 of
                 the
                 Husband
                 ,
                 and
                 not
                 the
                 Wife
                 ,
                 November
                 12.
                 1664.
                 
                 Lady
                 
                   Kirkaffie
                   contra
                   Cornelius
                   Neilson
                   .
                   July
                
                 7.
                 1675.
                 
                 
                   Agnes
                   Wilkie
                   contra
                   Christian
                   Morison
                   .
                   Jus
                   Mariti
                   ,
                
                 is
                 a
                 Legal
                 Assignation
                 to
                 the
                 Wifes
                 moveable
                 Rights
                 ,
                 needing
                 no
                 other
                 intimation
                 ,
                 but
                 the
                 Marriage
                 ,
                 and
                 is
                 preferable
                 to
                 any
                 voluntar
                 Right
                 ,
                 prior
                 to
                 the
                 Marriage
                 ,
                 if
                 not
                 intimate
                 before
                 the
                 Marriage
                 ,
                 December
                 18.
                 1667.
                 
                 
                   John
                   Achinlek
                   contra
                   Mary
                   Williamson
                
                 and
                 
                   Patrick
                   Gillespie
                
                 .
              
               
                 The
                 
                   Roman
                   Law
                
                 hath
                 exceedingly
                 varied
                 in
                 this
                 matter
                 from
                 the
                 Natural
                 Law
                 ;
                 for
                 with
                 them
                 ,
                 the
                 Wife
                 was
                 not
                 
                   in
                   potestate
                   viri
                
                 ,
                 but
                 either
                 
                   in
                   potestate
                   Patris
                
                 ,
                 or
                 ,
                 
                   sui
                   Juris
                
                 ,
                 and
                 her
                 Goods
                 remained
                 fully
                 her
                 own
                 ,
                 unless
                 they
                 had
                 been
                 constitute
                 by
                 her
                 in
                 a
                 Tocher
                 ,
                 of
                 which
                 the
                 Husband
                 had
                 the
                 administration
                 and
                 profit
                 ,
                 during
                 the
                 Marriage
                 ,
                 
                   ad
                   sustinenda
                   onera
                   Matrimonii
                
                 ;
                 and
                 in
                 which
                 ,
                 after
                 dissolution
                 of
                 Marriage
                 ,
                 he
                 had
                 no
                 interest
                 ,
                 except
                 by
                 paction
                 ,
                 
                   de
                   lucranda
                   dote
                
                 ;
                 and
                 for
                 security
                 whereof
                 ,
                 the
                 Wife
                 had
                 
                   donationes
                   propter
                   nuptias
                
                 equivalent
                 ,
                 only
                 
                   in
                   dote
                   estimata
                
                 ,
                 the
                 Husband
                 had
                 power
                 to
                 dispose
                 of
                 the
                 Tocher
                 ,
                 for
                 the
                 value
                 to
                 which
                 it
                 was
                 estimate
                 ;
                 all
                 the
                 other
                 Goods
                 of
                 the
                 Wife
                 were
                 Paraphernalia
                 ,
                 whereof
                 she
                 had
                 the
                 sole
                 Power
                 and
                 Right
                 .
              
               
                 The
                 Customs
                 of
                 most
                 Nations
                 ,
                 even
                 where
                 the
                 Roman
                 Law
                 hath
                 much
                 weight
                 ,
                 in
                 this
                 matter
                 have
                 returned
                 to
                 the
                 natural
                 course
                 ,
                 as
                 is
                 observed
                 by
                 
                   Cassaneus
                   ,
                   ad
                   consuetudines
                   Burgundiae
                   ,
                   tit
                   .
                
                 4.
                 
                 And
                 
                   Duarenus
                   ,
                   tit
                   .
                   ff
                   .
                   de
                   nupt
                   .
                
                 in
                 relation
                 to
                 the
                 Custome
                 of
                 
                   France
                   ,
                   Wessenbecius
                   ,
                   in
                   parat
                   .
                   ad
                   tit
                   .
                   ff
                   .
                   de
                   ritu
                   nuptiarum
                   .
                
                 And
                 
                   Covaruvias
                   ,
                   Epitt.
                   lib.
                
                 4.
                 
                 
                   Decretal
                   .
                   part
                
                 .
                 2.
                 cap.
                 7.
                 
                 In
                 reference
                 to
                 the
                 Customs
                 of
                 the
                 
                   Germans
                   ,
                   Spaniards
                
                 ,
                 and
                 most
                 part
                 of
                 the
                 Nations
                 of
                 
                   Europe
                   ;
                   Gudelinus
                   ,
                   de
                   Jure
                   Noviss
                   .
                
                 sheweth
                 the
                 same
                 to
                 be
                 the
                 Custome
                 of
                 the
                 Netherlands
                 ,
                 in
                 which
                 ,
                 they
                 do
                 almost
                 in
                 every
                 thing
                 agree
                 with
                 our
                 Customs
                 ,
                 to
                 which
                 we
                 return
                 .
              
               
                 By
                 the
                 Custome
                 of
                 Scotland
                 ,
                 the
                 Wife
                 is
                 in
                 the
                 power
                 of
                 the
                 Husband
                 ;
                 and
                 therefore
                 ,
                 First
                 ,
                 The
                 Husband
                 is
                 Tutor
                 and
                 Curator
                 to
                 his
                 Wife
                 ,
                 and
                 during
                 her
                 Minority
                 ,
                 no
                 other
                 Tutor
                 or
                 Curator
                 need
                 to
                 be
                 conveened
                 ,
                 or
                 concur
                 to
                 Authorize
                 ;
                 So
                 it
                 was
                 decided
                 ,
                 
                   French
                   contra
                   French
                
                 and
                 
                   Cranstoun
                   ,
                   hop
                   .
                   tit
                   .
                   de
                   minoribus
                   :
                
                 But
                 on
                 the
                 contrair
                 ,
                 the
                 Wife
                 is
                 in
                 no
                 case
                 conveenable
                 ,
                 without
                 calling
                 the
                 Husband
                 ;
                 and
                 though
                 she
                 be
                 Married
                 ,
                 during
                 the
                 dependance
                 ,
                 the
                 Husband
                 must
                 be
                 cited
                 upon
                 Supplication
                 ,
                 and
                 the
                 Process
                 continued
                 against
                 him
                 ,
                 for
                 his
                 interest
                 ;
                 Spots
                 .
                 Husband
                 and
                 Wife
                 ,
                 
                   Margaeret
                   Bailie
                   contra
                   Janet
                   Robertson
                
                 .
                 And
                 likewise
                 ,
                 a
                 Wife
                 being
                 charged
                 upon
                 her
                 Bond
                 ,
                 given
                 before
                 Marriage
                 ,
                 but
                 the
                 Letters
                 not
                 being
                 raised
                 against
                 her
                 Husband
                 ,
                 for
                 his
                 interest
                 ,
                 they
                 were
                 found
                 null
                 by
                 way
                 of
                 exception
                 ,
                 
                   Nic.
                   Reverentia
                   Maritalis
                
                 ,
                 Relict
                 of
                 
                   Robert
                   Young
                   contra
                   Wachup
                
                 .
                 yet
                 a
                 Wife
                 was
                 found
                 con
                 veenable
                 ,
                 without
                 calling
                 the
                 Husband
                 ,
                 he
                 being
                 twenty
                 years
                 out
                 of
                 the
                 Countrey
                 ,
                 and
                 she
                 repute
                 Widow
                 ,
                 June
                 19.
                 1663.
                 
                 
                   Euphan
                   Hay
                   contra
                   Elizabeth
                   Corstorphin
                
                 .
              
               
                 Yea
                 ,
                 a
                 Wifes
                 Escheat
                 ,
                 or
                 Liferent
                 ,
                 falls
                 not
                 upon
                 any
                 Horning
                 execute
                 against
                 her
                 ,
                 during
                 the
                 Marriage
                 ,
                 because
                 ,
                 being
                 then
                 under
                 the
                 power
                 of
                 her
                 Husband
                 ,
                 she
                 hath
                 no
                 power
                 of
                 her self
                 to
                 pursue
                 ,
                 suspend
                 ,
                 or
                 relaxe
                 ,
                 
                   Dury
                   ,
                   February
                
                 16.
                 1633.
                 
                 
                   Stuart
                   contra
                   Banner
                   man
                
                 ,
                 and
                 this
                 was
                 found
                 ,
                 though
                 the
                 Decreet
                 was
                 an
                 ejection
                 committed
                 ,
                 both
                 by
                 man
                 and
                 Wife
                 ;
                 yet
                 where
                 the
                 Horning
                 is
                 upon
                 a
                 deed
                 proper
                 to
                 the
                 Wife
                 ,
                 as
                 to
                 divide
                 the
                 Conjunct-fee
                 Lands
                 ,
                 Horning
                 is
                 valide
                 ,
                 
                   Nic.
                   Reverentia
                   Maritalis
                   ,
                   Duff
                   contra
                   Edmonstoun
                   ,
                
                 
                 or
                 where
                 the
                 Horning
                 was
                 upon
                 a
                 Delinquence
                 ,
                 as
                 on
                 Laborrows
                 ,
                 Hope
                 ,
                 Husband
                 and
                 Wife
                 ,
                 Lord
                 
                   Roxburgh
                   contra
                
                 Lady
                 Orknay
                 .
              
               
                 In
                 like
                 manner
                 ,
                 a
                 Wife
                 cannot
                 pursue
                 or
                 charge
                 ,
                 without
                 concourse
                 of
                 her
                 Husband
                 ,
                 and
                 so
                 Letters
                 not
                 raised
                 at
                 his
                 instance
                 ,
                 were
                 reduced
                 ,
                 though
                 he
                 concurred
                 thereafter
                 ,
                 
                   Dury
                   ,
                   July
                
                 27.
                 1631.
                 
                 
                   Robert
                   Hay
                   contra
                
                 Mr.
                 
                   John
                   Rollo
                
                 .
                 The
                 like
                 Spots
                 .
                 Husband
                 and
                 Wife
                 ,
                 
                   Napeir
                   contra
                
                 Mr.
                 
                   Robert
                   Kinloch
                
                 ,
                 and
                 
                   Agnes
                   Lial
                
                 .
                 The
                 like
                 in
                 a
                 Reduction
                 of
                 an
                 Heritable
                 Right
                 ,
                 done
                 by
                 the
                 Wifes
                 Father
                 on
                 death
                 bed
                 ,
                 which
                 was
                 not
                 sustained
                 ,
                 unless
                 the
                 Husband
                 had
                 concurred
                 ,
                 or
                 had
                 been
                 called
                 ;
                 in
                 which
                 case
                 ,
                 if
                 he
                 refused
                 concourse
                 without
                 just
                 reason
                 ,
                 the
                 Lords
                 would
                 authorize
                 the
                 Wife
                 to
                 insist
                 .
                 July
                 ,
                 8.
                 1673.
                 
                 
                   Christian
                   Hacket
                   contra
                   Gordoun
                
                 of
                 Chapeltoun
                 .
                 But
                 we
                 must
                 except
                 from
                 this
                 Rule
                 if
                 the
                 Husband
                 were
                 Inhabilitat
                 ,
                 or
                 forefaulted
                 .
                 Had.
                 the
                 26.
                 of
                 March
                 1622.
                 
                 
                   William
                   Hamiltoun
                   contra
                   Stuart
                
                 ,
                 or
                 the
                 Wife
                 authorized
                 by
                 the
                 Lords
                 upon
                 special
                 consideration
                 ,
                 the
                 Husband
                 refusing
                 to
                 concur
                 ,
                 Dury
                 ,
                 the
                 9.
                 of
                 January
                 1623.
                 
                 
                   Marshel
                   contra
                   Marshel
                
                 :
                 Or
                 that
                 she
                 were
                 pursuing
                 her
                 Husband
                 himself
                 ,
                 against
                 whom
                 ,
                 ordinarily
                 she
                 hath
                 no
                 Action
                 ,
                 except
                 in
                 singular
                 cases
                 ,
                 
                   ut
                   si
                   vergat
                   ad
                   inopiam
                
                 ;
                 or
                 in
                 case
                 he
                 had
                 diverted
                 from
                 her
                 ,
                 
                   Dury
                   ,
                   December
                
                 21.
                 1626.
                 
                 Lady
                 
                   Foules
                   contra
                
                 her
                 Husband
                 :
                 Or
                 if
                 a
                 Wife
                 with
                 concourse
                 of
                 her
                 Friends
                 ,
                 at
                 whose
                 instance
                 ,
                 Execution
                 was
                 provided
                 by
                 her
                 Contract
                 ,
                 were
                 pursuing
                 reduction
                 of
                 a
                 deed
                 done
                 by
                 her
                 Husband
                 ,
                 in
                 prejudice
                 thereof
                 ,
                 during
                 her
                 life
                 .
                 February
                 ,
                 12.
                 1663.
                 
                 
                   Lockie
                   contra
                   Patoun
                
                 :
                 or
                 that
                 the
                 Obligation
                 in
                 its
                 own
                 nature
                 ,
                 require
                 execution
                 in
                 the
                 Husbands
                 life
                 ,
                 as
                 an
                 obliegement
                 to
                 Infeft
                 the
                 Wife
                 in
                 particular
                 Lands
                 ;
                 but
                 if
                 it
                 be
                 a
                 general
                 Obliegement
                 ,
                 to
                 imploy
                 Money
                 for
                 her
                 ,
                 or
                 to
                 Infeft
                 her
                 ,
                 &c.
                 which
                 the
                 Husband
                 may
                 at
                 any
                 time
                 of
                 his
                 life
                 perform
                 :
                 the
                 Wife
                 will
                 have
                 no
                 Action
                 against
                 him
                 ,
                 neither
                 will
                 she
                 get
                 Inhibition
                 upon
                 supplication
                 ,
                 unless
                 the
                 Lords
                 grant
                 the
                 same
                 upon
                 knowledge
                 ,
                 that
                 the
                 Husband
                 is
                 becoming
                 in
                 a
                 worse
                 condition
                 ,
                 or
                 that
                 the
                 Wife
                 hath
                 quite
                 a
                 present
                 Infeftment
                 for
                 an
                 Obligation
                 of
                 an
                 other
                 ;
                 in
                 which
                 case
                 ,
                 the
                 Lords
                 granted
                 Inhibition
                 ,
                 July
                 ,
                 13.
                 1638.
                 
                 Lady
                 
                   Glenbervy
                   contra
                
                 her
                 Husband
                 .
                 This
                 delay
                 ,
                 where
                 a
                 Term
                 is
                 not
                 exprest
                 ,
                 is
                 upon
                 consideration
                 of
                 Merchants
                 ,
                 who
                 ordinarily
                 having
                 no
                 other
                 means
                 ,
                 than
                 the
                 Stock
                 with
                 which
                 they
                 trade
                 ,
                 it
                 would
                 ruine
                 them
                 if
                 they
                 were
                 necessitate
                 to
                 imploy
                 it
                 on
                 security
                 ,
                 so
                 soon
                 as
                 they
                 are
                 married
                 .
              
               
                 It
                 is
                 a
                 Priviledge
                 of
                 Women
                 amongst
                 the
                 
                   Romans
                   ,
                   per
                   Senatus
                   consultum
                   velleianum
                   ,
                
                 that
                 the
                 Obligations
                 by
                 which
                 they
                 became
                 surety
                 ,
                 or
                 interceeded
                 for
                 others
                 ,
                 were
                 void
                 .
                 But
                 our
                 Custome
                 hath
                 inlarged
                 that
                 Priviledge
                 so
                 far
                 ,
                 that
                 a
                 Wifes
                 Obligation
                 for
                 Debt
                 ,
                 or
                 personal
                 Obliegement
                 ,
                 contracted
                 during
                 the
                 Marriage
                 ,
                 is
                 null
                 ,
                 even
                 though
                 the
                 Bond
                 were
                 granted
                 by
                 her
                 ,
                 and
                 her
                 Husband
                 containing
                 an
                 Obliegement
                 to
                 Infeft
                 the
                 Creditor
                 ,
                 in
                 an
                 Annualrent
                 out
                 of
                 their
                 Lands
                 ;
                 and
                 in
                 this
                 case
                 the
                 Bond
                 as
                 to
                 the
                 Wife
                 ,
                 and
                 an
                 Apprising
                 thereon
                 ,
                 as
                 to
                 her
                 Life-rent
                 of
                 these
                 Lands
                 was
                 found
                 null
                 ;
                 But
                 here
                 there
                 was
                 no
                 special
                 Obliegement
                 of
                 Annualrent
                 ,
                 or
                 Wodset
                 of
                 the
                 Wifes
                 Life
                 rent
                 Lands
                 ,
                 but
                 generally
                 out
                 of
                 both
                 their
                 Lands
                 .
                 
                   Dury
                   ,
                   March
                
                 ,
                 24.
                 1626.
                 
                 
                   Greenlaw
                   contra
                   Gulloway
                
                 .
                 The
                 like
                 ,
                 Hope
                 ,
                 Husband
                 and
                 Wife
                 ,
                 
                   Archibald
                   Douglas
                
                 of
                 
                   Tofts
                   contra
                
                 Mr.
                 
                   Robert
                   Elphingstoun
                
                 ,
                 and
                 
                   Susanna
                   Hamiltoun
                
                 .
                 The
                 like
                 ,
                 
                   Dury
                   ,
                   January
                
                 ,
                 30.
                 1635.
                 
                 
                   Mitchelson
                   contra
                   Moubray
                
                 ;
                 in
                 which
                 case
                 ,
                 the
                 Bond
                 being
                 granted
                 by
                 the
                 Man
                 and
                 Wife
                 ,
                 and
                 thereupon
                 Apprising
                 deduced
                 ,
                 though
                 she
                 did
                 Judicially
                 ratifie
                 it
                 upon
                 Oath
                 ,
                 never
                 to
                 come
                 in
                 the
                 contrair
                 :
                 yet
                 the
                 Bond
                 and
                 Infeftment
                 ,
                 as
                 to
                 her
                 Life-rent
                 ,
                 was
                 found
                 null
                 ,
                 seing
                 there
                 was
                 nothing
                 
                 to
                 instruct
                 her
                 Ratification
                 ,
                 but
                 the
                 Act
                 of
                 an
                 inferiour
                 Court
                 ,
                 whereof
                 the
                 warrand
                 was
                 not
                 produced
                 .
                 But
                 a
                 Wifes
                 Obligation
                 with
                 her
                 Husband
                 ,
                 conjunctly
                 and
                 severally
                 ,
                 oblieging
                 them
                 to
                 pay
                 ,
                 and
                 also
                 to
                 Infeft
                 in
                 an
                 Annualrent
                 ,
                 out
                 of
                 either
                 of
                 their
                 Lands
                 ,
                 found
                 null
                 ,
                 as
                 to
                 the
                 Wife
                 in
                 the
                 Obliegement
                 to
                 Pay
                 ,
                 but
                 not
                 as
                 to
                 the
                 Obliegement
                 to
                 Infeft
                 ,
                 December
                 ,
                 15.
                 1665.
                 
                 Master
                 
                   John
                   Ellies
                   contra
                   Keith
                
                 .
                 Neither
                 was
                 a
                 Wife
                 found
                 lyable
                 for
                 furnishing
                 to
                 the
                 House
                 in
                 her
                 Husbands
                 absence
                 furth
                 of
                 the
                 Countrey
                 ,
                 which
                 did
                 only
                 affect
                 her
                 Husband
                 ,
                 Spots
                 .
                 Husband
                 and
                 Wife
                 ,
                 
                   John
                   Loury
                   contra
                
                 Lady
                 Louristoun
                 .
                 The
                 like
                 ,
                 January
                 ,
                 29.
                 1631.
                 
                 
                   Porter
                   contra
                   Law.
                
                 The
                 like
                 ,
                 though
                 the
                 cause
                 of
                 the
                 Bond
                 was
                 Money
                 ,
                 advanced
                 for
                 the
                 Wifes
                 necessar
                 Aliment
                 ;
                 for
                 which
                 ,
                 no
                 Process
                 was
                 granted
                 against
                 her
                 ,
                 till
                 her
                 Husband
                 was
                 first
                 discussed
                 ,
                 December
                 .
                 22.
                 1629.
                 
                 Mr.
                 
                   David
                   Artoun
                   contra
                
                 Lady
                 Hackertoun
                 :
                 And
                 also
                 a
                 Wifes
                 Obligation
                 ,
                 without
                 consent
                 of
                 her
                 Husband
                 ,
                 found
                 not
                 to
                 affect
                 her
                 but
                 him
                 ,
                 though
                 she
                 was
                 not
                 ,
                 
                   praeposita
                   Negotiis
                
                 ;
                 but
                 because
                 she
                 was
                 
                   Persona
                   Illustris
                
                 ,
                 and
                 her
                 Husband
                 out
                 of
                 the
                 Countrey
                 ,
                 Hope
                 ,
                 Husband
                 and
                 Wife
                 .
                 Mr.
                 
                   David
                   Russel
                   contra
                
                 Earl
                 of
                 Argyle
                 :
                 but
                 a
                 Wifes
                 Bond
                 for
                 necessar
                 Habiliments
                 for
                 her
                 Body
                 ,
                 found
                 to
                 obliege
                 her self
                 ,
                 and
                 not
                 her
                 Husbands
                 Executors
                 ;
                 and
                 as
                 to
                 these
                 ,
                 she
                 may
                 contract
                 ,
                 
                   Had.
                   July
                
                 ,
                 6.
                 1610.
                 
                 
                   Eustacius
                   Wise
                   contra
                
                 Lady
                 Hallyrudhouse
                 ;
                 this
                 must
                 be
                 understood
                 ,
                 where
                 the
                 Wife
                 has
                 an
                 Aliment
                 constitute
                 by
                 her
                 Husband
                 ,
                 or
                 other
                 Right
                 exempt
                 from
                 his
                 
                   Jus
                   Mariti
                
                 .
                 And
                 it
                 was
                 so
                 lately
                 found
                 ,
                 in
                 the
                 case
                 of
                 
                   Adam
                   Garrns
                
                 Merchant
                 
                   contra
                   Elizabeth
                   Arthur
                   ,
                   December
                
                 ,
                 19.
                 1667.
                 
                 February
                 ,
                 23.
                 1672.
                 
                 
                   John
                   Neilson
                   contra
                   Arthur
                
                 .
                 But
                 a
                 Wifes
                 account
                 of
                 Furniture
                 to
                 her
                 Person
                 ,
                 not
                 being
                 great
                 ,
                 found
                 valide
                 against
                 her
                 Husband
                 ,
                 being
                 subscribed
                 by
                 the
                 Wife
                 ,
                 though
                 she
                 was
                 minor
                 ,
                 being
                 
                   Persona
                   Illustris
                   ,
                   February
                
                 ,
                 20.
                 1667.
                 
                 
                   Andrew
                   Littlejohn
                   contra
                
                 Duke
                 and
                 Dutchess
                 of
                 Munmouth
                 .
              
               
                 This
                 Priviledge
                 of
                 Wives
                 was
                 extended
                 to
                 Obligations
                 ,
                 or
                 Dispositions
                 made
                 by
                 the
                 Wife
                 ,
                 though
                 before
                 compleating
                 of
                 the
                 Marriage
                 ,
                 being
                 after
                 Contract
                 and
                 Proclamation
                 ,
                 whereupon
                 Marriage
                 followed
                 ,
                 January
                 ,
                 29.
                 1633.
                 
                 
                   〈◊〉
                   contra
                   Brown.
                
                 The
                 like
                 specially
                 where
                 the
                 Proclamation
                 was
                 not
                 only
                 at
                 the
                 Husbands
                 Paroch
                 Church
                 ,
                 but
                 the
                 Wifes
                 ,
                 July
                 ,
                 8.
                 1623
                 
                 
                   Stewart
                   contra
                   Aitkin
                
                 .
                 The
                 like
                 of
                 a
                 Disposition
                 in
                 favours
                 of
                 the
                 Wifes
                 Children
                 ,
                 after
                 their
                 Contract
                 and
                 one
                 Proclamation
                 ,
                 July
                 ,
                 5.
                 1611.
                 
                 Fletcher
                 in
                 
                   Dundee
                   contra
                   Brown.
                
                 Yet
                 Wives
                 Obligations
                 relating
                 to
                 their
                 Delinquence
                 ,
                 are
                 not
                 void
                 ,
                 but
                 only
                 such
                 as
                 relate
                 to
                 their
                 Contracting
                 .
                 So
                 a
                 Wife
                 was
                 found
                 oblieged
                 to
                 fulfil
                 an
                 Act
                 of
                 a
                 Kirk
                 Session
                 ,
                 under
                 a
                 Penalty
                 that
                 she
                 should
                 forbear
                 an
                 other
                 mans
                 company
                 ,
                 which
                 was
                 found
                 ,
                 not
                 to
                 affect
                 her
                 Husbands
                 Goods
                 ,
                 but
                 her
                 own
                 ,
                 Hope
                 ,
                 Husband
                 and
                 Wife
                 ,
                 
                   John
                   Bell
                   contra
                
                 Executors
                 of
                 
                   James
                   Hogg
                
                 and
                 the
                 Kirk
                 Session
                 of
                 St.
                 Cuthberts
                 .
                 Here
                 also
                 are
                 excepted
                 ,
                 Obliegements
                 relating
                 to
                 Dispositions
                 of
                 Lands
                 ,
                 Annualrents
                 or
                 Liferents
                 ,
                 of
                 which
                 hereafter
                 .
              
               
                 13.
                 
                 As
                 to
                 the
                 Husband
                 and
                 Wifes
                 Interest
                 in
                 their
                 Goods
                 ,
                 by
                 our
                 Custome
                 ,
                 without
                 any
                 voluntar
                 Contract
                 ,
                 there
                 arises
                 betwixt
                 them
                 a
                 communion
                 of
                 all
                 Moveables
                 ,
                 except
                 the
                 Habiliments
                 and
                 Ornaments
                 of
                 the
                 Wifes
                 Body
                 ,
                 which
                 though
                 they
                 be
                 superfluous
                 ,
                 and
                 the
                 Husband
                 insolvent
                 ,
                 are
                 not
                 Arrestable
                 for
                 his
                 Debts
                 :
                 the
                 Husband
                 hath
                 the
                 full
                 and
                 sole
                 administration
                 of
                 all
                 moveable
                 Goods
                 ,
                 belonging
                 or
                 accressing
                 to
                 the
                 Wife
                 ,
                 during
                 the
                 Marriage
                 ,
                 and
                 the
                 Rents
                 and
                 Profits
                 of
                 Heretable
                 Rights
                 ,
                 as
                 being
                 moveable
                 :
                 And
                 therefore
                 ,
                 an
                 Heretable
                 Bond
                 ,
                 found
                 to
                 belong
                 to
                 the
                 Husband
                 ,
                 
                   Jure
                   mariti
                
                 ,
                 because
                 he
                 was
                 married
                 before
                 the
                 Term
                 of
                 Whitsonday
                 ,
                 at
                 which
                 time
                 it
                 was
                 payable
                 ,
                 June
                 ,
                 15.
                 1627.
                 
                 
                   Nicolson
                   contra
                   Lyell
                
                 ;
                 and
                 a
                 sum
                 was
                 found
                 to
                 belong
                 to
                 the
                 Executors
                 of
                 the
                 first
                 Husband
                 ,
                 though
                 the
                 Term
                 of
                 Payment
                 was
                 after
                 
                 his
                 Decease
                 ,
                 and
                 not
                 to
                 the
                 Wife
                 ,
                 or
                 her
                 second
                 Husband
                 .
                 Also
                 ,
                 a
                 Legacy
                 left
                 to
                 a
                 Wife
                 ,
                 was
                 found
                 to
                 belong
                 to
                 her
                 Husband
                 ,
                 Hope
                 ,
                 Legacies
                 ,
                 
                   Elizabeth
                   Brown
                   contra
                   〈◊〉
                
                 .
                 Likewise
                 ,
                 a
                 Husband
                 found
                 to
                 have
                 right
                 to
                 a
                 Bond
                 ,
                 blank
                 in
                 the
                 Creditors
                 name
                 ,
                 which
                 the
                 Wife
                 ,
                 during
                 the
                 Marriage
                 ,
                 put
                 in
                 the
                 hands
                 of
                 a
                 third
                 Party
                 ,
                 who
                 filled
                 up
                 his
                 own
                 name
                 therein
                 ,
                 though
                 the
                 Husband
                 and
                 Wife
                 were
                 voluntarly
                 separate
                 ,
                 February
                 ,
                 11.
                 1634.
                 
                 
                   Drummond
                   ,
                   contra
                
                 Captain
                 Rollo
                 ,
                 except
                 Aliments
                 duely
                 and
                 competently
                 provided
                 for
                 the
                 Wife
                 ,
                 which
                 are
                 not
                 Arrestable
                 for
                 the
                 Husbands
                 Debt
                 ,
                 November
                 ,
                 29.
                 1622.
                 
                 
                   Thomas
                   Edmonstoun
                   contra
                   Christian
                   Kirkaldie
                
                 ,
                 and
                 
                   Alexander
                   Barclay
                
                 .
                 The
                 like
                 of
                 an
                 Aliment
                 modified
                 by
                 Decreet
                 Arbitral
                 ,
                 betwixt
                 the
                 Husband
                 and
                 a
                 third
                 Party
                 ,
                 though
                 the
                 cause
                 thereof
                 was
                 founded
                 upon
                 the
                 Husbands
                 Right
                 ,
                 March
                 27.
                 1627.
                 
                 
                   Westnisbit
                   contra
                   Morison
                
                 ;
                 yea
                 ,
                 the
                 Husband
                 himself
                 found
                 to
                 have
                 no
                 access
                 to
                 a
                 Sum
                 provided
                 to
                 a
                 Wife
                 by
                 her
                 Father
                 for
                 her
                 Aliment
                 ,
                 July
                 4.
                 1637.
                 
                 
                   Tennant
                   contra
                   〈◊〉
                
                 .
              
               
                 This
                 communion
                 of
                 Goods
                 ,
                 by
                 our
                 Custome
                 ,
                 extendeth
                 not
                 to
                 the
                 Wifes
                 Rights
                 Heretable
                 ,
                 as
                 Lands
                 ,
                 Annualrents
                 ,
                 Heretable
                 Bonds
                 ,
                 nor
                 to
                 Liferents
                 ;
                 for
                 as
                 to
                 these
                 ,
                 the
                 Wife
                 may
                 obliege
                 her self
                 personally
                 in
                 Clauses
                 ,
                 relative
                 to
                 such
                 Rights
                 ,
                 as
                 Clauses
                 to
                 Infeft
                 ,
                 Clauses
                 of
                 Warrandioe
                 ,
                 and
                 Clauses
                 of
                 Requisition
                 of
                 Sums
                 ,
                 for
                 which
                 her
                 Lands
                 were
                 Wodset
                 by
                 her
                 ,
                 if
                 the
                 Wife
                 be
                 first
                 ,
                 and
                 principally
                 bound
                 with
                 consent
                 of
                 her
                 Huaband
                 :
                 but
                 where
                 the
                 Wife
                 and
                 Husband
                 were
                 bound
                 for
                 Infeftment
                 ,
                 in
                 Lands
                 belonging
                 to
                 the
                 Wife
                 ,
                 and
                 both
                 bound
                 in
                 the
                 Requisition
                 ,
                 yet
                 thereby
                 the
                 Wife
                 was
                 not
                 found
                 oblieged
                 ,
                 either
                 for
                 granting
                 the
                 Infeftment
                 or
                 in
                 the
                 Requisition
                 ,
                 because
                 it
                 appeared
                 that
                 the
                 Money
                 was
                 not
                 borrowed
                 for
                 the
                 Wifes
                 use
                 ,
                 December
                 19.
                 1626.
                 
                 
                   Mathie
                   contra
                   Sibbald
                
                 ,
                 other
                 ways
                 such
                 Obliegements
                 are
                 effectual
                 against
                 the
                 Wife
                 .
                 The
                 like
                 ,
                 Hope
                 ,
                 Annualrent
                 ,
                 
                   Agnes
                   〈◊〉
                   contra
                   James
                   〈◊〉
                
                 ,
                 where
                 a
                 Wife
                 was
                 found
                 lyable
                 to
                 pay
                 an
                 Annualrent
                 ,
                 disponed
                 by
                 her
                 and
                 her
                 Husband
                 out
                 of
                 her
                 〈◊〉
                 -
                 Fee-Lands
                 ,
                 even
                 during
                 the
                 time
                 they
                 were
                 in
                 Ward
                 .
                 The
                 like
                 of
                 an
                 Annualrent
                 disponed
                 by
                 a
                 Wife
                 and
                 her
                 Husband
                 ,
                 for
                 which
                 both
                 were
                 personally
                 oblieged
                 ,
                 in
                 respect
                 she
                 lifted
                 the
                 Rents
                 of
                 the
                 Lands
                 ,
                 out
                 of
                 which
                 it
                 was
                 to
                 be
                 uplifted
                 .
                 Spots
                 .
                 Husband
                 and
                 Wife
                 ,
                 
                   Walter
                   〈◊〉
                   contra
                   Margaret
                   Chisholm
                
                 .
                 The
                 like
                 of
                 a
                 Clause
                 of
                 Requisition
                 ,
                 in
                 a
                 Contract
                 of
                 Wodset
                 ,
                 granted
                 by
                 the
                 Wife
                 upon
                 her
                 Lands
                 ,
                 
                   stante
                   matrimonia
                   ,
                   Hope
                
                 ,
                 Husband
                 and
                 Wife
                 ,
                 
                   Agnes
                   Gordon
                   contra
                   Elizabeth
                   Gordon
                
                 .
                 And
                 this
                 is
                 the
                 difference
                 betwixt
                 these
                 and
                 other
                 Personal
                 Obliegements
                 of
                 the
                 Wife
                 ,
                 
                   stante
                   matrimonio
                
                 ,
                 which
                 even
                 though
                 the
                 Husband
                 consent
                 ,
                 are
                 〈◊〉
                 and
                 obliege
                 her
                 not
                 :
                 yea
                 ,
                 a
                 Renunciation
                 of
                 a
                 Tenement
                 by
                 a
                 Wife
                 ,
                 without
                 consent
                 of
                 her
                 Husband
                 ,
                 being
                 absent
                 ,
                 though
                 he
                 ratified
                 it
                 at
                 his
                 return
                 ,
                 was
                 found
                 null
                 ,
                 Spots
                 .
                 Husband
                 and
                 Wife
                 
                   Helen
                   Melvil
                   contra
                
                 So
                 that
                 the
                 Husbands
                 Right
                 ,
                 
                   Jure
                   Mariti
                
                 ,
                 to
                 the
                 Rents
                 and
                 Annualrents
                 of
                 the
                 Wifes
                 Rights
                 ,
                 which
                 are
                 not
                 Alimentary
                 ,
                 cannot
                 be
                 evacuate
                 without
                 the
                 Husbands
                 consent
                 ,
                 though
                 the
                 Wife
                 may
                 dispose
                 of
                 the
                 Right
                 it self
                 to
                 take
                 effect
                 after
                 the
                 dissolution
                 of
                 the
                 Marriage
                 .
              
               
                 In
                 Heretable
                 Rights
                 of
                 Wives
                 ,
                 Bonds
                 bearing
                 Annualrent
                 ,
                 though
                 without
                 a
                 clause
                 of
                 Infeftment
                 ,
                 are
                 comprehended
                 ;
                 for
                 these
                 remain
                 Heretable
                 ,
                 
                   〈◊〉
                   〈◊〉
                   &
                   relictum
                
                 ,
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 1661.
                 cap.
                 32.
                 
                 And
                 therefore
                 ,
                 a
                 provision
                 by
                 a
                 Father
                 to
                 his
                 Daughter
                 ,
                 bearing
                 Annualrent
                 ,
                 five
                 
                   per
                   cent
                
                 ,
                 found
                 not
                 to
                 fall
                 under
                 the
                 Husbands
                 
                   〈◊〉
                   Mariti
                   ,
                   June
                
                 28.
                 1665.
                 
                 
                   James
                   〈◊〉
                
                 against
                 
                   〈◊〉
                   Edgar
                   ,
                   July
                
                 4.
                 1676.
                 
                 
                   John
                   〈◊〉
                   contra
                   Bruce
                
                 .
              
               
                 The
                 Marriage
                 without
                 any
                 Contract
                 ,
                 is
                 a
                 legal
                 Assignation
                 to
                 the
                 Rents
                 and
                 
                 Profits
                 of
                 the
                 Wifes
                 Lands
                 ,
                 and
                 other
                 Heretable
                 Rights
                 ,
                 during
                 the
                 Marriage
                 :
                 so
                 that
                 without
                 his
                 consent
                 ,
                 the
                 Wife
                 cannot
                 alter
                 the
                 condition
                 thereof
                 ,
                 in
                 prejudice
                 of
                 his
                 Right
                 ,
                 during
                 the
                 Marriage
                 .
              
               
                 
                   Jus
                   Mariti
                
                 is
                 so
                 effectual
                 ,
                 as
                 to
                 the
                 moveable
                 Goods
                 of
                 the
                 Wife
                 ,
                 that
                 though
                 a
                 Life-renter
                 in
                 her
                 second
                 Contract
                 of
                 Marriage
                 ,
                 reserved
                 a
                 part
                 of
                 her
                 Life-rent
                 Lands
                 ,
                 to
                 be
                 solely
                 at
                 her
                 own
                 disposel
                 ,
                 and
                 that
                 the
                 Husband
                 in
                 the
                 same
                 Contract
                 of
                 Marriage
                 ,
                 renounced
                 his
                 
                   Jus
                   Mariti
                
                 thereanent
                 ,
                 yet
                 that
                 Renunciation
                 was
                 found
                 to
                 be
                 his
                 
                   Jur.
                   Mariti
                
                 ;
                 and
                 so
                 the
                 profits
                 of
                 her
                 Life-rent
                 were
                 affected
                 by
                 his
                 Creditors
                 ,
                 it
                 not
                 being
                 constitute
                 as
                 a
                 formal
                 and
                 a
                 proportional
                 Aliment
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 the
                 Creditors
                 of
                 Mr.
                 
                   Andrew
                   Hamiltoun
                   ,
                   contra
                
                 Lady
                 Carberry
                 his
                 Wife
                 .
              
               
                 From
                 this
                 Communion
                 of
                 Goods
                 ,
                 it
                 follows
                 also
                 ,
                 that
                 there
                 is
                 a
                 Communion
                 of
                 Debts
                 ,
                 whereby
                 the
                 Husband
                 is
                 lyable
                 for
                 the
                 Wifes
                 Debt
                 ,
                 though
                 it
                 should
                 both
                 exceed
                 her
                 and
                 his
                 Moveables
                 ,
                 and
                 the
                 profit
                 of
                 the
                 Wifes
                 Land
                 ,
                 or
                 of
                 her
                 other
                 Heretable
                 Rights
                 ;
                 but
                 this
                 was
                 not
                 found
                 to
                 hold
                 in
                 matter
                 of
                 wrong
                 ,
                 or
                 Criminal
                 things
                 ;
                 and
                 so
                 the
                 Husband
                 found
                 not
                 lyable
                 for
                 a
                 Spuilzie
                 ,
                 or
                 wrongous
                 Intromission
                 committed
                 by
                 his
                 Wife
                 ,
                 without
                 his
                 knowledge
                 or
                 approbation
                 ,
                 during
                 the
                 Marriage
                 ,
                 February
                 2.
                 1628.
                 
                 
                   Scot
                   contra
                   Katharine
                   Banks
                
                 and
                 
                   James
                   Neil
                
                 .
                 The
                 same
                 is
                 observed
                 by
                 Spots
                 ,
                 Husband
                 and
                 Wife
                 ,
                 
                   inter
                   eosdem
                
                 ;
                 these
                 were
                 done
                 ,
                 
                   Stante
                   Matrimonio
                
                 ,
                 without
                 the
                 Husbands
                 consent
                 :
                 And
                 yet
                 the
                 Husband
                 found
                 lyable
                 for
                 the
                 damnage
                 of
                 a
                 Milne
                 demolished
                 by
                 his
                 Wife
                 ,
                 as
                 
                   praeposita
                   negotiis
                
                 ;
                 and
                 by
                 his
                 Domestick
                 Servants
                 ,
                 though
                 he
                 was
                 out
                 of
                 the
                 Countrey
                 ,
                 Spots
                 ,
                 Husband
                 and
                 Wife
                 ,
                 Laird
                 
                   Ludqhairn
                   contra
                
                 Earl
                 of
                 Marishal
                 .
                 Neither
                 was
                 a
                 Husband
                 found
                 lyable
                 for
                 the
                 penalty
                 of
                 the
                 contraveening
                 the
                 Act
                 of
                 a
                 Kirk
                 Session
                 ,
                 
                   ut
                   supra
                
                 .
                 A
                 Husband
                 found
                 lyable
                 for
                 his
                 Interest
                 ,
                 for
                 his
                 Wifes
                 Tutor
                 Compts
                 ,
                 not
                 only
                 what
                 she
                 was
                 lyable
                 for
                 ,
                 during
                 her
                 Widouity
                 ,
                 but
                 during
                 the
                 time
                 of
                 a
                 former
                 Husband
                 ,
                 his
                 Successor
                 being
                 always
                 first
                 discust
                 ,
                 as
                 to
                 what
                 was
                 〈◊〉
                 in
                 his
                 time
                 ,
                 March
                 28.
                 1629.
                 
                 
                   Mathison
                   contra
                   Waristonn
                
                 ;
                 yea
                 ,
                 without
                 the
                 discussing
                 of
                 the
                 Successors
                 of
                 the
                 first
                 Husband
                 ,
                 
                   primo
                   loco
                
                 ,
                 where
                 the
                 intromission
                 was
                 before
                 both
                 Marriages
                 ,
                 but
                 prejudice
                 to
                 the
                 Defender
                 ,
                 to
                 pursue
                 the
                 Heirs
                 of
                 the
                 first
                 Husband
                 as
                 accords
                 ,
                 February
                 18.
                 1663.
                 
                 Dumbar
                 of
                 
                   Hemprig
                   contra
                
                 Lord
                 Frazer
                 .
                 But
                 a
                 Husband
                 was
                 not
                 found
                 lyable
                 for
                 Furniture
                 ,
                 given
                 by
                 Merchants
                 to
                 his
                 Wife
                 ,
                 without
                 his
                 consent
                 ,
                 she
                 having
                 gone
                 to
                 London
                 without
                 his
                 Warrand
                 ,
                 except
                 in
                 so
                 far
                 as
                 her
                 ordinar
                 expenses
                 would
                 have
                 amounted
                 to
                 ;
                 if
                 she
                 had
                 stayed
                 at
                 home
                 ,
                 though
                 her
                 Husband
                 had
                 not
                 Inhibite
                 her
                 ,
                 July
                 6.
                 1677.
                 
                 
                   John
                   Allan
                   contra
                
                 Earl
                 and
                 Countess
                 of
                 Southesk
                 .
              
               
                 After
                 Inhibition
                 against
                 Wives
                 ,
                 the
                 Husband
                 is
                 not
                 lyable
                 for
                 any
                 thing
                 they
                 Contract
                 ,
                 except
                 what
                 is
                 furnished
                 suitable
                 to
                 their
                 quality
                 ,
                 and
                 where
                 the
                 Husband
                 cannot
                 instruct
                 that
                 he
                 sufficiently
                 provided
                 his
                 Wife
                 otherwayes
                 ,
                 July
                 the
                 25.
                 1676.
                 
                 
                   〈◊〉
                   Campbel
                   contra
                
                 Laird
                 of
                 Abden
                 .
                 The
                 like
                 was
                 found
                 at
                 the
                 same
                 time
                 ,
                 concerning
                 the
                 Furniture
                 of
                 the
                 Lady
                 Monteith
                 .
              
               
                 But
                 this
                 obliegement
                 of
                 the
                 Husbands
                 being
                 only
                 for
                 his
                 Interest
                 ,
                 
                   〈◊〉
                   Mariti
                
                 ,
                 the
                 Debt
                 it self
                 doth
                 not
                 properly
                 become
                 his
                 ;
                 but
                 only
                 it
                 may
                 take
                 effect
                 against
                 his
                 Person
                 and
                 Goods
                 ,
                 during
                 the
                 Marriage
                 :
                 but
                 if
                 that
                 Interest
                 were
                 dissolved
                 by
                 his
                 own
                 ,
                 or
                 his
                 Wifes
                 death
                 ,
                 there
                 will
                 be
                 no
                 farther
                 Process
                 against
                 him
                 ,
                 or
                 his
                 Heirs
                 ,
                 
                   Nic.
                   de
                   reverentia
                   Maritali
                   ,
                   Campbel
                   contra
                   Dumbar
                   .
                
                 And
                 though
                 there
                 was
                 ,
                 
                   Litis
                   contestation
                
                 ,
                 before
                 the
                 Wifes
                 death
                 ,
                 the
                 Husband
                 was
                 found
                 free
                 ;
                 〈◊〉
                 he
                 was
                 ordained
                 by
                 Interloqutor
                 ,
                 to
                 find
                 Caution
                 ,
                 to
                 pay
                 what
                 should
                 be
                 decerned
                 ,
                 July
                 11.
                 1664.
                 
                 Dumbar
                 of
                 
                   Hemprig
                   contra
                
                 Lord
                 Frazer
                 .
                 So
                 likeways
                 ,
                 
                 a
                 Husband
                 decerned
                 with
                 his
                 Wife
                 for
                 his
                 Interest
                 ,
                 she
                 dying
                 before
                 execution
                 ,
                 he
                 was
                 free
                 of
                 the
                 Debt
                 ,
                 December
                 28.
                 1665.
                 
                 Dam
                 
                   Rachel
                   Burnet
                   contra
                   Lepers
                
                 .
                 The
                 like
                 ,
                 where
                 the
                 Husband
                 was
                 holden
                 as
                 confest
                 ,
                 upon
                 refusing
                 to
                 give
                 his
                 Oath
                 of
                 Calumny
                 ,
                 February
                 26.
                 1668.
                 
                 
                   George
                   Graham
                   contra
                   Grizel
                   Touris
                
                 ,
                 and
                 Kelhead
                 her
                 Husband
                 :
                 so
                 likewise
                 ,
                 a
                 Husband
                 decerned
                 with
                 his
                 Wife
                 for
                 his
                 interest
                 ,
                 having
                 died
                 before
                 execution
                 ,
                 his
                 Successors
                 were
                 found
                 free
                 of
                 thedebt
                 ,
                 Hope
                 ,
                 transferring
                 ,
                 
                   Francis
                   Kinloch
                   contra
                   Dumbar
                
                 :
                 But
                 the
                 contrair
                 was
                 found
                 ,
                 where
                 the
                 Husband
                 was
                 denunced
                 upon
                 the
                 Decreet
                 ,
                 and
                 had
                 sold
                 his
                 Wifes
                 Portion
                 of
                 Land
                 ;
                 Ibidem
                 ,
                 Earl
                 of
                 
                   Murray
                   contra
                
                 Lord
                 St.
                 Colmb
                 .
                 The
                 like
                 ,
                 where
                 the
                 Decreet
                 against
                 the
                 Husband
                 ,
                 after
                 his
                 Wifes
                 decease
                 ,
                 was
                 only
                 found
                 effectual
                 ,
                 in
                 so
                 far
                 as
                 might
                 extend
                 to
                 his
                 Wifes
                 third
                 part
                 of
                 his
                 Moveables
                 ,
                 February
                 7.
                 1629.
                 
                 
                   Brown
                   contra
                   Dalmahoy
                
                 .
                 And
                 a
                 Husband
                 was
                 found
                 lyable
                 for
                 his
                 Wifes
                 Debt
                 ,
                 after
                 her
                 Death
                 ,
                 in
                 so
                 far
                 as
                 might
                 be
                 extended
                 to
                 the
                 benefit
                 of
                 her
                 Life-rent
                 Duties
                 ,
                 resting
                 at
                 her
                 Death
                 ,
                 February
                 1.
                 1662.
                 
                 Sir
                 
                   James
                   Cuninghame
                
                 against
                 
                   Thomas
                   Dalmahoy
                
                 .
                 And
                 the
                 Husband
                 is
                 always
                 lyable
                 for
                 his
                 Wifes
                 Debt
                 ,
                 even
                 after
                 her
                 Death
                 ,
                 
                   in
                   quantum
                   est
                   lucratus
                
                 ,
                 which
                 cannot
                 be
                 understood
                 to
                 be
                 by
                 every
                 Benefit
                 ,
                 or
                 Tocher
                 ,
                 Marriage
                 being
                 an
                 onerous
                 Contract
                 ,
                 where
                 a
                 Tocher
                 is
                 given
                 ,
                 
                   ad
                   sustinenda
                   onera
                   Matrimonii
                
                 ,
                 and
                 for
                 the
                 Wifes
                 Provision
                 by
                 Law
                 or
                 Paction
                 ,
                 after
                 the
                 Mans
                 Death
                 :
                 And
                 therefore
                 ,
                 he
                 can
                 only
                 be
                 accounted
                 ,
                 Lucratus
                 ,
                 when
                 the
                 benefit
                 he
                 hath
                 by
                 his
                 Wife
                 ,
                 doth
                 far
                 exceed
                 these
                 ,
                 
                   onera
                   ,
                   December
                
                 23.
                 1665.
                 
                 Dam
                 
                   Rachel
                   Burnet
                
                 against
                 Lepers
                 .
                 And
                 even
                 in
                 case
                 he
                 be
                 Lucratus
                 ,
                 the
                 Wifes
                 Heretage
                 must
                 be
                 first
                 discust
                 ,
                 January
                 23.
                 1678.
                 
                 
                   Agnes
                   Wilkie
                   contra
                   Stuart
                
                 and
                 Morison
                 .
                 A
                 Husband
                 being
                 charged
                 Summarily
                 for
                 his
                 Interest
                 ,
                 upon
                 a
                 Decreet
                 obtained
                 against
                 his
                 Wife
                 ,
                 before
                 the
                 marriage
                 ,
                 and
                 denunced
                 thereupon
                 ;
                 yet
                 not
                 being
                 undertaken
                 by
                 him
                 ,
                 or
                 affecting
                 his
                 Goods
                 before
                 his
                 death
                 ,
                 he
                 was
                 Liberat
                 ,
                 March
                 20.
                 1627.
                 
                 
                   Knowes
                   contra
                   Kneiland
                
                 .
                 The
                 like
                 ,
                 though
                 not
                 only
                 Horning
                 was
                 used
                 against
                 the
                 Husband
                 ,
                 but
                 Arrestment
                 thereupon
                 ,
                 January
                 23.
                 1678.
                 
                 
                   Agnes
                   Wilkie
                   contra
                   Stuart
                
                 and
                 Morison
                 .
                 But
                 a
                 Husband
                 having
                 given
                 Bond
                 of
                 borrowed
                 Money
                 for
                 his
                 Wifes
                 Furniture
                 ,
                 was
                 found
                 lyable
                 therefore
                 after
                 her
                 Death
                 ,
                 July
                 7.
                 1680.
                 
                 
                   Slowan
                   contra
                
                 Lord
                 Bargainie
                 .
                 But
                 that
                 the
                 Husbands
                 Lands
                 ,
                 or
                 Here
                 table
                 Rights
                 ,
                 will
                 be
                 lyable
                 for
                 his
                 Wifes
                 Debt
                 ,
                 there
                 is
                 neither
                 Decision
                 nor
                 Ground
                 for
                 it
                 ;
                 these
                 not
                 being
                 
                   in
                   Communione
                   bonorum
                
                 .
                 It
                 is
                 more
                 dubious
                 ,
                 and
                 for
                 any
                 thing
                 I
                 know
                 ,
                 undecided
                 ,
                 Whether
                 the
                 Heritable
                 Debt
                 of
                 the
                 Wife
                 will
                 affect
                 the
                 Husband
                 ,
                 
                   Quoad
                   mobilia
                
                 ;
                 but
                 seing
                 it
                 is
                 a
                 Communion
                 of
                 Goods
                 only
                 moveable
                 ,
                 it
                 should
                 be
                 also
                 of
                 Debts
                 moveable
                 ,
                 though
                 in
                 
                   communi
                   forma
                
                 ,
                 as
                 Tutors
                 or
                 Curators
                 .
                 So
                 Husbands
                 will
                 be
                 decerned
                 generally
                 for
                 their
                 Interest
                 ;
                 yet
                 with
                 this
                 difference
                 ,
                 that
                 Tutors
                 and
                 Curators
                 will
                 be
                 lyable
                 ,
                 in
                 so
                 far
                 as
                 they
                 have
                 the
                 Pupils
                 Means
                 .
                 But
                 I
                 never
                 heard
                 that
                 there
                 was
                 distinctions
                 ,
                 whether
                 the
                 Wifes
                 Debt
                 did
                 exceed
                 the
                 third
                 part
                 of
                 the
                 Mans
                 Moveables
                 ,
                 which
                 is
                 her
                 Proportion
                 of
                 the
                 same
                 ;
                 but
                 indefinitely
                 ,
                 it
                 hatheffect
                 against
                 the
                 Husbands
                 Person
                 by
                 Caption
                 ,
                 or
                 his
                 〈◊〉
                 by
                 Poynding
                 .
                 But
                 a
                 Wifes
                 Heretable
                 Bonds
                 ,
                 become
                 not
                 her
                 Husbands
                 ,
                 though
                 uplifted
                 by
                 her
                 ,
                 or
                 made
                 moveable
                 by
                 a
                 Charge
                 ,
                 during
                 the
                 Marriage
                 ,
                 seing
                 she
                 then
                 re-imployed
                 the
                 Money
                 for
                 Annualrent
                 ,
                 February
                 〈◊〉
                 .
                 1679.
                 
                 
                   Alexander
                   Cockburn
                   contra
                   George
                   Burn.
                
                 
              
               
                 14.
                 
                 These
                 are
                 the
                 Interests
                 of
                 the
                 Man
                 and
                 Wife
                 ,
                 during
                 the
                 Marriage
                 ;
                 but
                 before
                 we
                 come
                 to
                 their
                 Interests
                 ,
                 after
                 the
                 dissolution
                 thereof
                 ,
                 it
                 is
                 to
                 be
                 considered
                 ,
                 that
                 by
                 our
                 Customes
                 ,
                 Donations
                 between
                 Man
                 and
                 Wife
                 ,
                 
                   Stante
                   Matrimonio
                
                 ,
                 are
                 Revocable
                 by
                 the
                 giver
                 ,
                 during
                 Life
                 ;
                 
                 which
                 our
                 Custome
                 hath
                 taken
                 from
                 the
                 Civil
                 Law
                 ,
                 where
                 this
                 Reason
                 is
                 rendered
                 ,
                 
                   Ne
                   unituo
                   amore
                   se
                   spolient
                
                 ;
                 Thus
                 a
                 Donation
                 betwixt
                 a
                 Man
                 and
                 his
                 Wife
                 ,
                 was
                 found
                 anulled
                 by
                 the
                 Husbands
                 Revocation
                 upon
                 Death-bed
                 ,
                 subscribed
                 by
                 Nottars
                 ,
                 because
                 of
                 his
                 Infirmity
                 ,
                 Hope
                 ,
                 Husband
                 and
                 Wife
                 ,
                 Earl
                 of
                 
                   Angus
                   contra
                
                 Countess
                 of
                 Angus
                 .
                 And
                 a
                 Husband
                 was
                 allowed
                 to
                 recall
                 a
                 Bond
                 granted
                 to
                 his
                 Wife
                 ,
                 bearing
                 ,
                 that
                 he
                 thought
                 it
                 convenient
                 ,
                 that
                 they
                 should
                 live
                 a
                 part
                 ;
                 and
                 therefore
                 oblieged
                 him
                 to
                 pay
                 a
                 Sum
                 yearly
                 for
                 her
                 Aliment
                 ;
                 albeit
                 it
                 bore
                 also
                 ,
                 that
                 he
                 should
                 never
                 quarrel
                 ,
                 or
                 recal
                 the
                 same
                 ,
                 as
                 importing
                 a
                 Renunciation
                 of
                 that
                 Priviledge
                 ,
                 February
                 6.
                 1666.
                 
                 
                   Livingstoun
                   contra
                   Beg.
                
                 Yea
                 ,
                 a
                 Donation
                 by
                 a
                 Husband
                 to
                 his
                 Wife
                 ,
                 was
                 found
                 Revocked
                 by
                 a
                 Posterior
                 Right
                 to
                 his
                 Children
                 ,
                 though
                 it
                 was
                 not
                 a
                 pure
                 Donation
                 ,
                 but
                 in
                 lieu
                 of
                 another
                 Right
                 ,
                 and
                 
                   quoad
                   excessum
                
                 only
                 ,
                 seing
                 it
                 was
                 
                   notabilis
                   excessus
                   November
                
                 20.
                 1662.
                 
                 Children
                 of
                 Wolmet
                 against
                 Lady
                 Wolmet
                 .
                 And
                 un
                 Infeftment
                 ,
                 bearing
                 Lands
                 and
                 a
                 Miln
                 ,
                 was
                 found
                 Revockable
                 ,
                 as
                 to
                 the
                 Miln
                 ,
                 it
                 not
                 being
                 exprest
                 in
                 the
                 Wifes
                 Contract
                 ,
                 February
                 5.
                 1667.
                 
                 Countess
                 of
                 
                   Home
                   contra
                   Hog
                
                 :
                 This
                 was
                 extended
                 to
                 a
                 Wifes
                 accepting
                 of
                 an
                 Infe
                 ftment
                 in
                 satisfaction
                 of
                 her
                 Contract
                 ,
                 February
                 12.
                 1663.
                 
                 Relict
                 of
                 
                   George
                   Morison
                   contra
                
                 his
                 Heir
                 .
                 It
                 is
                 also
                 Revockable
                 ,
                 indirectly
                 by
                 the
                 Husbands
                 posterior
                 Disposition
                 of
                 the
                 Lands
                 ,
                 formerly
                 Disponed
                 to
                 his
                 Wife
                 ,
                 in
                 Life-rent
                 ,
                 July
                 16.
                 1622.
                 
                 
                   John
                   Murray
                
                 of
                 
                   Lochmaiben
                   contra
                   Scot
                
                 of
                 Hayning
                 .
                 A
                 Donation
                 by
                 Infeftment
                 ,
                 granted
                 by
                 a
                 Man
                 to
                 his
                 Wife
                 ,
                 beside
                 her
                 Contract
                 ,
                 found
                 Revocked
                 by
                 an
                 Annualrent
                 out
                 of
                 these
                 Lands
                 ,
                 granted
                 to
                 his
                 Daughter
                 ,
                 
                   pro
                   tanto
                
                 ,
                 without
                 mention
                 of
                 Revocation
                 ,
                 December
                 15.
                 1674.
                 
                 Mr.
                 
                   Robert
                   Kinloch
                   contra
                   Raith
                
                 .
                 It
                 was
                 also
                 found
                 effectually
                 Revocked
                 ,
                 by
                 the
                 Husbands
                 submitting
                 of
                 the
                 Right
                 of
                 the
                 Land
                 ,
                 wherein
                 he
                 had
                 formerly
                 gifted
                 a
                 Life-rent
                 to
                 his
                 Wife
                 ,
                 and
                 a
                 Decreet
                 Arbitral
                 ,
                 adjudging
                 the
                 same
                 to
                 another
                 ,
                 
                   Nic.
                   de
                   Donat.
                   inter
                   virum
                   &
                   uxorem
                
                 ;
                 Viscount
                 of
                 
                   Annandail
                   contra
                   Scot.
                
                 But
                 Donations
                 by
                 a
                 man
                 to
                 his
                 Wife
                 ,
                 who
                 had
                 no
                 former
                 Provision
                 ,
                 nor
                 Contract
                 of
                 Marriage
                 ,
                 found
                 not
                 Revockable
                 ,
                 being
                 in
                 satisfaction
                 of
                 the
                 Terce
                 ,
                 due
                 by
                 the
                 Marriage
                 ,
                 March
                 25.
                 1635.
                 
                 Laird
                 of
                 
                   Louristoun
                   contra
                
                 Lady
                 Dunipace
                 .
                 The
                 like
                 ,
                 November
                 .
                 22.
                 1664.
                 
                 
                   Margaret
                   Mcgill
                   contra
                   Ruthven
                
                 of
                 Gairn
                 .
                 But
                 where
                 the
                 Husband
                 granted
                 Infeftment
                 of
                 all
                 that
                 he
                 then
                 had
                 ,
                 there
                 being
                 no
                 Contract
                 of
                 Marriage
                 ,
                 And
                 thereafter
                 ,
                 a
                 second
                 Infeftment
                 ,
                 both
                 
                   Stante
                   Matrimonio
                
                 ;
                 The
                 first
                 was
                 sustained
                 ,
                 being
                 in
                 place
                 of
                 a
                 Contract
                 of
                 Marriage
                 ;
                 but
                 the
                 second
                 was
                 found
                 Revockable
                 ,
                 23.
                 of
                 November
                 .
                 1664.
                 
                 
                   Halyburtoun
                   contra
                   Porteous
                
                 .
                 And
                 a
                 provision
                 to
                 a
                 Wife
                 ,
                 having
                 no
                 Contract
                 of
                 Marriage
                 ,
                 was
                 found
                 Revockable
                 ,
                 in
                 so
                 far
                 as
                 it
                 exceeded
                 a
                 Provision
                 suitable
                 to
                 the
                 Parties
                 ,
                 27.
                 of
                 July
                 1677.
                 
                 Short
                 and
                 
                   Burnet
                   contra
                   Murrays
                
                 .
                 Yet
                 the
                 want
                 of
                 a
                 Contract
                 did
                 not
                 sustain
                 a
                 Donation
                 by
                 a
                 Wife
                 to
                 her
                 Husband
                 ,
                 to
                 whom
                 she
                 assigned
                 an
                 Heretable
                 Bond
                 ,
                 the
                 Husband
                 being
                 naturally
                 oblieged
                 to
                 provide
                 for
                 his
                 Wife
                 ,
                 and
                 not
                 the
                 Wife
                 for
                 her
                 Husband
                 ,
                 December
                 15.
                 1676.
                 
                 Inglis
                 of
                 East-shield
                 against
                 Lowry
                 of
                 Blackwood
                 .
                 And
                 an
                 Assignation
                 to
                 an
                 Heritable
                 Bond
                 ,
                 by
                 a
                 Wife
                 to
                 a
                 third
                 Party
                 ,
                 but
                 to
                 the
                 Husbands
                 behoove
                 ,
                 found
                 Revockable
                 by
                 the
                 Wife
                 ,
                 after
                 the
                 Husbands
                 death
                 ,
                 even
                 against
                 the
                 Husbands
                 singular
                 Successor
                 ,
                 for
                 causes
                 onerous
                 ,
                 the
                 trust
                 being
                 proven
                 by
                 Write
                 ,
                 June
                 17.
                 1677.
                 
                 
                   Margaret
                   Pearson
                   contra
                   Mclane
                
                 .
                 Yea
                 a
                 Donation
                 by
                 a
                 Wife
                 ,
                 by
                 Assignation
                 of
                 her
                 former
                 Joynture
                 ,
                 to
                 her
                 Husbands
                 behoove
                 ,
                 found
                 Revockable
                 ,
                 though
                 there
                 was
                 no
                 Contract
                 ,
                 unless
                 the
                 Husband
                 had
                 given
                 a
                 remuneratory
                 provision
                 ,
                 January
                 22.
                 1673.
                 
                 
                   Janet
                   Watson
                   contra
                   Bruce
                
                 .
                 And
                 a
                 Wifes
                 consent
                 to
                 a
                 Contract
                 of
                 Wodset
                 of
                 her
                 Life-rent
                 Lands
                 ,
                 with
                 a
                 back-tack
                 to
                 the
                 Husband
                 ,
                 only
                 found
                 valid
                 as
                 to
                 the
                 Creditor
                 ,
                 
                 but
                 Revockable
                 as
                 to
                 the
                 Husband
                 ,
                 in
                 relation
                 to
                 the
                 back-tack
                 ,
                 declaring
                 the
                 same
                 to
                 belong
                 to
                 her
                 for
                 her
                 Life-rent
                 use
                 ,
                 that
                 she
                 might
                 injoy
                 the
                 superplus
                 more
                 than
                 the
                 Annualrent
                 ,
                 June
                 28.
                 1673.
                 
                 
                   Arnot
                   contra
                
                 Buta
                 Donation
                 by
                 a
                 Husband
                 to
                 his
                 Wifes
                 Children
                 of
                 a
                 former
                 Marriage
                 ,
                 was
                 not
                 found
                 Revockable
                 ,
                 though
                 done
                 at
                 his
                 Wifes
                 desire
                 ,
                 January
                 15.
                 1669.
                 
                 
                   Hamiltoun
                   contra
                   Banes.
                
                 Nor
                 by
                 a
                 Wife
                 subscribing
                 her
                 Husbands
                 Testament
                 ,
                 by
                 which
                 her
                 Life-rent
                 Lands
                 were
                 provided
                 to
                 her
                 Daughter
                 ,
                 July
                 12.
                 1671.
                 
                 
                   Marjory
                   Murray
                   contra
                   Isobel
                   Murray
                
                 .
                 Such
                 Donations
                 are
                 also
                 annulled
                 by
                 the
                 Wifes
                 Adultery
                 and
                 Divorce
                 .
                 As
                 all
                 Donations
                 are
                 Revockable
                 for
                 ingratitude
                 ,
                 
                   Hope
                   ,
                   donatio
                   inter
                   virum
                   &
                   uxorem
                   ,
                   Margaret
                   Dowglas
                   contra
                   Aitoun
                   .
                
                 A
                 Bond
                 conceived
                 to
                 a
                 Man
                 and
                 Wife
                 and
                 her
                 Heirs
                 ,
                 found
                 a
                 Donation
                 by
                 the
                 Man
                 ,
                 whose
                 Means
                 it
                 was
                 presumed
                 to
                 be
                 ,
                 and
                 Revockable
                 by
                 him
                 after
                 her
                 death
                 ;
                 and
                 a
                 Tack
                 taken
                 by
                 him
                 ,
                 to
                 himself
                 and
                 his
                 Wife
                 in
                 Life-rent
                 ,
                 was
                 found
                 Revockable
                 ,
                 by
                 a
                 posterior
                 Tack
                 thereof
                 to
                 himself
                 and
                 his
                 brothers
                 Son
                 ,
                 December
                 21.
                 1638
                 
                 Laird
                 of
                 
                   Craigmiller
                   contra
                
                 Relict
                 of
                 
                   Gawin
                   〈◊〉
                
                 ,
                 yet
                 thereafter
                 it
                 was
                 found
                 in
                 the
                 same
                 case
                 ,
                 January
                 30.
                 1639.
                 that
                 in
                 respect
                 the
                 〈◊〉
                 was
                 set
                 by
                 a
                 third
                 person
                 ,
                 and
                 that
                 it
                 did
                 not
                 appear
                 to
                 be
                 by
                 the
                 Mans
                 〈◊〉
                 ,
                 that
                 the
                 Back-tack
                 to
                 the
                 Wife
                 ,
                 was
                 not
                 Revockable
                 .
                 But
                 a
                 Donation
                 betwixt
                 Man
                 and
                 Wife
                 ,
                 altering
                 their
                 Contract
                 of
                 Marriage
                 ,
                 being
                 done
                 before
                 the
                 marriage
                 it self
                 ,
                 was
                 not
                 found
                 Revockable
                 ,
                 January
                 23.
                 1680.
                 
                 
                   John
                   Home
                   contra
                   John
                
                 and
                 
                   George
                   Homes
                
                 ;
                 yea
                 where
                 the
                 Donation
                 did
                 bear
                 date
                 before
                 the
                 Marriage
                 ,
                 the
                 Husbands
                 Heir
                 proving
                 the
                 Write
                 antidated
                 ,
                 and
                 that
                 it
                 was
                 truely
                 after
                 the
                 Marriage
                 ;
                 the
                 Donation
                 was
                 therefore
                 found
                 Revockable
                 ,
                 July
                 24.
                 1667.
                 
                 Earl
                 of
                 
                   Dumfermling
                   contra
                
                 Earl
                 of
                 Callender
                 .
              
               
                 15.
                 
                 To
                 come
                 to
                 the
                 Interest
                 of
                 the
                 Husband
                 and
                 Wife
                 ,
                 after
                 the
                 Dissolution
                 of
                 the
                 Marriage
                 ,
                 we
                 must
                 distinguish
                 the
                 Dissolution
                 thereof
                 ,
                 which
                 falls
                 by
                 death
                 ,
                 with
                 in
                 year
                 and
                 day
                 from
                 the
                 solemnizing
                 thereof
                 ,
                 and
                 that
                 which
                 is
                 Dissolved
                 thereafter
                 ;
                 for
                 by
                 our
                 Custome
                 ,
                 this
                 is
                 singular
                 ,
                 which
                 is
                 found
                 no
                 where
                 else
                 in
                 the
                 Neighbouring
                 Nations
                 ,
                 that
                 if
                 the
                 Marriage
                 Dissolve
                 within
                 year
                 and
                 day
                 ,
                 after
                 the
                 Solemnizing
                 thereof
                 ,
                 all
                 things
                 done
                 in
                 Contemplation
                 of
                 the
                 Marriage
                 become
                 void
                 ,
                 and
                 return
                 to
                 the
                 Condition
                 wherein
                 they
                 were
                 before
                 the
                 same
                 ;
                 and
                 so
                 the
                 Tocher
                 returns
                 back
                 to
                 the
                 Wife
                 ,
                 or
                 these
                 from
                 whom
                 it
                 came
                 ,
                 and
                 she
                 hath
                 no
                 Benefite
                 or
                 any
                 Interest
                 ,
                 either
                 in
                 the
                 Moveables
                 or
                 Heretables
                 ,
                 either
                 by
                 Law
                 or
                 Contract
                 provided
                 to
                 her
                 :
                 nor
                 hath
                 he
                 any
                 Interest
                 in
                 hers
                 ,
                 unless
                 there
                 were
                 a
                 living
                 Child
                 born
                 ,
                 which
                 was
                 heard
                 cry
                 or
                 weep
                 :
                 in
                 which
                 case
                 ,
                 Marriage
                 hath
                 the
                 same
                 effect
                 ,
                 as
                 to
                 all
                 intents
                 and
                 purposes
                 ,
                 as
                 if
                 it
                 indured
                 beyond
                 the
                 year
                 and
                 this
                 is
                 extended
                 to
                 both
                 the
                 Marriage
                 of
                 Maids
                 and
                 Widows
                 ,
                 July
                 23.
                 1634.
                 
                 
                   Maxwel
                   contra
                   Harestones
                
                 .
                 And
                 extended
                 also
                 to
                 an
                 Infeftment
                 by
                 a
                 Husband
                 to
                 a
                 Wife
                 ,
                 though
                 it
                 had
                 no
                 relation
                 to
                 the
                 Marriage
                 ,
                 but
                 was
                 only
                 presumed
                 to
                 be
                 ,
                 
                   hoc
                   intuitu
                   ,
                   November
                
                 16.
                 1633.
                 
                 
                   Grant
                   contra
                   Grant
                
                 ,
                 and
                 not
                 only
                 extended
                 to
                 the
                 Wife
                 and
                 Husband
                 ,
                 and
                 their
                 Heirs
                 ,
                 but
                 to
                 any
                 other
                 person
                 concerned
                 ,
                 Restitution
                 being
                 made
                 ,
                 hincinde
                 ,
                 of
                 all
                 done
                 ,
                 
                   〈◊〉
                   Matrimonii
                   ,
                   June
                
                 8.
                 1610.
                 
                 Laird
                 of
                 
                   Caddel
                   contra
                   Elizabeth
                   Ross
                
                 :
                 yea
                 ,
                 a
                 Disposition
                 by
                 a
                 Father
                 to
                 a
                 Son
                 of
                 his
                 Estate
                 ,
                 in
                 Contemplation
                 of
                 his
                 Marriage
                 ,
                 which
                 was
                 dissolved
                 within
                 year
                 and
                 day
                 by
                 the
                 Wifes
                 death
                 ,
                 was
                 found
                 void
                 ;
                 seing
                 the
                 Father
                 persisted
                 not
                 therein
                 ,
                 but
                 Infeft
                 his
                 second
                 Son
                 ,
                 July
                 15.
                 1678.
                 
                 Lord
                 
                   Burley
                   contra
                
                 Laird
                 of
                 Fairny
                 .
                 And
                 a
                 Tocher
                 payed
                 within
                 the
                 year
                 ,
                 was
                 〈◊〉
                 to
                 be
                 repayed
                 without
                 any
                 Deduction
                 ,
                 for
                 the
                 Wifes
                 intertainment
                 ,
                 during
                 the
                 Marriage
                 ;
                 but
                 only
                 for
                 her
                 Cloathes
                 which
                 were
                 before
                 the
                 Marriage
                 ,
                 and
                 her
                 Funeral
                 Charges
                 which
                 was
                 after
                 the
                 Marriage
                 was
                 Dissolved
                 ,
                 February
                 23.
                 1681.
                 
                 
                   Janet
                   Gordoun
                   contra
                   Thomas
                   Inglis
                
                 .
                 But
                 Gifts
                 given
                 to
                 the
                 Married
                 Persons
                 ,
                 by
                 the
                 Friends
                 of
                 both
                 ,
                 were
                 divided
                 equally
                 ,
                 the
                 
                 Marriage
                 being
                 dissolved
                 within
                 year
                 and
                 day
                 ,
                 January
                 14.
                 1679.
                 
                 
                   Wauch
                   contra
                   Jamison
                
                 .
                 But
                 if
                 a
                 living
                 Child
                 was
                 born
                 ,
                 the
                 Marriage
                 was
                 found
                 valide
                 ,
                 though
                 both
                 Mother
                 and
                 Child
                 died
                 within
                 the
                 year
                 ,
                 Spot
                 .
                 Husband
                 and
                 Wife
                 ,
                 
                   Stuart
                   contra
                   Irving
                
                 .
                 The
                 reason
                 why
                 the
                 Child
                 must
                 be
                 heard
                 cry
                 ,
                 is
                 to
                 make
                 certain
                 its
                 lively
                 ripeness
                 ,
                 and
                 not
                 to
                 leave
                 it
                 to
                 the
                 conjecture
                 of
                 the
                 Witnesses
                 :
                 and
                 therefore
                 ,
                 it
                 sufficed
                 not
                 ,
                 though
                 they
                 did
                 declare
                 ,
                 that
                 the
                 Child
                 was
                 living
                 immediately
                 before
                 the
                 Birth
                 ,
                 and
                 appeared
                 lively
                 and
                 full
                 ripe
                 when
                 it
                 was
                 born
                 ,
                 but
                 that
                 it
                 was
                 stifled
                 in
                 the
                 Birth
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 Sandelands
                 and
                 Thores
                 ;
                 yet
                 a
                 Wifes
                 Infeftment
                 was
                 found
                 valid
                 ,
                 till
                 her
                 Tocher
                 was
                 repayed
                 ,
                 though
                 the
                 Marriage
                 Dissolved
                 within
                 the
                 year
                 ,
                 July
                 20.
                 1664.
                 
                 
                   Petrie
                   contra
                   Paul.
                
                 But
                 where
                 a
                 Marriage
                 continued
                 a
                 year
                 ,
                 and
                 a
                 part
                 of
                 the
                 next
                 day
                 after
                 the
                 year
                 ,
                 the
                 Tocher
                 was
                 found
                 not
                 to
                 return
                 ,
                 
                   Nam
                   in
                   favorabilibus
                   dies
                   ,
                   ceptus
                   habetur
                   pro
                   completo
                   ,
                   February
                
                 25.
                 1680.
                 
                 
                   George
                   Waddel
                   contra
                   George
                   Salmond
                
                 .
              
               
                 16.
                 
                 Marriage
                 Dissolveth
                 by
                 Divorce
                 ,
                 either
                 upon
                 wilful
                 non-adherence
                 ,
                 or
                 wilful
                 Desertion
                 ,
                 or
                 by
                 Adultery
                 ;
                 and
                 the
                 party
                 injurer
                 loseth
                 all
                 benefit
                 ,
                 accrueing
                 through
                 the
                 Marriage
                 ,
                 as
                 is
                 expresly
                 provided
                 by
                 the
                 foresaid
                 Act
                 of
                 Parliament
                 ,
                 concerning
                 non-adherence
                 ,
                 1533.
                 cap.
                 55.
                 
                 But
                 the
                 Party
                 injured
                 hath
                 the
                 same
                 benefit
                 ,
                 as
                 by
                 the
                 others
                 Natural
                 Death
                 ;
                 as
                 was
                 found
                 ,
                 March
                 21.
                 1637.
                 
                 Lady
                 
                   Manderstoun
                   contra
                
                 Laird
                 of
                 Rentoun
                 .
                 But
                 if
                 Divorce
                 follow
                 upon
                 Impotency
                 ,
                 all
                 things
                 return
                 ,
                 
                   hinc
                   inde
                
                 ;
                 because
                 ,
                 in
                 effect
                 there
                 was
                 no
                 Marriage
                 ,
                 as
                 was
                 found
                 ,
                 Earl
                 of
                 
                   Eglintoun
                   contra
                
                 Lady
                 Eglintoun
                 .
              
               
                 17.
                 
                 By
                 the
                 Dissolution
                 of
                 Marriage
                 ,
                 there
                 ariseth
                 to
                 Married
                 Persons
                 ,
                 not
                 only
                 these
                 Rights
                 ,
                 which
                 by
                 voluntar
                 Contract
                 are
                 Constitute
                 to
                 either
                 ,
                 and
                 which
                 are
                 not
                 proper
                 here
                 :
                 but
                 also
                 these
                 ,
                 which
                 by
                 Law
                 and
                 Custome
                 ,
                 are
                 Competent
                 without
                 any
                 special
                 Convention
                 ,
                 or
                 Covenant
                 ;
                 and
                 these
                 are
                 either
                 upon
                 the
                 part
                 of
                 the
                 Husband
                 ,
                 or
                 more
                 frequently
                 upon
                 the
                 part
                 of
                 the
                 Wife
                 :
                 To
                 the
                 Husband
                 is
                 Competent
                 ,
                 the
                 Life-rent
                 of
                 the
                 Wifes
                 Heretage
                 ;
                 which
                 ,
                 because
                 it
                 is
                 peculiar
                 unto
                 these
                 Nations
                 ,
                 it
                 is
                 said
                 to
                 
                   be
                   the
                   Courtesie
                   of
                
                 Scotland
                 or
                 England
                 .
                 To
                 the
                 Wife
                 ariseth
                 ,
                 her
                 share
                 of
                 the
                 Moveables
                 ,
                 which
                 is
                 the
                 half
                 ,
                 where
                 the
                 Man
                 hath
                 no
                 Children
                 ,
                 
                   in
                   familia
                
                 ;
                 and
                 the
                 third
                 ,
                 where
                 there
                 are
                 such
                 ,
                 and
                 her
                 Terce
                 ,
                 which
                 is
                 the
                 third
                 part
                 of
                 his
                 Lands
                 ,
                 during
                 her
                 Life
                 .
                 But
                 of
                 Reversions
                 ,
                 Heretable
                 Bonds
                 ,
                 Dispositions
                 ,
                 or
                 Rights
                 of
                 Lands
                 without
                 Infeftment
                 ,
                 and
                 of
                 Teinds
                 ,
                 or
                 Tacks
                 ,
                 or
                 Tenements
                 within
                 Burgh
                 ,
                 the
                 Relict
                 hath
                 no
                 Terce
                 .
                 These
                 Rights
                 of
                 Terce
                 and
                 Courtesie
                 ,
                 fall
                 in
                 to
                 be
                 considered
                 amongst
                 the
                 Feudal
                 Rights
                 ;
                 and
                 the
                 Relicts
                 third
                 ,
                 or
                 half
                 of
                 Moveables
                 ,
                 in
                 the
                 Succession
                 of
                 Moveables
                 ,
                 wherein
                 it
                 is
                 a
                 Concomitant
                 ,
                 and
                 regulat
                 according
                 to
                 that
                 which
                 is
                 proper
                 Succession
                 ,
                 either
                 of
                 Children
                 ,
                 or
                 others
                 ;
                 though
                 as
                 to
                 the
                 Wife
                 ,
                 it
                 be
                 rather
                 a
                 Division
                 of
                 that
                 Community
                 of
                 Goods
                 Moveable
                 ,
                 that
                 was
                 Competent
                 to
                 the
                 Married
                 Persons
                 ,
                 during
                 the
                 Marriage
                 ,
                 and
                 therefore
                 shall
                 be
                 insisted
                 on
                 no
                 further
                 here
                 ,
                 but
                 left
                 to
                 these
                 places
                 .
                 And
                 we
                 shall
                 proceed
                 to
                 the
                 next
                 kind
                 of
                 Obediential
                 Obligations
                 ,
                 and
                 Natural
                 Rights
                 ,
                 which
                 interveen
                 betwixt
                 Parents
                 and
                 Children
                 .
              
               
                 Law
                 and
                 Custome
                 hath
                 favoured
                 ,
                 and
                 priviledged
                 Wives
                 in
                 many
                 cases
                 ,
                 
                   propter
                   fragilitatem
                   sexus
                
                 ,
                 they
                 are
                 free
                 from
                 obliegements
                 ,
                 for
                 sums
                 of
                 Money
                 ,
                 and
                 from
                 personal
                 Execution
                 ,
                 by
                 Horning
                 or
                 Caption
                 ,
                 if
                 it
                 be
                 not
                 for
                 Criminal
                 Causes
                 ,
                 their
                 Contracts
                 of
                 Marriage
                 are
                 preferable
                 to
                 other
                 Personal
                 Creditors
                 ,
                 February
                 8.
                 1662.
                 
                 
                   Thomas
                   Crawford
                   contra
                
                 Earl
                 of
                 Murray
                 ;
                 their
                 share
                 of
                 their
                 Husbands
                 Moveables
                 ,
                 is
                 not
                 burdened
                 with
                 the
                 Husbands
                 Heretable
                 Debt
                 ,
                 December
                 28.
                 1668.
                 
                 
                   Margaret
                   Mckenzie
                   contra
                   Robertsons
                   .
                   July
                
                 19.
                 1664.
                 
                 
                   Elizabeth
                   Scrimzour
                   contra
                   Murrays
                
                 ;
                 yea
                 ,
                 gratuitous
                 ,
                 moveable
                 Bonds
                 granted
                 by
                 a
                 Husband
                 ,
                 payable
                 at
                 his
                 death
                 ,
                 whereby
                 the
                 whole
                 Executry
                 would
                 be
                 exhausted
                 ,
                 
                 and
                 the
                 Wife
                 have
                 no
                 share
                 ,
                 having
                 no
                 other
                 provision
                 ;
                 the
                 same
                 were
                 not
                 found
                 to
                 affect
                 the
                 Wifes
                 share
                 :
                 But
                 otherways
                 ,
                 such
                 Bonds
                 granted
                 in
                 
                   Leige
                   Poustie
                
                 ,
                 without
                 fraud
                 ,
                 were
                 found
                 to
                 come
                 off
                 the
                 hail
                 Head
                 ,
                 and
                 not
                 off
                 the
                 deads
                 part
                 only
                 ,
                 December
                 8.
                 1675.
                 
                 
                   Thomson
                   contra
                
                 Executors
                 of
                 Eleistoun
                 .
                 And
                 a
                 Wife
                 was
                 found
                 not
                 excluded
                 from
                 her
                 share
                 of
                 her
                 Husbands
                 Moveables
                 ,
                 by
                 a
                 gratuitous
                 Disposition
                 by
                 her
                 Husband
                 to
                 his
                 Brother
                 ,
                 of
                 all
                 sums
                 that
                 he
                 should
                 have
                 at
                 his
                 death
                 ,
                 January
                 10.
                 1679.
                 
                 
                   Grant
                   contra
                   Grant.
                
                 In
                 like
                 manner
                 ,
                 the
                 Infeftments
                 and
                 Provisions
                 of
                 Wives
                 are
                 effectual
                 ,
                 although
                 the
                 Tocher
                 ,
                 which
                 is
                 the
                 mutual
                 cause
                 thereof
                 ,
                 be
                 not
                 payed
                 ,
                 she
                 not
                 being
                 oblieged
                 therefore
                 her self
                 ,
                 though
                 the
                 Contract
                 bore
                 ,
                 that
                 the
                 Tocher
                 being
                 payed
                 it
                 ,
                 should
                 be
                 imployed
                 to
                 the
                 Wifes
                 use
                 ,
                 July
                 5.
                 1665.
                 
                 
                   Mackie
                   contra
                   Stuart
                
                 .
                 The
                 like
                 ,
                 though
                 the
                 Contract
                 bore
                 ,
                 that
                 the
                 Husband
                 should
                 imploy
                 the
                 Tocher
                 for
                 the
                 Wife
                 ,
                 in
                 Life-rent
                 ,
                 albeit
                 the
                 Tocher
                 was
                 lost
                 through
                 the
                 Fathers
                 Insolvency
                 ,
                 June
                 11.
                 1670.
                 
                 
                   Margaret
                   Hunter
                   contra
                
                 Creditors
                 of
                 
                   John
                   Peter
                
                 .
                 The
                 like
                 ,
                 though
                 the
                 Contract
                 bore
                 ,
                 that
                 the
                 Wife
                 should
                 have
                 no
                 benefit
                 while
                 the
                 Tocher
                 should
                 be
                 fully
                 payed
                 ,
                 if
                 the
                 Tocher
                 could
                 be
                 recovered
                 by
                 the
                 Husbands
                 diligence
                 ,
                 November
                 21.
                 1671.
                 
                 
                   Mary
                   Menzies
                   contra
                   John
                   Corbet
                
                 .
                 On
                 the
                 same
                 ground
                 ,
                 a
                 Contract
                 of
                 Marriage
                 ,
                 bearing
                 the
                 one
                 half
                 of
                 the
                 Tocher
                 to
                 the
                 Wife
                 ,
                 failing
                 Children
                 ,
                 albeit
                 conceived
                 passive
                 ,
                 and
                 not
                 that
                 the
                 Husband
                 was
                 to
                 pay
                 the
                 same
                 ,
                 or
                 do
                 diligence
                 therefore
                 ;
                 yet
                 the
                 Husband
                 was
                 found
                 lyable
                 to
                 pay
                 the
                 half
                 of
                 the
                 Tocher
                 ,
                 although
                 it
                 was
                 not
                 recovered
                 ,
                 unless
                 he
                 had
                 done
                 the
                 diligence
                 of
                 a
                 provident
                 man
                 ,
                 which
                 was
                 found
                 implyed
                 in
                 his
                 Duty
                 and
                 Trust
                 as
                 Husband
                 ,
                 the
                 Wife
                 being
                 
                   in
                   potestate
                   viri
                   ,
                   July
                
                 14.
                 1676.
                 
                 
                   Jean
                   Lockhart
                
                 and
                 Raploch
                 her
                 Spouse
                 
                   contra
                   James
                   Bonar
                
                 .
                 And
                 though
                 Husbands
                 have
                 no
                 communion
                 in
                 the
                 Habiliments
                 and
                 Ornaments
                 of
                 the
                 Wife
                 ,
                 which
                 cannot
                 be
                 affected
                 for
                 his
                 debt
                 ;
                 yet
                 she
                 hath
                 her
                 share
                 of
                 the
                 Habiliments
                 of
                 the
                 Husband
                 ,
                 which
                 falls
                 in
                 his
                 Executry
                 ;
                 and
                 he
                 is
                 oblieged
                 to
                 pay
                 all
                 Accompts
                 for
                 her
                 Habiliments
                 ,
                 suitable
                 to
                 her
                 quality
                 .
                 But
                 where
                 the
                 Wife
                 had
                 an
                 Alimentary
                 Provision
                 for
                 her
                 Habiliments
                 ,
                 Ornaments
                 and
                 her
                 other
                 Uses
                 ,
                 the
                 Husband
                 having
                 furnished
                 them
                 ,
                 and
                 received
                 that
                 sum
                 ,
                 was
                 not
                 found
                 lyable
                 to
                 repay
                 the
                 same
                 to
                 her
                 Executours
                 ,
                 February
                 2.
                 1667.
                 
                 Executours
                 of
                 the
                 Lady
                 
                   Piltoun
                   contra
                   Hay
                
                 of
                 Balhousie
                 .
                 Wives
                 have
                 not
                 only
                 a
                 half
                 ,
                 or
                 third
                 of
                 their
                 Husbands
                 Moveables
                 ,
                 when
                 they
                 survive
                 ,
                 but
                 have
                 their
                 Aliment
                 till
                 the
                 next
                 Term
                 ,
                 after
                 the
                 Husbands
                 death
                 .
                 Yea
                 ,
                 a
                 Wife
                 was
                 found
                 to
                 have
                 right
                 to
                 the
                 expenses
                 of
                 Child-bed
                 ,
                 of
                 a
                 posthumus
                 Child
                 ,
                 born
                 after
                 the
                 next
                 Term
                 ,
                 against
                 the
                 eldest
                 Son
                 ,
                 though
                 he
                 was
                 not
                 Heir
                 ,
                 but
                 having
                 an
                 universal
                 Disposition
                 of
                 his
                 Fathers
                 means
                 ,
                 which
                 was
                 very
                 considerable
                 :
                 which
                 Disposition
                 was
                 granted
                 after
                 the
                 Posthumus
                 Childs
                 Conception
                 ,
                 November
                 10.
                 1671.
                 
                 
                   Thomas
                   Hastie
                
                 and
                 
                   Barbara
                   Ker
                
                 his
                 Mother
                 
                   contra
                   William
                   Hastie
                
                 .
                 A
                 Wife
                 has
                 also
                 her
                 Mournings
                 ,
                 if
                 her
                 quality
                 require
                 it
                 ,
                 out
                 of
                 her
                 Husbands
                 Executry
                 ,
                 November
                 12.
                 1664.
                 
                 
                   Nicolas
                   Murray
                
                 Lady
                 
                   Craigaffie
                   contra
                   Cornelius
                   Neilson
                   .
                   July
                
                 7.
                 1675.
                 
                 
                   Agnes
                   Wilkie
                   contra
                   Christian
                   Morison
                
                 .
                 And
                 likewise
                 ,
                 if
                 the
                 Wife
                 predecease
                 ,
                 her
                 Executours
                 have
                 the
                 half
                 ,
                 or
                 third
                 of
                 her
                 Husbands
                 Moveables
                 ,
                 the
                 best
                 of
                 every
                 kind
                 being
                 set
                 aside
                 ,
                 as
                 Heirship
                 Moveables
                 ,
                 though
                 there
                 could
                 be
                 no
                 Heir
                 for
                 the
                 time
                 ,
                 the
                 Husband
                 being
                 alive
                 ,
                 December
                 8.
                 1668.
                 
                 
                   Agnes
                   Guidlet
                   contra
                   George
                   Nairn
                
                 .
              
            
             
               
               
                 TITLE
                 V.
                 Obligations
                 between
                 Parents
                 and
                 Children
                 .
              
               
                 
                   1.
                   
                   Obligations
                   betwixt
                   Parents
                   and
                   Children
                   ,
                   are
                   Divine
                   by
                   the
                   Law
                   of
                   Nature
                   .
                
                 
                   2.
                   
                   The
                   Power
                   of
                   Parents
                   over
                   their
                   Children
                   :
                
                 
                   3.
                   
                   In
                   Infancy
                   ;
                
                 
                   4.
                   
                   In
                   Minority
                   ;
                
                 
                   5.
                   
                   In
                   Majority
                   .
                
                 
                   6.
                   
                   Oeconomical
                   Government
                   .
                
                 
                   7.
                   
                   Provision
                   of
                   Children
                   .
                
                 
                   8.
                   
                   Obligations
                   of
                   Children
                   to
                   their
                   Parents
                   .
                
                 
                   9.
                   
                   Aliment
                   due
                   to
                   Parents
                   .
                
                 
                   10.
                   
                   Obligations
                   mutual
                   of
                   Children
                   .
                
                 
                   11.
                   
                   Patria
                   potestas
                   ,
                   amongst
                   the
                   Romans
                   .
                
                 
                   12.
                   
                   Amongst
                   other
                   Nations
                   especially
                   ,
                   as
                   lawful
                   Administrations
                   .
                
                 
                   13.
                   
                   Forisfamiliation
                   and
                   Emancipation
                   .
                
              
               
                 THAT
                 there
                 be
                 Natural
                 Obligations
                 betwixt
                 Parents
                 and
                 Children
                 ,
                 not
                 proceeding
                 from
                 the
                 consent
                 of
                 either
                 Party
                 ,
                 or
                 from
                 the
                 Constitution
                 of
                 any
                 humane
                 Law
                 ,
                 but
                 from
                 the
                 obedience
                 Man
                 oweth
                 to
                 his
                 Maker
                 ,
                 who
                 hath
                 Written
                 this
                 Law
                 in
                 the
                 Hearts
                 of
                 Parents
                 and
                 Children
                 ,
                 as
                 to
                 their
                 Interests
                 and
                 Duties
                 ,
                 with
                 Capital
                 Letters
                 ;
                 Is
                 evident
                 by
                 the
                 common
                 consent
                 of
                 all
                 the
                 Nations
                 of
                 the
                 World
                 ,
                 how
                 Barbarous
                 soever
                 ;
                 though
                 evil
                 custome
                 hath
                 put
                 out
                 the
                 Eyes
                 of
                 Natural
                 Light
                 in
                 other
                 things
                 ;
                 yet
                 in
                 this
                 ,
                 the
                 Rays
                 of
                 the
                 Sun
                 of
                 Righteousness
                 are
                 so
                 direct
                 ,
                 that
                 their
                 illumination
                 cannot
                 be
                 extinguished
                 .
                 These
                 Obligations
                 are
                 so
                 firm
                 ,
                 that
                 in
                 most
                 things
                 they
                 cannot
                 be
                 taken
                 off
                 ,
                 nor
                 discharged
                 by
                 Men
                 ;
                 though
                 Children
                 would
                 discharge
                 their
                 Parents
                 of
                 Natural
                 Affection
                 ,
                 Education
                 ,
                 Provision
                 ,
                 
                 &c.
                 
                 Or
                 Parents
                 would
                 free
                 their
                 Children
                 of
                 Reverence
                 ,
                 Obsequiousness
                 ,
                 and
                 of
                 Intertainment
                 of
                 Parents
                 ,
                 not
                 able
                 to
                 Intertain
                 themselves
                 :
                 yet
                 would
                 these
                 Obligations
                 still
                 be
                 binding
                 upon
                 either
                 .
                 These
                 Obligations
                 are
                 placed
                 in
                 the
                 Common
                 Nature
                 that
                 Man
                 hath
                 with
                 other
                 Animals
                 ,
                 and
                 so
                 is
                 given
                 as
                 an
                 evident
                 Instance
                 of
                 the
                 Law
                 of
                 Nature
                 ,
                 l.
                 2.
                 
                   ff
                   .
                   de
                   justitia
                   &
                   jure
                   .
                
              
               
                 We
                 shall
                 then
                 consider
                 what
                 these
                 are
                 ;
                 And
                 first
                 ,
                 What
                 Interest
                 the
                 Parents
                 have
                 in
                 the
                 Persons
                 of
                 their
                 Children
                 .
                 Secondly
                 ,
                 In
                 what
                 they
                 are
                 Naturally
                 bound-to
                 to
                 their
                 Children
                 .
                 Thirdly
                 ,
                 What
                 interest
                 the
                 Children
                 have
                 in
                 the
                 Goods
                 of
                 Parents
                 .
                 Fourthly
                 ,
                 What
                 they
                 Naturally
                 do
                 owe
                 to
                 their
                 Parents
                 .
                 Fifthly
                 ,
                 what
                 they
                 are
                 bound
                 in
                 to
                 each
                 other
                 .
              
               
                 2.
                 
                 For
                 the
                 first
                 ,
                 ere
                 we
                 can
                 distinctly
                 know
                 the
                 power
                 Parents
                 have
                 over
                 their
                 Children
                 ,
                 we
                 must
                 distinguish
                 the
                 Capacity
                 and
                 Ages
                 of
                 the
                 Children
                 ,
                 whereof
                 there
                 are
                 three
                 ,
                 Infancy
                 ,
                 or
                 Pupilarity
                 ;
                 Minority
                 ,
                 or
                 less
                 Age
                 ;
                 and
                 Majority
                 ,
                 or
                 full
                 Age
                 ;
                 So
                 doth
                 Aristotle
                 distinguish
                 ,
                 Polit.
                 1.
                 
                   cap.
                   ult
                   .
                   Ethic.
                   l.
                
                 4.
                 cap.
                 3.
                 l.
                 5.
                 cap.
                 10.
                 
                 And
                 after
                 him
                 .
                 
                   Grotius
                   ,
                   de
                   jure
                   belli
                   &
                   pacis
                   ,
                   l.
                
                 2.
                 cap.
                 5.
                 
              
               
                 3.
                 
                 Infancy
                 is
                 ,
                 when
                 the
                 Children
                 are
                 without
                 Discretion
                 ,
                 and
                 then
                 are
                 wholly
                 in
                 the
                 power
                 of
                 their
                 Parents
                 ,
                 who
                 not
                 only
                 may
                 ,
                 but
                 must
                 carry
                 them
                 whither
                 ,
                 and
                 keep
                 them
                 where
                 they
                 will
                 ;
                 and
                 must
                 also
                 breed
                 and
                 order
                 them
                 according
                 to
                 their
                 capacities
                 ,
                 means
                 and
                 qualities
                 :
                 And
                 this
                 is
                 rather
                 an
                 Act
                 of
                 Dominion
                 in
                 the
                 Parents
                 ,
                 the
                 Children
                 being
                 then
                 capable
                 of
                 no
                 Obligation
                 ;
                 and
                 therefore
                 it
                 cannot
                 be
                 received
                 by
                 them
                 from
                 the
                 Parents
                 as
                 an
                 Obligation
                 ,
                 as
                 it
                 may
                 thereafter
                 be
                 done
                 ,
                 during
                 the
                 Childrens
                 Minority
                 ,
                 wherein
                 there
                 is
                 a
                 Natural
                 Levity
                 ,
                 for
                 want
                 of
                 fixedness
                 and
                 experience
                 ,
                 while
                 the
                 Light
                 of
                 Reason
                 is
                 but
                 drawing
                 towards
                 its
                 Meridian
                 clearness
                 .
              
               
                 4.
                 
                 It
                 will
                 not
                 much
                 be
                 debated
                 ,
                 but
                 the
                 direction
                 of
                 Children
                 in
                 their
                 Minority
                 ,
                 is
                 naturally
                 stated
                 in
                 their
                 Parents
                 ;
                 But
                 the
                 greatest
                 Question
                 will
                 remain
                 ,
                 of
                 their
                 full
                 Age
                 ,
                 when
                 the
                 Children
                 become
                 able
                 to
                 govern
                 themselves
                 ,
                 and
                 their
                 own
                 Affairs
                 :
                 And
                 as
                 to
                 that
                 ,
                 it
                 is
                 the
                 opinion
                 of
                 some
                 ,
                 that
                 it
                 standeth
                 alone
                 ,
                 
                   inpietate
                   &
                   reverentia
                   ,
                   Steph.
                   oeco.juris
                   civilis
                   ,
                   cap.
                
                 7.
                 and
                 
                   Vinnius
                   partitionum
                   ,
                   l.
                
                 1.
                 cap.
                 7.
                 
                   in
                   principio
                
                 ,
                 sheweth
                 ,
                 that
                 the
                 Custome
                 of
                 Holland
                 dissolveth
                 the
                 power
                 of
                 Fathers
                 ,
                 by
                 the
                 Childrens
                 age
                 of
                 25.
                 
              
               
                 5.
                 
                 Whatsoever
                 may
                 arise
                 from
                 the
                 Custome
                 of
                 Nations
                 ,
                 whereby
                 the
                 power
                 of
                 Parents
                 over
                 their
                 Children
                 ,
                 in
                 their
                 full
                 Age
                 is
                 much
                 diminished
                 ;
                 yet
                 by
                 the
                 Original
                 and
                 pure
                 Law
                 of
                 Nature
                 ,
                 not
                 only
                 the
                 Tutory
                 and
                 Protection
                 of
                 Childrens
                 Infancy
                 with
                 the
                 Cure
                 ,
                 and
                 direction
                 of
                 their
                 Minority
                 ,
                 is
                 in
                 their
                 Parents
                 .
                 But
                 there
                 is
                 also
                 an
                 oeconomick
                 Authority
                 in
                 the
                 Father
                 of
                 the
                 Family
                 ,
                 over
                 all
                 his
                 Children
                 and
                 Descendants
                 remaining
                 in
                 his
                 Family
                 ,
                 whom
                 he
                 hath
                 not
                 Elocat
                 by
                 Marriage
                 (
                 which
                 is
                 also
                 a
                 Natural
                 Bond
                 )
                 unto
                 other
                 Families
                 ,
                 whereby
                 the
                 Females
                 do
                 naturally
                 change
                 their
                 Families
                 ,
                 and
                 become
                 under
                 the
                 power
                 of
                 another
                 Family
                 .
              
               
                 6.
                 
                 This
                 is
                 the
                 only
                 Natural
                 Authority
                 and
                 Government
                 ,
                 which
                 had
                 in
                 it self
                 all
                 Authority
                 ,
                 Publick
                 ,
                 Private
                 ,
                 Civil
                 and
                 Criminal
                 ,
                 till
                 by
                 Humane
                 Constitution
                 ,
                 and
                 Divine
                 Approbation
                 ,
                 most
                 of
                 that
                 power
                 is
                 now
                 devolved
                 into
                 Magistracy
                 .
                 This
                 Power
                 was
                 not
                 only
                 before
                 Magistracy
                 ,
                 but
                 even
                 thereafter
                 remained
                 ,
                 with
                 subordination
                 thereto
                 in
                 most
                 Nations
                 ,
                 as
                 
                   Caesar
                   de
                   bello
                   Gallico
                   ,
                   lib.
                
                 2.
                 
                 Writes
                 that
                 among
                 the
                 Gauls
                 and
                 Belgae
                 ,
                 Parents
                 had
                 the
                 power
                 of
                 Life
                 and
                 Death
                 .
                 The
                 like
                 power
                 had
                 the
                 Romans
                 anciently
                 ,
                 
                   l.
                   in
                   suis
                   haredibus
                
                 ,
                 11.
                 
                   ff
                   .
                   de
                   liberis
                   &
                   posthumis
                   ,
                   l.
                   libertati
                   ,
                
                 10.
                 
                 
                   Cod.
                   de
                   patria
                   potestate
                   .
                   Aristotle
                
                 
                 testifieth
                 the
                 like
                 of
                 the
                 
                   Persians
                   ,
                   lib.
                
                 8.
                 
                 
                   Ethic.
                   cap.
                
                 12.
                 
                 And
                 by
                 the
                 Judicial
                 Law
                 ,
                 Deut.
                 21.
                 vers
                 .
                 18.
                 
                 
                   The
                   rebellious
                   son
                   ,
                   who
                   obejed
                   not
                   the
                   voice
                   of
                   his
                   Father
                   and
                   Mother
                   ,
                   was
                   to
                   be
                   brought
                   forth
                   before
                   the
                   Elders
                   of
                   that
                   place
                   ,
                   and
                   stoned
                   to
                   death
                   ,
                   without
                   other
                   proof
                   than
                   the
                   parents
                   testimony
                
                 ;
                 So
                 that
                 the
                 sentence
                 was
                 the
                 Parents
                 ,
                 though
                 the
                 execution
                 was
                 to
                 be
                 publick
                 .
                 Such
                 Authority
                 was
                 that
                 of
                 the
                 Patriarchs
                 ,
                 
                   Abraham
                   ,
                   Isaac
                
                 and
                 Jacob
                 ,
                 who
                 with
                 Divine
                 Approbation
                 ,
                 made
                 War
                 ,
                 Peace
                 and
                 Confederacys
                 ,
                 which
                 are
                 the
                 publick
                 and
                 proper
                 Rights
                 of
                 Magistracy
                 ,
                 and
                 Governed
                 their
                 own
                 Families
                 without
                 any
                 Authority
                 derived
                 from
                 any
                 other
                 .
                 And
                 though
                 Jacobs
                 Family
                 arose
                 to
                 that
                 greatness
                 ,
                 that
                 in
                 it
                 were
                 many
                 Families
                 ,
                 yet
                 he
                 remained
                 the
                 Father
                 and
                 Prince
                 of
                 them
                 all
                 ;
                 so
                 that
                 the
                 several
                 subordinat
                 Families
                 ,
                 had
                 their
                 subordinat
                 Authority
                 over
                 their
                 Wives
                 and
                 Children
                 ,
                 and
                 so
                 their
                 Children
                 were
                 bound
                 in
                 Obedience
                 to
                 them
                 ,
                 but
                 with
                 the
                 exception
                 of
                 their
                 Superior
                 Parents
                 ,
                 to
                 whom
                 the
                 first
                 Obedience
                 was
                 due
                 .
              
               
                 This
                 Native
                 Authority
                 reacheth
                 all
                 Children
                 ,
                 whether
                 procreat
                 of
                 lawful
                 Marriage
                 or
                 not
                 ,
                 so
                 that
                 they
                 be
                 truely
                 known
                 to
                 be
                 Children
                 ,
                 because
                 the
                 same
                 Foundation
                 ,
                 and
                 common
                 Principles
                 and
                 Duties
                 ,
                 are
                 in
                 both
                 ,
                 though
                 they
                 have
                 not
                 the
                 same
                 Interest
                 in
                 the
                 Fathers
                 Goods
                 ,
                 in
                 respect
                 of
                 that
                 Community
                 of
                 Goods
                 betwixt
                 Man
                 and
                 Wife
                 ,
                 and
                 the
                 Conjugal
                 Society
                 ,
                 even
                 naturally
                 ,
                 whence
                 the
                 Goods
                 are
                 derived
                 into
                 the
                 Issue
                 of
                 the
                 Lawful
                 Marriage
                 .
              
               
                 This
                 Paternal
                 Authority
                 doth
                 not
                 necessarily
                 carry
                 the
                 property
                 and
                 disposal
                 of
                 the
                 Goods
                 of
                 the
                 Children
                 ;
                 but
                 that
                 they
                 are
                 capable
                 of
                 such
                 by
                 the
                 Gift
                 of
                 their
                 Parents
                 ,
                 or
                 any
                 other
                 ways
                 ,
                 even
                 in
                 Infancy
                 ,
                 and
                 that
                 they
                 have
                 the
                 full
                 Dominion
                 and
                 Administration
                 thereof
                 ,
                 in
                 their
                 full
                 Age
                 :
                 And
                 therefore
                 ,
                 Bonds
                 of
                 Provision
                 ,
                 by
                 Fathers
                 to
                 Children
                 ,
                 if
                 delivered
                 ,
                 are
                 not
                 Revockable
                 ,
                 directly
                 nor
                 indirectly
                 ,
                 by
                 contracting
                 Debts
                 thereafter
                 ;
                 And
                 the
                 delivery
                 of
                 such
                 Bonds
                 of
                 Provision
                 ,
                 makes
                 them
                 irrevockable
                 ,
                 whether
                 the
                 delivery
                 be
                 to
                 the
                 Children
                 ,
                 or
                 to
                 any
                 other
                 for
                 their
                 behoove
                 (
                 which
                 behoove
                 will
                 be
                 presumed
                 ,
                 unless
                 the
                 Father
                 express
                 his
                 mind
                 at
                 the
                 delivery
                 ,
                 that
                 the
                 Write
                 is
                 to
                 be
                 returned
                 to
                 himself
                 ,
                 or
                 depositate
                 upon
                 terms
                 )
                 and
                 therefore
                 ,
                 a
                 Bond
                 taken
                 By
                 a
                 Father
                 ,
                 in
                 the
                 name
                 of
                 his
                 Brother
                 ,
                 the
                 Father
                 obtaining
                 an
                 Assignation
                 from
                 him
                 to
                 his
                 Daughter
                 ;
                 the
                 Bond
                 was
                 not
                 found
                 Revockable
                 by
                 the
                 Father
                 ,
                 being
                 Registrate
                 in
                 the
                 Brothers
                 Name
                 ,
                 November
                 20.
                 1667.
                 
                 Executours
                 of
                 
                   Trotter
                   contra
                   Trotter
                
                 .
                 Childrens
                 provisions
                 by
                 Bond
                 ,
                 granted
                 after
                 a
                 Testament
                 ,
                 nominating
                 them
                 Executours
                 ,
                 found
                 not
                 to
                 import
                 that
                 they
                 should
                 have
                 the
                 Executry
                 ,
                 if
                 the
                 Heir
                 be
                 oblieged
                 to
                 pay
                 the
                 Bonds
                 of
                 provision
                 ;
                 but
                 that
                 the
                 Bond
                 being
                 Moveables
                 should
                 first
                 affect
                 the
                 Executry
                 ,
                 February
                 22.
                 1677.
                 
                 
                   Belfhes
                   of
                   Tofts
                   contra
                   Belshes
                
                 .
                 And
                 a
                 Father
                 granting
                 Bond
                 to
                 a
                 Bairn
                 ,
                 in
                 satisfaction
                 of
                 her
                 Portion
                 natural
                 ,
                 was
                 not
                 found
                 thereby
                 to
                 apply
                 that
                 Bairns
                 Portion
                 natural
                 to
                 the
                 Heir
                 ,
                 Executour
                 ,
                 or
                 unlversal
                 Legator
                 ,
                 though
                 they
                 would
                 be
                 lyable
                 for
                 payment
                 of
                 the
                 Bond
                 ;
                 but
                 to
                 apply
                 that
                 Bairns
                 share
                 to
                 the
                 rest
                 of
                 the
                 Bairns
                 ,
                 who
                 thereby
                 will
                 have
                 the
                 whole
                 Bairns
                 part
                 ,
                 February
                 17.
                 1671.
                 
                 Mistris
                 
                   Katharine
                   Mcgill
                
                 against
                 the
                 Viscount
                 of
                 Oxford
                 ,
                 for
                 Bonds
                 of
                 provision
                 ,
                 delivered
                 in
                 
                   liege
                   pousty
                
                 ,
                 do
                 ,
                 as
                 other
                 Debts
                 ,
                 affect
                 the
                 whole
                 Executry
                 ,
                 and
                 where
                 all
                 the
                 Bairns
                 had
                 Bonds
                 of
                 provision
                 ,
                 bearing
                 
                   in
                   satisfaction
                
                 ,
                 they
                 had
                 also
                 their
                 Bairns
                 part
                 of
                 the
                 Executry
                 ,
                 July
                 16.
                 1678.
                 
                 
                   Murrays
                   contra
                   Murrays
                
                 .
                 But
                 Bairns
                 provisions
                 ,
                 payable
                 at
                 such
                 a
                 day
                 ,
                 and
                 not
                 bearing
                 the
                 proportion
                 of
                 the
                 deceasing
                 to
                 accress
                 to
                 the
                 surviving
                 the
                 share
                 of
                 these
                 Bairns
                 ,
                 who
                 dyed
                 before
                 that
                 age
                 ,
                 without
                 Issue
                 ,
                 was
                 not
                 found
                 due
                 ,
                 February
                 22.
                 1677.
                 
                 Belshes
                 of
                 
                   Tosts
                   contra
                   Belshes
                
                 .
                 The
                 delivery
                 of
                 Writes
                 in
                 other
                 cases
                 ,
                 is
                 presumed
                 from
                 the
                 date
                 ,
                 if
                 they
                 be
                 in
                 the
                 persons
                 
                 hands
                 ,
                 in
                 whose
                 favours
                 they
                 are
                 granted
                 ;
                 but
                 in
                 competition
                 with
                 other
                 Creditors
                 ,
                 the
                 delivery
                 of
                 Bonds
                 of
                 provision
                 is
                 not
                 presumed
                 to
                 have
                 been
                 from
                 the
                 date
                 ,
                 but
                 that
                 〈◊〉
                 be
                 instructed
                 by
                 some
                 evidence
                 ,
                 as
                 taking
                 Seasing
                 ,
                 Registration
                 ,
                 or
                 Witnesses
                 ,
                 who
                 saw
                 the
                 same
                 in
                 the
                 hands
                 of
                 the
                 Children
                 ,
                 or
                 others
                 to
                 their
                 〈◊〉
                 ,
                 and
                 in
                 that
                 case
                 they
                 are
                 valide
                 ,
                 if
                 there
                 be
                 no
                 〈◊〉
                 ,
                 or
                 prejudice
                 to
                 Creditors
                 ,
                 by
                 latency
                 or
                 〈◊〉
                 and
                 therefore
                 Bonds
                 of
                 provision
                 to
                 Children
                 ,
                 were
                 reduced
                 upon
                 the
                 eldest
                 Sons
                 Contract
                 of
                 Marriage
                 ,
                 though
                 〈◊〉
                 ,
                 January
                 10.
                 1668.
                 
                 Laird
                 of
                 
                   〈◊〉
                   〈◊〉
                
                 his
                 Brothers
                 and
                 Sisters
                 .
                 And
                 a
                 posteriour
                 Tocher
                 was
                 preferred
                 to
                 a
                 prior
                 Assignation
                 ,
                 to
                 a
                 Bairn
                 in
                 Family
                 ,
                 unless
                 the
                 prior
                 delivery
                 were
                 also
                 proven
                 ,
                 November
                 14.
                 1676.
                 
                 Major
                 
                   Ingles
                   contra
                   〈◊〉
                   ,
                   June
                
                 〈◊〉
                 .
                 1668.
                 
                 Johnstoun
                 of
                 
                   〈◊〉
                   contra
                   Isobel
                   Arnold
                
                 .
              
               
                 But
                 from
                 this
                 paternal
                 power
                 ,
                 it
                 follows
                 ,
                 that
                 the
                 Parents
                 may
                 continue
                 and
                 keep
                 their
                 Children
                 in
                 their
                 Families
                 ,
                 and
                 that
                 they
                 are
                 oblieged
                 to
                 imploy
                 their
                 Service
                 and
                 Work
                 ,
                 for
                 the
                 common
                 interest
                 of
                 the
                 Family
                 ,
                 and
                 what
                 thence
                 arises
                 ,
                 is
                 the
                 Parents
                 ,
                 not
                 their
                 own
                 ,
                 which
                 doth
                 always
                 indure
                 ,
                 till
                 by
                 consent
                 of
                 the
                 Parents
                 ,
                 they
                 become
                 
                   〈◊〉
                   〈◊〉
                
                 ,
                 whereby
                 they
                 may
                 imploy
                 their
                 Work
                 and
                 Service
                 for
                 themselves
                 alone
                 .
              
               
                 Thus
                 the
                 interest
                 of
                 Parents
                 in
                 the
                 Persons
                 and
                 Goods
                 of
                 their
                 Children
                 ,
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 being
                 cleared
                 .
                 As
                 to
                 the
                 Obligations
                 Natural
                 of
                 Parents
                 toward
                 their
                 Children
                 (
                 beside
                 their
                 Obligations
                 that
                 stand
                 ,
                 and
                 are
                 acted
                 in
                 the
                 Mind
                 and
                 Affections
                 ,
                 which
                 the
                 Law
                 respecteth
                 not
                 ,
                 but
                 these
                 only
                 ,
                 
                   qua
                   non
                   mente
                   ,
                   sed
                   manu
                   tenentur
                
                 )
                 the
                 main
                 Obligations
                 are
                 Education
                 and
                 Provision
                 .
                 The
                 Education
                 of
                 Children
                 consisteth
                 not
                 only
                 in
                 the
                 Care
                 and
                 Intertainment
                 of
                 them
                 ,
                 during
                 Infancy
                 ;
                 but
                 especially
                 in
                 Breeding
                 of
                 them
                 for
                 some
                 Calling
                 and
                 Imployment
                 ,
                 according
                 to
                 their
                 capacity
                 and
                 condition
                 .
              
               
                 7.
                 
                 The
                 duty
                 of
                 provision
                 of
                 Children
                 ,
                 comprehends
                 ,
                 not
                 only
                 their
                 Aliment
                 ,
                 and
                 Intertainment
                 in
                 Meat
                 ,
                 Cloaths
                 ,
                 Medicine
                 and
                 Burial
                 ,
                 which
                 may
                 be
                 competent
                 ,
                 during
                 the
                 Parents
                 Life
                 ;
                 but
                 also
                 competent
                 provision
                 after
                 the
                 Parents
                 Death
                 ;
                 for
                 the
                 Apostle
                 saith
                 ,
                 
                   That
                   he
                   that
                   careth
                   not
                   for
                   his
                   family
                   ,
                   is
                   worse
                   then
                   an
                   Infidel
                   ,
                
                 1
                 Tim.
                 5.
                 vers
                 .
                 8.
                 
                 And
                 in
                 both
                 ,
                 the
                 ability
                 of
                 the
                 Parent
                 ,
                 and
                 necessity
                 of
                 the
                 Children
                 is
                 to
                 be
                 considered
                 ;
                 for
                 if
                 the
                 Children
                 be
                 〈◊〉
                 provided
                 ,
                 aliunde
                 ,
                 the
                 Parents
                 are
                 not
                 bound
                 ;
                 and
                 though
                 the
                 Children
                 be
                 necessitous
                 ,
                 yet
                 there
                 must
                 first
                 be
                 reserved
                 for
                 the
                 Parents
                 ,
                 that
                 which
                 is
                 necessar
                 for
                 subsistence
                 ,
                 so
                 that
                 when
                 they
                 are
                 not
                 able
                 to
                 intertain
                 their
                 Children
                 ,
                 they
                 may
                 lawfully
                 expose
                 them
                 to
                 the
                 mercy
                 and
                 charity
                 of
                 others
                 .
                 But
                 a
                 Father
                 ,
                 though
                 indigent
                 ,
                 was
                 decerned
                 to
                 receive
                 his
                 Son
                 (
                 having
                 no
                 Means
                 or
                 Calling
                 )
                 into
                 his
                 Family
                 ,
                 or
                 to
                 pay
                 him
                 a
                 modification
                 ,
                 January
                 13.
                 1666.
                 
                 
                   William
                   Dick
                   contra
                
                 Sir
                 
                   Andrew
                   Dick.
                
                 But
                 a
                 Father
                 was
                 not
                 found
                 lyable
                 to
                 pay
                 a
                 Merchant
                 for
                 Furniture
                 given
                 to
                 his
                 Son
                 ,
                 where
                 he
                 gave
                 his
                 Son
                 an
                 allowance
                 in
                 Money
                 for
                 his
                 Cloaths
                 ,
                 January
                 〈◊〉
                 .
                 1672.
                 
                 
                   High
                   〈◊〉
                   contra
                   Craufoord
                
                 of
                 Camlarg
                 .
                 Neither
                 was
                 a
                 Father
                 found
                 lyable
                 for
                 his
                 Daughters
                 Bridel-Furniture
                 to
                 a
                 Merchant
                 ,
                 whom
                 he
                 prohibit
                 to
                 give
                 them
                 off
                 ;
                 but
                 the
                 Daughter
                 and
                 her
                 Husband
                 ,
                 July
                 〈◊〉
                 .
                 1672.
                 
                   〈◊〉
                   contra
                   〈◊〉
                
                 and
                 Gairn
                 :
                 and
                 a
                 Mother
                 was
                 found
                 oblieged
                 to
                 receive
                 her
                 Children
                 into
                 Family
                 (
                 but
                 for
                 no
                 other
                 modification
                 )
                 though
                 they
                 were
                 Noble
                 Persons
                 ,
                 there
                 being
                 none
                 representing
                 the
                 Father
                 ,
                 able
                 to
                 intertain
                 them
                 ,
                 February
                 23.
                 1666.
                 
                 Children
                 of
                 the
                 Earl
                 of
                 
                   Buchan
                   contra
                
                 the
                 〈◊〉
                 .
              
               
                 As
                 to
                 the
                 Interest
                 Children
                 have
                 in
                 the
                 Goods
                 of
                 their
                 Parents
                 ,
                 it
                 is
                 to
                 be
                 considered
                 ,
                 either
                 during
                 the
                 Parents
                 Life
                 ,
                 or
                 after
                 their
                 Death
                 ;
                 for
                 the
                 Interest
                 they
                 have
                 after
                 their
                 Parents
                 Death
                 ,
                 it
                 falleth
                 in
                 to
                 be
                 considered
                 
                 among
                 the
                 conveyances
                 of
                 Rights
                 by
                 Succession
                 ;
                 but
                 during
                 the
                 Parents
                 Life
                 they
                 have
                 no
                 real
                 Right
                 of
                 Dominion
                 ,
                 or
                 Property
                 in
                 the
                 Parents
                 Goods
                 :
                 for
                 though
                 the
                 Parents
                 be
                 oblieged
                 naturally
                 ,
                 to
                 Intertain
                 and
                 Educate
                 their
                 Children
                 out
                 of
                 their
                 Goods
                 ,
                 yet
                 that
                 is
                 but
                 a
                 personal
                 Right
                 ,
                 and
                 intituleth
                 not
                 the
                 Children
                 to
                 meddle
                 with
                 the
                 Parents
                 Goods
                 ,
                 upon
                 that
                 pretence
                 ,
                 as
                 saith
                 
                   Solomon
                   ,
                   Prov.
                
                 28.
                 vers
                 .
                 24.
                 
                 
                   Who
                   robbeth
                   his
                   Father
                   and
                   Mother
                   ,
                   and
                   sayeth
                   it
                   is
                   no
                   transgression
                   ,
                   the
                   same
                   is
                   the
                   companion
                   of
                   a
                   destroyer
                   .
                
              
               
                 8.
                 
                 The
                 Obligation
                 of
                 Children
                 toward
                 their
                 Parents
                 ,
                 consists
                 mainly
                 in
                 their
                 Obedience
                 to
                 them
                 ;
                 and
                 their
                 duty
                 to
                 Aliment
                 and
                 Supply
                 them
                 in
                 all
                 their
                 necessities
                 ,
                 according
                 to
                 the
                 Childrens
                 ability
                 :
                 their
                 Obedience
                 to
                 their
                 Parents
                 is
                 much
                 cleared
                 from
                 that
                 Power
                 and
                 Authority
                 their
                 Parents
                 have
                 over
                 them
                 ,
                 of
                 which
                 we
                 have
                 spoken
                 .
                 For
                 unto
                 Authority
                 ,
                 or
                 power
                 to
                 Command
                 ,
                 Subjection
                 ,
                 or
                 Obedience
                 answers
                 ,
                 as
                 the
                 Correlate
                 ;
                 so
                 that
                 as
                 the
                 Parental
                 Power
                 was
                 most
                 in
                 the
                 Infancy
                 of
                 the
                 Children
                 ,
                 and
                 least
                 after
                 their
                 forisfamiliation
                 ;
                 so
                 are
                 the
                 duties
                 of
                 Obedience
                 proportional
                 :
                 but
                 after
                 Emancipation
                 ,
                 these
                 duties
                 are
                 so
                 far
                 diminished
                 ,
                 that
                 little
                 remaineth
                 ,
                 except
                 the
                 Natural
                 Reverence
                 ,
                 Tenderness
                 and
                 Obsequiousness
                 ,
                 that
                 Children
                 do
                 still
                 owe
                 to
                 their
                 Parents
                 ,
                 in
                 due
                 order
                 ;
                 which
                 ,
                 though
                 it
                 hath
                 no
                 civil
                 remeeds
                 ,
                 yet
                 it
                 remains
                 a
                 Natural
                 Obligation
                 ,
                 to
                 observe
                 the
                 Parents
                 commands
                 ,
                 throughout
                 their
                 Posterity
                 ,
                 as
                 in
                 that
                 Nottour
                 Example
                 of
                 the
                 
                   Rehabites
                   ,
                   Jer.
                
                 35.
                 is
                 clear
                 ,
                 where
                 they
                 observed
                 their
                 Fathers
                 Commands
                 ,
                 in
                 a
                 free
                 thing
                 ,
                 though
                 inconvenient
                 ,
                 
                   viz.
                   To
                   drink
                   no
                   Wine
                   ,
                   to
                   build
                   no
                   houses
                   ,
                   &c.
                
                 and
                 for
                 their
                 Obedience
                 ,
                 the
                 Lord
                 promises
                 ,
                 
                   There
                   should
                   not
                   be
                   wanting
                   a
                   man
                   of
                   them
                   to
                   stand
                   before
                   the
                   Lord
                   for
                   ever
                   .
                
                 But
                 while
                 they
                 are
                 in
                 the
                 Family
                 ,
                 they
                 are
                 not
                 only
                 under
                 the
                 oeconomick
                 Government
                 of
                 their
                 Parents
                 ,
                 in
                 so
                 far
                 as
                 is
                 not
                 devolved
                 to
                 the
                 Magistrat
                 ;
                 but
                 specially
                 they
                 are
                 bound
                 to
                 abide
                 with
                 their
                 Parents
                 ,
                 and
                 to
                 imploy
                 their
                 Service
                 for
                 their
                 Parents
                 ,
                 and
                 the
                 use
                 of
                 the
                 Family
                 ,
                 whereunto
                 their
                 Parents
                 may
                 compel
                 them
                 by
                 their
                 own
                 proper
                 Authority
                 ;
                 and
                 Parents
                 have
                 Action
                 against
                 all
                 others
                 ,
                 who
                 shall
                 hinder
                 them
                 to
                 keep
                 their
                 Children
                 with
                 them
                 ,
                 or
                 lead
                 them
                 whether
                 ,
                 and
                 imploy
                 them
                 as
                 they
                 please
                 .
              
               
                 9.
                 
                 The
                 Obligation
                 of
                 Aliment
                 ,
                 and
                 Relief
                 to
                 Parents
                 in
                 necessity
                 ,
                 is
                 due
                 ,
                 both
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 and
                 hath
                 in
                 it
                 also
                 ,
                 that
                 Remuneratory
                 Obliligation
                 ,
                 whereby
                 Children
                 ought
                 to
                 retribute
                 to
                 ,
                 and
                 recompence
                 their
                 Parents
                 for
                 their
                 Education
                 and
                 Intertainment
                 ;
                 and
                 though
                 it
                 be
                 said
                 ,
                 2
                 Cor.
                 12
                 ,
                 14.
                 
                 
                   That
                   Children
                   ought
                   not
                   to
                   lay
                   up
                   for
                   the
                   Parents
                   ,
                   but
                   the
                   Parents
                   for
                   the
                   Children
                
                 ;
                 yet
                 it
                 is
                 to
                 be
                 understood
                 ,
                 of
                 that
                 care
                 ,
                 foresight
                 and
                 Providence
                 that
                 Parents
                 ought
                 to
                 have
                 ,
                 not
                 only
                 to
                 provide
                 things
                 necessar
                 for
                 themselves
                 ,
                 but
                 for
                 their
                 Children
                 also
                 after
                 them
                 ,
                 which
                 being
                 an
                 ordinary
                 duty
                 ,
                 ought
                 to
                 be
                 in
                 their
                 thought
                 and
                 consideration
                 ;
                 and
                 is
                 not
                 incumbent
                 to
                 the
                 Children
                 ,
                 it
                 being
                 but
                 rare
                 and
                 unexpected
                 ,
                 that
                 Parents
                 necessities
                 put
                 them
                 to
                 expect
                 relief
                 from
                 their
                 Children
                 ;
                 or
                 else
                 it
                 is
                 to
                 be
                 taken
                 comparatively
                 ,
                 that
                 parents
                 are
                 rather
                 
                   to
                   lay
                   up
                   for
                   the
                   Children
                   ,
                   then
                   Children
                   for
                   the
                   Parents
                   .
                   Solons
                
                 Law
                 made
                 the
                 Children
                 infamous
                 ,
                 who
                 did
                 not
                 Aliment
                 their
                 Parents
                 .
                 And
                 Cicero
                 in
                 his
                 Oration
                 ,
                 
                   de
                   responsis
                   aruspicum
                   parentibus
                   ,
                   nos
                   primum
                   natura
                   constituit
                   debitores
                   ,
                   quos
                   non
                   alere
                   nefarium
                   est
                   .
                
              
               
                 In
                 these
                 Natural
                 Obligations
                 of
                 Aliment
                 betwixt
                 Parents
                 and
                 Children
                 ,
                 the
                 Order
                 of
                 Nature
                 must
                 be
                 observed
                 ,
                 that
                 the
                 nearest
                 are
                 first
                 to
                 be
                 preferred
                 ,
                 and
                 the
                 Paternal
                 Line
                 before
                 the
                 Maternal
                 ,
                 as
                 being
                 in
                 an
                 other
                 Family
                 ;
                 for
                 even
                 the
                 distinction
                 of
                 Families
                 ,
                 and
                 union
                 thereof
                 in
                 the
                 Paternal
                 
                 power
                 ,
                 is
                 natural
                 ,
                 as
                 before
                 is
                 said
                 .
                 From
                 the
                 same
                 ground
                 ,
                 Parents
                 must
                 first
                 Aliment
                 their
                 Children
                 in
                 the
                 Family
                 ,
                 and
                 amongst
                 them
                 that
                 are
                 Emancipat
                 ,
                 the
                 Males
                 are
                 preferable
                 to
                 the
                 Females
                 ,
                 passing
                 by
                 Marriage
                 into
                 other
                 Families
                 .
              
               
                 10.
                 
                 As
                 to
                 the
                 Natural
                 Obligation
                 of
                 Children
                 amongst
                 themselves
                 ,
                 there
                 is
                 no
                 doubt
                 ,
                 but
                 that
                 there
                 Naturally
                 lye
                 greater
                 Obligations
                 upon
                 them
                 ,
                 each
                 to
                 other
                 ,
                 than
                 the
                 common
                 Obligations
                 betwixt
                 man
                 and
                 man
                 ,
                 which
                 are
                 not
                 only
                 greater
                 in
                 the
                 measures
                 and
                 degrees
                 ,
                 as
                 to
                 love
                 them
                 ,
                 assist
                 them
                 ,
                 support
                 them
                 ,
                 and
                 supply
                 their
                 necessities
                 the
                 more
                 ,
                 by
                 how
                 〈◊〉
                 degree
                 of
                 Blood
                 they
                 are
                 bound
                 to
                 them
                 than
                 others
                 ,
                 which
                 is
                 commonly
                 acknowledged
                 by
                 all
                 .
                 But
                 the
                 Romans
                 ,
                 and
                 many
                 other
                 Nations
                 have
                 acknowledged
                 ,
                 the
                 Natural
                 Obligations
                 of
                 Brothers
                 and
                 Sisters
                 ,
                 to
                 〈◊〉
                 each
                 other
                 ;
                 though
                 our
                 Custome
                 hath
                 not
                 Authorized
                 the
                 same
                 ,
                 unless
                 the
                 Brother
                 were
                 Heir
                 to
                 the
                 Father
                 in
                 a
                 competent
                 Estate
                 ,
                 and
                 the
                 remanent
                 Children
                 not
                 at
                 all
                 provided
                 ;
                 in
                 which
                 case
                 ,
                 the
                 Lords
                 modified
                 Aliment
                 to
                 them
                 ,
                 January
                 24.
                 1663.
                 the
                 Children
                 of
                 
                   Wedderlie
                   contra
                
                 his
                 Heir
                 .
                 Aliment
                 was
                 also
                 found
                 due
                 by
                 a
                 Brother
                 to
                 a
                 Sister
                 of
                 a
                 second
                 Marriage
                 (
                 who
                 had
                 a
                 Portion
                 to
                 be
                 payed
                 )
                 at
                 the
                 age
                 of
                 fourteen
                 ,
                 and
                 no
                 Annualrent
                 or
                 Aliment
                 in
                 the
                 mean
                 time
                 ,
                 though
                 they
                 had
                 a
                 Mother
                 on
                 Life
                 ,
                 〈◊〉
                 11.
                 1663.
                 
                 
                   Catharin
                   Frazer
                   contra
                   Hugh
                   Frazer
                
                 .
                 The
                 like
                 found
                 due
                 by
                 an
                 Heir
                 Male
                 ,
                 to
                 Heirs
                 of
                 Line
                 till
                 their
                 Marriage
                 ,
                 seing
                 their
                 Portions
                 bore
                 no
                 Annualrent
                 ,
                 January
                 8.
                 1663.
                 
                 Lady
                 
                   Otter
                   contra
                
                 Laird
                 of
                 
                   Otter
                   .
                   November
                
                 12.
                 1664.
                 
                 Daughters
                 of
                 
                   Balmanno
                   contra
                
                 Heir-male
                 thereof
                 .
                 It
                 is
                 also
                 an
                 Natural
                 Obligation
                 upon
                 Children
                 ,
                 or
                 Kinsfolk
                 descending
                 from
                 one
                 common
                 Stock
                 ,
                 to
                 defend
                 ,
                 and
                 have
                 the
                 Tuition
                 of
                 the
                 Pupilarity
                 of
                 that
                 Race
                 ,
                 which
                 is
                 incumbent
                 ordinarily
                 to
                 the
                 next
                 degree
                 in
                 that
                 same
                 Family
                 ;
                 and
                 this
                 is
                 the
                 natural
                 rise
                 of
                 Tutors
                 ,
                 of
                 which
                 in
                 the
                 next
                 Title
                 .
              
               
                 11.
                 
                 The
                 Romans
                 did
                 no
                 more
                 diminish
                 the
                 Conjugal
                 Interests
                 and
                 Obligations
                 ,
                 competent
                 by
                 Nature
                 (
                 as
                 is
                 before
                 shown
                 )
                 then
                 they
                 have
                 exceeded
                 the
                 Law
                 of
                 Nature
                 ,
                 in
                 the
                 interests
                 betwixt
                 Parents
                 and
                 Children
                 ;
                 for
                 thereby
                 the
                 Parents
                 power
                 is
                 so
                 great
                 ,
                 that
                 no
                 Nation
                 hath
                 the
                 like
                 ,
                 
                   Institut
                   .
                   de
                   patria
                   potestate
                
                 ,
                 §
                 .
                 2.
                 it
                 being
                 almost
                 Dominical
                 ,
                 and
                 the
                 Children
                 as
                 Servants
                 ,
                 
                   l.
                   placet
                
                 .
                 99.
                 
                   ff
                   .
                   de
                   acquirenda
                   haered
                
                 .
                 the
                 Father
                 had
                 also
                 the
                 power
                 of
                 Life
                 and
                 Death
                 ,
                 
                   l.
                   ult
                   .
                   Cod.
                   de
                   patria
                   potestate
                   ,
                   l.
                   〈◊〉
                
                 11.
                 
                   ff
                   .
                   de
                   liberis
                   &
                   posthumis
                
                 ;
                 They
                 had
                 power
                 also
                 to
                 sell
                 their
                 Children
                 unto
                 Servitude
                 .
                 This
                 was
                 the
                 ancient
                 
                   Roman
                   Law
                
                 ,
                 whereof
                 the
                 austerity
                 was
                 by
                 little
                 and
                 little
                 corrected
                 ,
                 by
                 the
                 recent
                 Law
                 ,
                 so
                 that
                 both
                 in
                 Servants
                 and
                 Children
                 ,
                 it
                 was
                 taken
                 off
                 ,
                 and
                 this
                 power
                 〈◊〉
                 to
                 cases
                 of
                 extream
                 necessity
                 ,
                 l.
                 2.
                 
                 
                   Cod.
                   de
                   patribus
                   qui
                   filios
                
                 .
                 Children
                 were
                 permitted
                 also
                 to
                 have
                 Goods
                 of
                 their
                 own
                 ,
                 which
                 were
                 called
                 ,
                 peculia
                 ;
                 in
                 which
                 they
                 were
                 as
                 free
                 ,
                 and
                 had
                 all
                 their
                 Rights
                 and
                 Actions
                 competent
                 as
                 others
                 ,
                 but
                 with
                 these
                 Restrictions
                 ,
                 whereby
                 the
                 Right
                 of
                 the
                 Father
                 ,
                 in
                 the
                 Goods
                 of
                 the
                 Children
                 ,
                 was
                 much
                 abaited
                 ;
                 For
                 in
                 the
                 peculia
                 ,
                 which
                 the
                 Son
                 acquired
                 by
                 Arms
                 ,
                 or
                 liberal
                 Arts
                 ,
                 the
                 Father
                 had
                 no
                 power
                 ,
                 which
                 was
                 called
                 ,
                 
                   peculium
                   castrense
                   ,
                   vel
                   quasi
                   castrense
                   ,
                   l.
                
                 2.
                 
                   ff
                   .
                   ad
                   .
                   〈◊〉
                   .
                   Maced
                   .
                
                 of
                 other
                 Goods
                 which
                 befell
                 the
                 Children
                 ,
                 or
                 were
                 acquired
                 ,
                 and
                 came
                 not
                 from
                 the
                 Father
                 ,
                 which
                 were
                 therefore
                 called
                 Adventitious
                 ,
                 the
                 Father
                 had
                 the
                 Usufruct
                 and
                 Administration
                 ;
                 but
                 not
                 the
                 Property
                 or
                 Power
                 of
                 Alienation
                 ,
                 l.
                 2.
                 
                 
                   Cod.
                   de
                   bonis
                   maternis
                
                 ,
                 only
                 
                   in
                   〈◊〉
                   〈◊〉
                
                 ,
                 which
                 came
                 from
                 the
                 Father
                 ,
                 he
                 had
                 full
                 Right
                 and
                 Property
                 ,
                 and
                 
                 all
                 permitted
                 but
                 to
                 the
                 Son
                 ,
                 was
                 to
                 make
                 use
                 of
                 ,
                 and
                 mannage
                 it
                 for
                 the
                 Fathers
                 Advantage
                 .
              
               
                 In
                 these
                 peculia
                 ,
                 Children
                 were
                 as
                 Fathers
                 of
                 Families
                 ,
                 by
                 recent
                 Law
                 ,
                 l.
                 1.
                 
                   filius
                   familias
                
                 .
                 39.
                 ff
                 .
                 
                   de
                   oblig
                
                 .
                 yea
                 ,
                 even
                 the
                 ususruct
                 ceased
                 in
                 Goods
                 given
                 ,
                 or
                 left
                 to
                 the
                 Children
                 ,
                 excluding
                 the
                 Parents
                 ,
                 nov
                 .
                 117.
                 
                   in
                   principio
                
                 .
                 2.
                 
                 Next
                 ,
                 where
                 any
                 thing
                 was
                 given
                 ,
                 or
                 left
                 to
                 both
                 〈◊〉
                 .
                 3.
                 
                 When
                 the
                 Goods
                 came
                 by
                 the
                 Fathers
                 fault
                 ,
                 as
                 when
                 he
                 did
                 unjustly
                 Divorce
                 with
                 the
                 Mother
                 ,
                 Nov.
                 117.
                 
                   de
                   haered
                   .
                   cap.
                
                 10.
                 
              
               
                 12.
                 
                 The
                 Custome
                 of
                 the
                 Neighbouring
                 Nations
                 do
                 follow
                 more
                 closely
                 the
                 Natural
                 Law
                 ,
                 as
                 the
                 Custome
                 of
                 France
                 ,
                 and
                 the
                 Netherlands
                 ,
                 as
                 is
                 recorded
                 by
                 
                   Gudel
                   .
                   de
                   jure
                   Nov.
                   cap.
                
                 13.
                 
                 And
                 
                   Mathias
                   Stephanus
                
                 ,
                 〈◊〉
                 the
                 like
                 of
                 the
                 Customes
                 of
                 
                   Germany
                   ,
                   oecon
                   .
                   juris
                   civilis
                   ,
                   lib.
                
                 2.
                 cap.
                 67.
                 
                 §
                 .
                 4.
                 
                 The
                 Custome
                 of
                 this
                 Nation
                 also
                 keepeth
                 close
                 ,
                 to
                 what
                 is
                 expressed
                 before
                 of
                 the
                 Natural
                 Law
                 ,
                 as
                 to
                 the
                 Interests
                 and
                 Obligations
                 of
                 Parents
                 and
                 Children
                 ,
                 and
                 thereby
                 Aliments
                 are
                 frequently
                 decerned
                 to
                 Children
                 ,
                 to
                 be
                 payed
                 by
                 their
                 Fathers
                 ,
                 if
                 they
                 expell
                 them
                 from
                 their
                 Families
                 ,
                 and
                 that
                 not
                 only
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 
                   providing
                   Aliment
                   to
                   Heirs
                   of
                   Land
                   ,
                   to
                   be
                   payed
                   by
                   the
                   Liferenters
                
                 ;
                 but
                 a
                 Father
                 ,
                 though
                 his
                 Son
                 had
                 no
                 Lands
                 ,
                 was
                 found
                 conveenable
                 ,
                 
                   super
                   Jure
                   naturae
                   alendi
                   〈◊〉
                   ,
                   July
                
                 21.
                 1636.
                 
                 Laird
                 of
                 
                   Ramorney
                   contra
                   Law.
                
                 So
                 also
                 by
                 our
                 Custome
                 ,
                 a
                 Father
                 is
                 Tutor
                 of
                 Law
                 to
                 his
                 Sons
                 being
                 Pupils
                 :
                 and
                 therefore
                 ,
                 a
                 Father
                 was
                 found
                 lyable
                 to
                 the
                 Son
                 for
                 Annualrent
                 of
                 his
                 Mothers
                 third
                 of
                 Moveables
                 ,
                 remaining
                 in
                 the
                 Fathers
                 Hands
                 ,
                 February
                 4.
                 1665.
                 
                 
                   Beg
                   contra
                   Beg.
                
                 But
                 a
                 Father
                 was
                 not
                 found
                 oblieged
                 for
                 Annualrent
                 of
                 a
                 Legacy
                 belonging
                 to
                 his
                 Son
                 ,
                 uplifted
                 by
                 him
                 ,
                 seing
                 he
                 Alimented
                 the
                 Son
                 ,
                 December
                 15.
                 1668.
                 
                 
                   Margaret
                   Winram
                   contra
                
                 Mr.
                 
                   James
                   Ellies
                
                 .
                 A
                 Father
                 is
                 also
                 Curatour
                 to
                 his
                 Children
                 ,
                 specially
                 when
                 in
                 his
                 Family
                 ,
                 unless
                 other
                 Curatours
                 be
                 chosen
                 by
                 his
                 consent
                 ;
                 and
                 so
                 a
                 Father
                 discharging
                 the
                 Rent
                 of
                 his
                 Sons
                 Lands
                 ,
                 set
                 by
                 the
                 Father
                 ,
                 though
                 he
                 was
                 only
                 Life-renter
                 ,
                 and
                 the
                 Son
                 ,
                 the
                 Pupil-Fiar
                 ,
                 was
                 found
                 valid
                 ,
                 for
                 years
                 after
                 the
                 Fathers
                 Decease
                 ,
                 in
                 respect
                 he
                 was
                 lawful
                 Administrator
                 ,
                 young
                 
                   Rosyth
                   contra
                
                 his
                 Tennants
                 .
                 But
                 a
                 Father
                 being
                 poor
                 ,
                 was
                 not
                 allowed
                 to
                 lift
                 his
                 Sons
                 Money
                 ,
                 without
                 finding
                 Caution
                 to
                 make
                 it
                 forth-coming
                 ,
                 February
                 12.
                 1636.
                 
                 
                   Givan
                   contra
                   Richardson
                
                 .
                 Neither
                 might
                 a
                 Father
                 ,
                 being
                 
                   lapsis
                   bonis
                
                 ,
                 assign
                 a
                 Tack
                 ,
                 acquired
                 by
                 him
                 to
                 his
                 Son
                 ,
                 though
                 he
                 might
                 uplift
                 the
                 Duties
                 ,
                 as
                 Administrator
                 ,
                 January
                 29.
                 1629.
                 
                 
                   Lands
                   contra
                   Dowglas
                
                 .
                 So
                 deeds
                 done
                 by
                 such
                 Minors
                 ,
                 without
                 their
                 Fathers
                 consent
                 ,
                 as
                 lawful
                 Administrator
                 ,
                 were
                 found
                 null
                 ,
                 
                   George
                   Stuart
                   contra
                   Home
                   of
                   Rentoun
                   .
                
              
               
                 After
                 Pupilarity
                 ,
                 a
                 Father
                 is
                 no
                 more
                 Tutor
                 to
                 his
                 Children
                 ,
                 and
                 so
                 might
                 not
                 discharge
                 for
                 his
                 Daughter
                 ,
                 being
                 past
                 Pupilarity
                 ,
                 but
                 only
                 consent
                 with
                 her
                 as
                 Curatour
                 ,
                 June
                 26.
                 1610.
                 
                 
                   John
                   Forrest
                   contra
                   Forrest
                
                 .
                 A
                 Father
                 is
                 lawful
                 Administratour
                 ,
                 both
                 as
                 Tutour
                 and
                 Curatour
                 honorarie
                 ,
                 of
                 himself
                 ,
                 without
                 any
                 Cognition
                 or
                 Solemnity
                 ,
                 and
                 is
                 not
                 lyable
                 for
                 omission
                 ,
                 neither
                 is
                 he
                 exclusive
                 of
                 other
                 Curatours
                 .
                 But
                 deeds
                 done
                 without
                 a
                 fathers
                 consent
                 by
                 a
                 Son
                 ,
                 were
                 found
                 null
                 ,
                 albeit
                 the
                 Son
                 resided
                 not
                 in
                 his
                 Family
                 ,
                 but
                 followed
                 the
                 Law
                 ,
                 having
                 no
                 Calling
                 or
                 Patrimony
                 to
                 maintain
                 himself
                 ,
                 but
                 living
                 on
                 his
                 Fathers
                 Charges
                 ;
                 neither
                 was
                 his
                 Fathers
                 Subscribing
                 with
                 him
                 ,
                 found
                 a
                 sufficient
                 Authorizing
                 of
                 him
                 ,
                 seing
                 he
                 Subscribed
                 with
                 his
                 Father
                 ,
                 as
                 Cautioner
                 for
                 
                 him
                 ,
                 December
                 7
                 :
                 1666.
                 
                 Sir
                 
                   George
                   Mckenzie
                   contra
                
                 Mr.
                 
                   John
                   Fairholme
                
                 .
              
               
                 13.
                 
                 As
                 to
                 the
                 Fathers
                 power
                 ,
                 to
                 keep
                 his
                 Children
                 within
                 his
                 Family
                 ,
                 and
                 to
                 apply
                 their
                 work
                 for
                 his
                 use
                 ,
                 though
                 controversies
                 in
                 that
                 point
                 have
                 seldom
                 been
                 moved
                 ,
                 but
                 the
                 matter
                 transacted
                 by
                 consent
                 :
                 It
                 is
                 not
                 to
                 be
                 doubted
                 ,
                 but
                 that
                 Children
                 may
                 be
                 compelled
                 to
                 remain
                 with
                 their
                 Parents
                 ,
                 and
                 to
                 imploy
                 their
                 Service
                 for
                 their
                 use
                 ,
                 even
                 after
                 their
                 Majority
                 ,
                 unless
                 they
                 be
                 foris-familiat
                 by
                 Marriage
                 ,
                 or
                 by
                 Education
                 in
                 a
                 distinct
                 Calling
                 from
                 their
                 Parents
                 ,
                 unless
                 their
                 Parents
                 deal
                 unnaturally
                 with
                 them
                 ,
                 either
                 by
                 Attrocity
                 ,
                 or
                 unwillingness
                 to
                 provide
                 them
                 with
                 a
                 competent
                 Marriage
                 ,
                 in
                 due
                 time
                 ,
                 and
                 with
                 means
                 suitable
                 to
                 their
                 Condition
                 ,
                 for
                 that
                 obliegement
                 to
                 provide
                 for
                 them
                 ,
                 would
                 be
                 a
                 ground
                 of
                 exception
                 against
                 them
                 ,
                 if
                 he
                 would
                 unjustly
                 detain
                 them
                 in
                 these
                 cases
                 ;
                 or
                 if
                 the
                 Father
                 countenance
                 ,
                 or
                 allow
                 the
                 Children
                 to
                 live
                 by
                 themselves
                 ,
                 and
                 to
                 mannage
                 their
                 own
                 Affairs
                 apart
                 ,
                 from
                 whence
                 his
                 tacit
                 consent
                 to
                 their
                 Emancipation
                 ,
                 may
                 be
                 inferred
                 ;
                 in
                 which
                 cases
                 also
                 ,
                 Zas
                 .
                 19.
                 
                   in
                   lib.
                   utrum
                   turp
                   .
                   &c.
                   De
                   verb.
                   oblig
                   .
                
                 And
                 ,
                 
                   Math.
                   Steph.
                   oecon
                   .
                   juris
                   civilis
                   ,
                   lib.
                
                 2.
                 cap.
                 1.
                 doth
                 declare
                 ,
                 that
                 the
                 Consuetude
                 of
                 Germany
                 is
                 the
                 same
                 with
                 our
                 Customes
                 before
                 expressed
                 .
                 The
                 English
                 account
                 Children
                 to
                 be
                 Emancipat
                 ,
                 so
                 soon
                 as
                 they
                 passe
                 their
                 Minority
                 ,
                 
                   Cowell
                   .
                   Institut
                   .
                   jure
                   Anglicani
                   .
                   Tit.
                
                 12.
                 
                 §
                 .
                 4.
                 
              
            
             
               
               
                 TITLE
                 VI.
                 Obligations
                 of
                 Tutors
                 and
                 Curators
                 ,
                 Pupils
                 Minor
                 ,
                 and
                 persons
                 Interdicted
                 .
              
               
                 
                   1.
                   
                   The
                   rise
                   of
                   Tutory
                   in
                   the
                   Law
                   of
                   Nature
                   .
                
                 
                   2.
                   
                   Order
                   of
                   Tutory
                   by
                   the
                   Law
                   of
                   Nature
                   .
                
                 
                   3.
                   
                   The
                   Naturall
                   Obligation
                   of
                   Tutors
                   .
                
                 
                   4.
                   
                   Pupils
                   Obligations
                   to
                   their
                   Tutors
                   .
                
                 
                   5.
                   
                   Kinds
                   of
                   Tutors
                   by
                   the
                   Common
                   Law.
                   
                
                 
                   6.
                   
                   Tutors
                   Testamentar
                   .
                
                 
                   7.
                   
                   Tutors
                   Testamentar
                   exclude
                   all
                   others
                   .
                
                 
                   8.
                   
                   Tutors
                   of
                   Law
                   ,
                   who
                   .
                
                 
                   9.
                   
                   How
                   Tutors
                   of
                   Law
                   are
                   entered
                   ?
                
                 
                   10.
                   
                   The
                   time
                   within
                   which
                   they
                   must
                   enter
                   .
                
                 
                   11.
                   
                   Tutors
                   Dative
                   .
                
                 
                   12.
                   
                   Pro-tutors
                   .
                
                 
                   13.
                   
                   Factors
                   for
                   Tutors
                   .
                
                 
                   14.
                   
                   Con-tutors
                   .
                
                 
                   15.
                   
                   Tutors
                   custody
                   of
                   the
                   Pupils
                   Person
                   .
                
                 
                   16.
                   
                   Tutors
                   Authorizing
                   their
                   Pupils
                   .
                
                 
                   17.
                   
                   Tutors
                   ,
                   or
                   their
                   Factors
                   Rights
                   ,
                   relating
                   to
                   the
                   Pupils
                   ,
                   accress
                   to
                   them
                   .
                
                 
                   18.
                   
                   Tutors
                   can
                   only
                   do
                   necessary
                   ,
                   not
                   free
                   arbitrary
                   deeds
                   ,
                   but
                   may
                   not
                   sell
                   Lands
                   ,
                   
                     sine
                     authoritate
                     Judicis
                  
                   .
                
                 
                   19.
                   
                   Tutors
                   are
                   lyable
                   for
                   Annualrent
                   for
                   their
                   Pupils
                   means
                   .
                
                 
                   20.
                   
                   Tutors
                   are
                   conveenable
                   with
                   their
                   Pupils
                   ,
                   and
                   lyable
                   ,
                   in
                   
                     quantum
                     intus
                     habent
                  
                   .
                
                 
                   21.
                   
                   Tutors
                   Accompts
                   .
                
                 
                   22.
                   
                   Tutors
                   are
                   lyable
                   for
                   exact
                   diligence
                   ,
                   both
                   for
                   intromission
                   and
                   omission
                   .
                
                 
                   23.
                   
                   Tutors
                   are
                   lyable
                   ,
                   
                     in
                     solidum
                  
                   .
                
                 
                   24.
                   
                   Tutory
                   ,
                   how
                   finished
                   .
                
                 
                   25.
                   
                   Tutors
                   of
                   Idiots
                   and
                   furious
                   Persons
                   .
                
                 
                   26.
                   
                   Gesta
                   Tutorum
                   accrescunt
                   Pupillis
                   .
                
                 
                   27.
                   
                   Removing
                   of
                   suspect
                   Tutors
                   .
                
                 
                   28.
                   
                   Duty
                   of
                   Pupils
                   to
                   their
                   Tutors
                   .
                
                 
                   29.
                   
                   Rise
                   of
                   Curators
                   .
                
                 
                   30.
                   
                   Curators
                   ,
                   
                     ad
                     lites
                     &
                     Negotia
                  
                   .
                
                 
                   31.
                   
                   Minors
                   may
                   at
                   their
                   option
                   ,
                   choose
                   ,
                   or
                   not
                   choose
                   their
                   Curators
                   .
                
                 
                   32.
                   
                   Minors
                   deeds
                   ,
                   having
                   Curators
                   ,
                   without
                   their
                   consent
                   are
                   
                     ipso
                     jure
                  
                   ,
                   null
                   ,
                   
                   
                     nisi
                     in
                     quantum
                     ●●erantur
                  
                   .
                
                 
                   33.
                   
                   Curators
                   consent
                   ,
                   not
                   requisite
                   to
                   latter
                   Wills.
                   
                
                 
                   34.
                   
                   Restitution
                   of
                   Minors
                   upon
                   
                     enorme
                     Lesione
                  
                   .
                
                 
                   35.
                   
                   Minor
                   non
                   tenetur
                   .
                   placitare
                   super
                   haereditatem
                   paternam
                   .
                
                 
                   36.
                   
                   Differences
                   betwixt
                   Tutors
                   and
                   Curators
                   .
                
                 
                   37.
                   
                   Duty
                   of
                   Curators
                   .
                
                 
                   38.
                   
                   Curators
                   ,
                   or
                   Interdictors
                   for
                   Prodigals
                   ,
                   or
                   lavish
                   Persons
                   .
                
                 
                   39.
                   
                   Interdictors
                   constitute
                   ,
                   
                     causa
                     cognita
                  
                   .
                
                 
                   40.
                   
                   Interdiction
                   by
                   Parents
                   consent
                   .
                
                 
                   41.
                   
                   Publication
                   and
                   Registration
                   of
                   Interdictions
                   .
                
                 
                   42.
                   
                   Interdictions
                   only
                   extend
                   to
                   Heretable
                   Rights
                   ,
                   not
                   Moveables
                   ,
                   not
                   to
                   Personal
                   Executions
                   .
                
                 
                   43.
                   
                   Interdictions
                   are
                   only
                   Competent
                   by
                   way
                   of
                   Reduction
                   .
                
                 
                   44.
                   
                   Interdictions
                   cannot
                   be
                   taken
                   off
                   ,
                   but
                   by
                   Authority
                   of
                   a
                   Judge
                   .
                
              
               
                 TUTORS
                 and
                 Curators
                 ,
                 succeded
                 in
                 the
                 place
                 of
                 Parents
                 ,
                 and
                 their
                 Obligations
                 have
                 a
                 near
                 resemblance
                 ;
                 and
                 therefore
                 ,
                 shall
                 be
                 here
                 fitly
                 subjoyned
                 ,
                 though
                 in
                 the
                 constitution
                 ,
                 and
                 duties
                 of
                 Tutors
                 and
                 Curators
                 ,
                 the
                 Positive
                 Law
                 predomineth
                 ;
                 yet
                 ,
                 that
                 without
                 any
                 Positive
                 Law
                 ,
                 or
                 Contract
                 ,
                 there
                 is
                 a
                 duty
                 of
                 Tuition
                 ,
                 and
                 Protection
                 of
                 Orphans
                 ,
                 and
                 specially
                 upon
                 these
                 ,
                 who
                 by
                 relation
                 of
                 Blood
                 ,
                 are
                 their
                 nearest
                 Kinsmen
                 ,
                 and
                 in
                 place
                 of
                 their
                 Parents
                 ,
                 it
                 will
                 appear
                 by
                 what
                 ensueth
                 ;
                 and
                 what
                 is
                 superadded
                 ,
                 either
                 by
                 the
                 consent
                 of
                 parties
                 ,
                 in
                 Curators
                 ,
                 or
                 by
                 the
                 Law
                 ,
                 in
                 Tutors
                 ,
                 with
                 the
                 condition
                 and
                 interest
                 of
                 Pupils
                 and
                 Minors
                 ,
                 cannot
                 conveniently
                 be
                 separated
                 .
                 If
                 there
                 were
                 no
                 Positive
                 Law
                 ,
                 the
                 natural
                 infirmity
                 of
                 Pupilage
                 ,
                 would
                 not
                 want
                 its
                 natural
                 remedies
                 provided
                 by
                 Him
                 ,
                 who
                 is
                 the
                 Father
                 of
                 the
                 fatherless
                 ,
                 and
                 layeth
                 his
                 Obediential
                 Obligations
                 upon
                 these
                 ,
                 whom
                 ,
                 by
                 the
                 Law
                 Written
                 in
                 their
                 hearts
                 ,
                 he
                 hath
                 bound
                 to
                 the
                 performance
                 of
                 these
                 Duties
                 ,
                 as
                 is
                 before
                 shown
                 .
                 There
                 is
                 a
                 Common
                 Obediential
                 ,
                 or
                 Natural
                 Obligation
                 upon
                 all
                 Men
                 ,
                 of
                 Love
                 ,
                 Mercy
                 ,
                 and
                 relief
                 of
                 the
                 distressed
                 ,
                 among
                 whom
                 Infants
                 and
                 Pupils
                 ,
                 who
                 have
                 no
                 discretion
                 ,
                 and
                 cannot
                 at
                 all
                 Preserve
                 ,
                 or
                 Govern
                 themselves
                 ,
                 are
                 the
                 first
                 .
                 It
                 hath
                 been
                 also
                 shown
                 ,
                 that
                 there
                 is
                 a
                 more
                 special
                 Obligation
                 put
                 upon
                 those
                 of
                 one
                 Blood
                 ,
                 one
                 Family
                 ,
                 from
                 one
                 common
                 Parent
                 ,
                 to
                 help
                 and
                 support
                 each
                 other
                 ,
                 and
                 that
                 in
                 order
                 .
              
               
                 2.
                 
                 The
                 first
                 and
                 nearest
                 degree
                 ,
                 is
                 first
                 ,
                 and
                 most
                 oblieged
                 ;
                 hence
                 ariseth
                 that
                 orderly
                 and
                 comely
                 natural
                 substitution
                 of
                 Tutors
                 ,
                 for
                 the
                 preservation
                 of
                 Pupils
                 :
                 first
                 ,
                 the
                 Fathers
                 Tutory
                 and
                 lawful
                 Administration
                 ,
                 whereof
                 we
                 have
                 spoken
                 already
                 ;
                 and
                 these
                 failing
                 by
                 death
                 ,
                 or
                 incapacity
                 ,
                 the
                 nearest
                 degree
                 of
                 Agnats
                 are
                 in
                 the
                 place
                 of
                 Parents
                 ,
                 and
                 are
                 all
                 joyntly
                 bound
                 to
                 this
                 natural
                 Duty
                 ,
                 unless
                 the
                 Parents
                 ,
                 by
                 their
                 Parental
                 power
                 ,
                 have
                 appointed
                 ,
                 and
                 ordained
                 others
                 whom
                 they
                 trust
                 ,
                 to
                 undertake
                 that
                 work
                 .
              
               
               
                 And
                 lastly
                 ,
                 the
                 common
                 Obligation
                 that
                 lyeth
                 upon
                 people
                 ,
                 hath
                 devolved
                 upon
                 the
                 Magistrate
                 ,
                 as
                 representing
                 them
                 ,
                 the
                 duty
                 of
                 being
                 ,
                 or
                 appointing
                 Tutors
                 for
                 Pupils
                 ;
                 hence
                 doth
                 arise
                 the
                 distinction
                 of
                 Tutors
                 ,
                 
                   in
                   Testamentar
                
                 ,
                 constitute
                 by
                 the
                 Parent
                 in
                 his
                 Testament
                 ,
                 legittime
                 appointed
                 by
                 the
                 Law
                 ,
                 which
                 is
                 of
                 the
                 nearest
                 Agnats
                 ,
                 and
                 dative
                 ,
                 which
                 are
                 ordained
                 by
                 the
                 King.
                 
              
               
                 3.
                 
                 The
                 Natural
                 Obligations
                 of
                 these
                 Tutors
                 to
                 their
                 Pupils
                 ,
                 are
                 first
                 ,
                 to
                 preserve
                 their
                 persons
                 ,
                 and
                 defend
                 them
                 against
                 injuries
                 and
                 prejudices
                 ;
                 and
                 therefore
                 ,
                 are
                 they
                 named
                 Tutors
                 ,
                 
                   quasi
                   tuitores
                   ,
                   l.
                
                 1.
                 
                 §
                 1.
                 
                   ff
                   .
                   de
                   tutelis
                
                 .
                 2.
                 
                 To
                 Aliment
                 them
                 out
                 of
                 the
                 Pupils
                 own
                 Means
                 ,
                 according
                 to
                 the
                 condition
                 thereof
                 ;
                 and
                 to
                 Educate
                 them
                 for
                 a
                 station
                 in
                 the
                 Common-wealth
                 ,
                 according
                 to
                 their
                 quality
                 and
                 capacity
                 .
                 3.
                 
                 To
                 mannage
                 their
                 Affairs
                 with
                 such
                 diligence
                 ,
                 as
                 provident
                 men
                 use
                 in
                 their
                 own
                 Affairs
                 ,
                 that
                 nothing
                 may
                 be
                 lost
                 ,
                 but
                 every
                 thing
                 improven
                 to
                 the
                 best
                 advantage
                 ;
                 in
                 all
                 which
                 ,
                 they
                 are
                 not
                 to
                 exerce
                 voluntary
                 Acts
                 of
                 Dominion
                 ,
                 at
                 their
                 choise
                 ,
                 as
                 disposing
                 of
                 what
                 is
                 secure
                 ;
                 but
                 only
                 necessar
                 Acts
                 ,
                 for
                 the
                 preservation
                 and
                 recovery
                 of
                 what
                 will
                 ,
                 or
                 may
                 perish
                 ,
                 and
                 for
                 improving
                 the
                 profits
                 of
                 it
                 .
                 4.
                 
                 They
                 are
                 bound
                 to
                 give
                 an
                 accompt
                 ,
                 and
                 restore
                 to
                 the
                 Pupil
                 what
                 is
                 his
                 own
                 ,
                 so
                 soon
                 as
                 he
                 attains
                 to
                 the
                 Age
                 of
                 discretion
                 .
              
               
                 4.
                 
                 And
                 on
                 the
                 other
                 part
                 ,
                 the
                 Pupil
                 is
                 oblieged
                 to
                 the
                 Tutor
                 ,
                 by
                 the
                 obediential
                 Bond
                 of
                 Remuneration
                 ,
                 or
                 recompense
                 of
                 one
                 good
                 deed
                 for
                 an
                 other
                 ,
                 to
                 make
                 up
                 to
                 the
                 Tutors
                 whatsoever
                 is
                 wanting
                 to
                 them
                 ,
                 through
                 their
                 faithful
                 Administration
                 :
                 This
                 is
                 all
                 the
                 substance
                 of
                 the
                 Interests
                 and
                 Obligations
                 of
                 Tutors
                 and
                 Pupils
                 ,
                 which
                 the
                 positive
                 Law
                 doth
                 no
                 more
                 but
                 declare
                 ,
                 apply
                 ,
                 and
                 ascertain
                 ,
                 by
                 the
                 form
                 of
                 entring
                 that
                 Office
                 ,
                 the
                 security
                 for
                 performance
                 of
                 it
                 ,
                 the
                 fixed
                 time
                 of
                 indurance
                 thereof
                 ,
                 which
                 naturally
                 is
                 the
                 Age
                 of
                 Discretion
                 ,
                 in
                 some
                 sooner
                 ,
                 in
                 some
                 later
                 ,
                 in
                 some
                 never
                 :
                 But
                 for
                 certainties
                 cause
                 ,
                 positive
                 Law
                 determines
                 a
                 particular
                 year
                 ,
                 in
                 which
                 ,
                 for
                 the
                 most
                 part
                 ,
                 Discretion
                 cometh
                 .
              
               
                 That
                 there
                 are
                 such
                 Interests
                 and
                 Obligations
                 ,
                 even
                 naturally
                 ,
                 the
                 Light
                 of
                 Nature
                 will
                 so
                 easily
                 go
                 along
                 ,
                 that
                 it
                 will
                 rather
                 need
                 Consideration
                 ,
                 than
                 Confirmation
                 ,
                 the
                 grounds
                 thereof
                 being
                 commonly
                 acknowledged
                 ,
                 and
                 accustomed
                 by
                 all
                 Men
                 ,
                 who
                 are
                 led
                 by
                 Reason
                 ,
                 and
                 it
                 is
                 so
                 insinuate
                 by
                 the
                 ordinar
                 Term
                 of
                 Law
                 ,
                 whereby
                 these
                 Obligations
                 are
                 called
                 ,
                 
                   quasi
                   ex
                   contractu
                
                 ,
                 as
                 arising
                 from
                 no
                 Contract
                 betwixt
                 the
                 Tutor
                 ,
                 and
                 the
                 Infant
                 ,
                 or
                 Pupil
                 ,
                 as
                 not
                 capable
                 of
                 Contracting
                 ,
                 and
                 yet
                 are
                 not
                 simply
                 by
                 the
                 constitution
                 of
                 Law
                 ;
                 and
                 therefore
                 ,
                 these
                 Obligations
                 ,
                 not
                 being
                 by
                 the
                 will
                 of
                 Man
                 ,
                 must
                 needs
                 be
                 Obediential
                 Obligations
                 ,
                 by
                 the
                 will
                 of
                 God.
                 
              
               
                 The
                 Romans
                 have
                 in
                 this
                 matter
                 keeped
                 clearly
                 and
                 clossely
                 by
                 the
                 Law
                 of
                 Nature
                 ;
                 and
                 therefore
                 ,
                 our
                 Customes
                 have
                 keeped
                 as
                 near
                 by
                 them
                 ,
                 and
                 so
                 have
                 the
                 Customes
                 of
                 other
                 Nations
                 ;
                 So
                 sayes
                 
                   Gudelinus
                   ,
                   de
                   jure
                   noviss
                   .
                   l.
                
                 10.
                 cap.
                 8.
                 
                 §
                 .
                 ff
                 .
                 that
                 the
                 Custome
                 of
                 France
                 and
                 Netherlands
                 ,
                 hath
                 very
                 little
                 altered
                 in
                 this
                 from
                 the
                 Roman
                 Law
                 ;
                 we
                 shall
                 therefore
                 interweave
                 the
                 Civil
                 Law
                 and
                 our
                 Customes
                 ,
                 that
                 it
                 may
                 appear
                 how
                 far
                 they
                 do
                 agree
                 ,
                 and
                 differ
                 ,
                 and
                 how
                 they
                 do
                 quadrat
                 to
                 the
                 Law
                 of
                 Nature
                 ,
                 following
                 this
                 order
                 ;
                 1.
                 
                 What
                 kind
                 of
                 Tutors
                 they
                 be
                 ,
                 and
                 what
                 order
                 of
                 the
                 same
                 .
                 2.
                 
                 What
                 the
                 Tutors
                 Duties
                 are
                 in
                 their
                 Entry
                 ,
                 Administration
                 ,
                 and
                 Accompts
                 .
                 3.
                 
                 How
                 Tutories
                 end
                 .
                 4.
                 
                 The
                 Pupils
                 Obligation
                 to
                 them
                 therefore
                 .
                 And
                 last
                 ,
                 of
                 that
                 Resemblance
                 that
                 Curatours
                 and
                 Minors
                 have
                 Tutors
                 and
                 Pupils
                 .
              
               
                 5.
                 
                 As
                 to
                 the
                 first
                 ,
                 there
                 be
                 three
                 kinds
                 of
                 Tutors
                 ,
                 by
                 the
                 Civil
                 Law
                 ,
                 and
                 our
                 Custome
                 (
                 befide
                 that
                 of
                 the
                 Father
                 ,
                 who
                 is
                 called
                 for
                 distinctions
                 sake
                 ,
                 
                 
                   lawful
                   Administratour
                
                 ,
                 of
                 which
                 formerly
                 )
                 The
                 first
                 is
                 ,
                 Tutor
                 Testamentar
                 ,
                 or
                 nominate
                 .
                 The
                 second
                 ,
                 is
                 the
                 Tutor
                 of
                 Law.
                 And
                 the
                 third
                 is
                 ,
                 the
                 Tutor
                 Dative
                 ,
                 all
                 which
                 follow
                 in
                 course
                 ,
                 in
                 the
                 same
                 order
                 .
              
               
                 6.
                 
                 A
                 Tutor
                 Testamentar
                 ,
                 by
                 the
                 Civil
                 Law
                 ,
                 behoved
                 to
                 be
                 either
                 named
                 in
                 the
                 Testament
                 ,
                 or
                 Codicills
                 confirmed
                 by
                 Testament
                 ,
                 l.
                 3.
                 
                   ff
                   .
                   de
                   testamentaria
                   tutela
                
                 ,
                 and
                 could
                 only
                 be
                 given
                 to
                 such
                 as
                 were
                 
                   in
                   patria
                   potestate
                
                 ,
                 §
                 .
                 3.
                 
                 
                   Inst.
                   de
                   tutelis
                
                 .
                 But
                 by
                 our
                 Custome
                 ,
                 a
                 Father
                 may
                 nominate
                 Tutors
                 to
                 his
                 Children
                 ,
                 in
                 any
                 writ
                 he
                 pleases
                 ,
                 but
                 it
                 is
                 of
                 a
                 Testamentary
                 nature
                 ,
                 always
                 ambulatory
                 and
                 mutable
                 ,
                 during
                 his
                 Life
                 ;
                 a
                 Grand-father
                 cannot
                 name
                 Tutors
                 to
                 his
                 Oyes
                 ,
                 because
                 his
                 Son
                 being
                 Emancipat
                 by
                 Marriage
                 ,
                 they
                 are
                 not
                 in
                 his
                 Paternal
                 Power
                 ;
                 Neither
                 can
                 a
                 Mother
                 ,
                 or
                 Grand-mother
                 ,
                 who
                 have
                 also
                 no
                 such
                 power
                 ;
                 but
                 any
                 person
                 that
                 gives
                 or
                 dispones
                 any
                 thing
                 to
                 a
                 Pupil
                 ,
                 may
                 in
                 that
                 Disposition
                 name
                 Tutors
                 ,
                 who
                 are
                 not
                 properly
                 such
                 ,
                 but
                 only
                 have
                 the
                 trust
                 and
                 charge
                 of
                 that
                 thing
                 disponed
                 ,
                 and
                 as
                 to
                 it
                 ,
                 exclude
                 all
                 other
                 Tutors
                 ,
                 which
                 taketh
                 place
                 ,
                 because
                 that
                 nomination
                 is
                 a
                 quality
                 and
                 condition
                 in
                 that
                 Donation
                 ,
                 November
                 17.
                 1627.
                 
                 
                   Fleming
                   contra
                   Brown.
                   January
                
                 31.
                 1665.
                 
                 
                   Kirktouns
                   contra
                
                 Laird
                 of
                 Hunthill
                 .
              
               
                 7.
                 
                 A
                 Tutor
                 Testamentar
                 requires
                 no
                 preparatory
                 solemnity
                 to
                 capacitate
                 him
                 to
                 Act
                 ,
                 but
                 the
                 very
                 nomination
                 it self
                 is
                 sufficient
                 ,
                 and
                 if
                 it
                 be
                 in
                 a
                 Testament
                 ,
                 it
                 is
                 valide
                 ,
                 though
                 the
                 Testament
                 be
                 never
                 confirmed
                 ,
                 or
                 be
                 rejected
                 by
                 the
                 Executors
                 ;
                 and
                 so
                 there
                 needs
                 no
                 making
                 of
                 Faith
                 ,
                 or
                 finding
                 Caution
                 ,
                 because
                 it
                 is
                 presumed
                 ,
                 the
                 Father
                 that
                 did
                 name
                 him
                 ,
                 did
                 sufficiently
                 know
                 his
                 faithfulness
                 and
                 fitness
                 :
                 and
                 the
                 Confirmation
                 of
                 a
                 Testament
                 ,
                 bearing
                 ,
                 that
                 a
                 Tutor
                 nominate
                 ,
                 accepted
                 ,
                 and
                 made
                 faith
                 ,
                 was
                 not
                 found
                 to
                 instruct
                 his
                 acceptance
                 ,
                 with
                 out
                 the
                 principal
                 Act
                 subscribed
                 by
                 him
                 were
                 produced
                 ,
                 or
                 Acts
                 of
                 Administration
                 proven
                 ,
                 though
                 it
                 was
                 thirty
                 seven
                 years
                 since
                 the
                 confirmation
                 ,
                 January
                 31.
                 1665.
                 
                 
                   Rutherfords
                   contra
                
                 Laird
                 of
                 Hunthil
                 .
                 Neither
                 was
                 a
                 Tutory
                 found
                 instructed
                 by
                 a
                 Discharge
                 ,
                 as
                 Tutor
                 Testamentar
                 ,
                 it
                 being
                 evident
                 by
                 the
                 Testament
                 ,
                 that
                 he
                 was
                 only
                 overseer
                 ,
                 June
                 10.
                 1665.
                 
                 
                   Swintoun
                   contra
                   Notman
                
                 .
                 But
                 a
                 Write
                 under
                 the
                 Tutors
                 hand
                 ,
                 designing
                 him
                 Tutor
                 ,
                 found
                 to
                 instruct
                 ,
                 unless
                 the
                 contrair
                 were
                 proven
                 by
                 production
                 of
                 the
                 Tutory
                 ,
                 December
                 2.
                 1668.
                 
                 Mr.
                 
                   Alexander
                   Seatoun
                
                 Advocat
                 
                   contra
                   Seatoun
                
                 of
                 Menzies
                 .
                 And
                 a
                 Tutor
                 nominat
                 with
                 other
                 two
                 ,
                 who
                 accepted
                 not
                 ,
                 was
                 only
                 found
                 lyable
                 from
                 the
                 time
                 of
                 his
                 acceptance
                 ,
                 by
                 acting
                 as
                 Tutor
                 ,
                 and
                 not
                 for
                 what
                 was
                 lost
                 before
                 ,
                 although
                 there
                 was
                 a
                 considerable
                 Legacy
                 left
                 to
                 him
                 in
                 the
                 Testament
                 ;
                 and
                 that
                 shortly
                 after
                 the
                 Defuncts
                 Death
                 ,
                 he
                 Confirmed
                 himself
                 ,
                 
                   qua
                   legatar
                
                 ,
                 and
                 had
                 inspection
                 of
                 the
                 Defuncts
                 Writes
                 ,
                 and
                 subscribed
                 an
                 Inventar
                 thereof
                 ,
                 whereof
                 the
                 Testament
                 was
                 one
                 ,
                 yet
                 did
                 not
                 act
                 as
                 Tutor
                 for
                 three
                 years
                 after
                 ;
                 but
                 he
                 was
                 not
                 found
                 to
                 have
                 Right
                 to
                 the
                 Legacy
                 ,
                 not
                 having
                 followed
                 the
                 Defuncts
                 Will
                 ,
                 by
                 accepting
                 the
                 Tutory
                 at
                 first
                 ,
                 February
                 2.
                 1675.
                 
                 
                   Margaret
                   Scrimzeor
                   contra
                   Wedderburn
                
                 of
                 Kingennie
                 :
                 But
                 where
                 the
                 condition
                 of
                 the
                 Tutor
                 nominate
                 ,
                 appeared
                 otherways
                 than
                 when
                 he
                 was
                 nominate
                 ,
                 Action
                 was
                 found
                 sustainable
                 at
                 the
                 Pupils
                 Goodsirs
                 Instance
                 ,
                 to
                 cause
                 him
                 find
                 Caution
                 ,
                 if
                 the
                 Overseers
                 thought
                 fit
                 ,
                 
                   Nic.
                   rem
                   pupuli
                   Salvam
                   fore
                   ,
                   Thomas
                   Foules
                   contra
                   Alexander
                   Mcmath
                   .
                
                 Neither
                 needed
                 there
                 any
                 making
                 of
                 an
                 Inventar
                 of
                 the
                 Pupils
                 Goods
                 ,
                 as
                 was
                 prescribed
                 in
                 the
                 Civil
                 Law
                 ,
                 Nov.
                 72.
                 
                   l.
                   ult
                   .
                   Authen
                   .
                   quod
                   nunc
                   generale
                   l.
                   de
                   curat
                   .
                   furiosi
                   .
                
                 by
                 which
                 it
                 is
                 clear
                 ,
                 that
                 all
                 Tutors
                 did
                 make
                 faith
                 ,
                 
                   de
                   fideli
                   ,
                   Administratione
                
                 ;
                 they
                 behooved
                 also
                 to
                 find
                 Caution
                 ,
                 
                   l.
                   tutores
                
                 ,
                 24.
                 
                 
                   C.
                   de
                   Administratione
                   tut
                
                 .
                 and
                 they
                 behooved
                 to
                 make
                 Inventar
                 ,
                 l.
                 7.
                 
                 
                   Tutor
                   .
                   qui
                
                 7.
                 
                   ff
                   .
                   de
                   Administratione
                   ,
                   tut
                   .
                   l.
                   tutores
                   C.
                   eodem
                   .
                
                 But
                 now
                 ,
                 by
                 the
                 late
                 Act
                 of
                 Parliament
                 ,
                 1672.
                 
                 Cap.
                 2.
                 all
                 Tutors
                 e'r
                 they
                 can
                 act
                 ,
                 must
                 
                 make
                 Inventar
                 of
                 the
                 Pupils
                 Means
                 ,
                 with
                 advice
                 and
                 consent
                 of
                 the
                 nearest
                 of
                 Kin
                 on
                 both
                 sides
                 ,
                 and
                 deliver
                 to
                 them
                 ,
                 doubles
                 signed
                 ,
                 or
                 in
                 their
                 absence
                 ,
                 leave
                 them
                 with
                 the
                 Clerk
                 ,
                 to
                 be
                 delivered
                 to
                 them
                 ,
                 according
                 to
                 the
                 order
                 prescribed
                 in
                 the
                 Act.
                 
              
               
                 8.
                 
                 A
                 Tutor
                 Testamentar
                 ,
                 is
                 ever
                 preferred
                 to
                 a
                 Tutor
                 of
                 Law
                 or
                 Dative
                 ,
                 even
                 though
                 the
                 Tutor
                 nominat
                 forbear
                 to
                 act
                 for
                 seven
                 years
                 ;
                 and
                 that
                 a
                 Tutor
                 Dative
                 was
                 nominate
                 ,
                 and
                 in
                 possession
                 of
                 the
                 custody
                 of
                 the
                 Pupils
                 Person
                 ,
                 December
                 17.
                 1631.
                 
                 
                   〈◊〉
                   contra
                   Oliphant
                
                 ;
                 or
                 though
                 the
                 Tutor
                 nominate
                 ,
                 had
                 ceased
                 six
                 years
                 ,
                 and
                 was
                 Curator
                 to
                 a
                 party
                 ,
                 against
                 whom
                 the
                 Pupil
                 had
                 an
                 Action
                 or
                 Process
                 ;
                 seing
                 in
                 both
                 cases
                 ,
                 no
                 detriment
                 could
                 be
                 shown
                 by
                 his
                 forbearance
                 ,
                 July
                 6.
                 1627.
                 
                 
                   Campbel
                   contra
                   Campbel
                
                 .
                 The
                 like
                 ,
                 where
                 the
                 Tutor
                 nominate
                 had
                 abstained
                 seven
                 years
                 ,
                 and
                 yet
                 was
                 preferred
                 to
                 the
                 custody
                 of
                 the
                 Pupils
                 person
                 (
                 here
                 the
                 Pupil
                 had
                 no
                 means
                 to
                 be
                 Administrat
                 )
                 
                   Spots
                   .
                   de
                   tutel
                   .
                   Irving
                   contra
                   Irving
                   .
                
              
               
                 If
                 there
                 be
                 no
                 Tutor
                 nominate
                 ,
                 there
                 is
                 place
                 for
                 Tutors
                 of
                 Law
                 ,
                 who
                 ordinarily
                 are
                 these
                 who
                 have
                 the
                 benefite
                 of
                 Succession
                 in
                 the
                 Pupils
                 Estate
                 ;
                 and
                 so
                 by
                 the
                 Roman
                 Law
                 ,
                 all
                 the
                 Agnats
                 of
                 the
                 nearest
                 degree
                 ,
                 as
                 they
                 were
                 Heirs
                 ,
                 so
                 were
                 they
                 also
                 Tutors
                 ,
                 by
                 the
                 Law
                 of
                 the
                 twelve
                 Tables
                 ,
                 l.
                 5.
                 
                 &
                 6.
                 
                   ff
                   .
                   de
                   legit
                   .
                   tut
                   .
                
                 and
                 so
                 after
                 the
                 Succession
                 was
                 extended
                 ,
                 as
                 well
                 to
                 the
                 Cognats
                 as
                 to
                 the
                 Agnats
                 ,
                 with
                 the
                 benefite
                 thereof
                 ,
                 the
                 burden
                 also
                 of
                 the
                 Tutory
                 was
                 extended
                 ,
                 Nov.
                 118.
                 cap.
                 5.
                 
                 And
                 with
                 us
                 ,
                 upon
                 the
                 same
                 ground
                 ,
                 as
                 the
                 prerogative
                 of
                 Primogeniture
                 ,
                 hath
                 given
                 the
                 Succession
                 ,
                 not
                 to
                 the
                 whole
                 next
                 degree
                 of
                 Agnats
                 ,
                 but
                 to
                 the
                 eldest
                 Male
                 ,
                 and
                 his
                 Issue
                 ;
                 so
                 the
                 Tutor
                 of
                 Law
                 is
                 only
                 one
                 ,
                 viz.
                 the
                 nearest
                 Agnat
                 or
                 Kinsman
                 on
                 the
                 Fathers
                 side
                 ,
                 of
                 twenty
                 five
                 years
                 of
                 age
                 ,
                 Par.
                 1474.
                 cap.
                 51.
                 where
                 it
                 is
                 expresly
                 declared
                 ,
                 
                   that
                   though
                   the
                   Tutor
                   of
                   Law
                   be
                   ordinarily
                   Heir
                   ,
                   yet
                   not
                   always
                   ;
                   for
                   though
                   the
                   Pupil
                   have
                   a
                   younger
                   Brother
                   ,
                   who
                   is
                   immediat
                   Agnat
                   ,
                   yet
                   the
                   nearest
                   Agnat
                   of
                   twenty
                   five
                   years
                   old
                   ,
                   will
                   be
                   his
                   Tutor
                   ,
                   passing
                   by
                   all
                   others
                   within
                   that
                   age
                   .
                
              
               
                 9.
                 
                 The
                 Tutor
                 of
                 Law
                 is
                 servded
                 ,
                 upon
                 a
                 Brief
                 Directed
                 out
                 of
                 the
                 Chancellary
                 ,
                 by
                 an
                 Inquest
                 ,
                 as
                 appears
                 by
                 the
                 foresaid
                 Act
                 of
                 Parliament
                 ;
                 but
                 the
                 Brief
                 may
                 be
                 directed
                 to
                 ,
                 and
                 served
                 by
                 ,
                 any
                 Judge
                 ordinar
                 ,
                 though
                 the
                 Pupil
                 live
                 not
                 within
                 the
                 Jurisdiction
                 ,
                 March
                 8.
                 1636.
                 
                 
                   William
                   Stuart
                   contra
                   Agnes
                   Henderson
                
                 .
                 Tutors
                 of
                 Law
                 before
                 they
                 Act
                 ,
                 must
                 find
                 Caution
                 ,
                 
                   rem
                   pupuli
                   ,
                   salvam
                   fore
                
                 ,
                 which
                 though
                 it
                 be
                 a
                 ground
                 to
                 compel
                 them
                 to
                 find
                 Caution
                 ,
                 or
                 exclude
                 them
                 from
                 authorising
                 ,
                 or
                 acting
                 for
                 the
                 Pupil
                 ,
                 till
                 they
                 find
                 Caution
                 ;
                 yet
                 it
                 did
                 not
                 anull
                 their
                 office
                 ,
                 or
                 prefer
                 a
                 Dative
                 to
                 them
                 ,
                 so
                 soon
                 as
                 they
                 find
                 Caution
                 ,
                 though
                 the
                 Dative
                 had
                 already
                 found
                 Caution
                 ,
                 June
                 29.
                 1632.
                 
                 
                   Irwing
                   contra
                   Elsick
                
                 .
              
               
                 10.
                 
                 The
                 Tutor
                 of
                 Law
                 must
                 serve
                 himself
                 within
                 year
                 and
                 day
                 ,
                 from
                 the
                 time
                 that
                 he
                 is
                 in
                 a
                 capacity
                 to
                 be
                 Tutor
                 ,
                 either
                 counting
                 from
                 the
                 Defuncts
                 death
                 ,
                 or
                 from
                 the
                 Birth
                 of
                 the
                 Pupil
                 ,
                 if
                 posthumus
                 ,
                 or
                 the
                 ceasing
                 of
                 a
                 just
                 impediment
                 ;
                 so
                 that
                 after
                 the
                 Marriage
                 of
                 a
                 Tutrix
                 Testamentar
                 ,
                 place
                 was
                 found
                 for
                 a
                 year
                 ,
                 for
                 the
                 Tutor
                 of
                 Law
                 to
                 serve
                 himself
                 ,
                 before
                 a
                 Dative
                 had
                 access
                 ,
                 July
                 15.
                 1631.
                 
                 
                   Grant
                   contra
                   Grant.
                
                 But
                 there
                 seems
                 no
                 prefixed
                 time
                 to
                 the
                 Tutor
                 of
                 Law
                 to
                 serve
                 himself
                 to
                 the
                 Tutory
                 of
                 an
                 Idiot
                 ;
                 and
                 therefore
                 ,
                 the
                 nearest
                 Agnat
                 ,
                 as
                 lawful
                 Tutor
                 ,
                 was
                 preferred
                 to
                 a
                 Tutor
                 Dative
                 ,
                 though
                 he
                 had
                 made
                 faith
                 ,
                 and
                 found
                 Caution
                 ;
                 and
                 though
                 the
                 Service
                 was
                 not
                 till
                 five
                 years
                 after
                 the
                 Idiots
                 Majority
                 ,
                 February
                 22.
                 1628.
                 
                 
                   Calquhun
                   contra
                   Wardrop
                
                 .
                 It
                 was
                 also
                 found
                 ,
                 that
                 a
                 Tutory
                 Dative
                 ,
                 did
                 not
                 hinder
                 the
                 service
                 of
                 a
                 Tutor
                 of
                 Law
                 to
                 an
                 Idiot
                 ,
                 
                   quandocunque
                   January
                
                 21.
                 1663.
                 
                 
                   Stuarts
                   
                   contra
                   Spreul
                
                 ;
                 because
                 ,
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 1585.
                 
                 Tutors
                 to
                 Idiots
                 must
                 beserved
                 by
                 an
                 Inquest
                 ,
                 cognoscing
                 the
                 Idiotry
                 ,
                 Par.
                 1475.
                 cap.
                 66.
                 
                 Par.
                 1585.
                 cap.
                 18.
                 
              
               
                 11.
                 
                 Where
                 there
                 is
                 no
                 Tutor
                 nominat
                 ,
                 nor
                 the
                 Tutor
                 of
                 Law
                 claimeth
                 right
                 within
                 the
                 year
                 ,
                 there
                 is
                 place
                 for
                 a
                 Tutor
                 Dative
                 ,
                 which
                 ,
                 though
                 by
                 diverse
                 Municipal
                 Customs
                 ,
                 may
                 be
                 Constitute
                 by
                 the
                 Ordinar
                 Magistrate
                 of
                 the
                 place
                 ,
                 yet
                 is
                 most
                 fitly
                 Constitute
                 by
                 the
                 Supream
                 Magistrate
                 ;
                 and
                 so
                 with
                 us
                 ,
                 is
                 given
                 by
                 the
                 King
                 ,
                 in
                 Exchequer
                 ;
                 and
                 by
                 the
                 late
                 Act
                 of
                 Exchequer
                 ,
                 1672.
                 
                 It
                 is
                 appointed
                 ,
                 
                   That
                   before
                   Constituting
                   of
                   any
                   Tutor
                   Dative
                   ,
                   the
                   Pupils
                   nearest
                   friends
                   on
                   both
                   sides
                   ,
                   shall
                   be
                   cited
                   ,
                   that
                   they
                   may
                   offer
                   and
                   inform
                   ,
                   concerning
                   the
                   fittest
                   persons
                   to
                   be
                   Tutor
                   :
                
                 Tutors
                 may
                 be
                 given
                 to
                 strangers
                 Pupils
                 ,
                 in
                 so
                 far
                 as
                 concerns
                 their
                 Lands
                 in
                 
                   Scotland
                   ,
                   December
                
                 17.
                 1627.
                 
                 
                   Fleming
                   contra
                   Brown.
                
                 The
                 like
                 ,
                 
                   Spots
                   .
                   de
                   tut
                   .
                   Donaldson
                   contra
                   Skiltoun
                   .
                
                 In
                 the
                 nomination
                 of
                 Tutors
                 Dative
                 ,
                 though
                 it
                 be
                 in
                 the
                 Arbitriment
                 of
                 the
                 King
                 ,
                 to
                 choise
                 whom
                 he
                 thinks
                 fit
                 ,
                 yet
                 he
                 will
                 have
                 regard
                 to
                 the
                 Interest
                 of
                 the
                 Pupil
                 ,
                 to
                 give
                 a
                 Tutor
                 ,
                 either
                 who
                 was
                 nominat
                 by
                 the
                 Father
                 ,
                 but
                 not
                 Legally
                 ;
                 or
                 who
                 was
                 nominat
                 by
                 the
                 Mother
                 ,
                 or
                 Grand-mother
                 ,
                 though
                 having
                 no
                 Legal
                 Power
                 ,
                 or
                 the
                 nearest
                 of
                 Kin
                 ,
                 though
                 they
                 have
                 neglected
                 to
                 serve
                 within
                 the
                 year
                 ;
                 but
                 of
                 all
                 these
                 ,
                 he
                 may
                 take
                 the
                 best
                 of
                 such
                 as
                 offer
                 ,
                 or
                 are
                 willing
                 :
                 Seing
                 with
                 us
                 ,
                 all
                 Tutors
                 are
                 free
                 to
                 accept
                 ,
                 or
                 refuse
                 ,
                 yea
                 ,
                 and
                 may
                 renounce
                 ,
                 not
                 having
                 intrometted
                 with
                 the
                 Pupils
                 Means
                 ,
                 though
                 several
                 Actions
                 were
                 pursued
                 in
                 their
                 names
                 as
                 Tutors
                 ,
                 
                   Spots
                   .
                   de
                   tut
                   .
                   Duff
                   contra
                
                 Mr.
                 
                   William
                   Chalmer
                
                 .
                 But
                 Tutory
                 being
                 a
                 publict
                 Office
                 ,
                 it
                 could
                 not
                 be
                 refused
                 among
                 the
                 Romans
                 ,
                 unless
                 the
                 Tutor
                 had
                 excuses
                 allowed
                 of
                 the
                 Law
                 ,
                 
                   Tit.
                   de
                   excus
                   .
                   tut
                   .
                   ff
                   .
                   per
                   totum
                   .
                
              
               
                 Tutors
                 Dative
                 must
                 both
                 make
                 faith
                 ,
                 
                   de
                   fideli
                   Administratione
                
                 ,
                 and
                 find
                 Caution
                 ;
                 the
                 sufficiency
                 whereof
                 ,
                 is
                 in
                 the
                 Magistrates
                 trust
                 .
                 And
                 among
                 the
                 Romans
                 ,
                 an
                 ordinar
                 ,
                 or
                 inferiour
                 Magistrate
                 or
                 his
                 Heirs
                 ,
                 were
                 lyable
                 ,
                 
                   pro
                   dolo
                   aut
                   lata
                   culpa
                
                 ;
                 if
                 the
                 Caution
                 taken
                 by
                 them
                 ,
                 was
                 not
                 found
                 sufficient
                 ,
                 
                   Tit.
                   ff
                   .
                   de
                   Magistratu
                   conveniendo
                
                 ;
                 but
                 not
                 the
                 greater
                 Magistrates
                 ,
                 as
                 the
                 Pretor
                 ,
                 or
                 President
                 ,
                 who
                 ,
                 through
                 the
                 eminency
                 of
                 their
                 Office
                 ,
                 could
                 not
                 so
                 particularly
                 know
                 ,
                 but
                 were
                 necessitat
                 to
                 trust
                 to
                 the
                 relation
                 of
                 others
                 ,
                 l.
                 1.
                 
                   ff
                   .
                   Tit.
                   eodem
                
                 ;
                 and
                 so
                 it
                 is
                 with
                 us
                 :
                 but
                 the
                 Datives
                 not
                 making
                 faith
                 ,
                 or
                 finding
                 Caution
                 ,
                 though
                 his
                 office
                 there
                 to
                 compel
                 him
                 ,
                 or
                 repell
                 him
                 from
                 authorizing
                 ,
                 or
                 acting
                 ;
                 yet
                 it
                 doth
                 not
                 annual
                 his
                 Office
                 ,
                 or
                 work
                 to
                 his
                 profite
                 ,
                 as
                 hath
                 been
                 said
                 of
                 the
                 Tutor
                 of
                 Law.
                 
              
               
                 12.
                 
                 These
                 that
                 act
                 as
                 Tutors
                 ,
                 not
                 knowing
                 but
                 that
                 they
                 are
                 such
                 ,
                 or
                 otherways
                 fraudulently
                 knowing
                 they
                 are
                 not
                 such
                 ,
                 are
                 therefore
                 called
                 Pro-tutors
                 ,
                 and
                 are
                 lyable
                 for
                 all
                 the
                 Duties
                 of
                 real
                 Tutors
                 ,
                 during
                 the
                 time
                 of
                 their
                 acting
                 ,
                 and
                 by
                 the
                 civil
                 Law
                 ,
                 they
                 were
                 lyable
                 to
                 make
                 up
                 his
                 Interest
                 ,
                 whom
                 by
                 fraud
                 they
                 had
                 deceived
                 ,
                 by
                 acting
                 as
                 Tutors
                 ,
                 
                   Tit.
                   ff
                   .
                   quod
                   falso
                   tut
                   .
                
                 whence
                 it
                 follows
                 ,
                 that
                 such
                 actings
                 were
                 void
                 ;
                 but
                 if
                 the
                 person
                 had
                 been
                 long
                 holden
                 ,
                 and
                 repute
                 Tutor
                 ,
                 the
                 deed
                 would
                 be
                 sustained
                 ,
                 unless
                 annulled
                 ,
                 because
                 of
                 the
                 Pupils
                 Lesion
                 ;
                 there
                 hath
                 no
                 Decision
                 occurred
                 with
                 us
                 ,
                 to
                 shew
                 whether
                 Pro-tutors
                 are
                 oblieged
                 for
                 their
                 intromission
                 only
                 ,
                 or
                 also
                 for
                 their
                 omission
                 :
                 but
                 a
                 case
                 lately
                 occurring
                 ,
                 the
                 Lords
                 thought
                 ,
                 that
                 upon
                 some
                 few
                 Acts
                 ,
                 this
                 would
                 not
                 be
                 inferred
                 ,
                 but
                 upon
                 an
                 universal
                 Acting
                 ,
                 or
                 express
                 ,
                 under
                 the
                 name
                 of
                 Tutor
                 ;
                 but
                 decided
                 not
                 ,
                 till
                 they
                 heard
                 the
                 parties
                 ,
                 
                   in
                   praesentia
                
                 ;
                 whereupon
                 ,
                 after
                 long
                 debate
                 ,
                 they
                 found
                 ,
                 that
                 an
                 Overseer
                 ,
                 acting
                 under
                 the
                 name
                 of
                 Tutor
                 (
                 but
                 by
                 a
                 false
                 designation
                 ,
                 contrair
                 the
                 Testament
                 )
                 should
                 be
                 lyable
                 only
                 for
                 such
                 kinds
                 of
                 things
                 ,
                 and
                 for
                 the
                 Annualrents
                 thereof
                 ,
                 as
                 he
                 intrometted
                 with
                 ,
                 for
                 seing
                 he
                 had
                 no
                 Law
                 ,
                 or
                 Custome
                 
                 regulating
                 the
                 case
                 ,
                 the
                 Defender
                 could
                 be
                 only
                 condemned
                 according
                 to
                 equity
                 ;
                 but
                 they
                 declared
                 ,
                 by
                 an
                 Act
                 of
                 Sederunt
                 ,
                 that
                 whosoever
                 in
                 time
                 coming
                 ,
                 medled
                 with
                 Pupils
                 Means
                 or
                 Minors
                 ,
                 as
                 Pro-tutors
                 ,
                 or
                 Pro-curators
                 ,
                 should
                 be
                 lyable
                 from
                 henceforth
                 ,
                 as
                 Tutors
                 or
                 Curators
                 ,
                 for
                 intromission
                 and
                 omission
                 ,
                 June
                 10.
                 1665.
                 
                 
                   Swintoun
                   contra
                   Notman
                
                 .
              
               
                 13.
                 
                 Tutors
                 do
                 use
                 ordinarily
                 ,
                 to
                 name
                 Factors
                 ,
                 who
                 do
                 not
                 exoner
                 the
                 Tutors
                 of
                 any
                 of
                 their
                 Obligations
                 ,
                 but
                 both
                 the
                 Tutors
                 and
                 they
                 ,
                 as
                 the
                 Tutors
                 ,
                 are
                 lyable
                 to
                 the
                 Pupils
                 therein
                 ,
                 if
                 they
                 be
                 Factors
                 generally
                 ,
                 March
                 28.
                 1635.
                 
                 Laird
                 of
                 
                   Ludqhuairn
                   contra
                
                 Laird
                 of
                 
                   Haddo
                   ,
                   July
                
                 18.
                 1635.
                 
                 
                   Edmonstoun
                   contra
                   Edmonstoun
                
                 .
              
               
                 14.
                 
                 If
                 there
                 be
                 more
                 Tutors
                 nominat
                 ,
                 or
                 Dative
                 ,
                 and
                 no
                 quorum
                 exprest
                 ,
                 if
                 some
                 of
                 them
                 die
                 ,
                 the
                 Office
                 is
                 not
                 void
                 ,
                 but
                 the
                 rest
                 of
                 them
                 may
                 act
                 ,
                 and
                 so
                 it
                 was
                 found
                 in
                 Tutors
                 nominat
                 ,
                 Hope
                 Executours
                 ,
                 
                   Stuart
                   contra
                   Kirkwood
                
                 and
                 Moor.
                 The
                 like
                 ,
                 though
                 some
                 of
                 the
                 Tutors
                 accepted
                 not
                 ,
                 Hope
                 Tutors
                 
                   Ruthven
                   contra
                   Ibid.
                   George
                   Faside
                   contra
                   Edmonstoun
                   .
                   February
                
                 14.
                 1672.
                 
                 Mr.
                 
                   John
                   Eleis
                   contra
                
                 Mr.
                 
                   John
                   Scot.
                
                 But
                 a
                 Tutory
                 to
                 two
                 ,
                 bearing
                 to
                 them
                 joyntly
                 ,
                 was
                 found
                 void
                 by
                 the
                 death
                 of
                 either
                 ,
                 January
                 17.
                 1671.
                 
                 Drummond
                 of
                 
                   Ricartoun
                   contra
                
                 Feuars
                 of
                 Bothkennet
                 .
                 And
                 where
                 there
                 are
                 many
                 Tutors
                 nominat
                 ,
                 they
                 may
                 be
                 either
                 with
                 ,
                 or
                 without
                 a
                 quorum
                 ,
                 and
                 either
                 definitely
                 ,
                 or
                 by
                 a
                 distinct
                 division
                 ;
                 in
                 which
                 case
                 ,
                 each
                 are
                 but
                 lyable
                 for
                 their
                 own
                 division
                 ,
                 l.
                 2.
                 
                 
                   Cod.
                   de
                   dividen
                   .
                   tut
                
                 .
              
               
                 15.
                 
                 As
                 to
                 the
                 duties
                 of
                 Tutors
                 ,
                 they
                 are
                 alike
                 in
                 them
                 all
                 ;
                 and
                 the
                 first
                 is
                 the
                 custody
                 of
                 the
                 Pupils
                 Person
                 ,
                 wherein
                 a
                 Tutor
                 was
                 preferred
                 to
                 the
                 Pupils
                 Mother
                 ,
                 offering
                 to
                 entertain
                 him
                 gratis
                 ,
                 though
                 the
                 person
                 nearest
                 to
                 succeed
                 was
                 Married
                 upon
                 the
                 Tutors
                 Sister
                 ,
                 here
                 the
                 Tutor
                 was
                 nominat
                 ,
                 and
                 the
                 Mother
                 Married
                 ,
                 July
                 4.
                 1629.
                 
                 Laird
                 of
                 
                   Longshaw
                   contra
                   Moor.
                
                 The
                 like
                 ,
                 where
                 both
                 the
                 Tutor
                 and
                 the
                 Mother
                 offered
                 to
                 Aliment
                 the
                 Pupil
                 gratis
                 ;
                 but
                 the
                 Mothers
                 second
                 Husband
                 had
                 Apprized
                 the
                 Pupils
                 Lands
                 ,
                 and
                 the
                 Pupil
                 was
                 a
                 Lass
                 only
                 of
                 five
                 years
                 old
                 ,
                 
                   February
                   ult
                
                 .
                 1632.
                 
                 
                   Gordoun
                   contra
                   Corsan
                
                 .
                 A
                 Tutor
                 was
                 found
                 to
                 have
                 the
                 custody
                 of
                 his
                 Pupil
                 (
                 who
                 was
                 an
                 Heretrix
                 )
                 and
                 not
                 her
                 Mother
                 ,
                 though
                 she
                 offered
                 to
                 entertain
                 her
                 gratis
                 ,
                 being
                 Married
                 to
                 a
                 second
                 Husband
                 ,
                 February
                 5.
                 1675.
                 
                 
                   Foullartoun
                   contra
                
                 Lady
                 Boyne
                 .
                 Yea
                 ,
                 a
                 Tutor
                 obtained
                 his
                 Pupils
                 Person
                 ,
                 to
                 be
                 removed
                 from
                 her
                 Mother
                 ,
                 though
                 Unmarried
                 ,
                 at
                 the
                 Pupils
                 age
                 of
                 eleven
                 years
                 ,
                 albeit
                 the
                 Pupil
                 was
                 Valitudinary
                 ,
                 and
                 she
                 was
                 appointed
                 to
                 remain
                 with
                 one
                 of
                 her
                 Fathers
                 Friends
                 ,
                 to
                 the
                 effect
                 that
                 she
                 might
                 not
                 be
                 influenced
                 as
                 to
                 her
                 Marriage
                 ,
                 by
                 her
                 Mother
                 ,
                 or
                 her
                 Friends
                 ,
                 February
                 6.
                 1666.
                 
                 Laird
                 of
                 
                   Dury
                   contra
                
                 Lady
                 Dury
                 .
                 But
                 if
                 the
                 Tutor
                 be
                 immediately
                 to
                 succeed
                 to
                 the
                 Pupil
                 ,
                 he
                 hath
                 not
                 the
                 custody
                 of
                 his
                 person
                 ,
                 which
                 is
                 to
                 be
                 with
                 his
                 Mother
                 ,
                 or
                 some
                 other
                 person
                 ,
                 at
                 the
                 Arbitriment
                 of
                 the
                 Lords
                 ,
                 and
                 a
                 modification
                 for
                 the
                 Pupils
                 Aliment
                 ,
                 according
                 to
                 his
                 Means
                 ,
                 
                   Nic.
                   ubi
                   .
                   pupulli
                   .
                   Mary
                   Foulis
                   contra
                   Mcmath
                
                 ;
                 but
                 if
                 there
                 be
                 any
                 other
                 immediate
                 Successour
                 ,
                 though
                 the
                 Tutor
                 was
                 next
                 ,
                 he
                 had
                 the
                 custody
                 of
                 the
                 Pupils
                 Person
                 ,
                 
                   Ibid.
                   Forrester
                   contra
                   Smith
                
                 .
                 Of
                 old
                 ,
                 Tutors
                 were
                 excluded
                 by
                 the
                 Donators
                 of
                 Ward
                 ,
                 from
                 custody
                 of
                 the
                 Ward
                 Pupils
                 person
                 ,
                 January
                 15.
                 1549.
                 
                 Laird
                 of
                 
                   Achnames
                   contra
                
                 Laird
                 of
                 Elphingstoun
                 and
                 
                   Lethingtoun
                   .
                   March
                
                 16.
                 1565.
                 
                 
                   Weir
                   contra
                   Lockart
                
                 .
                 And
                 July
                 1566.
                 
                 
                   George
                   Weir
                   contra
                
                 Laird
                 of
                 
                   Lee.
                   Spots
                   .
                   hic
                   .
                   Hamiltoun
                   contra
                
                 Laird
                 of
                 Gaustoun
                 .
                 Since
                 ,
                 the
                 Tutor
                 and
                 the
                 Pupils
                 Mother
                 ,
                 having
                 license
                 from
                 him
                 ,
                 were
                 preferred
                 to
                 the
                 custody
                 of
                 the
                 Pupils
                 Person
                 ,
                 to
                 the
                 Donator
                 of
                 his
                 Ward
                 ,
                 
                   Nic.
                   ubi
                   pupulli
                   morari
                
                 ,
                 Mr.
                 
                   James
                   Chalmers
                   contra
                   Elizabeth
                   Houstoun
                
                 .
              
               
               
                 The
                 next
                 duty
                 of
                 Tutors
                 ,
                 is
                 ,
                 to
                 authorize
                 the
                 Pupil
                 in
                 Actions
                 of
                 Law
                 ,
                 which
                 ,
                 though
                 it
                 be
                 done
                 ordinarily
                 by
                 all
                 the
                 Tutors
                 ,
                 when
                 they
                 are
                 more
                 ,
                 yet
                 one
                 of
                 three
                 was
                 admitted
                 to
                 authorize
                 a
                 Pupil
                 ,
                 in
                 a
                 pursuit
                 against
                 the
                 other
                 two
                 ,
                 to
                 accept
                 or
                 renounce
                 ,
                 though
                 they
                 were
                 all
                 named
                 jointly
                 ,
                 March
                 8.
                 1628.
                 
                 Moor
                 and
                 
                   Thomson
                   contra
                   Kincaid
                
                 .
              
               
                 Tutors
                 or
                 their
                 Factors
                 ,
                 are
                 presumed
                 to
                 do
                 that
                 to
                 the
                 behove
                 of
                 the
                 Pupil
                 ,
                 which
                 they
                 ought
                 to
                 do
                 ;
                 and
                 though
                 it
                 be
                 done
                 ,
                 
                   proprio
                   nomine
                
                 ,
                 it
                 accresceth
                 to
                 the
                 Pupil
                 ,
                 July
                 18.
                 1635.
                 
                 
                   Edmonstoun
                   contra
                   Edmonstoun
                
                 ;
                 and
                 so
                 a
                 Tack
                 of
                 the
                 Pupils
                 Rents
                 ,
                 taken
                 by
                 the
                 Tutors
                 Factor
                 to
                 himself
                 ,
                 and
                 his
                 Wife
                 in
                 Liferent
                 ,
                 was
                 found
                 to
                 accress
                 to
                 the
                 Pupil
                 ,
                 except
                 as
                 to
                 the
                 Wifes
                 Liferent-lands
                 ,
                 March
                 28.
                 1632.
                 
                 Laird
                 of
                 
                   Ludquharn
                   contra
                
                 Laird
                 of
                 Haddo
                 ,
                 this
                 is
                 presumed
                 ,
                 
                   prasumptione
                   juris
                
                 ;
                 so
                 that
                 the
                 Narrative
                 bearing
                 another
                 clause
                 is
                 not
                 respected
                 :
                 and
                 therefore
                 ,
                 a
                 Tutor
                 acquiring
                 a
                 Discharge
                 ,
                 or
                 Assignation
                 of
                 an
                 Annualrent
                 due
                 by
                 the
                 Pupil
                 to
                 his
                 Mother
                 ,
                 the
                 same
                 was
                 found
                 to
                 accress
                 to
                 the
                 Pupil
                 ,
                 though
                 it
                 bore
                 love
                 and
                 favour
                 ,
                 and
                 for
                 the
                 Tutors
                 pains
                 ,
                 and
                 discharging
                 the
                 Office
                 ,
                 March
                 15.
                 1629.
                 
                 
                   White
                   contra
                   Dowglas
                   .
                   Hope
                
                 ,
                 Tutors
                 ,
                 
                   Duer
                   contra
                   Duer
                
                 .
                 Neither
                 hath
                 the
                 Tutor
                 ordinarily
                 Action
                 against
                 the
                 Pupil
                 ,
                 till
                 his
                 Office
                 end
                 ,
                 and
                 then
                 he
                 may
                 pursue
                 as
                 a
                 stranger
                 ,
                 
                   Hope
                   ,
                   de
                   Minoribus
                   ,
                   Nasmith
                   contra
                   Nasmith
                   :
                
                 likewise
                 ,
                 he
                 may
                 Apprize
                 the
                 Pupils
                 Lands
                 for
                 his
                 own
                 debt
                 ,
                 the
                 Pupil
                 having
                 other
                 Tutors
                 ,
                 
                   Hope
                   ,
                   de
                   haeredibus
                   ,
                   White
                   contra
                   Calderwood
                   .
                
                 So
                 a
                 Tutrix
                 nominat
                 ,
                 
                   sine
                   qua
                   non
                
                 ,
                 was
                 admitted
                 to
                 pursue
                 a
                 Registration
                 of
                 her
                 Contract
                 of
                 Marriage
                 against
                 her
                 Pupil
                 ,
                 there
                 being
                 more
                 Tutors
                 nominat
                 ,
                 and
                 she
                 having
                 renounced
                 her
                 Office
                 ,
                 though
                 she
                 had
                 acted
                 by
                 subscribing
                 deeds
                 not
                 hurtful
                 to
                 the
                 Pupil
                 ,
                 July
                 30.
                 1625.
                 
                 Lady
                 
                   Stanyhill
                   contra
                
                 her
                 Son.
                 
              
               
                 18.
                 
                 Tutors
                 may
                 only
                 do
                 necessar
                 deeds
                 for
                 their
                 Pupils
                 ,
                 either
                 such
                 as
                 the
                 Pupil
                 is
                 oblieged
                 to
                 do
                 ,
                 as
                 payment
                 of
                 his
                 debts
                 ,
                 which
                 the
                 Tutor
                 may
                 do
                 willingly
                 ,
                 without
                 compulsion
                 of
                 Law
                 ,
                 or
                 otherwise
                 ,
                 deeds
                 necessar
                 for
                 mannaging
                 of
                 his
                 Estate
                 ,
                 and
                 setting
                 of
                 his
                 Lands
                 ,
                 or
                 labouring
                 the
                 same
                 ,
                 uplifting
                 his
                 Rents
                 and
                 Annualrents
                 ,
                 uplifting
                 the
                 Sums
                 that
                 are
                 not
                 secured
                 ;
                 carrying
                 on
                 any
                 Work
                 which
                 was
                 left
                 to
                 the
                 Pupil
                 ,
                 which
                 cannot
                 otherwise
                 be
                 disposed
                 of
                 :
                 but
                 Tutors
                 cannot
                 sell
                 the
                 Lands
                 or
                 Heretable
                 Rights
                 of
                 their
                 Minors
                 ,
                 without
                 an
                 interveening
                 Decreet
                 of
                 a
                 Judge
                 ,
                 
                   Tit.
                   ff
                   .
                   de
                   rebus
                   eorum
                   qui
                   sub
                   tutela
                   ,
                   &c.
                   
                
                 And
                 any
                 such
                 Alienation
                 is
                 null
                 ,
                 without
                 the
                 Cognition
                 aforesaid
                 ,
                 which
                 must
                 be
                 ,
                 by
                 calling
                 the
                 Creditors
                 of
                 the
                 Pupil
                 ,
                 and
                 his
                 nearest
                 Friends
                 ,
                 to
                 hear
                 and
                 see
                 it
                 found
                 ,
                 that
                 there
                 is
                 a
                 necessity
                 to
                 sell
                 the
                 whole
                 ,
                 or
                 a
                 part
                 of
                 his
                 Heretable
                 Rights
                 ,
                 and
                 that
                 the
                 rate
                 thereof
                 may
                 be
                 determined
                 ;
                 in
                 which
                 it
                 must
                 appear
                 ,
                 that
                 the
                 Pupils
                 debt
                 cannot
                 otherways
                 be
                 satisfied
                 .
                 The
                 Law
                 allows
                 the
                 like
                 ,
                 in
                 the
                 case
                 of
                 the
                 Pupils
                 Aliment
                 ,
                 which
                 cannot
                 be
                 afforded
                 otherways
                 ;
                 Alienations
                 so
                 made
                 ,
                 are
                 not
                 easily
                 reduceable
                 ,
                 or
                 the
                 Pupil
                 or
                 Minor
                 restored
                 against
                 the
                 same
                 ,
                 if
                 the
                 true
                 cause
                 hath
                 been
                 known
                 to
                 the
                 Judge
                 ,
                 but
                 not
                 so
                 ,
                 if
                 that
                 hath
                 been
                 latent
                 ,
                 either
                 dolo
                 or
                 
                   lata
                   culpa
                   ,
                   l.
                
                 11.
                 
                 
                   Cod.
                   de
                   praed
                   .
                   minor
                   non
                   alien
                   .
                
                 And
                 therefore
                 ,
                 a
                 Tutors
                 Assignation
                 of
                 his
                 Sons
                 and
                 Pupils
                 Mails
                 and
                 Duties
                 ,
                 for
                 the
                 Tutors
                 own
                 debt
                 ,
                 was
                 found
                 null
                 by
                 exception
                 ,
                 even
                 at
                 the
                 Pupils
                 Tennants
                 Instance
                 ,
                 Spots
                 .
                 Assignation
                 ,
                 Lands
                 contra
                 Lands
                 ;
                 yet
                 a
                 Tutors
                 ratification
                 of
                 a
                 reduceable
                 Decreet
                 given
                 against
                 his
                 Minor
                 ,
                 was
                 found
                 valide
                 ,
                 though
                 voluntar
                 ,
                 being
                 
                   in
                   re
                   antiqua
                   ,
                   Spots
                
                 .
                 Tutors
                 ,
                 Earl
                 of
                 
                   Kinghorn
                   contra
                   George
                   Strang.
                
                 
              
               
                 19.
                 
                 Tutors
                 and
                 Pro-tutors
                 are
                 lyable
                 for
                 Annualrents
                 of
                 their
                 Pupils
                 Moneys
                 ,
                 which
                 they
                 are
                 oblieged
                 to
                 make
                 profitable
                 ,
                 in
                 so
                 far
                 as
                 they
                 are
                 either
                 liquid
                 Sums
                 ,
                 that
                 they
                 had
                 ,
                 
                   in
                   specie
                
                 ,
                 or
                 which
                 the
                 Tutors
                 took
                 up
                 ,
                 which
                 was
                 
                 made
                 up
                 of
                 their
                 Pupils
                 Moveables
                 ,
                 or
                 Rents
                 of
                 Lands
                 ,
                 after
                 a
                 Term
                 ,
                 in
                 Money
                 Rent
                 ,
                 and
                 a
                 year
                 ,
                 in
                 Victual
                 ,
                 from
                 the
                 Term
                 of
                 payment
                 ,
                 in
                 so
                 far
                 as
                 it
                 is
                 not
                 imployed
                 for
                 their
                 own
                 use
                 ,
                 or
                 profitably
                 for
                 paying
                 of
                 their
                 Debts
                 or
                 Annualrents
                 ,
                 Alimenting
                 them
                 ,
                 or
                 other
                 uses
                 necessar
                 ,
                 according
                 to
                 the
                 ancient
                 Law
                 of
                 the
                 Romans
                 ,
                 which
                 oblieged
                 the
                 Tutor
                 ,
                 after
                 he
                 had
                 the
                 Money
                 two
                 Moneths
                 in
                 his
                 hands
                 ;
                 but
                 the
                 Novel
                 Constitutions
                 ,
                 Novel
                 .
                 72.
                 cap.
                 6.
                 
                   de
                   administrat
                   .
                   pecun
                   .
                   pupilli
                   ,
                   &c.
                
                 it
                 is
                 left
                 to
                 the
                 Arbitriment
                 of
                 the
                 Tutor
                 ,
                 either
                 to
                 keep
                 the
                 Pupils
                 Money
                 by
                 him
                 ,
                 or
                 to
                 imploy
                 it
                 for
                 profite
                 :
                 but
                 it
                 is
                 not
                 so
                 by
                 our
                 Custome
                 ,
                 Annualrent
                 is
                 due
                 ,
                 even
                 after
                 the
                 Office
                 is
                 extinct
                 by
                 Marriage
                 ,
                 the
                 Tutrix
                 having
                 continued
                 her
                 intromission
                 ,
                 though
                 there
                 were
                 other
                 Tutors
                 ,
                 July
                 17.
                 1630.
                 
                 
                   Vallange
                   contra
                   Kincaid
                
                 ,
                 but
                 not
                 for
                 Annual
                 of
                 the
                 Pupils
                 Annualrent
                 ,
                 though
                 the
                 Tutor
                 received
                 the
                 same
                 ,
                 and
                 they
                 were
                 great
                 ,
                 July
                 18.
                 1629.
                 
                 
                   Nasmith
                   contra
                   Nasmith
                
                 .
                 But
                 it
                 was
                 lately
                 found
                 ,
                 that
                 a
                 Tutor
                 by
                 his
                 Office
                 and
                 Diligence
                 ,
                 was
                 oblieged
                 to
                 lift
                 and
                 imploy
                 the
                 Pupils
                 Annualrents
                 of
                 sums
                 in
                 secure
                 hands
                 ,
                 once
                 in
                 his
                 Tutory
                 ,
                 and
                 so
                 pay
                 Annual
                 for
                 the
                 Annualrents
                 of
                 his
                 Pupils
                 Sums
                 ,
                 omitted
                 to
                 be
                 uplifted
                 by
                 him
                 ,
                 but
                 only
                 from
                 the
                 expiring
                 of
                 the
                 Tutory
                 ,
                 January
                 27.
                 1665.
                 
                 Mr.
                 
                   William
                   Kintor
                
                 Advocat
                 
                   contra
                   John
                   Boid
                
                 .
                 So
                 a
                 Tutor
                 was
                 found
                 lyable
                 for
                 the
                 Annualrent
                 of
                 his
                 Pupils
                 Annualrent
                 ,
                 within
                 a
                 year
                 after
                 his
                 acceptance
                 ,
                 but
                 not
                 for
                 the
                 current
                 Annualrent
                 ,
                 during
                 the
                 Tutory
                 ,
                 he
                 leaving
                 the
                 same
                 imployed
                 for
                 Annualrent
                 ,
                 at
                 the
                 Ishe
                 thereof
                 ,
                 February
                 27.
                 1673.
                 
                 
                   Isobel
                   Dowglas
                   contra
                   John
                   Gray
                
                 .
                 A
                 Tutors
                 Heir
                 being
                 Minor
                 ,
                 found
                 not
                 lyable
                 ,
                 but
                 only
                 for
                 Annual
                 after
                 the
                 intenting
                 of
                 the
                 Cause
                 ,
                 the
                 pursuer
                 being
                 silent
                 twenty
                 five
                 years
                 ,
                 February
                 22.
                 1634.
                 
                 
                   Davidson
                   contra
                   Jack
                
                 .
                 Neither
                 was
                 the
                 Heir
                 found
                 lyable
                 for
                 Annualrent
                 ,
                 where
                 the
                 Father
                 died
                 during
                 his
                 Tutory
                 ,
                 
                   Hope
                   ,
                   de
                   haered
                   .
                   Graham
                   contra
                   Crichtoun
                   .
                   January
                
                 21.
                 1665.
                 
                 
                   Kintor
                   contra
                   Boyd
                
                 .
              
               
                 20.
                 
                 Tutors
                 are
                 lyable
                 for
                 their
                 Minors
                 ,
                 and
                 must
                 be
                 conveened
                 with
                 them
                 by
                 their
                 Creditors
                 ,
                 for
                 their
                 interest
                 ,
                 and
                 are
                 also
                 decerned
                 with
                 them
                 for
                 their
                 interest
                 ;
                 upon
                 which
                 Decreets
                 ,
                 personal
                 execution
                 is
                 competent
                 against
                 Tutors
                 ,
                 for
                 any
                 deed
                 prestable
                 by
                 them
                 ,
                 by
                 their
                 Office
                 ;
                 for
                 example
                 ,
                 he
                 may
                 be
                 compelled
                 to
                 receive
                 a
                 Vassal
                 ,
                 whom
                 the
                 Pupils
                 Predecessour
                 was
                 oblieged
                 to
                 receive
                 ;
                 or
                 grant
                 a
                 Tack
                 of
                 Lands
                 ,
                 or
                 a
                 Charter
                 ,
                 or
                 Seasing
                 ,
                 where
                 there
                 hath
                 been
                 a
                 Disposition
                 before
                 ;
                 but
                 in
                 Decreets
                 for
                 payment
                 of
                 liquid
                 Sums
                 ,
                 Execution
                 cannot
                 be
                 made
                 against
                 the
                 Means
                 of
                 Tutors
                 ,
                 unless
                 they
                 be
                 specially
                 decerned
                 ,
                 to
                 make
                 forth-coming
                 so
                 much
                 of
                 the
                 Pupils
                 Means
                 ,
                 as
                 they
                 have
                 in
                 their
                 hands
                 ,
                 for
                 satisfying
                 of
                 the
                 Debt
                 ,
                 in
                 whole
                 or
                 in
                 part
                 ;
                 which
                 ,
                 though
                 it
                 be
                 oft
                 done
                 by
                 a
                 second
                 Process
                 ,
                 yet
                 may
                 be
                 a
                 distinct
                 member
                 of
                 the
                 first
                 ,
                 or
                 by
                 way
                 of
                 special
                 Charge
                 ,
                 in
                 the
                 discussing
                 of
                 a
                 Suspension
                 ,
                 raised
                 by
                 the
                 Tutor
                 against
                 Creditors
                 ,
                 on
                 that
                 or
                 other
                 grounds
                 .
                 But
                 the
                 Tutors
                 oath
                 was
                 not
                 sustained
                 ,
                 to
                 prove
                 against
                 the
                 Pupil
                 ,
                 an
                 agreement
                 made
                 by
                 the
                 Defunct
                 ,
                 though
                 there
                 were
                 concurrent
                 probabilities
                 ,
                 and
                 testificates
                 ,
                 December
                 11.
                 1664.
                 
                 
                   Eleis
                   contra
                   Eleis
                
                 ;
                 yet
                 the
                 Tutors
                 Oath
                 was
                 sustained
                 against
                 the
                 Pupil
                 ,
                 as
                 to
                 the
                 Tutors
                 intromission
                 ,
                 in
                 name
                 of
                 the
                 Pupil
                 ,
                 that
                 being
                 
                   factum
                   proprium
                
                 ,
                 oblieging
                 also
                 himself
                 ,
                 and
                 yet
                 he
                 was
                 not
                 holden
                 as
                 confest
                 ,
                 as
                 being
                 a
                 party
                 ,
                 but
                 was
                 compelled
                 to
                 Depone
                 by
                 Caption
                 ,
                 June
                 27.
                 1665.
                 
                 Mr.
                 
                   Walter
                   Cant
                   contra
                   James
                   Loch
                
                 .
              
               
                 21.
                 
                 The
                 last
                 duty
                 of
                 Tutors
                 ,
                 is
                 to
                 make
                 an
                 accompt
                 ,
                 and
                 to
                 restore
                 ,
                 and
                 refound
                 ,
                 wherein
                 they
                 will
                 be
                 lyable
                 to
                 accompt
                 ,
                 and
                 satisfie
                 for
                 the
                 Pupils
                 whole
                 Means
                 and
                 Estate
                 ,
                 not
                 only
                 for
                 their
                 Intromission
                 ,
                 but
                 for
                 their
                 Omission
                 ,
                 and
                 for
                 such
                 diligence
                 as
                 they
                 use
                 in
                 their
                 own
                 Affairs
                 ,
                 which
                 seems
                 sufficient
                 in
                 Tutors
                 Testamentar
                 ,
                 seing
                 the
                 Office
                 is
                 gratuitous
                 ,
                 and
                 free
                 ,
                 and
                 not
                 
                 sought
                 by
                 them
                 ,
                 but
                 in
                 Tutors
                 of
                 Law
                 and
                 Dative
                 ,
                 who
                 ordinarily
                 seek
                 the
                 Office
                 ,
                 and
                 offer
                 themselves
                 ,
                 both
                 the
                 diligence
                 accustomed
                 by
                 provident
                 men
                 ,
                 and
                 such
                 as
                 they
                 use
                 in
                 their
                 own
                 Affairs
                 ,
                 may
                 be
                 justly
                 required
                 .
              
               
                 By
                 the
                 Law
                 ,
                 all
                 Tutors
                 were
                 lyable
                 ,
                 
                   pro
                   dolo
                   culpa
                   &
                   negligentia
                   ,
                   l.
                
                 33.
                 
                   de
                   Administratione
                   &
                   periculo
                   tutorum
                
                 ,
                 &c.
                 
              
               
                 22.
                 
                 That
                 Tutors
                 are
                 lyable
                 ,
                 not
                 only
                 for
                 what
                 they
                 did
                 intromet
                 ,
                 but
                 what
                 they
                 might
                 have
                 intrometted
                 with
                 by
                 diligence
                 ,
                 and
                 particularly
                 of
                 Rents
                 of
                 the
                 Pupils
                 Lands
                 ,
                 wherein
                 his
                 Predecessors
                 died
                 ,
                 infeft
                 and
                 in
                 possession
                 ,
                 though
                 the
                 Pupil
                 himself
                 was
                 not
                 infeft
                 ,
                 was
                 found
                 January
                 26.
                 1628.
                 
                 Commissar
                 of
                 
                   Dunkel
                   contra
                   Abercromby
                
                 .
                 Yet
                 a
                 Tutrix
                 found
                 only
                 lyable
                 for
                 her
                 intromission
                 ,
                 in
                 respect
                 she
                 continued
                 but
                 some
                 Moneths
                 ,
                 and
                 the
                 place
                 where
                 the
                 Minors
                 Goods
                 were
                 ,
                 was
                 infected
                 with
                 the
                 Plague
                 ,
                 
                   Hope
                   ,
                   de
                   tutoribus
                   ,
                   William
                   contra
                   Allan
                   Cathcart
                
                 ;
                 neither
                 was
                 a
                 Tutor
                 found
                 lyable
                 for
                 a
                 Sum
                 due
                 to
                 the
                 Pupil
                 ,
                 as
                 not
                 doing
                 diligence
                 by
                 Horning
                 and
                 Caption
                 for
                 uplifting
                 thereof
                 ,
                 unless
                 it
                 were
                 alledged
                 ,
                 that
                 by
                 diligence
                 he
                 might
                 have
                 recovered
                 it
                 ,
                 and
                 that
                 the
                 Debitor
                 was
                 become
                 worse
                 ,
                 July
                 2.
                 1628.
                 
                 
                   Hamiltoun
                   contra
                   Hamiltoun
                
                 .
                 The
                 like
                 ,
                 where
                 the
                 Tutor
                 offered
                 to
                 prove
                 by
                 the
                 Neighbourhead
                 ,
                 that
                 the
                 Debitor
                 during
                 his
                 Tutory
                 ,
                 was
                 repute
                 and
                 holden
                 insolvent
                 ,
                 February
                 6.
                 1623.
                 
                 
                   Watson
                   contra
                   Watson
                
                 .
              
               
                 23.
                 
                 Contutors
                 ,
                 both
                 by
                 the
                 Civil
                 Law
                 and
                 our
                 Custome
                 ,
                 are
                 lyable
                 ,
                 
                   in
                   solidum
                
                 ,
                 and
                 so
                 some
                 of
                 them
                 were
                 decerned
                 for
                 the
                 whole
                 ,
                 though
                 the
                 rest
                 were
                 not
                 conveened
                 ,
                 February
                 22.
                 1634.
                 
                 
                   Davidson
                   contra
                   Jack
                
                 ;
                 they
                 were
                 also
                 found
                 lyable
                 ,
                 
                   in
                   solidum
                
                 ,
                 though
                 they
                 had
                 divided
                 the
                 Tutory
                 among
                 themselves
                 ;
                 but
                 if
                 the
                 same
                 were
                 divided
                 by
                 the
                 Testatour
                 ,
                 or
                 a
                 Judge
                 ,
                 the
                 Tutors
                 are
                 only
                 lyable
                 for
                 their
                 share
                 ,
                 and
                 not
                 for
                 the
                 rest
                 ,
                 unless
                 they
                 have
                 by
                 Fraud
                 and
                 supine
                 negligence
                 ,
                 omitted
                 to
                 pursue
                 the
                 other
                 suspect
                 Tutors
                 to
                 be
                 removed
                 ,
                 l.
                 2.
                 
                 
                   Cod.
                   de
                   dividenda
                   tutela
                
                 .
                 The
                 benefit
                 of
                 the
                 order
                 of
                 discussing
                 ,
                 competent
                 of
                 the
                 Law
                 ,
                 whereby
                 the
                 Tutors
                 who
                 did
                 Administrate
                 ,
                 were
                 only
                 lyable
                 for
                 their
                 parts
                 ,
                 
                   primo
                   loco
                
                 ,
                 if
                 the
                 rest
                 were
                 solvendo
                 ,
                 l.
                 3.
                 
                 
                   C.
                   de
                   dividenda
                   tutela
                
                 ,
                 and
                 that
                 they
                 should
                 be
                 first
                 discust
                 ,
                 who
                 had
                 Administrate
                 and
                 intrometted
                 before
                 them
                 ,
                 who
                 had
                 neglected
                 or
                 forborn
                 ,
                 Ibid.
                 These
                 ,
                 our
                 Custome
                 followeth
                 not
                 ;
                 yet
                 a
                 Tutor
                 was
                 not
                 found
                 to
                 have
                 Interest
                 ,
                 to
                 cause
                 the
                 Con-tutors
                 find
                 Caution
                 to
                 warrand
                 him
                 for
                 their
                 acting
                 without
                 him
                 ,
                 or
                 against
                 his
                 mind
                 where
                 they
                 did
                 out-vote
                 him
                 ,
                 or
                 else
                 to
                 quite
                 the
                 Tutory
                 ,
                 but
                 was
                 left
                 to
                 his
                 ordinary
                 course
                 ,
                 to
                 remove
                 them
                 if
                 they
                 malversed
                 ,
                 June
                 27.
                 1672.
                 
                 Mr.
                 
                   James
                   Stirling
                   contra
                
                 his
                 Con-tutors
                 .
              
               
                 Tutory
                 is
                 finished
                 ,
                 First
                 ,
                 by
                 death
                 either
                 of
                 Tutor
                 or
                 Pupil
                 .
                 Secondly
                 ,
                 By
                 the
                 Marriage
                 of
                 a
                 Tutrix
                 Testamentar
                 ,
                 which
                 no
                 provision
                 ,
                 even
                 of
                 the
                 Testator
                 can
                 dispense
                 with
                 .
                 Thirdly
                 ,
                 By
                 the
                 Tutors
                 renouncing
                 the
                 Office
                 ;
                 after
                 which
                 ,
                 though
                 he
                 were
                 Tutor
                 Testamentar
                 ,
                 he
                 cannot
                 resume
                 the
                 Office
                 ,
                 July
                 6.
                 1627.
                 
                 
                   Campbel
                   contra
                   Campbel
                
                 ;
                 but
                 forbearance
                 for
                 six
                 or
                 seven
                 years
                 doth
                 not
                 extinguish
                 the
                 Office
                 of
                 a
                 Tutor
                 Testamentar
                 ,
                 by
                 the
                 former
                 Decisions
                 .
                 The
                 like
                 ,
                 December
                 17.
                 1631.
                 
                 
                   Auchterlonie
                   contra
                   Oliphant
                   .
                   Fourthly
                
                 ,
                 By
                 Fury
                 ,
                 Lethargy
                 ,
                 or
                 any
                 natural
                 defect
                 of
                 the
                 Tutor
                 ,
                 rendring
                 him
                 unable
                 to
                 exercise
                 his
                 Office.
                 Fifthly
                 ,
                 And
                 most
                 ordinarily
                 ,
                 by
                 the
                 Pupils
                 running
                 his
                 Pupilarity
                 ,
                 which
                 in
                 Men
                 is
                 fourteen
                 years
                 ,
                 and
                 in
                 Women
                 twelve
                 .
                 But
                 if
                 the
                 Tutors
                 continue
                 to
                 act
                 till
                 Majority
                 ,
                 they
                 are
                 lyable
                 as
                 Curators
                 ;
                 yet
                 the
                 express
                 Appointment
                 of
                 the
                 Defunct
                 ,
                 that
                 the
                 Tutors
                 continue
                 Curators
                 ,
                 cannot
                 extend
                 the
                 Tutory
                 after
                 Pupilarity
                 ,
                 or
                 hinder
                 Election
                 of
                 Curators
                 ,
                 February
                 6.
                 1633.
                 
                 
                   Harper
                   contra
                   Hamiltoun
                
                 .
              
               
                 Tutors
                 or
                 Curators
                 appointed
                 to
                 furious
                 Persons
                 ,
                 their
                 Office
                 ceaseth
                 ,
                 when
                 
                 the
                 fury
                 fully
                 ceaseth
                 ;
                 for
                 though
                 they
                 have
                 Lucide
                 Intervals
                 ,
                 in
                 which
                 ,
                 acts
                 done
                 by
                 them
                 ,
                 without
                 their
                 Tutors
                 ,
                 are
                 valide
                 ;
                 yet
                 their
                 Tutory
                 ceaseth
                 not
                 ,
                 as
                 to
                 the
                 Acts
                 done
                 in
                 their
                 Furiosity
                 .
              
               
                 25.
                 
                 The
                 Tutory
                 appointed
                 to
                 Idiots
                 and
                 Furious
                 Persons
                 ,
                 is
                 prescribed
                 by
                 Act
                 of
                 Parliament
                 ,
                 1585.
                 cap.
                 18.
                 
                 
                   Whereby
                   the
                   nearest
                   Agnats
                   or
                   Kinsmen
                   of
                   Natural
                   Fools
                   ,
                   Idiots
                   ,
                   or
                   Furious
                   Persons
                   ,
                   should
                   be
                   served
                   ,
                   received
                   ,
                   and
                   preferred
                   to
                   their
                   Tutory
                   and
                   Curatory
                   ,
                   according
                   to
                   the
                   Common
                   Law
                
                 ;
                 where
                 ,
                 by
                 the
                 Common
                 Law
                 ,
                 the
                 Civil
                 Law
                 is
                 understood
                 ,
                 and
                 though
                 the
                 Act
                 seems
                 only
                 to
                 hold
                 out
                 Tutors
                 of
                 Law
                 ,
                 where
                 any
                 are
                 served
                 ;
                 yet
                 seing
                 it
                 is
                 according
                 to
                 the
                 disposition
                 of
                 the
                 Civil
                 Law
                 ,
                 it
                 excludes
                 not
                 Tutors
                 Testamentar
                 ,
                 during
                 such
                 persons
                 Pupilarity
                 ,
                 nor
                 Tutors
                 Dative
                 ,
                 if
                 the
                 nearest
                 Agnat
                 serve
                 not
                 :
                 but
                 ordinarily
                 the
                 Tutors
                 of
                 Idiots
                 ,
                 are
                 the
                 Tutors
                 of
                 Law.
                 This
                 Act
                 by
                 Custome
                 is
                 extended
                 to
                 Deaf
                 and
                 Dumb
                 Persons
                 ,
                 though
                 they
                 be
                 not
                 expressed
                 who
                 have
                 Tutors
                 in
                 the
                 same
                 manner
                 ,
                 albeit
                 they
                 have
                 sufficient
                 Judgement
                 ,
                 since
                 they
                 cannot
                 act
                 by
                 it
                 .
              
               
                 26.
                 
                 When
                 Tutory
                 is
                 ended
                 ,
                 whatsoever
                 the
                 Tutor
                 Acted
                 in
                 name
                 of
                 the
                 Pupil
                 ,
                 the
                 Pupil
                 hath
                 thereupon
                 Action
                 ,
                 as
                 if
                 it
                 had
                 been
                 done
                 by
                 himself
                 ,
                 l.
                 2.
                 
                   ff
                   .
                   quando
                   ex
                   facto
                   tutaris
                   ,
                
                 so
                 whatever
                 was
                 decerned
                 against
                 the
                 Tutor
                 ,
                 
                   hoc
                   nomine
                
                 ,
                 ceaseth
                 when
                 the
                 Tutory
                 is
                 ended
                 ,
                 
                   l.
                   fin
                   .
                   C.
                   de
                   per.
                   tut
                   .
                
                 and
                 the
                 Action
                 is
                 competent
                 against
                 the
                 Pupil
                 ;
                 as
                 likewise
                 ,
                 if
                 the
                 Pupil
                 be
                 advantaged
                 by
                 the
                 Fraud
                 of
                 the
                 Tutor
                 ,
                 he
                 may
                 be
                 therefore
                 conveened
                 ,
                 l.
                 3.
                 
                   ff
                   .
                   quando
                   ex
                   facto
                   tutoris
                   .
                
              
               
                 27.
                 
                 Lastly
                 ,
                 Tutory
                 ceaseth
                 by
                 the
                 Action
                 of
                 removing
                 suspect
                 Tutors
                 ,
                 which
                 is
                 a
                 popular
                 Action
                 competent
                 to
                 any
                 ,
                 l.
                 1.
                 
                 §
                 :
                 6.
                 ff
                 .
                 3.
                 
                 
                   Inst.
                   de
                   susp
                   .
                   tut
                
                 .
                 but
                 ordinarily
                 ,
                 it
                 is
                 done
                 by
                 the
                 Overseers
                 ,
                 Mothers
                 ,
                 or
                 Friends
                 of
                 the
                 Pupil
                 ,
                 or
                 by
                 the
                 other
                 Tutors
                 :
                 the
                 grounds
                 thereof
                 ,
                 are
                 not
                 only
                 his
                 Malversation
                 :
                 and
                 it
                 was
                 found
                 a
                 Malversation
                 that
                 the
                 Tutor
                 had
                 not
                 made
                 Inventar
                 ,
                 conform
                 to
                 the
                 late
                 Act
                 of
                 Parliament
                 ,
                 July
                 7.
                 1680.
                 
                 Mr.
                 
                   Alexander
                   Gibson
                   contra
                
                 Lord
                 Dunkel
                 and
                 Sir
                 
                   James
                   Thomson
                
                 ;
                 but
                 any
                 thing
                 incident
                 ,
                 or
                 appearing
                 to
                 weaken
                 his
                 trust
                 ,
                 as
                 if
                 he
                 become
                 insolvent
                 ,
                 or
                 his
                 Cautioner
                 become
                 such
                 .
              
               
                 After
                 Tutory
                 is
                 ended
                 ,
                 the
                 Tutor
                 hath
                 no
                 Action
                 against
                 his
                 Pupil
                 ,
                 
                   ante
                   redditas
                   rationes
                
                 ,
                 till
                 he
                 make
                 his
                 Accompts
                 ,
                 July
                 24.
                 1662.
                 
                 Mr.
                 
                   James
                   Cranstoun
                   contra
                
                 Earl
                 of
                 Wintoun
                 :
                 Neither
                 hath
                 the
                 Tutors
                 Assignay
                 ,
                 Action
                 against
                 the
                 Pupil
                 before
                 the
                 Tutor
                 Compts
                 be
                 made
                 ,
                 albeit
                 Assigned
                 to
                 a
                 Liquid
                 Sum
                 ,
                 unless
                 the
                 Assignay
                 had
                 found
                 Caution
                 for
                 the
                 Tutor
                 ,
                 January
                 24.
                 1662.
                 
                 Mr.
                 
                   James
                   Ramsay
                   contra
                
                 Earl
                 of
                 Wintoun
                 .
                 Neither
                 for
                 the
                 same
                 reason
                 had
                 the
                 Tutors
                 Assignay
                 ,
                 Action
                 against
                 the
                 Pupil
                 as
                 Heir
                 to
                 his
                 Father
                 ,
                 though
                 it
                 was
                 ten
                 years
                 since
                 the
                 Pupilarity
                 past
                 ,
                 July
                 7.
                 1676.
                 
                 
                   Spence
                   contra
                   Scot.
                
                 But
                 a
                 Tutor
                 was
                 not
                 found
                 lyable
                 for
                 the
                 Services
                 he
                 got
                 of
                 the
                 Pupils
                 Tennants
                 in
                 kind
                 ,
                 January
                 11.
                 1668.
                 
                 
                   Grant
                   contra
                   Grant.
                
                 Yea
                 ,
                 a
                 Tutor
                 having
                 counted
                 ,
                 and
                 given
                 Bond
                 for
                 the
                 Ballance
                 ,
                 being
                 charged
                 with
                 other
                 Articles
                 ,
                 though
                 these
                 were
                 not
                 instantly
                 Liquidat
                 ,
                 yet
                 the
                 Extract
                 of
                 a
                 Decreet
                 upon
                 the
                 Bond
                 was
                 stopped
                 for
                 a
                 time
                 ,
                 till
                 the
                 additional
                 Articles
                 should
                 be
                 closed
                 ,
                 but
                 the
                 Bond
                 was
                 not
                 reduced
                 ,
                 as
                 being
                 
                   in
                   confinio
                   minoris
                   aetatis
                   ,
                   &
                   anteredditas
                   rationes
                   ,
                   December
                
                 5.
                 1671.
                 
                 Mr.
                 
                   George
                   Scot
                   contra
                
                 Mr.
                 
                   John
                   Elleis
                
                 .
                 In
                 the
                 Tutors
                 Accounts
                 ,
                 it
                 was
                 a
                 sufficient
                 instruction
                 of
                 an
                 Article
                 of
                 the
                 Charge
                 ,
                 a
                 Bond
                 due
                 to
                 the
                 Defunct
                 ,
                 produced
                 by
                 the
                 Pupil
                 :
                 Nor
                 was
                 the
                 Tutor
                 liberat
                 ,
                 upon
                 alledging
                 he
                 knew
                 not
                 of
                 it
                 ,
                 but
                 it
                 was
                 presumed
                 to
                 have
                 been
                 in
                 the
                 Charter
                 Chist
                 ,
                 unless
                 the
                 Tutor
                 could
                 instruct
                 ,
                 that
                 he
                 had
                 made
                 search
                 of
                 the
                 Charter
                 Chist
                 ,
                 and
                 neither
                 found
                 this
                 Bond
                 ,
                 nor
                 any
                 Inventar
                 relating
                 thereto
                 ;
                 but
                 the
                 Tutor
                 was
                 found
                 lyable
                 ,
                 though
                 the
                 Sum
                 was
                 lost
                 by
                 the
                 Debitors
                 becoming
                 Insolvent
                 during
                 the
                 Tutory
                 ,
                 
                 June
                 24.
                 1680.
                 
                 
                   William
                   Cleiland
                   contra
                
                 Laird
                 of
                 Lamingtoun
                 .
                 Neither
                 did
                 a
                 Tutor
                 get
                 any
                 further
                 allowance
                 for
                 his
                 Pupils
                 Maintainance
                 ,
                 then
                 the
                 Annualrent
                 of
                 his
                 Stock
                 ,
                 though
                 he
                 expended
                 more
                 ,
                 November
                 17.
                 1680.
                 
                 
                   William
                   Sandelands
                   contra
                   Patrick
                   Tailziefer
                
                 .
              
               
                 28.
                 
                 The
                 Reciprocal
                 Duty
                 of
                 Pupils
                 to
                 Tutors
                 after
                 their
                 Tutory
                 is
                 ended
                 ,
                 is
                 to
                 restore
                 and
                 make
                 up
                 to
                 them
                 whatsoever
                 they
                 wared
                 out
                 profitably
                 ,
                 or
                 is
                 so
                 wanting
                 to
                 them
                 by
                 that
                 Office
                 ,
                 wherein
                 the
                 Expences
                 of
                 obtaining
                 the
                 Tutory
                 it self
                 ,
                 will
                 be
                 a
                 part
                 ,
                 
                   Nic.
                   de
                   tut
                   .
                   Charters
                   contra
                   Mcmillan
                   .
                
                 But
                 Tutory
                 being
                 a
                 Free
                 Gratuitous
                 Office
                 ,
                 the
                 Pupils
                 are
                 not
                 lyable
                 to
                 their
                 Tutors
                 for
                 any
                 Allowance
                 ,
                 Sallary
                 ,
                 or
                 Satisfaction
                 for
                 their
                 Pains
                 ,
                 but
                 only
                 for
                 their
                 Expences
                 ,
                 
                   Nic.
                   de
                   tut
                
                 .
                 Tutors
                 of
                 
                   Bucleuch
                   contra
                
                 Earl
                 of
                 Bucleuch
                 .
              
               
                 29.
                 
                 Curatory
                 hath
                 such
                 a
                 resemblance
                 with
                 Tutory
                 ,
                 that
                 though
                 the
                 constitution
                 of
                 Curators
                 be
                 not
                 of
                 the
                 Law
                 of
                 Nature
                 ,
                 which
                 leaveth
                 all
                 persons
                 of
                 Discretion
                 free
                 ,
                 but
                 of
                 Positive
                 Law
                 ,
                 whereby
                 a
                 way
                 is
                 provided
                 for
                 the
                 Levity
                 and
                 Facility
                 of
                 Minors
                 ;
                 yet
                 to
                 shun
                 repetition
                 ,
                 it
                 will
                 be
                 most
                 proper
                 here
                 to
                 annex
                 that
                 Office
                 ,
                 and
                 the
                 Obligations
                 therefrom
                 ,
                 arising
                 betwixt
                 Curators
                 and
                 Minors
                 ;
                 and
                 in
                 these
                 ,
                 we
                 shall
                 touch
                 the
                 difference
                 betwixt
                 Tutors
                 and
                 Curatours
                 ,
                 supposing
                 the
                 rest
                 as
                 common
                 to
                 both
                 ,
                 which
                 is
                 chiefly
                 in
                 these
                 points
                 .
              
               
                 30.
                 
                 First
                 ,
                 In
                 the
                 Election
                 and
                 Constitution
                 of
                 Curatours
                 ,
                 which
                 is
                 done
                 by
                 way
                 of
                 Process
                 ,
                 at
                 the
                 Instance
                 of
                 the
                 Minor
                 ,
                 before
                 any
                 Judge
                 ordinary
                 whatsomever
                 ,
                 whereby
                 he
                 citeth
                 two
                 or
                 three
                 of
                 his
                 nearest
                 Kinsmen
                 ,
                 on
                 both
                 sides
                 ,
                 upon
                 nine
                 days
                 warning
                 ,
                 to
                 hear
                 Curatours
                 chosen
                 ,
                 Parliament
                 1555.
                 cap.
                 35.
                 and
                 all
                 others
                 having
                 interest
                 ,
                 generally
                 at
                 the
                 Mercat
                 Cross
                 ,
                 to
                 hear
                 and
                 sec
                 ,
                 Curatours
                 decerned
                 to
                 him
                 ,
                 and
                 it
                 is
                 in
                 his
                 option
                 whom
                 to
                 choose
                 ,
                 as
                 it
                 is
                 in
                 their
                 option
                 also
                 to
                 accept
                 ,
                 or
                 refuse
                 ,
                 he
                 may
                 also
                 make
                 any
                 number
                 a
                 quorum
                 ,
                 or
                 adject
                 auy
                 condition
                 he
                 thinks
                 fit
                 in
                 their
                 Election
                 ,
                 and
                 the
                 parties
                 compearing
                 ,
                 must
                 accept
                 and
                 make
                 Faith
                 ,
                 
                   de
                   fideli
                   administratione
                
                 ,
                 and
                 find
                 Caution
                 ;
                 Yet
                 where
                 some
                 of
                 the
                 Curators
                 Elected
                 ,
                 made
                 not
                 Faith
                 ,
                 but
                 all
                 finding
                 Caution
                 ,
                 the
                 Curatory
                 was
                 found
                 valid
                 ,
                 Hope
                 ,
                 Curators
                 
                   Paterson
                   contra
                   Wishart
                
                 ;
                 their
                 Acceptation
                 must
                 be
                 by
                 Subscribing
                 the
                 Act
                 of
                 Curatory
                 ,
                 specially
                 ,
                 if
                 the
                 Election
                 be
                 in
                 an
                 Inferiour
                 Court
                 ;
                 for
                 want
                 whereof
                 ,
                 an
                 Act
                 of
                 Curatory
                 before
                 the
                 Bailiffs
                 ,
                 was
                 found
                 null
                 ,
                 Hope
                 ,
                 Curatory
                 ,
                 
                   Sibbald
                   contra
                   Hay
                
                 and
                 Lindsay
                 .
                 Curatours
                 also
                 may
                 be
                 chosen
                 by
                 Procuratours
                 ,
                 without
                 the
                 Minors
                 presence
                 ,
                 so
                 that
                 the
                 Procuratorie
                 expresse
                 the
                 Curatours
                 Names
                 ,
                 Hope
                 ,
                 Curatours
                 ,
                 Marquess
                 of
                 
                   Hamiltoun
                   contra
                
                 his
                 Curatours
                 ;
                 yea
                 ,
                 being
                 done
                 in
                 England
                 ,
                 according
                 to
                 the
                 Custome
                 there
                 ,
                 it
                 is
                 sufficient
                 to
                 Authorize
                 the
                 Minors
                 Here
                 ,
                 
                   Hope
                   ,
                   tut
                   .
                   Posso
                   contra
                   Nasmith
                   .
                
                 Though
                 the
                 Minor
                 may
                 choose
                 Curatours
                 when
                 he
                 pleaseth
                 ,
                 yet
                 may
                 he
                 not
                 choose
                 Rebels
                 unrelaxed
                 ,
                 if
                 it
                 be
                 objected
                 ,
                 and
                 verified
                 at
                 the
                 Election
                 by
                 his
                 Friends
                 ,
                 July
                 4.
                 1629.
                 
                 Corbet
                 of
                 
                   Arbel
                   contra
                
              
               
                 31.
                 
                 Curatours
                 are
                 of
                 two
                 kinds
                 ,
                 
                   ad
                   lites
                
                 ,
                 and
                 
                   ad
                   negotia
                
                 ;
                 the
                 former
                 are
                 appointed
                 for
                 Authorizing
                 Judicially
                 in
                 Process
                 :
                 the
                 other
                 are
                 mainly
                 for
                 Extrajudicial
                 Affairs
                 ;
                 Curatours
                 ,
                 
                   ad
                   lites
                
                 ,
                 are
                 so
                 far
                 necessary
                 ,
                 that
                 they
                 must
                 be
                 given
                 by
                 the
                 Judge
                 ordinar
                 ,
                 before
                 whom
                 any
                 Action
                 is
                 pursued
                 ,
                 for
                 Authorizing
                 of
                 the
                 Minors
                 ,
                 either
                 Passive
                 or
                 Active
                 ;
                 and
                 they
                 will
                 be
                 given
                 upon
                 the
                 desire
                 of
                 the
                 other
                 party
                 .
                 Their
                 Office
                 seems
                 to
                 reach
                 no
                 further
                 ,
                 than
                 to
                 Faithfulness
                 and
                 Diligence
                 in
                 the
                 Processes
                 ,
                 whereunto
                 they
                 are
                 Elected
                 .
                 There
                 are
                 sometimes
                 ,
                 Curatours
                 named
                 to
                 Pupils
                 ,
                 to
                 supply
                 the
                 defect
                 of
                 their
                 Tutors
                 ,
                 as
                 if
                 their
                 Tutour
                 be
                 concerned
                 ,
                 or
                 be
                 absent
                 or
                 uncapable
                 to
                 Act
                 for
                 a
                 time
                 .
                 These
                 ,
                 though
                 for
                 a
                 distinction
                 from
                 Tutors
                 ,
                 they
                 be
                 
                 called
                 Curatours
                 ,
                 yet
                 their
                 Office
                 ,
                 
                   pro
                   tempore
                
                 ,
                 is
                 of
                 the
                 same
                 nature
                 with
                 Tutors
                 .
              
               
                 32.
                 
                 Curatours
                 ,
                 
                   ad
                   Negotia
                
                 ,
                 are
                 free
                 ,
                 and
                 in
                 the
                 Minors
                 option
                 ,
                 in
                 so
                 far
                 ,
                 that
                 a
                 Son
                 being
                 Minor
                 ,
                 and
                 choosing
                 Curators
                 without
                 the
                 Fathers
                 consent
                 ,
                 but
                 with
                 consent
                 of
                 his
                 Mothers
                 Father
                 ,
                 the
                 Curators
                 were
                 preferred
                 to
                 the
                 Father
                 as
                 lawful
                 Administratour
                 ;
                 but
                 here
                 the
                 Father
                 was
                 known
                 to
                 be
                 a
                 weak
                 Person
                 ,
                 and
                 to
                 have
                 Controversies
                 with
                 his
                 Son
                 ,
                 
                   Nic.
                   de
                   tut
                
                 .
                 Laird
                 of
                 
                   Barganie
                   contra
                
                 his
                 Son.
                 And
                 Curatours
                 must
                 be
                 freely
                 chosen
                 ,
                 that
                 though
                 the
                 Minors
                 Father
                 named
                 his
                 Tutor
                 expresly
                 to
                 continue
                 till
                 the
                 Pupils
                 Majority
                 ,
                 their
                 Office
                 was
                 found
                 not
                 to
                 hinder
                 the
                 Minors
                 to
                 choose
                 Curatours
                 ,
                 or
                 to
                 disown
                 his
                 Tutors
                 after
                 his
                 Pupilarity
                 ,
                 February
                 6.
                 1633.
                 
                 
                   Harper
                   contra
                   Hamiltoun
                
                 .
                 Minors
                 having
                 chosen
                 no
                 Curators
                 ,
                 are
                 in
                 the
                 same
                 condition
                 ;
                 for
                 extrajudicial
                 Acts
                 allone
                 ,
                 as
                 if
                 they
                 had
                 Curatours
                 ;
                 in
                 either
                 case
                 ,
                 the
                 deeds
                 are
                 revocable
                 ,
                 and
                 reduceable
                 upon
                 enorm
                 Laesion
                 .
              
               
                 33.
                 
                 But
                 if
                 once
                 they
                 choose
                 Curators
                 ,
                 all
                 deeds
                 done
                 by
                 them
                 ,
                 without
                 consent
                 of
                 their
                 Curatours
                 ,
                 are
                 
                   eo
                   ipso
                
                 ,
                 null
                 by
                 exception
                 ,
                 without
                 necessity
                 ,
                 to
                 〈◊〉
                 Lesion
                 ,
                 December
                 9.
                 1632.
                 
                 
                   Maxwel
                   contra
                
                 Earl
                 of
                 Nithisdail
                 ,
                 and
                 that
                 so
                 exactly
                 ,
                 that
                 the
                 Minority
                 was
                 counted
                 ,
                 
                   de
                   momento
                   in
                   momentum
                
                 ,
                 though
                 the
                 Minor
                 wanted
                 only
                 twelve
                 houres
                 of
                 twenty
                 one
                 years
                 ,
                 June
                 26.
                 1624.
                 
                 
                   Drummond
                   contra
                
                 Laird
                 of
                 Cunningham-head
                 ;
                 and
                 this
                 extended
                 to
                 a
                 Judicial
                 Act
                 ,
                 whereby
                 the
                 Minor
                 Acted
                 himself
                 Cautioner
                 ,
                 
                   Hope
                   de
                   Minoribus
                   ,
                   Paterson
                   contra
                   Wishart
                   :
                
                 and
                 extended
                 also
                 to
                 a
                 Minors
                 service
                 ,
                 without
                 consent
                 of
                 Curatours
                 ,
                 and
                 that
                 by
                 exception
                 ,
                 without
                 instructing
                 Lesion
                 ,
                 
                   Spots
                   .
                   de
                   mino
                   .
                   Simpson
                   contra
                
                 Laird
                 of
                 Balgane
                 ,
                 and
                 to
                 a
                 Tack
                 taken
                 by
                 the
                 Minor
                 without
                 consent
                 of
                 Curatours
                 ,
                 
                   Hope
                   ,
                   de
                   Minoribus
                   ,
                   Seaton
                   contra
                
                 Laird
                 of
                 Caskiben
                 ,
                 and
                 extended
                 to
                 deeds
                 done
                 by
                 Minors
                 in
                 their
                 Fathers
                 Family
                 ,
                 without
                 their
                 Fathers
                 consent
                 ;
                 and
                 so
                 it
                 was
                 found
                 ,
                 that
                 a
                 Minors
                 Bond
                 Subscribed
                 Cautioner
                 ,
                 with
                 ,
                 and
                 for
                 his
                 Father
                 ,
                 was
                 null
                 ,
                 and
                 that
                 his
                 Father
                 ,
                 as
                 lawful
                 Administratour
                 ,
                 could
                 not
                 Authorize
                 him
                 to
                 be
                 Cautioner
                 for
                 himself
                 ;
                 here
                 the
                 Minor
                 was
                 a
                 Student
                 at
                 Law
                 ,
                 but
                 intertained
                 by
                 his
                 Father
                 ,
                 and
                 not
                 
                   forisfamiltat
                   ,
                   December
                
                 7.
                 1666.
                 
                 Sir
                 
                   George
                   〈◊〉
                   contra
                   Fairholme
                   .
                   December
                
                 25.
                 1667.
                 
                   inter
                   eosdem
                
                 ,
                 yet
                 the
                 deed
                 was
                 sustained
                 ,
                 being
                 a
                 Bond
                 of
                 borrowed
                 Money
                 ,
                 the
                 Creditor
                 proving
                 by
                 Witnesses
                 ,
                 that
                 the
                 Sum
                 was
                 converted
                 for
                 the
                 Minors
                 use
                 profitably
                 ,
                 December
                 21.
                 1629.
                 
                 
                   Gordoun
                   contra
                
                 Earl
                 of
                 Galloway
                 ;
                 this
                 is
                 according
                 to
                 that
                 〈◊〉
                 ground
                 of
                 Equity
                 ,
                 
                   nemo
                   debet
                   ex
                   alieno
                   damno
                   lucrari
                
                 ;
                 hence
                 follows
                 ,
                 
                   Minor
                   tenetur
                   in
                   quantum
                   locupletior
                   factus
                
                 ;
                 but
                 though
                 there
                 was
                 some
                 onerous
                 Cause
                 of
                 Minors
                 deeds
                 ,
                 yet
                 unless
                 it
                 were
                 liquid
                 ,
                 as
                 delivery
                 of
                 Money
                 ,
                 it
                 is
                 not
                 receiveable
                 by
                 way
                 of
                 exception
                 ,
                 or
                 reply
                 ,
                 but
                 only
                 is
                 reserved
                 to
                 the
                 Creditor
                 to
                 pursue
                 ,
                 as
                 Accords
                 ,
                 and
                 the
                 Minors
                 deed
                 found
                 void
                 notwithstanding
                 ,
                 December
                 19.
                 1632.
                 
                 
                   Maxwel
                   contra
                
                 Earl
                 of
                 Nithisdail
                 :
                 but
                 this
                 was
                 not
                 extended
                 to
                 necessar
                 Furnishing
                 of
                 Cloathes
                 ,
                 taken
                 on
                 without
                 consent
                 of
                 Curatours
                 ,
                 which
                 was
                 sustained
                 by
                 reply
                 ,
                 February
                 5.
                 1631.
                 
                 
                   John
                   Inglis
                   contra
                
                 Executours
                 of
                 
                   John
                   Sharp
                
                 .
              
               
                 34.
                 
                 The
                 Civil
                 Law
                 seems
                 not
                 to
                 extend
                 the
                 consent
                 of
                 Curators
                 ,
                 as
                 necessary
                 to
                 concur
                 with
                 the
                 Minor
                 ,
                 making
                 his
                 latter
                 Will
                 ,
                 but
                 only
                 to
                 deeds
                 among
                 the
                 living
                 ;
                 because
                 Law
                 hath
                 rejected
                 all
                 ties
                 and
                 hinderances
                 of
                 full
                 Liberty
                 ,
                 in
                 Testaments
                 of
                 Defuncts
                 in
                 the
                 disposal
                 of
                 their
                 Goods
                 ;
                 and
                 therefore
                 ,
                 if
                 a
                 Minor
                 having
                 Curators
                 ,
                 do
                 in
                 his
                 Testament
                 say
                 
                   quaestionem
                   Curatoribus
                   meis
                   ,
                   〈◊〉
                   faciat
                   eam
                   nam
                   ipse
                   tractavi
                
                 ;
                 in
                 that
                 case
                 ,
                 Curatours
                 are
                 lyable
                 for
                 Restitution
                 of
                 what
                 they
                 have
                 of
                 the
                 Minors
                 Goods
                 by
                 Fraud
                 ,
                 
                 but
                 not
                 for
                 a
                 compleat
                 Diligence
                 ,
                 l.
                 20.
                 
                 §
                 .
                 1.
                 
                   ff
                   .
                   de
                   liberatione
                   legata
                
                 .
                 And
                 by
                 our
                 Custome
                 ,
                 Minors
                 having
                 Curatours
                 ,
                 may
                 Test
                 without
                 their
                 consent
                 ;
                 and
                 therefore
                 a
                 Minor
                 ,
                 making
                 his
                 Curator
                 his
                 Executour
                 ,
                 and
                 universal
                 Legatar
                 though
                 the
                 Minor
                 was
                 with
                 the
                 Curator
                 ,
                 when
                 he
                 Tested
                 and
                 Died
                 shortly
                 after
                 ,
                 and
                 his
                 nearest
                 Relations
                 were
                 not
                 acquainted
                 ,
                 whom
                 he
                 had
                 named
                 in
                 a
                 former
                 Testament
                 ,
                 it
                 was
                 sustained
                 here
                 no
                 threats
                 nor
                 importunity
                 was
                 alledged
                 ,
                 November
                 30.
                 1680.
                 
                 
                   Stevinson
                   contra
                   Allans
                
                 .
              
               
                 There
                 are
                 other
                 two
                 Priviledges
                 of
                 Minors
                 which
                 cannot
                 be
                 so
                 conveniently
                 spoken
                 to
                 ,
                 as
                 in
                 this
                 place
                 ;
                 the
                 one
                 is
                 ,
                 that
                 Minors
                 are
                 restored
                 against
                 Deeds
                 done
                 by
                 them
                 in
                 their
                 Minority
                 ,
                 to
                 their
                 Enorme
                 Lesion
                 .
                 The
                 other
                 is
                 ,
                 
                   Minor
                   non
                   tenetur
                   placitare
                   super
                   haereditate
                   Paterna
                   .
                
              
               
                 As
                 to
                 the
                 first
                 ,
                 Minority
                 and
                 Lesion
                 ,
                 are
                 the
                 ordinary
                 ground
                 of
                 Reduction
                 ;
                 but
                 because
                 they
                 are
                 facti
                 ,
                 and
                 abide
                 Probation
                 ,
                 they
                 are
                 not
                 receivable
                 by
                 exception
                 ,
                 if
                 he
                 who
                 pursues
                 the
                 Minor
                 ,
                 can
                 instantly
                 instruct
                 his
                 Pursuit
                 ;
                 but
                 if
                 he
                 take
                 a
                 Term
                 to
                 prove
                 ,
                 the
                 Minor
                 may
                 take
                 the
                 same
                 Term
                 to
                 prove
                 his
                 Minority
                 ,
                 which
                 doth
                 not
                 acknowledge
                 the
                 Libel
                 ,
                 or
                 free
                 the
                 Pursuer
                 from
                 Probation
                 thereof
                 :
                 Or
                 if
                 the
                 Minoritie
                 be
                 instantly
                 verified
                 ,
                 as
                 sometimes
                 it
                 is
                 by
                 sight
                 of
                 the
                 Minors
                 Person
                 .
              
               
                 There
                 is
                 no
                 difference
                 as
                 to
                 the
                 Restitution
                 of
                 Minors
                 ,
                 though
                 the
                 Deed
                 be
                 done
                 with
                 consent
                 of
                 Curators
                 ;
                 nor
                 did
                 it
                 exclude
                 a
                 Minor
                 ,
                 because
                 his
                 pretended
                 Curators
                 had
                 received
                 the
                 Money
                 in
                 question
                 ,
                 and
                 so
                 were
                 liable
                 to
                 the
                 Minor
                 for
                 misimploying
                 it
                 ,
                 as
                 behaving
                 themselves
                 as
                 Curatours
                 ,
                 upon
                 pretence
                 that
                 his
                 Lesion
                 could
                 not
                 be
                 known
                 ,
                 till
                 they
                 were
                 discust
                 ,
                 they
                 not
                 being
                 in
                 this
                 Process
                 ,
                 July
                 2.
                 1667.
                 
                 Lord
                 
                   Blantyre
                   contra
                   Walkinshaw
                
                 .
              
               
                 But
                 this
                 Remeid
                 is
                 not
                 competent
                 for
                 every
                 small
                 Lesion
                 ,
                 but
                 it
                 must
                 be
                 Enorm
                 ,
                 which
                 is
                 ,
                 
                   in
                   Arbitrio
                   Judicis
                
                 .
              
               
                 Neither
                 is
                 a
                 Minor
                 restored
                 against
                 Lesion
                 ,
                 which
                 falls
                 not
                 by
                 Levitie
                 ,
                 but
                 by
                 Accident
                 ;
                 as
                 by
                 Ship-wrack
                 ,
                 the
                 Minor
                 being
                 a
                 Trading
                 Merchant
                 ,
                 
                   Hope
                   ,
                   de
                   Minoribus
                   ,
                   William
                   Edgar
                   contra
                
                 Executours
                 of
                 
                   Edward
                   Edgar
                
                 :
                 neither
                 because
                 he
                 was
                 bound
                 conjunctly
                 and
                 severally
                 for
                 ware
                 ,
                 with
                 another
                 Merchant
                 ,
                 who
                 was
                 in
                 society
                 with
                 him
                 in
                 Trading
                 ,
                 June
                 20.
                 1678.
                 
                 
                   George
                   Galbraith
                   contra
                   Patrick
                   Lesly
                
                 ,
                 because
                 Trading
                 Merchants
                 ,
                 and
                 others
                 exercising
                 Trade
                 ,
                 requiring
                 peculiar
                 skill
                 ,
                 capacity
                 and
                 understanding
                 ,
                 are
                 held
                 rather
                 to
                 design
                 to
                 deceive
                 ,
                 then
                 to
                 be
                 deceived
                 ,
                 as
                 was
                 found
                 ,
                 in
                 the
                 case
                 of
                 a
                 Nottar
                 Publick
                 ,
                 July
                 14.
                 1636.
                 
                 
                   Gardner
                   contra
                   Chalmers
                
                 .
              
               
                 Neither
                 was
                 a
                 Minor
                 restored
                 upon
                 his
                 judicial
                 Confession
                 upon
                 Oath
                 ,
                 upon
                 point
                 of
                 Fact
                 ,
                 and
                 swearing
                 never
                 to
                 come
                 in
                 the
                 contrair
                 ,
                 November
                 28.
                 1626.
                 
                 Mr.
                 
                   Thomas
                   Hope
                
                 and
                 Mr.
                 
                   Thomas
                   Nicolson
                   contra
                
                 Mr.
                 
                   James
                   Nicolson
                
                 .
                 Neither
                 was
                 a
                 Minor
                 restored
                 against
                 his
                 Promise
                 upon
                 Oath
                 ,
                 to
                 quite
                 twentie
                 Chalder
                 of
                 Victual
                 ,
                 provided
                 to
                 him
                 by
                 his
                 Contract
                 of
                 Marriage
                 ,
                 as
                 not
                 lesed
                 by
                 keeping
                 his
                 Oath
                 ,
                 which
                 is
                 conform
                 to
                 the
                 Authentick
                 
                   Sacramenta
                   puberum
                   ,
                   November
                
                 1626.
                 
                 Sir
                 
                   Robert
                   Hepburn
                   contra
                
                 Sir
                 
                   John
                   Scatoun
                
                 .
                 And
                 it
                 was
                 found
                 relevant
                 against
                 Restitution
                 of
                 a
                 Minor
                 ,
                 of
                 a
                 Bond
                 granted
                 for
                 a
                 Debt
                 of
                 his
                 Fathers
                 ,
                 whom
                 he
                 Represented
                 not
                 ,
                 that
                 he
                 swore
                 to
                 perform
                 the
                 same
                 ,
                 February
                 10.
                 1672.
                 
                 Mr.
                 
                   George
                   Wauch
                   contra
                
                 Bailzie
                 of
                 Dunraget
                 .
                 But
                 a
                 Minor
                 hath
                 not
                 the
                 priviledge
                 to
                 reduce
                 a
                 Disposition
                 of
                 Land
                 ,
                 without
                 Authority
                 of
                 a
                 Judge
                 ,
                 as
                 in
                 the
                 case
                 of
                 Pupils
                 ,
                 unless
                 he
                 also
                 alledge
                 Lesion
                 ,
                 February
                 2.
                 1630.
                 
                 Sir
                 
                   John
                   Hamiltoun
                   contra
                   John
                   Sharp
                
                 .
                 The
                 like
                 ,
                 
                 though
                 the
                 Minor
                 had
                 no
                 Curatours
                 ,
                 December
                 13.
                 1666.
                 
                 
                   Janet
                   〈◊〉
                   contra
                   Stevenson
                
                 .
                 Neither
                 is
                 Restitution
                 competent
                 ,
                 unless
                 Reduction
                 be
                 intented
                 within
                 the
                 age
                 of
                 twenty
                 five
                 compleat
                 ;
                 for
                 with
                 us
                 ,
                 Majority
                 comes
                 at
                 the
                 age
                 of
                 twentie
                 one
                 compleat
                 ;
                 and
                 there
                 are
                 four
                 years
                 allowed
                 to
                 Minors
                 to
                 intent
                 Reductions
                 ,
                 which
                 therefore
                 are
                 called
                 ,
                 
                   Anni
                   utiles
                   Nicolson
                   ,
                   de
                   Minoribus
                   ,
                   James
                   Goodlet
                   contra
                
                 Doctor
                 Austine
                 and
                 others
                 .
                 Laird
                 :
                 of
                 
                   Craigie
                   contra
                   Dunbar
                
                 .
              
               
                 A
                 Minor
                 was
                 restored
                 against
                 his
                 Contract
                 of
                 Marriage
                 ,
                 wherein
                 he
                 was
                 oblieged
                 to
                 Infeft
                 his
                 first
                 born
                 Son
                 in
                 Fee
                 of
                 his
                 whole
                 Estate
                 ,
                 which
                 was
                 very
                 considerable
                 ,
                 having
                 gotten
                 but
                 ten
                 thousand
                 Merks
                 of
                 Tocher
                 ,
                 March
                 7.
                 1623.
                 
                 Laird
                 of
                 
                   Barganie
                   contra
                
                 his
                 Son.
                 The
                 like
                 ,
                 where
                 a
                 Minor
                 getting
                 but
                 a
                 thousand
                 Merks
                 of
                 Tocher
                 ,
                 provided
                 five
                 thousand
                 Merks
                 to
                 his
                 Wifes
                 Father
                 ,
                 in
                 case
                 of
                 no
                 Succession
                 ,
                 but
                 not
                 restored
                 against
                 that
                 part
                 of
                 his
                 Contract
                 ,
                 providing
                 all
                 his
                 Means
                 acquired
                 ,
                 and
                 to
                 be
                 acquired
                 in
                 Liserent
                 to
                 his
                 Wife
                 ,
                 June
                 4.
                 1632.
                 
                 
                   Alexanderi
                   Donaldson
                   contra
                
                 And
                 a
                 Minor
                 Woman
                 was
                 restored
                 against
                 the
                 Exorbitancies
                 of
                 her
                 Contract
                 of
                 Marriage
                 ,
                 November
                 22.
                 1674.
                 
                 
                   Margaret
                   Mcgill
                   contra
                   Riven
                   of
                   Gairn
                
                 ;
                 but
                 here
                 ,
                 she
                 was
                 only
                 restored
                 to
                 a
                 suitable
                 Liferent
                 ,
                 but
                 not
                 against
                 that
                 provision
                 in
                 her
                 Contract
                 ,
                 providing
                 her
                 Lands
                 and
                 Sums
                 to
                 the
                 Heirs
                 of
                 the
                 Marriage
                 ,
                 〈◊〉
                 failzieing
                 ,
                 to
                 the
                 Mans
                 Heirs
                 .
                 The
                 like
                 ,
                 as
                 to
                 the
                 Heirs
                 of
                 a
                 Woman
                 ,
                 who
                 had
                 Land
                 worth
                 twelve
                 hundred
                 Merks
                 yearly
                 ,
                 the
                 Husband
                 being
                 of
                 a
                 more
                 honourable
                 Birth
                 ,
                 
                   Nicolson
                   ,
                   de
                   Minoribus
                   ,
                   Slemen
                   contra
                   Ker.
                
                 The
                 like
                 ,
                 where
                 the
                 Wife
                 Disponed
                 her
                 Lands
                 to
                 her
                 Husband
                 ,
                 whose
                 means
                 were
                 altogether
                 unanswerable
                 ,
                 Spots
                 .
                 Husband
                 ,
                 
                   Fleming
                   contra
                
                 Mr.
                 
                   Robert
                   Hog
                
                 .
              
               
                 Minors
                 are
                 also
                 restored
                 against
                 Judicial
                 Acts
                 to
                 their
                 Lesion
                 ,
                 as
                 against
                 a
                 Decreet
                 of
                 Exoneration
                 of
                 his
                 Tutors
                 ,
                 with
                 concourse
                 of
                 his
                 Curatours
                 ,
                 before
                 the
                 Lords
                 ,
                 
                   in
                   foro
                   contradictorio
                   ,
                   December
                
                 1.
                 1638.
                 
                 
                   William
                   Stuart
                   contra
                   Robert
                   Stuart
                   ,
                   Hope
                   ,
                
                 universal
                 and
                 lucrative
                 Successour
                 ,
                 
                   Knows
                   contra
                   Knows
                
                 and
                 Watson
                 ,
                 and
                 against
                 a
                 Defence
                 proponed
                 by
                 an
                 Advocat
                 ,
                 without
                 special
                 mandat
                 ,
                 which
                 did
                 homologat
                 a
                 Deed
                 in
                 Minority
                 ,
                 February
                 14.
                 1677.
                 
                 Duke
                 and
                 Dutchess
                 of
                 
                   Bucleuch
                   contra
                
                 Earl
                 of
                 Tweeadale
                 ,
                 In
                 which
                 case
                 ,
                 it
                 was
                 found
                 ,
                 that
                 accepting
                 an
                 illiquid
                 Right
                 ,
                 for
                 a
                 Liquid
                 ,
                 was
                 no
                 Enorm
                 Lesion
                 inferring
                 Restitution
                 .
              
               
                 But
                 Restitution
                 is
                 excluded
                 ,
                 
                   Si
                   monor
                   se
                   majorem
                   dixerit
                   ,
                   Nam
                   deceptis
                   ,
                   non
                   decipientibus
                   jura
                   subveniunt
                
                 ;
                 as
                 where
                 the
                 Minors
                 Bond
                 bore
                 expresly
                 ,
                 that
                 he
                 was
                 Major
                 ,
                 and
                 that
                 the
                 Creditor
                 knew
                 not
                 he
                 was
                 Minor
                 by
                 his
                 Aspect
                 ,
                 or
                 otherways
                 ;
                 nor
                 did
                 fraudfully
                 induce
                 him
                 to
                 insert
                 his
                 Majority
                 ,
                 February
                 23.
                 1665.
                 
                 Kennedy
                 of
                 
                   Achtifardel
                   contra
                   Weir
                
                 ;
                 It
                 is
                 also
                 eleided
                 ,
                 if
                 it
                 be
                 proven
                 ,
                 that
                 the
                 Deed
                 in
                 question
                 was
                 profitable
                 ,
                 as
                 that
                 the
                 Sum
                 in
                 question
                 was
                 wared
                 upon
                 the
                 Minor
                 for
                 Meat
                 and
                 Cloathes
                 ,
                 though
                 his
                 Father
                 gave
                 him
                 a
                 sufficient
                 Allowance
                 ,
                 seing
                 he
                 was
                 then
                 abroad
                 from
                 his
                 Father
                 ,
                 Hope
                 ,
                 Minority
                 ,
                 
                   Hendry
                   Creich
                   contra
                   Hendry
                   Walker
                
                 .
                 It
                 is
                 also
                 eleided
                 by
                 Deeds
                 of
                 Homologation
                 ,
                 after
                 Majority
                 ,
                 July
                 14.
                 1636.
                 
                 
                   Gaindner
                   contra
                   Chalmers
                
                 .
                 The
                 like
                 ,
                 though
                 the
                 Annualrent
                 was
                 payed
                 upon
                 a
                 Charge
                 ,
                 July
                 30.
                 1630.
                 
                 
                   Johnstoun
                   contra
                   Hope
                
                 .
              
               
                 But
                 where
                 Majority
                 was
                 alledged
                 against
                 a
                 Minors
                 Restitution
                 ,
                 neither
                 party
                 was
                 preferred
                 in
                 Probation
                 ,
                 but
                 Witnesses
                 allowed
                 ,
                 
                   hinc
                   inde
                   ,
                   February
                
                 20.
                 1668.
                 
                 Farquhar
                 of
                 
                   Tonley
                   contra
                   Gordoun
                
                 .
              
               
                 But
                 Lesion
                 needs
                 not
                 be
                 proven
                 by
                 the
                 Minor
                 ,
                 granting
                 Bonds
                 of
                 borrowed
                 Money
                 ,
                 for
                 the
                 misapplication
                 is
                 presumed
                 ,
                 unless
                 the
                 contrary
                 be
                 proven
                 .
              
               
               
                 This
                 priviledge
                 is
                 not
                 only
                 competent
                 to
                 the
                 Minor
                 himself
                 ,
                 but
                 to
                 his
                 Heir
                 ,
                 who
                 if
                 he
                 were
                 Minor
                 ,
                 may
                 reduce
                 the
                 Deed
                 done
                 in
                 his
                 Prodecessours
                 Minority
                 ,
                 during
                 the
                 time
                 of
                 the
                 Heirs
                 Minority
                 ;
                 and
                 also
                 ,
                 during
                 so
                 much
                 of
                 the
                 
                   quadriennium
                   utile
                
                 ,
                 competent
                 to
                 the
                 Defunct
                 Minor
                 ,
                 as
                 rested
                 the
                 time
                 of
                 his
                 Death
                 .
                 But
                 he
                 cannot
                 claim
                 both
                 the
                 rest
                 of
                 his
                 Predecessours
                 quadriennium
                 ,
                 and
                 his
                 own
                 quadriennium
                 ,
                 after
                 his
                 Majority
                 ,
                 but
                 only
                 the
                 rest
                 of
                 his
                 Predecessours
                 
                   quadriennium
                   ,
                   March
                
                 14.
                 1628.
                 
                 
                   〈◊〉
                   contra
                
                 Barron
                 of
                 Brughtoun
                 ;
                 whence
                 it
                 is
                 consequent
                 ,
                 that
                 if
                 the
                 Heir
                 Succeeding
                 be
                 Major
                 ,
                 and
                 quarrel
                 his
                 Predecessours
                 Deed
                 ,
                 as
                 in
                 Minority
                 ,
                 he
                 hath
                 
                   quadriennium
                   utile
                
                 ,
                 to
                 intent
                 Reduction
                 ,
                 except
                 in
                 so
                 far
                 of
                 that
                 quadriennium
                 as
                 was
                 past
                 before
                 his
                 Predecessours
                 Death
                 ;
                 but
                 he
                 hath
                 not
                 the
                 time
                 of
                 his
                 Predecessours
                 Minority
                 ,
                 which
                 was
                 peculiar
                 ,
                 and
                 only
                 personal
                 to
                 himself
                 ,
                 but
                 only
                 the
                 
                   quadriennium
                   utile
                
                 ,
                 competent
                 after
                 Majority
                 ,
                 which
                 the
                 Law
                 hath
                 allowed
                 ,
                 as
                 a
                 competent
                 time
                 to
                 search
                 out
                 and
                 raise
                 Reduction
                 of
                 Deeds
                 done
                 in
                 Minority
                 ;
                 yet
                 if
                 a
                 Deed
                 were
                 fraudulently
                 keeped
                 up
                 and
                 concealed
                 ,
                 during
                 the
                 
                   quadriennium
                   utile
                
                 ,
                 it
                 might
                 be
                 reduceable
                 ,
                 
                   ex
                   capite
                   fraudis
                
                 .
              
               
                 Minority
                 and
                 Lesion
                 was
                 also
                 found
                 relevant
                 at
                 the
                 Instance
                 of
                 a
                 Minors
                 Creditors
                 ,
                 seing
                 the
                 Minor
                 ,
                 
                   intra
                   annos
                   utiles
                
                 ,
                 had
                 intented
                 Reduction
                 ;
                 
                   Nicolson
                   ,
                   de
                   temporibus
                   in
                   integrum
                   restitutionis
                   ,
                
                 Sir
                 
                   John
                   Hamiltoun
                   contra
                
                 Mr.
                 
                   John
                   Sharp
                
                 and
                 others
                 .
                 But
                 the
                 Priviledge
                 of
                 Restitution
                 is
                 not
                 competent
                 to
                 Minors
                 upon
                 Revocation
                 ,
                 unless
                 they
                 intent
                 Reduction
                 ,
                 &
                 
                   declarator
                   intra
                   annos
                   utiles
                
                 ,
                 which
                 was
                 found
                 to
                 hold
                 in
                 the
                 Kings
                 Revocations
                 ,
                 as
                 to
                 Lands
                 not
                 annexed
                 ,
                 Spots
                 .
                 Revocation
                 ,
                 
                   Pringle
                   contra
                   Ker.
                
                 
              
               
                 This
                 other
                 Priviledge
                 of
                 a
                 Minor
                 ,
                 is
                 ,
                 
                   quod
                   non
                   tenetur
                   ,
                   placitare
                   super
                   .
                   haereditate
                   paterna
                
                 ;
                 which
                 ,
                 though
                 it
                 be
                 not
                 
                   peremptorium
                   causae
                
                 ,
                 delaying
                 only
                 pursuit
                 ,
                 till
                 Majority
                 ;
                 yet
                 there
                 is
                 no
                 necessity
                 to
                 verifie
                 it
                 instantly
                 ,
                 but
                 a
                 term
                 will
                 be
                 granted
                 to
                 prove
                 the
                 same
                 ,
                 February
                 24.
                 1676.
                 
                 
                   Heleson
                   Kello
                   contra
                   Alexander
                   Kinneir
                
                 .
              
               
                 The
                 priviledge
                 is
                 introduced
                 in
                 favours
                 of
                 Minors
                 ,
                 that
                 they
                 be
                 not
                 put
                 out
                 of
                 their
                 Fathers
                 Heretage
                 ,
                 whereof
                 he
                 died
                 in
                 peaceable
                 Possession
                 ;
                 for
                 though
                 their
                 Priviledge
                 of
                 Restitution
                 might
                 recover
                 such
                 Rights
                 by
                 Reduction
                 ,
                 yet
                 the
                 Minor
                 would
                 lose
                 the
                 Fruits
                 and
                 Profits
                 ,
                 
                   medio
                   tempore
                
                 ,
                 and
                 untill
                 their
                 Rights
                 were
                 produced
                 ,
                 and
                 made
                 clear
                 in
                 Reduction
                 ,
                 which
                 might
                 be
                 of
                 great
                 importance
                 to
                 them
                 ;
                 for
                 if
                 a
                 Minor
                 of
                 a
                 Year
                 old
                 were
                 dispossest
                 of
                 his
                 Fathers
                 Inheritance
                 ,
                 he
                 would
                 lose
                 at
                 least
                 twenty
                 years
                 Fruits
                 of
                 it
                 ;
                 and
                 therefore
                 ,
                 the
                 Law
                 hath
                 introduced
                 this
                 priviledge
                 in
                 favours
                 of
                 Minors
                 ,
                 besides
                 the
                 priviledge
                 of
                 Restitution
                 ,
                 wherein
                 Minors
                 are
                 not
                 
                   in
                   contradistinctione
                
                 ,
                 to
                 Pupils
                 :
                 But
                 the
                 priviledge
                 is
                 chiefly
                 competent
                 to
                 Pupils
                 ;
                 And
                 though
                 it
                 bear
                 only
                 ,
                 
                   de
                   haereditate
                   Paterna
                
                 ;
                 yet
                 thereby
                 Minors
                 succeeding
                 immediatly
                 to
                 their
                 Grand
                 Father
                 ,
                 or
                 other
                 Predecessour
                 ,
                 who
                 died
                 in
                 Possession
                 ,
                 It
                 is
                 not
                 like
                 the
                 priviledge
                 would
                 be
                 denyed
                 to
                 them
                 ,
                 though
                 I
                 have
                 not
                 found
                 it
                 controverted
                 or
                 determined
                 ;
                 seing
                 the
                 Law
                 ,
                 under
                 the
                 name
                 of
                 Father
                 ;
                 doth
                 ordinarily
                 comprehend
                 Grand-father
                 ,
                 Great-grand-father
                 ,
                 and
                 all
                 Predecessours
                 in
                 direct
                 Line
                 ,
                 who
                 come
                 all
                 under
                 the
                 Designation
                 of
                 Forefathers
                 ,
                 as
                 all
                 Successours
                 in
                 the
                 right
                 Line
                 ,
                 come
                 under
                 the
                 name
                 of
                 Children
                 .
              
               
                 But
                 the
                 Law
                 indulgeth
                 this
                 favour
                 only
                 as
                 to
                 the
                 Heretage
                 of
                 Fathers
                 ;
                 and
                 therefore
                 ,
                 neither
                 the
                 style
                 nor
                 custome
                 hath
                 extended
                 it
                 to
                 Collateral
                 Succession
                 ,
                 as
                 to
                 Brothers
                 or
                 Uncles
                 ,
                 wherein
                 Minors
                 ,
                 if
                 they
                 be
                 excluded
                 ,
                 can
                 only
                 be
                 restored
                 by
                 Minority
                 and
                 Lesion
                 ,
                 so
                 soon
                 as
                 their
                 Predecessours
                 ,
                 or
                 Authors
                 Rights
                 can
                 be
                 found
                 .
              
               
               
                 Neither
                 was
                 ever
                 this
                 priviledge
                 extended
                 further
                 ,
                 than
                 to
                 Minors
                 in
                 possession
                 of
                 the
                 Heretage
                 of
                 their
                 Fore-fathers
                 ,
                 who
                 died
                 in
                 peaceable
                 and
                 lawful
                 possession
                 ,
                 and
                 to
                 whom
                 the
                 Minor
                 immediatly
                 succeeded
                 ;
                 for
                 there
                 is
                 no
                 priviledge
                 to
                 Possession
                 ,
                 
                   Vi
                   ,
                   clam
                   ,
                   aut
                   praecario
                
                 ;
                 though
                 Law
                 or
                 Custome
                 hath
                 not
                 determined
                 ,
                 how
                 long
                 Possession
                 of
                 the
                 Defunct
                 is
                 required
                 ,
                 to
                 exclude
                 Clandestine
                 or
                 Momentany
                 Possession
                 ;
                 but
                 the
                 continued
                 Possession
                 of
                 the
                 Defunct
                 with
                 his
                 Author
                 ,
                 may
                 be
                 accounted
                 sufficient
                 ,
                 or
                 the
                 Defuncts
                 Possession
                 by
                 a
                 Liferenter
                 ,
                 whose
                 right
                 is
                 granted
                 by
                 him
                 ,
                 or
                 reserved
                 in
                 his
                 right
                 ,
                 but
                 not
                 to
                 the
                 Possession
                 of
                 singular
                 Successours
                 ,
                 by
                 redeemable
                 Rights
                 ,
                 as
                 Wodsetters
                 or
                 Apprizers
                 ;
                 Neither
                 hath
                 there
                 been
                 any
                 exception
                 made
                 of
                 the
                 pursuits
                 ,
                 at
                 the
                 instance
                 of
                 Minors
                 against
                 Minors
                 ,
                 as
                 being
                 both
                 priviledged
                 ;
                 there
                 being
                 no
                 parity
                 in
                 recovering
                 ,
                 and
                 retaining
                 Possession
                 ;
                 but
                 where
                 a
                 Minor
                 was
                 put
                 from
                 Possession
                 by
                 a
                 Decreet
                 of
                 Removing
                 ,
                 obtained
                 by
                 a
                 Minor
                 from
                 Lands
                 ,
                 wherein
                 her
                 Father
                 and
                 her self
                 were
                 Infeft
                 ,
                 and
                 in
                 Possession
                 ,
                 she
                 was
                 not
                 excluded
                 to
                 reduce
                 that
                 Decreet
                 of
                 Removing
                 ,
                 upon
                 the
                 Minority
                 of
                 the
                 other
                 Minor
                 ,
                 whose
                 Father
                 died
                 not
                 in
                 Possession
                 ,
                 June
                 18.
                 1680.
                 
                 
                   Sara
                   Leyel
                   contra
                   Dons
                
                 .
              
               
                 This
                 Priviledge
                 will
                 not
                 only
                 exclude
                 Possessory
                 Judgements
                 ,
                 such
                 as
                 Removings
                 ,
                 or
                 Mails
                 and
                 Duties
                 ,
                 but
                 also
                 Declarators
                 or
                 Reductions
                 ;
                 as
                 to
                 which
                 ,
                 it
                 hath
                 been
                 variously
                 decided
                 ,
                 whether
                 it
                 should
                 stop
                 certification
                 ,
                 
                   contra
                   non
                   producta
                
                 ,
                 especially
                 in
                 the
                 case
                 of
                 Improbation
                 ;
                 and
                 though
                 it
                 cannot
                 exclude
                 Improbation
                 ,
                 where
                 the
                 Writes
                 are
                 produced
                 ,
                 or
                 where
                 they
                 are
                 in
                 the
                 hands
                 of
                 the
                 Minors
                 ,
                 and
                 his
                 Tutors
                 and
                 Curatours
                 ,
                 if
                 that
                 shall
                 appear
                 by
                 their
                 Write
                 or
                 Oath
                 :
                 Yet
                 where
                 the
                 Minor
                 produced
                 his
                 Fathers
                 Infeftment
                 ,
                 and
                 proved
                 his
                 Fathers
                 Possession
                 ,
                 he
                 was
                 found
                 obliged
                 to
                 produce
                 no
                 farther
                 ,
                 January
                 31.
                 1665.
                 
                 
                   Heleson
                   Kello
                   contra
                   Pringle
                
                 and
                 the
                 Laird
                 of
                 Wedderburn
                 ,
                 so
                 that
                 it
                 cannot
                 defend
                 simply
                 against
                 Production
                 :
                 But
                 if
                 it
                 could
                 not
                 defend
                 against
                 Production
                 of
                 any
                 further
                 ,
                 but
                 the
                 Fathers
                 Infeftment
                 ,
                 and
                 that
                 certification
                 in
                 Improbations
                 would
                 be
                 granted
                 in
                 all
                 other
                 Rights
                 ,
                 if
                 these
                 certifications
                 should
                 take
                 effect
                 ,
                 the
                 priviledge
                 might
                 be
                 wholly
                 Evacuat
                 ;
                 and
                 if
                 they
                 should
                 take
                 no
                 effect
                 till
                 Majority
                 ,
                 certifications
                 in
                 Improbations
                 should
                 not
                 be
                 granted
                 ,
                 being
                 hardly
                 Reducible
                 ,
                 even
                 though
                 in
                 absence
                 .
                 And
                 though
                 it
                 was
                 not
                 sustained
                 against
                 Production
                 in
                 a
                 Reduction
                 ,
                 November
                 27.
                 1678.
                 
                 
                   Guthry
                   contra
                
                 Laird
                 of
                 Guthry
                 ;
                 yet
                 in
                 that
                 case
                 ,
                 the
                 Minors
                 Right
                 was
                 only
                 an
                 Appryzing
                 at
                 his
                 Fathers
                 instance
                 ,
                 upon
                 which
                 his
                 Father
                 was
                 never
                 Infeft
                 .
              
               
                 This
                 being
                 a
                 Feudal
                 Priviledge
                 ,
                 whereof
                 there
                 is
                 no
                 mention
                 or
                 foundation
                 in
                 the
                 Civil
                 Law
                 ,
                 it
                 is
                 only
                 competent
                 to
                 Minors
                 ,
                 whose
                 Fathers
                 were
                 in
                 Possession
                 by
                 vertue
                 of
                 Infeftment
                 ,
                 as
                 in
                 the
                 former
                 case
                 of
                 Appryzing
                 ,
                 or
                 where
                 the
                 Father
                 had
                 a
                 Disposition
                 without
                 Possession
                 ,
                 January
                 31.
                 1665.
                 
                 
                   Heleson
                   Kello
                   contra
                   Pringle
                
                 .
                 But
                 the
                 want
                 of
                 Infeftment
                 of
                 the
                 Fathers
                 Author
                 ,
                 was
                 not
                 found
                 relevant
                 ,
                 January
                 18.
                 1667.
                 
                 
                   Barbara
                   Chapman
                   contra
                   John
                   White
                
                 .
              
               
                 Neither
                 will
                 this
                 Priviledge
                 exclude
                 the
                 Fathers
                 obliegement
                 ,
                 to
                 denude
                 himself
                 of
                 the
                 Infeftment
                 in
                 question
                 ,
                 Spots
                 .
                 Minor
                 ,
                 
                   John
                   Hamiltoun
                   contra
                
                 For
                 there
                 there
                 is
                 no
                 Competition
                 of
                 Rights
                 ,
                 but
                 implement
                 of
                 an
                 obliegement
                 ;
                 and
                 so
                 it
                 was
                 not
                 sustained
                 in
                 a
                 Reduction
                 upon
                 a
                 Clause
                 ,
                 irritant
                 in
                 a
                 few
                 ,
                 
                   Hope
                   ,
                   de
                   monoribus
                   contra
                   Mitchel
                   :
                
                 Neither
                 to
                 exclude
                 Reductions
                 
                   ob
                   non
                   solutum
                   Canonem
                
                 ,
                 by
                 the
                 Father
                 ,
                 though
                 the
                 few
                 contained
                 no
                 conventional
                 Clause
                 irritant
                 ,
                 February
                 20.
                 1633.
                 
                 
                   Lennox
                   contra
                   〈◊〉
                
                 :
                 neither
                 did
                 it
                 exclude
                 the
                 Probation
                 of
                 the
                 Tenor
                 of
                 a
                 Charter
                 ,
                 which
                 might
                 exclude
                 the
                 Minors
                 Right
                 ,
                 February
                 15.
                 1628.
                 
                 Master
                 of
                 
                   Jedburgh
                   contra
                
                 Earl
                 of
                 Home
                 ,
                 albeit
                 it
                 would
                 exclude
                 Process
                 upon
                 that
                 Charter
                 .
              
               
                 Neither
                 doth
                 it
                 exclude
                 Processes
                 in
                 relation
                 to
                 Marches
                 ,
                 Perambulation
                 ,
                 or
                 
                 vision
                 of
                 Lands
                 ,
                 July
                 27.
                 1675.
                 
                 Robertson
                 of
                 
                   Inveray
                   contra
                   Gilbert
                   Stuart
                
                 .
                 Neither
                 did
                 it
                 exclude
                 the
                 nullity
                 of
                 a
                 Disposition
                 by
                 a
                 Wife
                 to
                 her
                 Husband
                 ,
                 dying
                 within
                 the
                 year
                 ,
                 February
                 15.
                 1678.
                 
                 
                   Mary
                   Gordoun
                
                 and
                 her
                 Spouse
                 contra
                 Captain
                 
                   Robert
                   Maxwel
                
                 .
              
               
                 But
                 the
                 Priviledge
                 was
                 found
                 ,
                 not
                 only
                 competent
                 to
                 defend
                 Minors
                 in
                 their
                 Property
                 ,
                 but
                 in
                 their
                 Commonty
                 ,
                 
                   Hope
                   ,
                   de
                   Minoribus
                   ,
                   contra
                   Mitchel
                   .
                
              
               
                 where
                 reasons
                 of
                 Reduction
                 are
                 probable
                 by
                 Witnesses
                 ,
                 so
                 that
                 the
                 Probation
                 may
                 perish
                 by
                 delay
                 ,
                 Witnesses
                 are
                 always
                 received
                 to
                 remain
                 ,
                 
                   in
                   retentis
                   ,
                   January
                
                 31.
                 1665.
                 
                 
                   Kello
                   contra
                   Pringle
                   .
                   February
                
                 15.
                 1678.
                 
                 
                   Mary
                   Gordoun
                
                 and
                 her
                 Spouse
                 contra
                 Captain
                 
                   Robert
                   Maxwel
                
                 .
              
               
                 where
                 the
                 Interest
                 of
                 Minor
                 is
                 not
                 the
                 Chief
                 Right
                 ,
                 but
                 a
                 Majors
                 Right
                 ,
                 whereby
                 the
                 Minors
                 would
                 fall
                 in
                 consequence
                 ,
                 the
                 Process
                 doth
                 proceed
                 ,
                 but
                 the
                 Minor
                 is
                 held
                 as
                 not
                 called
                 ,
                 November
                 25.
                 1624.
                 
                 
                   Hamiltoun
                   contra
                   Matheson
                   .
                   Spots
                
                 .
                 Minors
                 ,
                 
                   Hamiltoun
                   contra
                   Chrysty
                
                 .
                 Or
                 where
                 a
                 Major
                 Liferenter
                 is
                 called
                 with
                 a
                 Minor
                 fiar
                 ,
                 the
                 Process
                 proceeds
                 against
                 the
                 Liferenter
                 ;
                 but
                 the
                 Minor
                 is
                 as
                 not
                 called
                 ,
                 March
                 21.
                 1628.
                 
                 
                   Alexander
                   Bamanno
                   contra
                   Zule
                   .
                   July
                
                 5.
                 1665.
                 
                 
                   James
                   Borthwick
                   contra
                   Janet
                   Skein
                
                 .
                 This
                 Priviledge
                 is
                 not
                 relevant
                 against
                 the
                 faults
                 of
                 the
                 Father
                 ,
                 or
                 his
                 Authors
                 ,
                 as
                 to
                 his
                 Possession
                 or
                 Right
                 ;
                 and
                 therefore
                 ,
                 it
                 will
                 not
                 defend
                 against
                 Forefaulture
                 of
                 the
                 Fathers
                 Authour
                 ,
                 whereby
                 the
                 Fathers
                 Right
                 fell
                 in
                 consequence
                 ,
                 Spots
                 .
                 Minor
                 ,
                 
                   James
                   〈◊〉
                   contra
                   Galstoun
                
                 .
                 Neither
                 against
                 Recognition
                 ,
                 February
                 19.
                 1662.
                 
                 Lady
                 
                   Carnagy
                   contra
                
                 Lord
                 Cranburn
                 .
                 Neither
                 will
                 it
                 defend
                 against
                 the
                 Superiour
                 ,
                 or
                 his
                 Donator
                 ,
                 pursuing
                 for
                 any
                 Casuality
                 of
                 his
                 Superiority
                 .
              
               
                 35.
                 
                 Curatours
                 differ
                 in
                 their
                 Office
                 from
                 Tutors
                 ,
                 mainly
                 in
                 this
                 ,
                 that
                 Tutors
                 are
                 given
                 chiefly
                 for
                 the
                 Pupils
                 Person
                 ;
                 but
                 Curatours
                 are
                 given
                 for
                 the
                 right
                 Managing
                 of
                 their
                 Goods
                 and
                 Affairs
                 .
                 Secondly
                 ,
                 Tutors
                 act
                 for
                 ,
                 and
                 in
                 name
                 of
                 their
                 Pupils
                 ,
                 who
                 ,
                 in
                 their
                 Pupilarity
                 have
                 no
                 discretion
                 ;
                 but
                 Curatours
                 cannot
                 ,
                 and
                 are
                 only
                 oblieged
                 by
                 their
                 Office
                 ,
                 to
                 authorize
                 their
                 Minors
                 ,
                 and
                 act
                 with
                 them
                 ,
                 by
                 consenting
                 to
                 their
                 deeds
                 ;
                 For
                 instance
                 ,
                 Curatours
                 cannot
                 discharge
                 for
                 their
                 Minors
                 ,
                 but
                 only
                 consent
                 to
                 their
                 Minors
                 Discharge
                 ;
                 and
                 so
                 Fathers
                 ,
                 after
                 their
                 Childrens
                 Pupilarity
                 ,
                 June
                 26.
                 1610.
                 
                 
                   Forrester
                   contra
                   Forrester
                   .
                   January
                
                 9.
                 1675.
                 
                 
                   Mckintosh
                   contra
                   Frazer
                
                 of
                 Strichen
                 .
              
               
                 36.
                 
                 Their
                 duty
                 is
                 to
                 see
                 to
                 the
                 Minors
                 Affairs
                 ,
                 that
                 they
                 get
                 not
                 detriment
                 ,
                 and
                 so
                 they
                 must
                 answer
                 ,
                 not
                 only
                 for
                 the
                 deeds
                 ,
                 whereunto
                 they
                 consent
                 ;
                 but
                 for
                 their
                 omission
                 ,
                 and
                 for
                 any
                 detriment
                 the
                 Minor
                 suffereth
                 by
                 their
                 negligence
                 ;
                 and
                 therefore
                 a
                 Curator
                 was
                 found
                 lyable
                 for
                 Intromission
                 and
                 Omission
                 ,
                 albeit
                 the
                 Act
                 of
                 of
                 Curatory
                 ,
                 did
                 not
                 bear
                 ,
                 that
                 he
                 compeared
                 and
                 did
                 find
                 Caution
                 ,
                 seing
                 he
                 accepted
                 thereafter
                 ,
                 by
                 Subscribing
                 a
                 Write
                 with
                 the
                 Minor
                 ,
                 as
                 his
                 Curatour
                 ,
                 which
                 was
                 found
                 to
                 obliege
                 him
                 ,
                 from
                 the
                 time
                 of
                 the
                 acceptance
                 ,
                 November
                 18.
                 1671.
                 
                 
                   Charles
                   Calsie
                   contra
                   James
                   Elleis
                
                 .
                 But
                 Curatours
                 continuing
                 to
                 uplift
                 their
                 Minors
                 Rent
                 ,
                 after
                 Majority
                 ,
                 were
                 found
                 not
                 lyable
                 for
                 Omissions
                 these
                 years
                 ,
                 unless
                 they
                 had
                 a
                 distinct
                 Factory
                 continued
                 ,
                 
                   per
                   tacitam
                   reconventionem
                   ,
                   Ibidem
                
                 ;
                 and
                 therefore
                 ,
                 they
                 must
                 not
                 only
                 be
                 Councellours
                 to
                 the
                 Minors
                 ,
                 showing
                 them
                 what
                 they
                 ought
                 to
                 do
                 ,
                 and
                 requiring
                 them
                 to
                 do
                 the
                 same
                 ;
                 but
                 specially
                 ,
                 they
                 must
                 cause
                 them
                 constitute
                 Factors
                 ,
                 and
                 grant
                 Procuratories
                 to
                 persons
                 ,
                 for
                 uplifting
                 their
                 Money
                 ,
                 whether
                 it
                 be
                 the
                 Stock
                 of
                 that
                 which
                 may
                 be
                 in
                 hazard
                 ,
                 or
                 Annualrent
                 ,
                 or
                 Rents
                 ;
                 and
                 to
                 grant
                 Procuratories
                 for
                 pursuing
                 their
                 Actions
                 ,
                 and
                 putting
                 them
                 to
                 Execution
                 ,
                 for
                 
                 seing
                 they
                 must
                 be
                 countable
                 ,
                 they
                 must
                 not
                 suffer
                 the
                 Minor
                 to
                 have
                 his
                 own
                 Goods
                 ,
                 and
                 his
                 own
                 Money
                 in
                 his
                 own
                 hand
                 ,
                 lest
                 he
                 lose
                 and
                 mispend
                 them
                 ;
                 these
                 Procuratories
                 may
                 be
                 given
                 to
                 some
                 of
                 themselves
                 ,
                 and
                 in
                 many
                 things
                 ,
                 their
                 very
                 Office
                 includes
                 a
                 Procuratory
                 ,
                 being
                 less
                 then
                 Curatory
                 ;
                 but
                 though
                 they
                 may
                 intromet
                 with
                 the
                 Pupils
                 Means
                 themselves
                 ,
                 yet
                 they
                 are
                 not
                 oblieged
                 to
                 be
                 Servants
                 or
                 Factors
                 ,
                 but
                 may
                 authorize
                 such
                 ,
                 being
                 lyable
                 always
                 ,
                 that
                 they
                 acted
                 therein
                 profitably
                 ;
                 but
                 if
                 the
                 Minor
                 will
                 not
                 authorize
                 such
                 ,
                 nor
                 do
                 these
                 deeds
                 needful
                 and
                 profitable
                 for
                 his
                 Affairs
                 ,
                 the
                 Curatours
                 may
                 crave
                 to
                 be
                 exonered
                 ;
                 so
                 they
                 may
                 also
                 do
                 ,
                 if
                 he
                 meddle
                 with
                 his
                 own
                 Means
                 ,
                 and
                 will
                 not
                 be
                 Restrained
                 ,
                 or
                 if
                 any
                 of
                 the
                 other
                 Curatours
                 act
                 unprofitably
                 ,
                 or
                 without
                 consent
                 of
                 the
                 rest
                 ,
                 the
                 Curatours
                 must
                 do
                 diligence
                 to
                 remove
                 them
                 ,
                 as
                 suspect
                 and
                 malversant
                 :
                 Curatours
                 are
                 to
                 recover
                 that
                 which
                 was
                 unwarrantably
                 meddled
                 with
                 ;
                 otherways
                 ,
                 they
                 are
                 lyable
                 ,
                 not
                 only
                 for
                 their
                 own
                 omissions
                 ,
                 or
                 intromissions
                 ,
                 but
                 for
                 the
                 other
                 Curatours
                 ,
                 and
                 so
                 are
                 all
                 lyable
                 ,
                 
                   in
                   solidum
                
                 ,
                 as
                 hath
                 been
                 said
                 of
                 Tutors
                 ,
                 February
                 11.
                 1630.
                 
                 
                   Guthrie
                   contra
                   Guthrie
                
                 ;
                 and
                 they
                 are
                 lyable
                 for
                 Annualrent
                 of
                 Minors
                 Means
                 ,
                 as
                 Tutors
                 are
                 ,
                 February
                 24.
                 1627.
                 
                 
                   Francis
                   Guthrie
                   contra
                   Guthrie
                
                 ;
                 Yea
                 ,
                 their
                 Heirs
                 ,
                 though
                 Minors
                 for
                 the
                 time
                 ,
                 after
                 expiring
                 of
                 the
                 Tutory
                 ,
                 Ibid.
                 Where
                 the
                 Curatours
                 Heir
                 are
                 found
                 liable
                 for
                 the
                 Annualrent
                 of
                 a
                 Sum
                 consigned
                 to
                 the
                 Minor
                 :
                 But
                 Curatours
                 expresly
                 chosen
                 with
                 a
                 quorum
                 ,
                 and
                 with
                 this
                 condition
                 ,
                 that
                 they
                 should
                 be
                 only
                 oblieged
                 for
                 deeds
                 ,
                 whereunto
                 they
                 consented
                 ,
                 and
                 be
                 free
                 of
                 omissions
                 ,
                 were
                 so
                 approven
                 by
                 the
                 Lords
                 ,
                 during
                 their
                 Office
                 ;
                 and
                 though
                 the
                 Minor
                 acted
                 deeds
                 very
                 prejudicial
                 with
                 any
                 other
                 quorum
                 ,
                 yet
                 the
                 rest
                 were
                 not
                 freed
                 ,
                 nor
                 acquited
                 of
                 their
                 Office
                 ,
                 as
                 not
                 being
                 in
                 hazard
                 by
                 these
                 deeds
                 ,
                 
                   Nic.
                   de
                   tut
                   .
                   Clerkingtoun
                
                 and
                 
                   Scots
                   Tarbet
                   contra
                
                 Earl
                 of
                 Bucleuch
                 and
                 his
                 other
                 Curatours
                 .
                 But
                 where
                 the
                 Act
                 of
                 Curatory
                 bore
                 ,
                 that
                 the
                 Curatours
                 were
                 named
                 jointlie
                 ,
                 or
                 three
                 of
                 them
                 to
                 be
                 a
                 quorum
                 ,
                 two
                 only
                 accepting
                 the
                 Curatorie
                 ,
                 was
                 found
                 null
                 ,
                 January
                 25.
                 1672.
                 
                 Sir
                 
                   James
                   Ramsay
                   contra
                   Maxwel
                
                 .
                 But
                 where
                 they
                 were
                 not
                 named
                 jointly
                 ,
                 the
                 death
                 of
                 one
                 did
                 not
                 anul
                 the
                 Curatory
                 ,
                 January
                 4.
                 1666.
                 
                 
                   Fairfowl
                   contra
                   Binning
                
                 .
                 And
                 though
                 there
                 be
                 a
                 quorum
                 constitute
                 ,
                 all
                 the
                 Curatours
                 are
                 lyable
                 for
                 diligence
                 ;
                 and
                 if
                 any
                 quorum
                 Act
                 hurtfullie
                 ,
                 they
                 must
                 crave
                 them
                 to
                 be
                 removed
                 ,
                 and
                 what
                 they
                 have
                 so
                 done
                 ,
                 to
                 be
                 restored
                 ;
                 and
                 Curators
                 are
                 not
                 simplie
                 liable
                 for
                 all
                 their
                 Pupils
                 Means
                 ,
                 which
                 may
                 be
                 lost
                 without
                 their
                 fault
                 ,
                 neither
                 to
                 do
                 diligence
                 in
                 all
                 cases
                 ,
                 but
                 where
                 diligence
                 might
                 be
                 profitable
                 ,
                 as
                 hath
                 been
                 said
                 of
                 Tutors
                 .
                 Curatours
                 being
                 Elected
                 by
                 Authority
                 of
                 a
                 Judge
                 ,
                 cannot
                 be
                 liberate
                 by
                 the
                 Minors
                 consent
                 .
                 Neither
                 did
                 a
                 Decreet
                 against
                 a
                 Minor
                 ,
                 on
                 his
                 consent
                 ,
                 liberate
                 Curatours
                 from
                 their
                 Office
                 ,
                 July
                 21.
                 1664.
                 
                 Scot
                 of
                 
                   Broad-meadows
                   contra
                   Scot
                
                 of
                 Thirlestoun
                 .
              
               
                 37.
                 
                 Curatours
                 are
                 appointed
                 in
                 the
                 Law
                 ,
                 not
                 only
                 for
                 that
                 ordinary
                 Levitie
                 and
                 Weakness
                 ,
                 incident
                 to
                 Minority
                 ,
                 which
                 therefore
                 runs
                 only
                 to
                 twentie
                 one
                 years
                 compleat
                 ,
                 at
                 which
                 time
                 ,
                 by
                 our
                 Custome
                 ,
                 Minoritie
                 endeth
                 ;
                 but
                 also
                 ,
                 in
                 case
                 of
                 known
                 or
                 conspicuous
                 Levitie
                 ,
                 though
                 after
                 Majoritie
                 :
                 such
                 were
                 the
                 Curatours
                 of
                 Prodigals
                 ,
                 to
                 whom
                 ,
                 as
                 to
                 Furious
                 Persons
                 ,
                 Curatours
                 were
                 Constitute
                 ,
                 their
                 nearest
                 Agnats
                 ;
                 instead
                 of
                 this
                 ,
                 our
                 Custome
                 hath
                 Interdictions
                 ,
                 whereby
                 Persons
                 acknowledgeing
                 their
                 own
                 Weakness
                 and
                 Levitie
                 ,
                 and
                 readiness
                 to
                 hurt
                 themselves
                 ;
                 do
                 therefore
                 bind
                 themselves
                 ,
                 that
                 they
                 shall
                 not
                 Act
                 without
                 the
                 consent
                 of
                 these
                 Persons
                 ,
                 Interdictors
                 therein
                 mentioned
                 ,
                 who
                 thereby
                 become
                 as
                 Curatours
                 ,
                 though
                 they
                 be
                 not
                 oblieged
                 for
                 Intromission
                 ,
                 or
                 Omission
                 ,
                 but
                 
                 only
                 to
                 consent
                 with
                 the
                 Persons
                 Interdicted
                 ,
                 and
                 for
                 their
                 Fraud
                 and
                 fault
                 in
                 consenting
                 .
              
               
                 38.
                 
                 Interdictions
                 are
                 most
                 fitly
                 made
                 ,
                 Judiciallie
                 upon
                 Cognition
                 of
                 the
                 Cause
                 ;
                 by
                 which
                 ,
                 after
                 trial
                 ,
                 that
                 the
                 Person
                 craving
                 to
                 be
                 Interdicted
                 ,
                 acknowledging
                 his
                 own
                 lavishness
                 and
                 prodigality
                 ,
                 Interdictors
                 are
                 appointed
                 by
                 the
                 Judge
                 competent
                 ,
                 and
                 that
                 either
                 ,
                 at
                 the
                 Instance
                 of
                 the
                 Partie
                 himself
                 ,
                 or
                 of
                 his
                 Friends
                 ;
                 Yea
                 ,
                 the
                 Lords
                 ,
                 
                   ex
                   proprio
                   motu
                
                 ,
                 did
                 Interdict
                 a
                 Person
                 ,
                 who
                 was
                 evidently
                 Lavish
                 ,
                 and
                 had
                 thrice
                 made
                 opposite
                 Rights
                 of
                 the
                 same
                 Subject
                 ,
                 and
                 that
                 Incidenter
                 ,
                 in
                 an
                 other
                 Process
                 ,
                 where
                 his
                 Levitie
                 did
                 so
                 appear
                 ,
                 February
                 17.
                 1681.
                 
                 
                   William
                   Robertson
                   contra
                   Gray
                
                 of
                 Shivis
                 .
                 That
                 this
                 is
                 the
                 genuine
                 Way
                 of
                 Interdictions
                 ,
                 is
                 clear
                 by
                 the
                 Narrative
                 of
                 the
                 Act
                 of
                 Parliament
                 ,
                 1581.
                 cap.
                 118.
                 
                 And
                 therefore
                 ,
                 an
                 Interdiction
                 was
                 Reduced
                 ,
                 only
                 because
                 it
                 was
                 done
                 ,
                 
                   sine
                   causa
                   cognita
                   ,
                   Hope
                
                 ,
                 Interdictions
                 ,
                 
                   John
                   Robertson
                   contra
                   〈…〉
                
                 but
                 there
                 has
                 not
                 been
                 a
                 just
                 ground
                 for
                 the
                 Interdiction
                 alledged
                 and
                 instructed
                 .
              
               
                 39.
                 
                 The
                 more
                 ordinar
                 way
                 of
                 Interdictions
                 ,
                 is
                 of
                 consent
                 ,
                 whereby
                 the
                 person
                 Interdicted
                 ,
                 acknowledging
                 his
                 own
                 Lavishness
                 ,
                 doth
                 ,
                 by
                 a
                 Write
                 under
                 his
                 hand
                 ,
                 Interdict
                 himself
                 ,
                 and
                 this
                 is
                 Reduceable
                 ,
                 if
                 the
                 Narrative
                 was
                 not
                 true
                 ;
                 but
                 the
                 person
                 Interdicted
                 ,
                 was
                 prudent
                 and
                 provident
                 ,
                 December
                 20.
                 1622.
                 
                 
                   Campbel
                   contra
                
                 Laird
                 of
                 Glenurchy
                 .
                 And
                 December
                 4.
                 1623.
                 
                 
                   Geichan
                   contra
                   Hay
                
                 and
                 Davidson
                 .
                 The
                 like
                 ,
                 thought
                 by
                 the
                 Lords
                 ,
                 but
                 came
                 not
                 to
                 a
                 Decision
                 ,
                 February
                 12.
                 1633.
                 
                 
                   Forbes
                   contra
                   Forbes
                
                 .
                 Interdictions
                 use
                 also
                 to
                 be
                 in
                 the
                 way
                 of
                 Obligation
                 ,
                 not
                 to
                 contract
                 Debts
                 ,
                 or
                 Dispone
                 Lands
                 ,
                 without
                 consent
                 of
                 such
                 Persons
                 ,
                 and
                 Inhibition
                 Registrate
                 thereupon
                 ,
                 which
                 was
                 sustained
                 ,
                 though
                 not
                 in
                 the
                 ordinar
                 stile
                 of
                 Interdiction
                 ;
                 the
                 person
                 oblieged
                 being
                 known
                 unsufficient
                 to
                 mannage
                 his
                 own
                 Affairs
                 through
                 Levity
                 or
                 Prodigality
                 ,
                 November
                 10.
                 1676.
                 
                 
                   Stuart
                   contra
                   Hay
                
                 of
                 Gourdie
                 .
                 But
                 a
                 Bond
                 bearing
                 ,
                 that
                 a
                 Man
                 should
                 not
                 Sell
                 or
                 Dispone
                 ,
                 without
                 consent
                 of
                 his
                 Wife
                 ,
                 on
                 the
                 Narrative
                 of
                 his
                 Facilitie
                 ,
                 whereon
                 Inhibition
                 was
                 used
                 ,
                 found
                 not
                 to
                 be
                 valide
                 as
                 an
                 Interdiction
                 ,
                 as
                 inconsistent
                 ,
                 binding
                 a
                 Man
                 to
                 the
                 Direction
                 of
                 his
                 Wife
                 ,
                 but
                 that
                 it
                 was
                 only
                 valide
                 to
                 secure
                 the
                 Wifes
                 own
                 Interest
                 ,
                 by
                 an
                 Aliment
                 ,
                 according
                 to
                 her
                 Quality
                 ,
                 as
                 an
                 Inhibition
                 ,
                 February
                 27.
                 1663.
                 
                 Laird
                 of
                 
                   Miltoun
                   contra
                
                 Lady
                 Miltoun
                 .
              
               
                 40.
                 
                 Interdictions
                 must
                 be
                 Published
                 at
                 the
                 Mercat
                 Cross
                 of
                 the
                 Head
                 Burgh
                 of
                 the
                 Shire
                 ,
                 where
                 the
                 party
                 dwells
                 ,
                 and
                 within
                 fourty
                 days
                 after
                 Publication
                 ,
                 the
                 same
                 ,
                 with
                 the
                 Executions
                 thereof
                 ,
                 must
                 be
                 Registrate
                 by
                 the
                 Sheriff
                 Clerk
                 of
                 that
                 Shire
                 ,
                 in
                 the
                 Register
                 of
                 Interdictions
                 ,
                 and
                 Inhibitions
                 ,
                 within
                 the
                 Shire
                 ;
                 the
                 Interdiction
                 must
                 be
                 also
                 Registrate
                 ,
                 in
                 the
                 Register
                 of
                 Inhibitions
                 of
                 any
                 other
                 Shire
                 where
                 the
                 Lands
                 of
                 the
                 Interdicted
                 Person
                 lie
                 ;
                 otherwise
                 ,
                 if
                 it
                 be
                 not
                 Published
                 ,
                 it
                 is
                 absolutely
                 null
                 ,
                 and
                 hath
                 no
                 effect
                 to
                 Lands
                 or
                 Heretable
                 Rights
                 in
                 any
                 other
                 Shire
                 ,
                 unless
                 it
                 be
                 also
                 Registrate
                 there
                 ,
                 Parliament
                 1581.
                 cap.
                 118.
                 
                 Yet
                 it
                 needs
                 not
                 be
                 intimat
                 to
                 the
                 party
                 interdicted
                 ,
                 Decemb.
                 11.
                 1622.
                 
                 
                   Hendry
                   Seatoun
                   contra
                
                 Mr.
                 
                   Alexander
                   Elleis
                
                 .
              
               
                 41.
                 
                 The
                 Effect
                 of
                 Interdictions
                 by
                 Custome
                 ,
                 is
                 retrenched
                 only
                 to
                 the
                 Preservation
                 of
                 Heretable
                 Rights
                 ,
                 and
                 doth
                 not
                 extend
                 to
                 Moveables
                 ,
                 or
                 personal
                 Execution
                 against
                 the
                 Person
                 Interdicted
                 ,
                 so
                 that
                 he
                 may
                 Dispone
                 his
                 Moveables
                 ,
                 or
                 upon
                 any
                 Personal
                 Bond
                 granted
                 by
                 him
                 ,
                 his
                 Moveables
                 may
                 be
                 Poinded
                 ,
                 Arrested
                 ,
                 and
                 made
                 forthcoming
                 ,
                 and
                 his
                 Person
                 Incarcerate
                 ,
                 though
                 the
                 stile
                 of
                 Interdiction
                 doth
                 expreslie
                 Prohibite
                 Alienation
                 of
                 Moveables
                 ,
                 July
                 11.
                 1634.
                 
                 
                   Bruce
                   contra
                   Forbes
                   .
                   June
                
                 20.
                 1671.
                 
                 
                   Thomas
                   Crawford
                   contra
                   James
                   Haliburtoun
                
                 :
                 He
                 may
                 thereupon
                 be
                 also
                 Denunced
                 ,
                 
                 though
                 thereby
                 the
                 Liferent
                 fall
                 in
                 prejudice
                 of
                 the
                 Heretage
                 ,
                 December
                 7.
                 and
                 February
                 8.
                 1610.
                 
                 Hay
                 of
                 
                   Bruntfield
                   contra
                
                 his
                 Father
                 and
                 Sisters
                 .
                 And
                 December
                 21.
                 1610.
                 
                 Lady
                 
                   Broksmouth
                   contra
                
                 Relict
                 of
                 
                   Gilbert
                   Wauchop
                
                 .
                 But
                 it
                 hath
                 Effect
                 in
                 favours
                 of
                 the
                 Heir
                 of
                 the
                 Interdicted
                 Person
                 ,
                 that
                 neither
                 his
                 Heritage
                 can
                 be
                 Affected
                 upon
                 any
                 obligation
                 ,
                 granted
                 by
                 his
                 Predecessors
                 ,
                 after
                 interdiction
                 ;
                 neither
                 any
                 Personal
                 Execution
                 ,
                 by
                 Caption
                 and
                 Horning
                 against
                 him
                 ,
                 as
                 would
                 have
                 been
                 against
                 his
                 Predecessor
                 :
                 but
                 such
                 Bonds
                 will
                 take
                 effect
                 against
                 the
                 Heir
                 ,
                 as
                 medling
                 with
                 the
                 Heirship
                 Moveables
                 ,
                 or
                 other
                 Moveables
                 of
                 the
                 Defunct
                 ;
                 the
                 reason
                 wherefore
                 Moveables
                 are
                 excepted
                 ,
                 both
                 from
                 Inhibitions
                 and
                 Interdictions
                 ,
                 is
                 ,
                 because
                 they
                 are
                 of
                 less
                 moment
                 ,
                 and
                 the
                 Traffick
                 of
                 them
                 must
                 be
                 current
                 and
                 free
                 ;
                 and
                 therefore
                 ,
                 these
                 remeids
                 being
                 but
                 by
                 Positive
                 Law
                 ,
                 and
                 not
                 by
                 Natural
                 Equity
                 (
                 by
                 which
                 the
                 Ingagement
                 ,
                 or
                 Disposition
                 of
                 any
                 Person
                 ,
                 having
                 the
                 use
                 of
                 Reason
                 ,
                 is
                 Effectual
                 ,
                 though
                 Lavish
                 )
                 Positive
                 Law
                 Prohibiteth
                 ,
                 and
                 voideth
                 such
                 only
                 ,
                 as
                 to
                 Heretage
                 ,
                 as
                 being
                 of
                 the
                 greatest
                 Importance
                 ;
                 in
                 which
                 ,
                 even
                 a
                 Tack
                 to
                 a
                 kindly
                 Tennant
                 ,
                 set
                 without
                 consent
                 of
                 the
                 Interdictours
                 ,
                 was
                 found
                 null
                 ,
                 
                   Hope
                   ,
                   Interdict
                   .
                   Douglass
                   contra
                   Cranstoun
                   .
                
                 But
                 Interdiction
                 can
                 only
                 extend
                 to
                 Lands
                 ,
                 lying
                 within
                 the
                 Jurisdiction
                 where
                 it
                 was
                 Published
                 and
                 Registrate
                 ,
                 but
                 to
                 no
                 other
                 Lands
                 or
                 Moveables
                 ,
                 February
                 11.
                 1662.
                 
                 
                   David
                   Ramsay
                
                 of
                 
                   Torbain
                   contra
                   Mcclellan
                
                 .
                 Interdictions
                 do
                 not
                 make
                 void
                 all
                 posterior
                 obligations
                 ,
                 but
                 only
                 such
                 where
                 there
                 is
                 Lesion
                 ;
                 and
                 therefore
                 ,
                 where
                 there
                 is
                 a
                 just
                 and
                 onerous
                 Cause
                 ,
                 the
                 obligation
                 or
                 deed
                 is
                 good
                 ,
                 though
                 without
                 consent
                 of
                 the
                 Interdictours
                 ,
                 July
                 29.
                 1624.
                 
                 Laird
                 of
                 
                   Collingtoun
                   contra
                   Hall.
                   November
                
                 10.
                 1676.
                 
                 
                   Stuart
                   contra
                   Hay
                
                 of
                 Gourdy
                 .
              
               
                 42.
                 
                 The
                 remeid
                 by
                 Interdictions
                 ,
                 is
                 only
                 by
                 Reduction
                 ,
                 and
                 not
                 by
                 Exception
                 ,
                 or
                 Suspension
                 ,
                 March
                 17.
                 1630.
                 
                 
                   John
                   Sempel
                   contra
                   Doby
                   .
                   January
                
                 22.
                 1631.
                 
                 
                   Hardy
                   contra
                   Mccalla
                
                 .
                 Yet
                 Interdiction
                 is
                 sustained
                 by
                 way
                 of
                 reply
                 ,
                 seing
                 the
                 pursuer
                 thereby
                 doth
                 only
                 delay
                 himself
                 ,
                 February
                 18.
                 1662.
                 
                 
                   Robert
                   Lockart
                   contra
                   William
                   Kennedy
                
                 .
                 It
                 is
                 a
                 competent
                 ground
                 of
                 Reduction
                 ,
                 at
                 the
                 instance
                 of
                 the
                 Interdicted
                 Person
                 ,
                 his
                 Assignays
                 or
                 Heirs
                 :
                 and
                 it
                 is
                 also
                 competent
                 at
                 the
                 Instance
                 of
                 the
                 Interdictours
                 ,
                 without
                 consent
                 of
                 the
                 Person
                 Interdicted
                 ,
                 December
                 21.
                 1610.
                 
                 Lady
                 
                   Broksmouth
                   contra
                
                 Relict
                 of
                 
                   Gilbert
                   Wauchop
                
                 .
              
               
                 43.
                 
                 Interdictions
                 cannot
                 be
                 taken
                 off
                 by
                 consent
                 of
                 the
                 Interdictours
                 ,
                 or
                 Interdicted
                 Persons
                 ,
                 though
                 they
                 should
                 renounce
                 or
                 discharge
                 them
                 ;
                 but
                 only
                 by
                 the
                 Act
                 of
                 a
                 Judge
                 competent
                 ,
                 finding
                 the
                 grounds
                 thereof
                 ,
                 either
                 not
                 true
                 ,
                 or
                 otherways
                 ,
                 that
                 the
                 Person
                 Interdicted
                 is
                 come
                 to
                 a
                 more
                 stable
                 deportment
                 ,
                 
                   Hope
                   ,
                   Interdict
                   .
                   George
                   Anderson
                   contra
                
                 Interdictours
                 of
                 
                   William
                   Craig
                   ,
                   December
                
                 4.
                 1623.
                 
                 
                   Gichan
                   contra
                   Hay
                
                 and
                 Davidson
                 ,
                 which
                 is
                 to
                 be
                 understood
                 of
                 Inderdictions
                 ,
                 laid
                 on
                 by
                 Authority
                 of
                 a
                 Judge
                 ,
                 
                   causa
                   cognita
                
                 .
              
            
             
               
               
                 TITLE
                 VII
                 .
                 Restitution
                 .
              
               
                 
                   1.
                   
                   Restitution
                   of
                   other
                   mens
                   Goods
                   ,
                   a
                   Natural
                   Obligation
                   :
                
                 
                   2.
                   
                   Restitution
                   is
                   not
                   solely
                   an
                   effect
                   of
                   Property
                   .
                
                 
                   3.
                   
                   Restitution
                   of
                   things
                   straying
                   ,
                   or
                   waith
                   and
                   lost
                   .
                
                 
                   4.
                   
                   Restitution
                   of
                   things
                   ,
                   
                     bona
                     fide
                  
                   ,
                   acquired
                   ,
                   not
                   from
                   the
                   right
                   Owner
                   .
                
                 
                   5.
                   
                   Restitution
                   of
                   things
                   recovered
                   from
                   Theeves
                   ,
                   Pirats
                   and
                   Robbers
                   .
                
                 
                   6.
                   
                   Restitution
                   not
                   competent
                   of
                   things
                   recovered
                   from
                   publick
                   Enemies
                   .
                
                 
                   7.
                   
                   Restitution
                   of
                   things
                   ,
                   
                     quae
                     cadunt
                     in
                     non
                     causam
                     ,
                     causa
                     data
                     &
                     non
                     secuta
                     .
                  
                
                 
                   8.
                   
                   No
                   Restitution
                   of
                   things
                   given
                   ,
                   
                     ob
                     turpem
                     causam
                  
                   .
                
                 
                   9.
                   
                   Restitution
                   of
                   
                     indebite
                     soluta
                  
                   .
                
                 
                   10.
                   
                   Restitution
                   reacheth
                   also
                   the
                   fruits
                   not
                   consumed
                   .
                
                 
                   11.
                   
                   Restitution
                   is
                   grounded
                   on
                   having
                   ,
                   and
                   that
                   ceasing
                   without
                   fault
                   ,
                   the
                   obligation
                   of
                   Restitution
                   ceaseth
                   .
                
                 
                   12.
                   
                   Bonae
                   fidei
                   possessor
                   facit
                   fructus
                   consumptos
                   suos
                   .
                
                 
                   13.
                   
                   Restitution
                   by
                   Heirs
                   .
                
                 
                   14.
                   
                   From
                   Restitution
                   arises
                   the
                   Action
                   of
                   Exhibition
                   and
                   Delivery
                   .
                
                 
                   15.
                   
                   Thence
                   arises
                   division
                   of
                   things
                   common
                   without
                   Society
                   .
                
              
               
                 1.
                 
                 THE
                 Obligations
                 whereby
                 men
                 are
                 holden
                 to
                 restore
                 the
                 proper
                 Goods
                 of
                 others
                 ,
                 are
                 placed
                 here
                 among
                 Natural
                 or
                 Obediential
                 Obligations
                 ;
                 because
                 they
                 are
                 not
                 by
                 Contract
                 or
                 consent
                 ,
                 neither
                 have
                 they
                 their
                 Original
                 from
                 Positive
                 Law
                 ;
                 for
                 though
                 there
                 were
                 no
                 Positive
                 Law
                 ,
                 these
                 Obligations
                 would
                 be
                 binding
                 ,
                 and
                 they
                 are
                 Obligatory
                 among
                 persons
                 ,
                 who
                 are
                 not
                 subject
                 to
                 one
                 Positive
                 Law
                 ;
                 and
                 therefore
                 ,
                 seing
                 they
                 are
                 not
                 Obligatory
                 ,
                 by
                 the
                 Will
                 or
                 Law
                 of
                 man
                 ,
                 of
                 necessity
                 they
                 must
                 have
                 their
                 Original
                 from
                 the
                 Authority
                 and
                 Command
                 of
                 God
                 ,
                 and
                 that
                 obedience
                 we
                 owe
                 thereto
                 ,
                 by
                 the
                 Law
                 written
                 in
                 our
                 hearts
                 .
              
               
               
                 We
                 are
                 not
                 here
                 to
                 speak
                 of
                 the
                 Obligations
                 of
                 Restitution
                 ,
                 which
                 are
                 by
                 any
                 voluntar
                 ingagement
                 ,
                 or
                 which
                 are
                 by
                 Delinquence
                 ;
                 but
                 of
                 these
                 only
                 ,
                 whereby
                 that
                 which
                 is
                 anothers
                 coming
                 in
                 our
                 power
                 ,
                 without
                 his
                 purpose
                 to
                 gift
                 it
                 to
                 us
                 ,
                 and
                 yet
                 ,
                 without
                 our
                 fault
                 ,
                 ought
                 to
                 be
                 Restored
                 ,
                 as
                 things
                 straying
                 ,
                 or
                 found
                 ,
                 or
                 recovered
                 from
                 Pirats
                 ,
                 Thieves
                 ,
                 &c.
                 or
                 bought
                 ,
                 
                   bona
                   fide
                
                 ,
                 or
                 the
                 like
                 .
              
               
                 2.
                 
                 Restitution
                 of
                 things
                 belonging
                 to
                 others
                 ;
                 may
                 seem
                 to
                 be
                 an
                 effect
                 of
                 Property
                 ,
                 whence
                 cometh
                 the
                 right
                 of
                 vindication
                 or
                 repitition
                 of
                 any
                 thing
                 ;
                 but
                 beside
                 the
                 real
                 Action
                 ,
                 the
                 Proprietar
                 hath
                 to
                 take
                 or
                 recover
                 what
                 is
                 his
                 own
                 ,
                 which
                 doth
                 not
                 directly
                 concern
                 any
                 other
                 person
                 ,
                 and
                 so
                 being
                 no
                 personal
                 right
                 ,
                 hath
                 no
                 correspondent
                 Obligation
                 upon
                 the
                 have
                 of
                 that
                 which
                 is
                 an
                 others
                 ,
                 to
                 restore
                 it
                 .
                 There
                 is
                 a
                 personal
                 Right
                 ,
                 which
                 is
                 a
                 power
                 in
                 the
                 Owner
                 to
                 demand
                 it
                 ,
                 not
                 only
                 when
                 it
                 is
                 in
                 the
                 possession
                 of
                 the
                 haver
                 ,
                 but
                 if
                 he
                 bath
                 fraudfully
                 put
                 it
                 away
                 ;
                 and
                 yet
                 it
                 is
                 his
                 once
                 ,
                 having
                 it
                 that
                 oblieges
                 him
                 ,
                 and
                 his
                 fraudulent
                 away-putting
                 ,
                 though
                 it
                 be
                 a
                 Delinquence
                 ,
                 yet
                 it
                 gave
                 not
                 the
                 rise
                 to
                 the
                 Obligation
                 ,
                 but
                 only
                 continues
                 it
                 in
                 the
                 same
                 condition
                 ,
                 as
                 if
                 he
                 yet
                 had
                 it
                 ;
                 so
                 in
                 that
                 case
                 ,
                 his
                 obligation
                 is
                 more
                 palpable
                 ,
                 for
                 vindication
                 of
                 the
                 thing
                 ,
                 where
                 it
                 is
                 not
                 ,
                 cannot
                 take
                 place
                 properly
                 .
                 The
                 learned
                 
                   Grotius
                   ,
                   de
                   jure
                   belli
                   ,
                   l.
                
                 2.
                 cap.
                 10.
                 maketh
                 such
                 obligations
                 as
                 arise
                 from
                 Dominion
                 and
                 Property
                 ,
                 to
                 be
                 by
                 tacit
                 consent
                 ,
                 or
                 Contract
                 ,
                 whereby
                 the
                 Nations
                 ,
                 who
                 have
                 agreed
                 to
                 appropriat
                 things
                 common
                 to
                 men
                 ,
                 have
                 thereby
                 also
                 tacitly
                 agreed
                 ,
                 that
                 each
                 man
                 should
                 restore
                 what
                 is
                 the
                 property
                 of
                 an
                 other
                 ;
                 yet
                 this
                 will
                 not
                 hold
                 ,
                 if
                 we
                 consider
                 ,
                 that
                 though
                 for
                 the
                 most
                 part
                 ,
                 property
                 be
                 by
                 consent
                 ;
                 yet
                 in
                 many
                 things
                 it
                 is
                 without
                 consent
                 of
                 the
                 simple
                 Law
                 of
                 Nature
                 ,
                 as
                 things
                 which
                 have
                 their
                 specification
                 from
                 their
                 owner
                 ,
                 his
                 skill
                 and
                 industry
                 ,
                 and
                 others
                 ,
                 as
                 will
                 appear
                 in
                 its
                 own
                 place
                 ;
                 and
                 therefore
                 ,
                 it
                 is
                 most
                 just
                 and
                 sure
                 ,
                 to
                 attribute
                 such
                 obligations
                 to
                 the
                 
                   Law
                   of
                   God
                   written
                   in
                   our
                   hearts
                   ,
                
                 rather
                 than
                 unto
                 any
                 other
                 conjecture
                 of
                 supposed
                 consent
                 .
                 To
                 this
                 agreeth
                 the
                 
                   Roman
                   Law
                
                 ,
                 which
                 holdeth
                 these
                 obligations
                 not
                 to
                 be
                 
                   ex
                   contractu
                   ,
                   sed
                   quasi
                   ex
                   contractu
                
                 ;
                 neither
                 doth
                 account
                 them
                 obligations
                 ,
                 
                   ex
                   lege
                
                 ,
                 and
                 if
                 they
                 were
                 of
                 tacit
                 consent
                 ,
                 these
                 obligations
                 were
                 
                   ex
                   contractu
                
                 .
              
               
                 3.
                 
                 There
                 is
                 many
                 ways
                 by
                 which
                 the
                 things
                 of
                 others
                 may
                 come
                 to
                 our
                 hands
                 ,
                 without
                 our
                 fault
                 or
                 Delinquence
                 ;
                 As
                 first
                 ,
                 things
                 straying
                 ,
                 concerning
                 which
                 ,
                 the
                 Lord
                 hath
                 ordained
                 ,
                 Deut.
                 22.
                 vers
                 .
                 1
                 ,
                 2
                 ,
                 3.
                 
                 
                   To
                   bring
                   again
                   unto
                   their
                   brethren
                   that
                   which
                   went
                   astray
                   ,
                   and
                   if
                   he
                   were
                   not
                   near
                   ,
                   to
                   keep
                   it
                   till
                   he
                   sought
                   after
                   it
                   ,
                   and
                   then
                   restore
                   it
                
                 ;
                 and
                 to
                 do
                 so
                 with
                 all
                 things
                 lost
                 by
                 him
                 ,
                 wherein
                 there
                 seemeth
                 something
                 to
                 be
                 admixed
                 of
                 Positive
                 Law
                 ,
                 as
                 the
                 taking
                 of
                 it
                 home
                 to
                 him
                 ,
                 or
                 keeping
                 of
                 it
                 for
                 his
                 Brother
                 ;
                 whereas
                 the
                 simple
                 Natural
                 Obligation
                 of
                 Restitution
                 ,
                 oblieges
                 to
                 no
                 duty
                 of
                 Custody
                 ,
                 or
                 pains
                 ,
                 but
                 only
                 not
                 to
                 conceal
                 that
                 which
                 is
                 an
                 others
                 ,
                 and
                 to
                 restore
                 it
                 ,
                 when
                 demanded
                 ;
                 and
                 such
                 is
                 the
                 Custome
                 of
                 Scotland
                 ,
                 that
                 waith
                 or
                 straying
                 Goods
                 must
                 be
                 proclaimed
                 ,
                 and
                 intimate
                 to
                 be
                 waith
                 ;
                 and
                 if
                 the
                 owner
                 make
                 them
                 appear
                 to
                 be
                 his
                 ,
                 he
                 may
                 have
                 them
                 ,
                 satisfying
                 for
                 what
                 was
                 wared
                 upon
                 them
                 ,
                 for
                 their
                 preservation
                 ,
                 as
                 Orass
                 ,
                 &c.
                 
                 And
                 if
                 none
                 appear
                 within
                 such
                 a
                 time
                 ,
                 Custome
                 hath
                 added
                 ,
                 that
                 waith
                 or
                 strayed
                 Goods
                 become
                 publick
                 ,
                 and
                 escheat
                 to
                 the
                 King
                 ,
                 or
                 others
                 to
                 whom
                 he
                 hath
                 disponed
                 ,
                 or
                 committed
                 that
                 power
                 ;
                 and
                 this
                 intimation
                 is
                 so
                 far
                 requisite
                 ,
                 that
                 if
                 the
                 Goods
                 be
                 medled
                 with
                 ,
                 or
                 disposed
                 of
                 otherways
                 ,
                 it
                 is
                 Theft
                 ;
                 but
                 though
                 the
                 publication
                 maketh
                 the
                 Goods
                 publick
                 ,
                 and
                 the
                 medling
                 therewith
                 to
                 be
                 without
                 fault
                 ,
                 so
                 that
                 if
                 there
                 do
                 never
                 any
                 owner
                 
                 appear
                 ;
                 the
                 things
                 do
                 become
                 really
                 and
                 absolutely
                 publick
                 ,
                 and
                 they
                 do
                 not
                 become
                 the
                 Possessours
                 by
                 that
                 ancient
                 Law
                 ,
                 
                   quod
                   nullius
                   est
                   sit
                   occupantis
                
                 ,
                 which
                 takes
                 place
                 amongst
                 us
                 ,
                 in
                 things
                 which
                 were
                 never
                 known
                 to
                 have
                 an
                 owner
                 ,
                 as
                 Pearles
                 or
                 Stones
                 ,
                 found
                 on
                 the
                 Shore
                 ,
                 and
                 many
                 others
                 ;
                 but
                 therefrom
                 are
                 excepted
                 waith
                 Goods
                 ,
                 and
                 Goods
                 by
                 Shipwrack
                 ,
                 which
                 become
                 escheat
                 as
                 publick
                 .
                 Secondly
                 ,
                 Things
                 lost
                 ,
                 of
                 which
                 we
                 see
                 the
                 rule
                 for
                 
                   Israel
                   ,
                   Deut.
                
                 22.
                 
                 How
                 far
                 they
                 may
                 be
                 possessed
                 without
                 Delinquence
                 ;
                 in
                 these
                 ,
                 our
                 Custome
                 agrees
                 with
                 the
                 Roman
                 Law
                 ,
                 and
                 other
                 Nations
                 ,
                 except
                 in
                 the
                 Matter
                 of
                 waith
                 and
                 wrack
                 Goods
                 ,
                 of
                 which
                 before
                 ;
                 that
                 such
                 things
                 being
                 not
                 concealed
                 ,
                 may
                 remain
                 with
                 the
                 possessours
                 ,
                 and
                 if
                 none
                 claim
                 ,
                 they
                 become
                 their
                 own
                 ,
                 and
                 they
                 may
                 dispose
                 of
                 them
                 ,
                 if
                 they
                 cannot
                 be
                 conveniently
                 preserved
                 without
                 hazard
                 .
              
               
                 4.
                 
                 Thirdly
                 ,
                 Things
                 belonging
                 to
                 others
                 ,
                 coming
                 to
                 our
                 hands
                 without
                 Delinquence
                 ,
                 when
                 we
                 acquire
                 ,
                 
                   bona
                   fide
                
                 ,
                 either
                 the
                 property
                 ,
                 use
                 ,
                 or
                 security
                 thereof
                 ,
                 by
                 pledge
                 or
                 depositation
                 ;
                 in
                 which
                 cases
                 ,
                 we
                 are
                 bound
                 to
                 restore
                 to
                 the
                 owner
                 ,
                 though
                 thereby
                 we
                 lose
                 what
                 we
                 gave
                 ,
                 except
                 in
                 some
                 cases
                 ,
                 wherein
                 Positive
                 Law
                 secures
                 the
                 buyer
                 ,
                 and
                 leaves
                 the
                 owner
                 to
                 seek
                 the
                 seller
                 .
              
               
                 This
                 Restitution
                 takes
                 place
                 ,
                 notwithstanding
                 any
                 obliegement
                 in
                 the
                 contrair
                 ;
                 and
                 we
                 have
                 an
                 excellent
                 species
                 in
                 Law
                 ,
                 
                   l.
                   bona
                   fide
                
                 ,
                 31.
                 ff
                 .
                 §
                 1.
                 depositi
                 ,
                 a
                 Robber
                 ,
                 depositat
                 with
                 Seius
                 ,
                 that
                 which
                 he
                 spoiled
                 or
                 robbed
                 from
                 Mevius
                 ,
                 to
                 which
                 is
                 Seius
                 oblieged
                 to
                 restore
                 ,
                 if
                 he
                 look
                 only
                 upon
                 his
                 ingagement
                 ,
                 truely
                 to
                 the
                 Robber
                 ,
                 but
                 if
                 upon
                 the
                 whole
                 matter
                 ,
                 certainly
                 to
                 Mevius
                 ;
                 for
                 the
                 Precept
                 of
                 Law
                 is
                 ,
                 to
                 render
                 every
                 thing
                 to
                 the
                 owner
                 ;
                 and
                 therefore
                 ,
                 no
                 promise
                 or
                 ingagement
                 can
                 here
                 prevail
                 against
                 the
                 natural
                 obligation
                 of
                 Restitution
                 ,
                 because
                 that
                 being
                 natural
                 and
                 indispensible
                 ,
                 the
                 Ingagement
                 ,
                 whether
                 ignorantly
                 or
                 willingly
                 made
                 ,
                 to
                 Restore
                 that
                 which
                 the
                 Ingager
                 knows
                 to
                 be
                 anothers
                 ,
                 is
                 a
                 Delinquence
                 ,
                 inferring
                 punishment
                 for
                 ingadging
                 ,
                 but
                 no
                 obliegement
                 to
                 perform
                 ;
                 so
                 also
                 ,
                 he
                 who
                 ignorantly
                 takes
                 in
                 custody
                 ,
                 or
                 pledge
                 ,
                 that
                 which
                 is
                 his
                 own
                 ,
                 though
                 thereby
                 he
                 promise
                 to
                 Restore
                 it
                 ,
                 yet
                 his
                 obligation
                 being
                 by
                 errour
                 in
                 the
                 substance
                 of
                 the
                 Contract
                 ,
                 makes
                 it
                 void
                 ,
                 and
                 he
                 may
                 retain
                 or
                 recover
                 it
                 as
                 his
                 own
                 .
              
               
                 5.
                 
                 Fourthly
                 ,
                 things
                 recovered
                 from
                 Thieves
                 ,
                 Robbers
                 ,
                 or
                 Pirats
                 ,
                 are
                 lyable
                 to
                 this
                 obligation
                 of
                 Restitution
                 ,
                 wherein
                 these
                 things
                 may
                 be
                 lawfully
                 detained
                 for
                 the
                 expenses
                 and
                 labour
                 in
                 recovery
                 ,
                 especially
                 if
                 the
                 labour
                 was
                 undertaken
                 of
                 purpose
                 ,
                 to
                 recover
                 such
                 things
                 ,
                 and
                 if
                 it
                 was
                 but
                 by
                 accident
                 ,
                 the
                 recoverer
                 projecting
                 some
                 other
                 thing
                 ,
                 the
                 satisfaction
                 is
                 due
                 ,
                 as
                 a
                 remuneration
                 of
                 the
                 trouble
                 and
                 pains
                 which
                 it
                 might
                 have
                 cost
                 the
                 owner
                 in
                 the
                 recovery
                 ,
                 which
                 ,
                 with
                 the
                 expenses
                 following
                 thereon
                 ,
                 being
                 saved
                 to
                 him
                 ;
                 he
                 ought
                 to
                 recompense
                 the
                 profit
                 accressing
                 to
                 him
                 ,
                 to
                 the
                 Authour
                 thereof
                 .
              
               
                 The
                 doubt
                 remaineth
                 greater
                 ,
                 whether
                 what
                 Enemies
                 having
                 Possest
                 ,
                 being
                 recovered
                 by
                 a
                 Nation
                 or
                 Party
                 ,
                 ought
                 not
                 to
                 be
                 Restored
                 to
                 their
                 proper
                 owners
                 of
                 that
                 Nation
                 who
                 bore
                 the
                 equal
                 expense
                 of
                 the
                 War
                 ,
                 and
                 who
                 being
                 any
                 way
                 ingaged
                 in
                 that
                 Quarrel
                 ,
                 cannot
                 but
                 acknowledge
                 the
                 War
                 of
                 their
                 Enemies
                 to
                 be
                 unjust
                 ;
                 and
                 therefore
                 ,
                 as
                 to
                 these
                 things
                 ,
                 I
                 think
                 ,
                 that
                 Equity
                 would
                 require
                 Restitution
                 upon
                 satisfaction
                 ,
                 and
                 gratification
                 of
                 the
                 favour
                 received
                 ,
                 which
                 ought
                 to
                 take
                 place
                 ,
                 unless
                 by
                 the
                 peculiar
                 Customs
                 of
                 Nations
                 ,
                 it
                 hath
                 been
                 otherways
                 agreed
                 ,
                 which
                 may
                 alter
                 ,
                 or
                 derogat
                 
                 from
                 this
                 Common
                 Law
                 ;
                 and
                 therefore
                 ,
                 David
                 recovering
                 back
                 his
                 Wife
                 and
                 his
                 Spoill
                 from
                 his
                 Enemies
                 ,
                 
                   delivered
                   every
                   man
                   his
                   own
                   ,
                   vid.
                   Tit.
                
                 12.
                 
                 Rights
                 real
                 ,
                 §
                 .
                 43.
                 
              
               
                 7.
                 
                 Fifthly
                 ,
                 The
                 duty
                 of
                 Restitution
                 extendeth
                 to
                 these
                 things
                 ,
                 
                   quae
                   cadunt
                   in
                   non
                   causam
                
                 ,
                 which
                 coming
                 warrantably
                 to
                 our
                 hands
                 ,
                 and
                 without
                 any
                 paction
                 of
                 Restitution
                 ,
                 yet
                 if
                 the
                 cause
                 cease
                 ,
                 by
                 which
                 they
                 become
                 ours
                 ,
                 there
                 superveeneth
                 the
                 Obligation
                 of
                 Restitution
                 of
                 them
                 ,
                 whence
                 are
                 the
                 condictions
                 in
                 Law
                 ,
                 
                   ob
                   non
                   causam
                
                 ,
                 and
                 ,
                 
                   causa
                   data
                   ,
                   causa
                   non
                   secuta
                   ,
                
                 which
                 have
                 this
                 natural
                 ground
                 ;
                 and
                 of
                 which
                 ,
                 there
                 are
                 innumerable
                 instances
                 ,
                 as
                 all
                 things
                 that
                 become
                 in
                 the
                 possession
                 of
                 either
                 party
                 ,
                 in
                 Contemplation
                 of
                 Marriage
                 ;
                 the
                 Marriage
                 ,
                 which
                 is
                 the
                 cause
                 ,
                 failing
                 to
                 be
                 accomplished
                 ,
                 the
                 interest
                 of
                 either
                 party
                 ceaseth
                 ,
                 and
                 either
                 must
                 Restore
                 .
              
               
                 8.
                 
                 But
                 there
                 is
                 not
                 the
                 same
                 ground
                 for
                 things
                 given
                 for
                 an
                 unjust
                 cause
                 ,
                 
                   ob
                   turpem
                   causam
                
                 ;
                 in
                 which
                 ,
                 the
                 will
                 of
                 the
                 owner
                 ,
                 and
                 his
                 purpose
                 to
                 transfer
                 the
                 property
                 is
                 effectual
                 ,
                 though
                 his
                 motive
                 was
                 not
                 good
                 ;
                 but
                 Positive
                 Law
                 doth
                 sometimes
                 obviat
                 the
                 inconveniency
                 ,
                 by
                 such
                 Donations
                 ,
                 and
                 makes
                 them
                 void
                 ,
                 and
                 either
                 to
                 Return
                 ,
                 or
                 become
                 Caduciary
                 and
                 Escheat
                 .
                 As
                 for
                 these
                 things
                 which
                 are
                 attained
                 by
                 force
                 or
                 fear
                 ,
                 they
                 have
                 their
                 original
                 from
                 Delinquence
                 ,
                 and
                 comes
                 not
                 under
                 this
                 Consideration
                 .
              
               
                 9.
                 
                 Sixthly
                 ,
                 Restitution
                 extendeth
                 to
                 
                   indebite
                   soluta
                
                 ,
                 when
                 any
                 party
                 through
                 errour
                 ,
                 delivereth
                 or
                 payeth
                 that
                 which
                 he
                 supposeth
                 due
                 ,
                 or
                 belongeth
                 to
                 an
                 other
                 ,
                 if
                 thereafter
                 it
                 appear
                 ,
                 that
                 it
                 was
                 not
                 due
                 to
                 that
                 other
                 ,
                 he
                 who
                 received
                 it
                 ,
                 is
                 oblieged
                 to
                 restore
                 ,
                 and
                 yet
                 not
                 by
                 Paction
                 or
                 Contract
                 ;
                 therefore
                 the
                 Law
                 calleth
                 this
                 
                   promutuum
                   ,
                   vel
                   quasi
                   mutuum
                
                 ,
                 having
                 in
                 it
                 the
                 same
                 Natural
                 Obligation
                 ,
                 which
                 mutuum
                 or
                 Loan
                 ,
                 hath
                 by
                 voluntar
                 ingagement
                 ;
                 but
                 here
                 ,
                 Positive
                 Law
                 ,
                 for
                 utility
                 and
                 quietness
                 sake
                 ,
                 excepteth
                 transactions
                 ,
                 which
                 are
                 properly
                 such
                 ,
                 and
                 which
                 are
                 of
                 two
                 sorts
                 ,
                 the
                 one
                 Extrajudicial
                 ,
                 when
                 in
                 any
                 matter
                 doubtful
                 and
                 debateable
                 ,
                 either
                 party
                 to
                 shun
                 their
                 hazard
                 ,
                 and
                 trouble
                 of
                 a
                 Legal
                 Decision
                 ,
                 is
                 willing
                 to
                 transact
                 and
                 agree
                 ,
                 so
                 as
                 thereby
                 they
                 may
                 quite
                 ,
                 or
                 abate
                 part
                 of
                 what
                 they
                 claim
                 as
                 their
                 Right
                 ,
                 and
                 so
                 they
                 renounce
                 all
                 future
                 question
                 ,
                 upon
                 any
                 appearing
                 of
                 Right
                 ,
                 either
                 Judicially
                 or
                 Extra-judicially
                 ;
                 and
                 therefore
                 ,
                 what
                 either
                 quitteth
                 to
                 other
                 of
                 their
                 Rights
                 ,
                 is
                 due
                 ,
                 for
                 the
                 same
                 cause
                 ,
                 and
                 hath
                 in
                 it
                 ,
                 either
                 expresly
                 or
                 implicitely
                 ,
                 that
                 that
                 Transaction
                 shall
                 not
                 be
                 Ransacted
                 upon
                 any
                 thing
                 that
                 shall
                 accidentally
                 appear
                 thereafter
                 ,
                 (
                 Fraud
                 only
                 as
                 the
                 common
                 exception
                 in
                 all
                 Humane
                 Actions
                 ,
                 being
                 excepted
                 )
                 and
                 therefore
                 ,
                 such
                 things
                 ,
                 though
                 they
                 appear
                 not
                 to
                 be
                 the
                 havers
                 ,
                 are
                 not
                 to
                 be
                 Restored
                 .
                 The
                 other
                 Transaction
                 is
                 Judicial
                 by
                 Litiscontestation
                 ,
                 when
                 any
                 cause
                 in
                 difference
                 is
                 put
                 upon
                 the
                 Oath
                 of
                 the
                 party
                 ,
                 or
                 other
                 Probation
                 ,
                 and
                 particular
                 diets
                 for
                 that
                 effect
                 assigned
                 ,
                 wherein
                 ,
                 if
                 either
                 party
                 fail
                 ,
                 he
                 loseth
                 what
                 is
                 put
                 thereupon
                 by
                 his
                 implicit
                 consent
                 ,
                 and
                 when
                 the
                 right
                 of
                 any
                 thing
                 is
                 referred
                 to
                 the
                 havers
                 Oath
                 ,
                 and
                 he
                 sweareth
                 it
                 to
                 be
                 his
                 own
                 ,
                 though
                 thereafter
                 it
                 may
                 be
                 made
                 palpably
                 appear
                 ,
                 not
                 to
                 be
                 so
                 ,
                 yet
                 it
                 will
                 not
                 be
                 Restored
                 ,
                 because
                 of
                 the
                 owners
                 reference
                 ,
                 implying
                 that
                 condition
                 ,
                 that
                 he
                 shall
                 stand
                 to
                 the
                 Oath
                 ,
                 without
                 questioning
                 right
                 or
                 wrong
                 ,
                 because
                 an
                 Oath
                 is
                 an
                 end
                 of
                 all
                 Controversie
                 ,
                 though
                 the
                 swearer
                 may
                 be
                 punished
                 as
                 a
                 wilful
                 perjurer
                 :
                 And
                 thus
                 ,
                 most
                 of
                 things
                 that
                 become
                 ours
                 ,
                 by
                 Sentences
                 and
                 Decreets
                 of
                 Judges
                 ,
                 are
                 not
                 lyable
                 to
                 Restitution
                 ,
                 upon
                 any
                 subsequent
                 Question
                 .
                 There
                 is
                 this
                 exception
                 against
                 
                   indebite
                   solutum
                
                 ,
                 that
                 it
                 cannot
                 be
                 repeated
                 ,
                 when
                 the
                 Creditor
                 gets
                 that
                 which
                 is
                 due
                 to
                 him
                 ,
                 though
                 not
                 due
                 
                 by
                 that
                 party
                 who
                 payed
                 the
                 same
                 ,
                 l.
                 2.
                 
                 
                   C.
                   de
                   condictione
                   indebiti
                   ,
                   l.
                
                 44.
                 
                   ff
                   .
                   eodem
                
                 ,
                 which
                 was
                 not
                 found
                 when
                 the
                 payment
                 was
                 made
                 to
                 an
                 Executor
                 Creditor
                 ,
                 pursuing
                 upon
                 his
                 Confirmation
                 ,
                 and
                 before
                 Sentence
                 obtaining
                 payment
                 from
                 the
                 Debitors
                 Heir
                 ,
                 who
                 was
                 decerned
                 to
                 refound
                 upon
                 a
                 Discharge
                 of
                 the
                 Debt
                 ,
                 granted
                 to
                 the
                 Defunct
                 Debitor
                 ,
                 whereby
                 it
                 appeared
                 the
                 Debt
                 was
                 not
                 truely
                 due
                 ,
                 but
                 twice
                 payed
                 ,
                 January
                 10.
                 1673.
                 
                 Sir
                 
                   James
                   Ramsay
                   contra
                   Robertsons
                
                 .
              
               
                 10.
                 
                 Under
                 Restitution
                 do
                 fall
                 ,
                 not
                 only
                 the
                 things
                 of
                 others
                 ,
                 but
                 their
                 Natural
                 Birth
                 ,
                 and
                 Fruits
                 extant
                 ,
                 not
                 consumed
                 ,
                 
                   bona
                   fide
                
                 ,
                 which
                 are
                 accounted
                 as
                 parts
                 of
                 the
                 things
                 ,
                 being
                 accessory
                 thereto
                 ,
                 and
                 belonging
                 to
                 the
                 same
                 owner
                 ,
                 but
                 industrial
                 and
                 artificial
                 profits
                 in
                 so
                 far
                 as
                 such
                 as
                 arise
                 from
                 the
                 havers
                 industry
                 ,
                 and
                 not
                 from
                 the
                 thing
                 ,
                 fall
                 not
                 under
                 Restitution
                 ,
                 if
                 separate
                 .
              
               
                 11.
                 
                 In
                 all
                 these
                 ,
                 the
                 Obligation
                 of
                 Restitution
                 is
                 formally
                 founded
                 upon
                 the
                 having
                 of
                 things
                 of
                 others
                 in
                 our
                 power
                 ;
                 and
                 therefore
                 ,
                 that
                 ceasing
                 ,
                 the
                 Obligation
                 also
                 ceaseth
                 ,
                 as
                 he
                 who
                 did
                 ,
                 
                   bona
                   fide
                
                 ,
                 buy
                 that
                 which
                 did
                 belong
                 to
                 an
                 other
                 ,
                 if
                 while
                 he
                 hath
                 it
                 ,
                 it
                 appeareth
                 to
                 be
                 that
                 others
                 ,
                 he
                 must
                 Restore
                 it
                 without
                 expectation
                 of
                 the
                 price
                 he
                 gave
                 for
                 it
                 ;
                 but
                 as
                 to
                 that
                 ,
                 he
                 must
                 take
                 himself
                 to
                 his
                 warrandice
                 (
                 expresse
                 or
                 implyed
                 )
                 to
                 the
                 seller
                 ,
                 but
                 if
                 
                   bona
                   fide
                
                 ,
                 he
                 have
                 sold
                 it
                 before
                 he
                 be
                 questioned
                 ,
                 he
                 is
                 free
                 ,
                 and
                 not
                 oblieged
                 to
                 Restore
                 it
                 ,
                 though
                 in
                 so
                 far
                 as
                 he
                 is
                 profited
                 in
                 receiving
                 more
                 for
                 it
                 ,
                 than
                 he
                 gave
                 ,
                 he
                 be
                 lyable
                 by
                 the
                 Obligation
                 of
                 Remuneration
                 or
                 Recompence
                 ,
                 of
                 which
                 anone
                 .
                 And
                 as
                 to
                 the
                 Fruits
                 of
                 that
                 which
                 is
                 an
                 others
                 ,
                 the
                 Obligation
                 of
                 Restitution
                 ,
                 takes
                 only
                 place
                 against
                 the
                 haver
                 ,
                 where
                 they
                 are
                 extant
                 ;
                 and
                 therefore
                 ,
                 where
                 they
                 are
                 neglected
                 ,
                 or
                 being
                 reaped
                 ,
                 have
                 perished
                 ;
                 yea
                 ,
                 where
                 they
                 are
                 consumed
                 by
                 the
                 havers
                 making
                 use
                 of
                 them
                 ,
                 the
                 Obligation
                 of
                 Restitution
                 takes
                 no
                 place
                 ,
                 though
                 the
                 Obligation
                 of
                 Recompense
                 hath
                 place
                 ,
                 in
                 so
                 far
                 only
                 ,
                 as
                 by
                 such
                 Fruits
                 ,
                 the
                 haver
                 conceiving
                 them
                 to
                 be
                 his
                 own
                 ,
                 is
                 gainer
                 ,
                 and
                 in
                 better
                 condition
                 ,
                 than
                 if
                 he
                 had
                 not
                 had
                 them
                 ;
                 but
                 if
                 he
                 have
                 increased
                 his
                 spending
                 ,
                 
                   bona
                   fide
                
                 ,
                 because
                 of
                 his
                 having
                 he
                 is
                 free
                 ,
                 under
                 his
                 profiting
                 comes
                 his
                 paying
                 of
                 his
                 Debts
                 ,
                 or
                 even
                 his
                 Benificence
                 ,
                 where
                 it
                 appears
                 he
                 would
                 have
                 gifted
                 ,
                 whether
                 such
                 a
                 thing
                 had
                 come
                 to
                 his
                 hand
                 or
                 not
                 ;
                 for
                 in
                 either
                 case
                 he
                 is
                 Locupsetior
                 ,
                 and
                 must
                 recompence
                 ;
                 so
                 that
                 if
                 he
                 hath
                 sold
                 or
                 delivered
                 that
                 which
                 was
                 an
                 others
                 ,
                 and
                 which
                 came
                 to
                 him
                 without
                 price
                 ,
                 he
                 is
                 not
                 oblieged
                 to
                 Restore
                 the
                 thing
                 ,
                 but
                 to
                 recompence
                 what
                 he
                 hath
                 inriched
                 himself
                 by
                 the
                 price
                 ,
                 and
                 that
                 without
                 any
                 question
                 of
                 the
                 proportionable
                 value
                 of
                 it
                 to
                 the
                 thing
                 .
              
               
                 12.
                 
                 In
                 the
                 Enjoyments
                 of
                 Fruits
                 ,
                 the
                 Positive
                 Law
                 of
                 the
                 Romans
                 ,
                 and
                 of
                 this
                 ,
                 and
                 most
                 other
                 Nations
                 hath
                 not
                 only
                 owned
                 what
                 is
                 before
                 said
                 of
                 Restoring
                 ,
                 no
                 more
                 then
                 that
                 by
                 which
                 the
                 haver
                 hath
                 profited
                 ;
                 but
                 have
                 extended
                 this
                 much
                 further
                 ,
                 for
                 utility
                 and
                 common
                 quietness
                 sake
                 ,
                 that
                 
                   bonae
                   fidei
                   ,
                   possessor
                   facit
                   fructus
                   perceptos
                   ,
                   &
                   consumptos
                   suos
                   ,
                
                 whereby
                 what
                 Fruits
                 he
                 who
                 hath
                 possessed
                 ,
                 
                   bona
                   fide
                
                 ,
                 hath
                 consumed
                 ,
                 though
                 he
                 have
                 profited
                 ,
                 and
                 been
                 inriched
                 thereby
                 ,
                 he
                 is
                 not
                 oblieged
                 to
                 restore
                 the
                 same
                 ,
                 which
                 doth
                 much
                 secure
                 and
                 quiet
                 mens
                 Enjoyments
                 ,
                 that
                 they
                 may
                 freely
                 use
                 and
                 enjoy
                 that
                 ,
                 which
                 ,
                 
                   bona
                   fide
                
                 ,
                 they
                 have
                 ;
                 and
                 to
                 shun
                 the
                 hazard
                 of
                 their
                 ruine
                 ,
                 by
                 answering
                 for
                 the
                 bygone
                 Fruits
                 ,
                 or
                 their
                 great
                 vexation
                 in
                 clearing
                 ,
                 whether
                 they
                 be
                 inriched
                 thereby
                 or
                 not
                 .
              
               
                 Amongst
                 these
                 Obligations
                 ,
                 neither
                 by
                 Contract
                 nor
                 Delinquence
                 ,
                 are
                 commonly
                 accompted
                 the
                 Obligations
                 ,
                 which
                 are
                 incident
                 to
                 these
                 who
                 enter
                 Heirs
                 ,
                 or
                 are
                 Successours
                 to
                 others
                 ,
                 whereby
                 they
                 are
                 oblieged
                 to
                 perform
                 all
                 their
                 Predecessours
                 Obligations
                 ,
                 and
                 satisfie
                 their
                 Debts
                 ,
                 in
                 such
                 manner
                 as
                 in
                 
                 Law
                 is
                 prescribed
                 ,
                 and
                 yet
                 it
                 is
                 not
                 by
                 their
                 own
                 ingagement
                 ,
                 nor
                 by
                 their
                 fault
                 ,
                 but
                 by
                 their
                 fact
                 of
                 entering
                 Heirs
                 .
                 Such
                 also
                 are
                 the
                 Obligations
                 upon
                 Executors
                 ,
                 to
                 satisfie
                 the
                 Children
                 ,
                 and
                 Relict
                 ,
                 Legatars
                 ,
                 or
                 Debitors
                 of
                 Defuncts
                 ,
                 by
                 ,
                 or
                 for
                 whom
                 they
                 are
                 intrusted
                 ,
                 and
                 indeed
                 the
                 Restitution
                 of
                 the
                 Relicts
                 part
                 ,
                 is
                 properly
                 such
                 ;
                 as
                 also
                 ,
                 the
                 Legatars
                 to
                 whom
                 the
                 Right
                 by
                 the
                 Legacy
                 is
                 transmitted
                 ofttimes
                 of
                 peculiar
                 things
                 ;
                 the
                 giving
                 also
                 to
                 Children
                 ,
                 or
                 nearest
                 of
                 Kin
                 ,
                 is
                 a
                 Restitution
                 ,
                 because
                 the
                 property
                 of
                 the
                 Defuncts
                 Goods
                 ,
                 by
                 his
                 Will
                 ,
                 expressed
                 or
                 presumed
                 ,
                 is
                 transmitted
                 to
                 them
                 after
                 his
                 death
                 ;
                 but
                 for
                 payment
                 of
                 the
                 Defuncts
                 Debts
                 ,
                 they
                 are
                 not
                 properly
                 by
                 Restitution
                 ,
                 because
                 the
                 Debitor
                 had
                 no
                 property
                 in
                 the
                 Goods
                 ,
                 but
                 an
                 Obligation
                 upon
                 the
                 Person
                 ,
                 and
                 they
                 arise
                 either
                 from
                 that
                 Natural
                 Obligation
                 ,
                 that
                 lyes
                 upon
                 Children
                 from
                 their
                 Parents
                 ingagement
                 ,
                 of
                 which
                 before
                 :
                 Or
                 by
                 the
                 Naturall
                 Obligation
                 of
                 Remuneration
                 or
                 Recompence
                 ,
                 by
                 which
                 these
                 Successours
                 ,
                 in
                 so
                 far
                 as
                 they
                 are
                 profited
                 by
                 the
                 Succession
                 of
                 the
                 Defunct
                 ,
                 they
                 must
                 satisfie
                 or
                 recompence
                 ,
                 and
                 the
                 Positive
                 Law
                 in
                 some
                 cases
                 makes
                 them
                 lyable
                 simply
                 ;
                 yet
                 in
                 Equity
                 they
                 are
                 lyable
                 ,
                 in
                 so
                 far
                 as
                 they
                 are
                 gainers
                 ,
                 
                   secundum
                   vires
                   haereditatis
                
                 .
              
               
                 13.
                 
                 In
                 the
                 Restitution
                 of
                 the
                 Goods
                 of
                 others
                 ,
                 though
                 the
                 ground
                 thereof
                 be
                 the
                 having
                 of
                 that
                 which
                 is
                 to
                 be
                 Restored
                 ;
                 yet
                 if
                 the
                 haver
                 cease
                 to
                 have
                 through
                 his
                 own
                 Fraud
                 ,
                 his
                 Delinquence
                 therein
                 oblieges
                 him
                 to
                 Reparation
                 ,
                 as
                 if
                 he
                 still
                 had
                 it
                 ,
                 according
                 to
                 the
                 Maxime
                 of
                 Law
                 ,
                 
                   pro
                   possessore
                   habetur
                   qui
                   dolo
                   desiit
                   possidere
                   ,
                
                 and
                 this
                 extendeth
                 not
                 only
                 to
                 the
                 thing
                 it self
                 ,
                 which
                 he
                 must
                 Restore
                 ,
                 though
                 he
                 hath
                 fraudently
                 put
                 it
                 away
                 ,
                 or
                 at
                 least
                 the
                 value
                 of
                 it
                 ;
                 but
                 also
                 it
                 extends
                 to
                 the
                 Fruits
                 which
                 he
                 hath
                 injoyed
                 ,
                 
                   mala
                   fide
                
                 ;
                 and
                 after
                 he
                 knew
                 and
                 had
                 intimat
                 to
                 him
                 the
                 Right
                 of
                 another
                 ,
                 so
                 that
                 such
                 Fruits
                 must
                 be
                 Restored
                 ,
                 though
                 the
                 enjoyer
                 become
                 not
                 the
                 richer
                 thereby
                 .
              
               
                 14.
                 
                 From
                 the
                 right
                 of
                 Restitution
                 ,
                 ariseth
                 the
                 Action
                 of
                 Exhibition
                 and
                 Delivery
                 ;
                 The
                 Exhibition
                 is
                 but
                 preparatory
                 to
                 the
                 Delivery
                 ,
                 that
                 thereby
                 the
                 thing
                 in
                 question
                 may
                 be
                 known
                 to
                 the
                 Parties
                 ,
                 Judge
                 and
                 Witnesses
                 ;
                 and
                 therefore
                 ,
                 
                   majori
                   inest
                   minus
                
                 ,
                 he
                 that
                 hath
                 right
                 to
                 crave
                 Delivery
                 ,
                 hath
                 much
                 more
                 right
                 to
                 crave
                 the
                 Production
                 ,
                 or
                 the
                 Inspection
                 .
                 This
                 Action
                 may
                 be
                 Institute
                 concerning
                 any
                 moveable
                 things
                 that
                 can
                 be
                 conveyed
                 before
                 a
                 Judge
                 ,
                 or
                 his
                 Delegats
                 ,
                 as
                 if
                 the
                 question
                 were
                 of
                 a
                 Horse
                 ,
                 if
                 he
                 be
                 extant
                 ,
                 he
                 may
                 be
                 fitly
                 craved
                 to
                 be
                 Exhibit
                 ,
                 that
                 the
                 Witnesses
                 may
                 be
                 in
                 the
                 clearer
                 capacity
                 to
                 Depone
                 ,
                 to
                 whom
                 he
                 doth
                 belong
                 ;
                 but
                 the
                 ordinary
                 subject
                 of
                 this
                 Action
                 ,
                 is
                 Exhibition
                 and
                 Delivery
                 of
                 Writes
                 ,
                 wherein
                 the
                 Tenor
                 and
                 Stile
                 of
                 the
                 Action
                 is
                 ,
                 that
                 the
                 Defender
                 hath
                 ,
                 or
                 had
                 ,
                 or
                 fraudfully
                 put
                 away
                 the
                 thing
                 in
                 question
                 ,
                 his
                 having
                 is
                 probable
                 by
                 Witnesses
                 ,
                 and
                 relates
                 not
                 unto
                 the
                 time
                 of
                 Probation
                 ,
                 but
                 unto
                 the
                 time
                 of
                 the
                 Citation
                 ;
                 for
                 ,
                 if
                 after
                 it
                 the
                 Defender
                 had
                 the
                 thing
                 in
                 question
                 ,
                 he
                 ought
                 to
                 have
                 acknowledged
                 it
                 ;
                 and
                 if
                 he
                 have
                 justly
                 or
                 necessarily
                 put
                 it
                 away
                 ,
                 or
                 wanted
                 it
                 ,
                 he
                 ought
                 to
                 have
                 pleaded
                 that
                 as
                 a
                 defence
                 ,
                 which
                 therefore
                 would
                 exeem
                 the
                 Pursuer
                 from
                 Probation
                 of
                 the
                 Libel
                 ,
                 as
                 being
                 acknowledged
                 by
                 the
                 defence
                 ,
                 and
                 so
                 being
                 omitted
                 ,
                 and
                 the
                 Pursuer
                 proving
                 his
                 Libel
                 ,
                 the
                 exception
                 is
                 not
                 competent
                 ,
                 but
                 the
                 Defender
                 is
                 accompted
                 as
                 a
                 fraudful
                 away-putter
                 after
                 Citation
                 ;
                 so
                 that
                 this
                 Defence
                 ,
                 that
                 the
                 Writes
                 in
                 question
                 were
                 given
                 to
                 be
                 Registrate
                 ,
                 and
                 were
                 burnt
                 in
                 the
                 Tolbooth
                 ,
                 was
                 found
                 relevant
                 and
                 probable
                 by
                 the
                 Members
                 of
                 Court
                 ,
                 January
                 12.
                 1610.
                 
                 
                   Patrick
                   Home
                   contra
                   Wilson
                
                 .
              
               
                 There
                 is
                 a
                 second
                 Member
                 in
                 this
                 Action
                 ,
                 to
                 wit
                 ,
                 that
                 the
                 Defender
                 at
                 any
                 time
                 before
                 the
                 Citation
                 ,
                 had
                 the
                 Writes
                 in
                 question
                 ,
                 and
                 fraudulently
                 put
                 them
                 
                 away
                 ,
                 and
                 is
                 therefore
                 repute
                 as
                 haver
                 of
                 them
                 ,
                 both
                 these
                 Members
                 must
                 be
                 proven
                 ;
                 for
                 it
                 will
                 not
                 be
                 sufficient
                 to
                 prove
                 that
                 the
                 Defender
                 had
                 the
                 Writes
                 before
                 the
                 Citation
                 ;
                 but
                 it
                 also
                 must
                 be
                 proven
                 ,
                 that
                 he
                 fraudfully
                 put
                 them
                 away
                 ;
                 which
                 therefore
                 being
                 a
                 matter
                 of
                 Fraud
                 ,
                 concerning
                 the
                 mind
                 and
                 purpose
                 ,
                 is
                 not
                 probable
                 by
                 Witnesses
                 ,
                 but
                 by
                 Write
                 ,
                 or
                 Oath
                 of
                 Party
                 ,
                 November
                 17.
                 1627.
                 
                 
                   John
                   Inglis
                   contra
                   Gilbert
                   Kirkwood
                
                 .
                 30
                 of
                 January
                 1629.
                 
                 Captain
                 
                   Crawford
                   contra
                
                 Laird
                 of
                 Lamingtoun
                 .
                 Yet
                 if
                 Fraud
                 otherways
                 appear
                 ,
                 Witnesses
                 will
                 be
                 admitted
                 to
                 prove
                 the
                 having
                 before
                 Citation
                 ,
                 that
                 the
                 haver
                 may
                 instruct
                 that
                 he
                 warrantably
                 put
                 the
                 same
                 away
                 ,
                 July
                 14.
                 1666.
                 
                 Fountain
                 and
                 
                   Brown
                   contra
                   Maxwel
                
                 of
                 Netheryet
                 .
                 But
                 Witnesses
                 ,
                 will
                 not
                 be
                 admitted
                 to
                 prove
                 the
                 delivery
                 of
                 any
                 Write
                 by
                 the
                 granter
                 thereof
                 ,
                 whether
                 it
                 be
                 Bond
                 or
                 Assignation
                 ,
                 as
                 being
                 ,
                 
                   Chyrographum
                   apud
                   debitorem
                   repertum
                   presumitur
                   solutum
                   ,
                
                 which
                 was
                 sustained
                 ,
                 as
                 to
                 an
                 Assignation
                 in
                 the
                 hands
                 of
                 the
                 granters
                 Son
                 ,
                 who
                 did
                 his
                 Affairs
                 :
                 and
                 Witnesses
                 were
                 not
                 admitted
                 to
                 prove
                 that
                 the
                 same
                 was
                 delivered
                 to
                 the
                 Son
                 ,
                 as
                 Agent
                 for
                 the
                 Pursuer
                 ,
                 December
                 14.
                 1666.
                 
                 
                   Anna
                   Fairly
                   contra
                
                 the
                 Executors
                 of
                 Sir
                 
                   William
                   Dick.
                
                 This
                 presumption
                 is
                 stronger
                 in
                 relation
                 to
                 Bonds
                 ,
                 which
                 are
                 most
                 ordinarily
                 taken
                 away
                 ,
                 by
                 retiring
                 the
                 same
                 without
                 taking
                 Discharge
                 ;
                 and
                 therefore
                 ,
                 being
                 found
                 in
                 the
                 Hands
                 of
                 the
                 Debitor
                 ,
                 or
                 his
                 Heir
                 ,
                 they
                 are
                 presumed
                 to
                 be
                 satisfied
                 and
                 retired
                 ;
                 or
                 being
                 in
                 the
                 hands
                 of
                 a
                 Cautioner
                 ,
                 if
                 it
                 appear
                 by
                 his
                 Oath
                 ,
                 or
                 other
                 Evidence
                 ,
                 that
                 he
                 got
                 the
                 Bond
                 from
                 the
                 Principal
                 Debitor
                 ,
                 to
                 take
                 his
                 name
                 from
                 it
                 ,
                 June
                 26.
                 1623.
                 
                 
                   Carmichael
                   contra
                   Hay
                
                 of
                 Munktoun
                 ,
                 otherways
                 the
                 presumption
                 would
                 not
                 hold
                 by
                 the
                 Bonds
                 ,
                 being
                 found
                 in
                 the
                 hands
                 of
                 a
                 Cautioner
                 ,
                 or
                 of
                 an
                 Executor
                 ,
                 for
                 whom
                 simple
                 retiring
                 of
                 the
                 Bond
                 ,
                 will
                 not
                 be
                 sufficient
                 without
                 Discharge
                 or
                 Assignation
                 .
                 Exhibition
                 and
                 Delivery
                 is
                 competent
                 to
                 any
                 party
                 in
                 whose
                 favours
                 a
                 Write
                 is
                 conceived
                 ,
                 without
                 necessity
                 to
                 prove
                 that
                 it
                 was
                 delivered
                 ,
                 for
                 that
                 is
                 presumed
                 ,
                 if
                 the
                 Write
                 be
                 out
                 of
                 the
                 granters
                 hand
                 ,
                 so
                 that
                 the
                 granter
                 is
                 necessitat
                 to
                 prove
                 ,
                 that
                 the
                 Writ
                 was
                 depositat
                 upon
                 terms
                 not
                 performed
                 ;
                 or
                 that
                 it
                 was
                 lent
                 ,
                 lost
                 ,
                 Stollen
                 ,
                 or
                 passed
                 otherways
                 from
                 him
                 ,
                 then
                 by
                 delivery
                 :
                 for
                 prevention
                 of
                 which
                 ,
                 the
                 English
                 custome
                 is
                 good
                 ,
                 that
                 the
                 Write
                 bears
                 ,
                 
                   not
                   only
                   Signed
                   and
                   Sealed
                   ,
                   but
                   delivered
                   before
                   the
                   Witnesses
                   .
                
                 But
                 seing
                 with
                 us
                 ,
                 delivery
                 is
                 presumed
                 ,
                 it
                 is
                 ordinarily
                 required
                 ,
                 that
                 the
                 granter
                 of
                 the
                 Write
                 be
                 called
                 in
                 the
                 Exhibition
                 ,
                 that
                 he
                 may
                 be
                 heard
                 to
                 propone
                 any
                 thing
                 ,
                 that
                 may
                 take
                 off
                 the
                 presumption
                 ;
                 yet
                 this
                 will
                 not
                 be
                 necessary
                 in
                 recovering
                 Securities
                 of
                 Land
                 ,
                 or
                 other
                 real
                 Rights
                 ,
                 especially
                 if
                 the
                 Pursuer
                 be
                 in
                 Possession
                 .
                 But
                 in
                 several
                 cases
                 ,
                 Writes
                 are
                 effectual
                 without
                 Delivery
                 ;
                 As
                 First
                 ,
                 Writes
                 granted
                 by
                 Parents
                 in
                 favours
                 of
                 their
                 Children
                 ,
                 November
                 11.
                 1624.
                 
                 Bairns
                 of
                 
                   Eldersly
                   contra
                
                 his
                 Heir
                 .
                 Secondly
                 ,
                 Mutual
                 Contracts
                 or
                 Minuts
                 ,
                 
                   June
                   penult
                
                 .
                 1625.
                 
                 
                   Valence
                   contra
                   Crawford
                   .
                   Thirdly
                
                 ,
                 Writes
                 bearing
                 a
                 Clause
                 ,
                 dispensing
                 with
                 Delivery
                 .
                 Fourthly
                 ,
                 By
                 Reservation
                 of
                 the
                 granters
                 Liferent
                 ,
                 and
                 power
                 to
                 Dispone
                 ,
                 June
                 19.
                 1668.
                 
                 
                   Agnes
                   Hadden
                
                 and
                 
                   Mary
                   Lauder
                   contra
                   Shoarswood
                
                 .
                 The
                 like
                 was
                 found
                 lately
                 in
                 a
                 Disposition
                 of
                 some
                 Ackers
                 of
                 Land
                 to
                 
                   Thomas
                   Kincaid
                
                 Chyrurgian
                 .
                 Fifthly
                 ,
                 An
                 Assignation
                 taken
                 by
                 a
                 Debitor
                 in
                 name
                 of
                 his
                 Creditor
                 ,
                 for
                 his
                 Creditors
                 releif
                 ,
                 as
                 Cautioner
                 for
                 him
                 ,
                 intimat
                 by
                 the
                 Debitor
                 ,
                 was
                 found
                 effectual
                 without
                 delivery
                 ,
                 January
                 18.
                 1677.
                 
                 Dick
                 of
                 
                   Grange
                   contra
                   Oliphant
                
                 of
                 
                   Gask
                   ,
                   February
                
                 24.
                 1680.
                 
                 
                   John
                   Mclurg
                   contra
                   William
                   Blackwood
                
                 .
                 The
                 like
                 was
                 found
                 ,
                 where
                 the
                 Debitor
                 took
                 a
                 Bond
                 in
                 name
                 of
                 his
                 Creditor
                 ,
                 which
                 was
                 presumed
                 to
                 be
                 for
                 that
                 Creditors
                 satisfaction
                 security
                 ,
                 and
                 not
                 in
                 trust
                 ,
                 and
                 not
                 affectable
                 by
                 Arrestment
                 ,
                 for
                 the
                 Procurers
                 Debt
                 ,
                 before
                 it
                 was
                 delivered
                 ,
                 July
                 12.
                 1677.
                 
                 Mr.
                 
                   John
                   Bain
                   contra
                   Mcmillan
                
                 .
                 But
                 where
                 the
                 Bond
                 was
                 taken
                 blank
                 ,
                 and
                 Arrestment
                 laid
                 on
                 ,
                 before
                 it
                 was
                 filled
                 up
                 with
                 the
                 Creditors
                 name
                 ,
                 or
                 delivered
                 to
                 him
                 ,
                 the
                 Arrester
                 was
                 preferred
                 ,
                 February
                 27.
                 1678.
                 
                 
                 Campbel
                 and
                 
                   Cunninghame
                   contra
                
                 Mr.
                 
                   John
                   Bain
                
                 and
                 Mcmillan
                 .
                 Delivery
                 is
                 not
                 presumed
                 of
                 Bonds
                 of
                 provision
                 ,
                 to
                 Children
                 in
                 the
                 Family
                 ,
                 in
                 competition
                 with
                 Creditors
                 ,
                 though
                 their
                 Debts
                 be
                 posterior
                 to
                 the
                 dates
                 of
                 the
                 Bonds
                 of
                 Provision
                 ,
                 unless
                 the
                 delivery
                 thereof
                 be
                 proven
                 ,
                 anterior
                 to
                 the
                 Debt
                 ,
                 otherwise
                 Creditors
                 would
                 be
                 most
                 unsecure
                 by
                 Parents
                 ,
                 making
                 large
                 Bonds
                 of
                 Provision
                 ,
                 which
                 they
                 ordinarily
                 keep
                 by
                 them
                 ,
                 which
                 will
                 not
                 be
                 extended
                 to
                 Bonds
                 taken
                 from
                 Debitors
                 in
                 the
                 names
                 of
                 Children
                 ,
                 or
                 wherein
                 they
                 are
                 substitute
                 ,
                 these
                 not
                 being
                 latent
                 ,
                 but
                 known
                 to
                 the
                 Debitor
                 ;
                 but
                 the
                 simple
                 proving
                 the
                 having
                 of
                 Writes
                 ,
                 after
                 Citation
                 ,
                 is
                 sufficient
                 to
                 infer
                 the
                 Conclusion
                 ,
                 unless
                 the
                 lawful
                 Cause
                 be
                 alledged
                 in
                 the
                 Defence
                 and
                 proven
                 ,
                 and
                 the
                 having
                 of
                 Writes
                 ,
                 though
                 of
                 great
                 importance
                 ,
                 is
                 probable
                 by
                 Witnesses
                 .
              
               
                 15.
                 
                 Under
                 the
                 Obligation
                 of
                 Restitution
                 ,
                 is
                 comprehended
                 the
                 Obligation
                 of
                 Division
                 ,
                 whereby
                 what
                 we
                 possess
                 in
                 common
                 with
                 others
                 ,
                 or
                 indistinct
                 from
                 that
                 which
                 they
                 possess
                 ,
                 we
                 are
                 naturally
                 oblieged
                 to
                 divide
                 it
                 with
                 them
                 ,
                 whensoever
                 they
                 desire
                 to
                 quite
                 that
                 Communion
                 ,
                 for
                 thereby
                 we
                 Restore
                 what
                 is
                 their
                 own
                 ,
                 and
                 we
                 are
                 not
                 oblieged
                 thereto
                 by
                 any
                 Contract
                 or
                 Delinquence
                 ;
                 It
                 is
                 true
                 ,
                 the
                 Contract
                 for
                 Society
                 includeth
                 the
                 obliegement
                 to
                 divide
                 ,
                 after
                 the
                 Society
                 is
                 ended
                 ;
                 but
                 Communion
                 falleth
                 many
                 times
                 ,
                 where
                 there
                 is
                 no
                 Society
                 or
                 Contract
                 ,
                 as
                 by
                 Succession
                 ,
                 Legacy
                 ,
                 Gift
                 ,
                 &c.
                 
                 Hence
                 arise
                 these
                 three
                 Actions
                 ,
                 frequent
                 in
                 the
                 Roman
                 Law
                 ,
                 mainly
                 ,
                 because
                 Heretage
                 did
                 then
                 befall
                 to
                 the
                 nearest
                 degree
                 of
                 Agnats
                 ,
                 as
                 now
                 it
                 doth
                 not
                 ,
                 
                   viz.
                   Actio
                   familiae
                   Hersiscundae
                   ,
                   Actio
                   de
                   communi
                   dividendo
                   ,
                   &
                   Actio
                   de
                   finibus
                   regundis
                   .
                
                 The
                 first
                 is
                 the
                 division
                 of
                 that
                 which
                 falls
                 by
                 Succession
                 .
                 The
                 second
                 ,
                 for
                 division
                 of
                 that
                 which
                 is
                 otherwise
                 common
                 .
                 The
                 third
                 ,
                 for
                 distinction
                 ,
                 or
                 clearing
                 the
                 marches
                 of
                 Contiguous
                 Grounds
                 .
                 In
                 these
                 ,
                 either
                 Party
                 might
                 be
                 Pursuer
                 ,
                 and
                 he
                 is
                 held
                 to
                 be
                 pursuer
                 ,
                 who
                 did
                 first
                 provoke
                 to
                 Judgement
                 ;
                 but
                 because
                 they
                 do
                 chiefly
                 concern
                 Immoveable
                 or
                 Ground
                 Rights
                 ,
                 we
                 shall
                 say
                 no
                 more
                 here
                 of
                 them
                 .
              
            
             
               
               
                 TITLE
                 VIII
                 .
                 Recompence
                 .
              
               
                 
                   1.
                   
                   Recompence
                   ,
                   or
                   Remuneration
                   ,
                   a
                   Natural
                   Obligation
                   .
                
                 
                   2.
                   
                   Obligatione
                   
                     Negotiorum
                     Gestorum
                  
                   .
                
                 
                   3.
                   
                   Actio
                   directa
                   &
                   contraria
                   de
                   Negotiis
                   gestis
                   .
                
                 
                   4.
                   
                   The
                   Diligence
                   of
                   Negotiators
                   .
                
                 
                   5.
                   
                   The
                   Natural
                   Obliegement
                   to
                   Recompence
                   ,
                   
                     in
                     quantum
                     locupletiores
                     facti
                     sumus
                  
                   .
                
                 
                   6.
                   
                   Actio
                   de
                   in
                   rem
                   verso
                   .
                
                 
                   7.
                   
                   Relief
                   due
                   to
                   these
                   who
                   satisfie
                   Obligations
                   ,
                   whereby
                   more
                   Persons
                   are
                   lyable
                   ,
                   
                     in
                     eosdem
                  
                   .
                
              
               
                 1.
                 
                 THE
                 Obligation
                 of
                 Remuneration
                 ,
                 or
                 Recompence
                 ,
                 is
                 that
                 Bond
                 of
                 the
                 Law
                 of
                 Nature
                 ,
                 oblieging
                 to
                 do
                 one
                 good
                 deed
                 for
                 another
                 ,
                 and
                 it
                 comprehends
                 ,
                 First
                 ,
                 all
                 Obligations
                 of
                 Gratitude
                 ,
                 which
                 are
                 generally
                 acknowledged
                 by
                 all
                 Nations
                 ,
                 and
                 the
                 breach
                 thereof
                 is
                 abhorred
                 ,
                 
                   si
                   ingratum
                   dixeris
                   ,
                   omnia
                   dixeris
                
                 ;
                 yet
                 because
                 the
                 complaints
                 of
                 Ingratitude
                 ,
                 are
                 so
                 frequent
                 and
                 unclear
                 ,
                 every
                 one
                 esteeming
                 highly
                 of
                 the
                 demerit
                 of
                 his
                 own
                 Actions
                 ;
                 therefore
                 most
                 of
                 them
                 are
                 laid
                 aside
                 ,
                 without
                 any
                 legal
                 remedy
                 ;
                 for
                 that
                 which
                 is
                 done
                 ,
                 
                   animo
                   donandi
                
                 ,
                 though
                 it
                 doth
                 induce
                 an
                 Obligation
                 upon
                 the
                 mind
                 and
                 affection
                 of
                 the
                 receiver
                 to
                 be
                 thankful
                 ;
                 yet
                 doth
                 not
                 bind
                 to
                 the
                 like
                 liberality
                 ,
                 in
                 case
                 of
                 necessity
                 ,
                 but
                 in
                 few
                 cases
                 ;
                 as
                 a
                 Master
                 ,
                 gifting
                 Liberty
                 upon
                 this
                 ground
                 ,
                 did
                 put
                 an
                 Obligation
                 upon
                 the
                 Servant
                 ,
                 who
                 thereby
                 became
                 free
                 :
                 Whence
                 also
                 arose
                 that
                 Right
                 of
                 Patronage
                 ,
                 of
                 which
                 before
                 .
                 But
                 that
                 is
                 rather
                 by
                 a
                 Positive
                 Law
                 ,
                 and
                 tacit
                 consent
                 ,
                 as
                 a
                 Condition
                 implyed
                 in
                 the
                 Gift
                 :
                 So
                 also
                 in
                 every
                 Gift
                 ,
                 there
                 is
                 a
                 correspondent
                 Duty
                 of
                 Gratitude
                 ;
                 and
                 therefore
                 ,
                 by
                 ingratitude
                 the
                 Donation
                 becomes
                 void
                 and
                 returns
                 :
                 But
                 the
                 matter
                 is
                 more
                 clear
                 when
                 the
                 Good
                 Deed
                 is
                 done
                 ,
                 not
                 
                   animo
                   donandi
                
                 ,
                 but
                 of
                 purpose
                 ,
                 to
                 obliege
                 the
                 Receiver
                 
                 of
                 the
                 Benefite
                 to
                 Recompence
                 .
                 Such
                 are
                 Obligations
                 ,
                 
                   Negotiorum
                   Gestorum
                
                 :
                 And
                 generally
                 the
                 Obligations
                 of
                 Recompence
                 ,
                 of
                 what
                 we
                 are
                 profited
                 by
                 the
                 damnage
                 of
                 others
                 ,
                 without
                 their
                 purpose
                 to
                 Gift
                 ;
                 or
                 as
                 the
                 Law
                 expresseth
                 ,
                 
                   in
                   quantum
                   locupletiores
                   facti
                   sumus
                   ex
                   damno
                   alterius
                
                 ;
                 It
                 is
                 a
                 Rule
                 in
                 Law
                 ,
                 
                   Donatio
                   non
                   presumitur
                
                 ;
                 and
                 therefore
                 ,
                 whatsoever
                 is
                 done
                 ,
                 if
                 it
                 can
                 receive
                 any
                 other
                 construction
                 then
                 Donation
                 ,
                 it
                 is
                 constructed
                 accordingly
                 .
                 Whence
                 ariseth
                 that
                 other
                 Rule
                 of
                 Law
                 ,
                 
                   Debitor
                   non
                   praesumitur
                   donare
                
                 ;
                 So
                 that
                 any
                 deed
                 done
                 by
                 the
                 Debitor
                 ,
                 is
                 either
                 presumed
                 to
                 be
                 in
                 Security
                 ,
                 or
                 in
                 Satisfaction
                 of
                 his
                 Debt
                 ;
                 as
                 if
                 he
                 assign
                 his
                 Creditor
                 to
                 any
                 thing
                 due
                 to
                 him
                 ,
                 or
                 Dispone
                 any
                 thing
                 to
                 him
                 ,
                 it
                 is
                 understood
                 to
                 be
                 in
                 Security
                 or
                 Payment
                 ,
                 unless
                 the
                 Deed
                 express
                 to
                 be
                 a
                 Donation
                 ,
                 or
                 done
                 for
                 love
                 and
                 favour
                 ;
                 yea
                 ,
                 Trust
                 is
                 rather
                 presumed
                 than
                 Donation
                 ,
                 as
                 if
                 a
                 man
                 take
                 a
                 Bond
                 ,
                 Assignation
                 ,
                 Disposition
                 ,
                 or
                 other
                 Right
                 in
                 another
                 Mans
                 name
                 ;
                 it
                 is
                 held
                 to
                 be
                 a
                 trust
                 ,
                 he
                 may
                 force
                 that
                 other
                 to
                 denude
                 himself
                 ,
                 if
                 he
                 was
                 not
                 Creditor
                 to
                 the
                 Acquirer
                 ;
                 yet
                 these
                 Rules
                 have
                 their
                 Limitations
                 ;
                 As
                 first
                 ,
                 Bonds
                 ,
                 Assignations
                 ,
                 or
                 other
                 Rights
                 ,
                 in
                 the
                 names
                 of
                 Children
                 ,
                 unforisfamiliat
                 ,
                 unprovided
                 ,
                 are
                 presumed
                 to
                 be
                 Donations
                 ,
                 because
                 of
                 the
                 Parents
                 Natural
                 Affection
                 ,
                 and
                 Natural
                 Obligation
                 to
                 provide
                 Children
                 ,
                 which
                 was
                 extended
                 to
                 some
                 Goods
                 and
                 Money
                 of
                 a
                 small
                 value
                 ,
                 delivered
                 by
                 a
                 rich
                 Brother
                 who
                 wanted
                 Children
                 ,
                 to
                 his
                 Brother
                 who
                 was
                 no
                 Merchant
                 ,
                 which
                 was
                 presumed
                 to
                 be
                 
                   animo
                   donandi
                
                 ,
                 and
                 was
                 not
                 imputed
                 in
                 part
                 of
                 an
                 Annual
                 Legacy
                 ,
                 left
                 thereafter
                 by
                 that
                 rich
                 Brother
                 to
                 the
                 other
                 ,
                 November
                 13.
                 1679.
                 
                 
                   Anderson
                   contra
                   Anderson
                
                 ;
                 yea
                 ,
                 an
                 Assignation
                 to
                 ones
                 nearest
                 of
                 Kin
                 ,
                 
                   Mortis
                   causa
                
                 ,
                 was
                 found
                 a
                 Donation
                 ,
                 and
                 not
                 in
                 satisfaction
                 of
                 a
                 Debt
                 due
                 to
                 that
                 Party
                 ,
                 June
                 16.
                 1665.
                 
                 
                   Crookshank
                   contra
                   Crookshank
                
                 .
                 And
                 Bonds
                 of
                 Provision
                 to
                 Children
                 ,
                 are
                 not
                 Interpret
                 in
                 satisfaction
                 of
                 prior
                 Bonds
                 ,
                 but
                 to
                 be
                 a
                 further
                 Addition
                 ;
                 and
                 so
                 are
                 any
                 other
                 Rights
                 taken
                 in
                 name
                 of
                 Children
                 ,
                 especially
                 if
                 unforisfamiliat
                 :
                 yet
                 a
                 Tocher
                 in
                 a
                 Contract
                 of
                 Marriage
                 ,
                 was
                 found
                 to
                 be
                 in
                 satisfaction
                 of
                 all
                 former
                 Provision
                 ,
                 though
                 it
                 did
                 not
                 so
                 express
                 ,
                 June
                 29.
                 1680.
                 
                 
                   Francis
                   Young
                   contra
                   Pape
                
                 and
                 Vauns
                 .
                 And
                 Aliment
                 to
                 Children
                 ,
                 is
                 ordinarily
                 interpret
                 to
                 be
                 ,
                 
                   ex
                   pietate
                
                 ,
                 and
                 not
                 to
                 obliege
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 a
                 Mother
                 ,
                 where
                 the
                 Children
                 had
                 no
                 considerable
                 Estate
                 ,
                 February
                 2.
                 1672.
                 
                 Captain
                 
                   Guthry
                   contra
                
                 the
                 Laird
                 of
                 Mckerstoun
                 and
                 his
                 Brother
                 .
                 The
                 like
                 ,
                 though
                 the
                 Mother
                 was
                 Married
                 ,
                 Alimenting
                 her
                 Daughter
                 ,
                 who
                 was
                 appearand
                 Heir
                 to
                 her
                 Father
                 ,
                 though
                 she
                 renounced
                 to
                 be
                 Heir
                 ,
                 July
                 16.
                 1667.
                 
                 
                   Hamiltoun
                   contra
                   Simontoun
                
                 .
                 The
                 like
                 was
                 found
                 in
                 the
                 Mothers
                 Father
                 ,
                 Alimenting
                 his
                 Oye
                 ,
                 July
                 21.
                 1665.
                 
                 Laird
                 of
                 
                   Ludquharn
                   contra
                
                 Laird
                 of
                 Giht
                 .
                 And
                 in
                 the
                 case
                 of
                 a
                 Grand-mother
                 ,
                 Alimenting
                 her
                 Oye
                 in
                 the
                 Fathers
                 Life
                 ,
                 till
                 she
                 require
                 the
                 Father
                 to
                 take
                 her
                 home
                 ,
                 January
                 11.
                 1681.
                 
                 
                   Janet
                   Gordoun
                   contra
                   Janet
                   Lesly
                
                 .
                 Yet
                 Aliment
                 by
                 a
                 Sisters
                 Husband
                 ,
                 who
                 was
                 also
                 Debitor
                 ,
                 was
                 not
                 found
                 to
                 be
                 a
                 Donation
                 ,
                 seing
                 it
                 began
                 in
                 Minority
                 ,
                 and
                 was
                 continued
                 after
                 ,
                 though
                 without
                 paction
                 ,
                 February
                 11.
                 1681.
                 
                 
                   Margaret
                   Spence
                   contra
                   Foulis
                
                 of
                 Ratho
                 .
                 And
                 in
                 all
                 cases
                 ,
                 Aliment
                 or
                 Intertainment
                 given
                 to
                 any
                 person
                 without
                 paction
                 ,
                 is
                 presumed
                 a
                 Donation
                 ,
                 if
                 the
                 person
                 was
                 Major
                 ,
                 and
                 capable
                 to
                 make
                 agreement
                 .
                 But
                 Intertainment
                 to
                 Minors
                 or
                 weak
                 persons
                 ,
                 doth
                 ever
                 infer
                 Recompence
                 ,
                 according
                 to
                 the
                 true
                 value
                 of
                 the
                 Benefit
                 received
                 .
                 And
                 in
                 the
                 case
                 of
                 these
                 who
                 are
                 in
                 use
                 to
                 furnish
                 Provisions
                 for
                 Money
                 ,
                 the
                 presumption
                 ceaseth
                 ,
                 and
                 Recompence
                 is
                 due
                 .
                 In
                 like
                 manner
                 ,
                 where
                 more
                 persons
                 are
                 bound
                 for
                 the
                 same
                 Debt
                 ,
                 when
                 any
                 one
                 payeth
                 the
                 whole
                 Debt
                 ,
                 or
                 more
                 than
                 his
                 share
                 ,
                 Recompence
                 by
                 way
                 of
                 relief
                 ,
                 is
                 due
                 ,
                 although
                 there
                 be
                 no
                 Clause
                 of
                 relief
                 ;
                 and
                 generally
                 ,
                 the
                 delivery
                 of
                 any
                 thing
                 is
                 not
                 presumed
                 to
                 be
                 a
                 Donation
                 ,
                 but
                 for
                 Recompence
                 ,
                 or
                 Loan
                 .
                 And
                 so
                 though
                 the
                 delivery
                 of
                 Victual
                 to
                 an
                 ordinary
                 Buyer
                 ,
                 or
                 seller
                 of
                 Victual
                 ,
                 was
                 found
                 to
                 
                 infer
                 the
                 ordinary
                 price
                 ,
                 though
                 no
                 agreement
                 or
                 price
                 was
                 proven
                 ,
                 unless
                 the
                 receiver
                 instruct
                 another
                 cause
                 of
                 the
                 delivery
                 ,
                 June
                 15.
                 1677.
                 
                 
                   David
                   Home
                   contra
                   Jamison
                
                 .
              
               
                 2.
                 
                 Likeways
                 the
                 Obligation
                 betwixt
                 Negotiators
                 ,
                 and
                 these
                 to
                 whose
                 behove
                 they
                 Negotiat
                 ,
                 tying
                 to
                 Recompence
                 ,
                 what
                 others
                 without
                 our
                 Command
                 ,
                 Knowledge
                 ,
                 or
                 Presence
                 ,
                 have
                 necessarily
                 ,
                 or
                 profitably
                 done
                 for
                 carrying
                 on
                 of
                 our
                 Affairs
                 ,
                 these
                 Deeds
                 must
                 be
                 done
                 without
                 Command
                 ,
                 or
                 Commission
                 ;
                 otherways
                 they
                 come
                 in
                 the
                 nature
                 of
                 the
                 Contract
                 ,
                 Mandat
                 or
                 Commission
                 ;
                 yea
                 ,
                 what
                 is
                 done
                 in
                 our
                 presence
                 ,
                 with
                 our
                 Knowledge
                 ,
                 in
                 our
                 Affairs
                 ,
                 is
                 repute
                 ,
                 as
                 with
                 our
                 tacit
                 Consent
                 and
                 Commission
                 ,
                 
                   Nam
                   qui
                   tacet
                   ,
                   consentire
                   videtur
                
                 ;
                 These
                 must
                 also
                 be
                 done
                 for
                 the
                 carrying
                 on
                 of
                 our
                 Affairs
                 ;
                 For
                 Negotiators
                 cannot
                 begin
                 any
                 new
                 Business
                 ,
                 but
                 only
                 carry
                 on
                 that
                 which
                 is
                 begun
                 ,
                 and
                 they
                 must
                 be
                 necessarily
                 or
                 profitably
                 done
                 ;
                 otherwise
                 he
                 hath
                 his
                 Labour
                 for
                 his
                 Pains
                 ,
                 and
                 he
                 that
                 set
                 him
                 on
                 Work
                 must
                 pay
                 him
                 his
                 Expenses
                 .
                 And
                 last
                 ,
                 though
                 these
                 Deeds
                 may
                 be
                 done
                 without
                 our
                 Knowledge
                 or
                 Consent
                 ;
                 yet
                 may
                 they
                 not
                 be
                 contrary
                 to
                 our
                 Will
                 and
                 Command
                 ;
                 for
                 such
                 obtruders
                 can
                 expect
                 no
                 Recompence
                 ,
                 
                   L
                   :
                   Final
                   .
                   C.
                   de
                   negotiis
                   gestis
                
                 ;
                 though
                 no
                 Positive
                 Law
                 hinder
                 ,
                 we
                 may
                 be
                 liable
                 even
                 to
                 such
                 ,
                 
                   in
                   quantum
                   facti
                   sumus
                   locupletivres
                
                 .
                 But
                 the
                 obliegement
                 to
                 Negotiators
                 is
                 greater
                 ;
                 for
                 ,
                 if
                 they
                 do
                 that
                 which
                 is
                 necessary
                 or
                 profitable
                 ,
                 for
                 carrying
                 on
                 our
                 Affairs
                 ,
                 though
                 by
                 some
                 accident
                 ,
                 that
                 Affair
                 may
                 perish
                 ,
                 or
                 miscarry
                 ,
                 and
                 we
                 no
                 richer
                 ,
                 but
                 it
                 may
                 be
                 poorer
                 ,
                 yet
                 are
                 we
                 oblieged
                 .
                 The
                 ground
                 of
                 these
                 Obligations
                 ,
                 is
                 ,
                 because
                 it
                 is
                 frequent
                 for
                 men
                 to
                 go
                 abroad
                 upon
                 their
                 Affairs
                 ,
                 supposing
                 quickly
                 to
                 return
                 ,
                 and
                 leave
                 no
                 Mandat
                 for
                 managing
                 of
                 them
                 ;
                 and
                 yet
                 being
                 detained
                 from
                 them
                 beyond
                 expectation
                 ,
                 they
                 may
                 be
                 easily
                 lost
                 ;
                 For
                 instance
                 ,
                 some
                 Redemptions
                 must
                 be
                 peremptor
                 ,
                 and
                 the
                 failer
                 therein
                 hath
                 a
                 great
                 inconvenience
                 ;
                 or
                 the
                 perfecting
                 of
                 some
                 great
                 Bargain
                 ,
                 a
                 great
                 part
                 whereof
                 is
                 already
                 done
                 ;
                 and
                 the
                 not
                 perfecting
                 the
                 rest
                 ,
                 loseth
                 the
                 whole
                 ;
                 or
                 the
                 management
                 of
                 any
                 work
                 of
                 great
                 profit
                 ,
                 that
                 for
                 want
                 of
                 some
                 pains
                 or
                 expenses
                 might
                 be
                 lost
                 .
                 These
                 who
                 interpose
                 themselves
                 in
                 such
                 cases
                 ,
                 do
                 necessarily
                 and
                 profitably
                 for
                 the
                 good
                 of
                 the
                 absent
                 ,
                 and
                 so
                 are
                 under
                 no
                 Delinquence
                 ,
                 neither
                 are
                 they
                 presumed
                 to
                 gift
                 their
                 pains
                 and
                 expenses
                 ,
                 nor
                 have
                 they
                 any
                 Conventional
                 Obligation
                 upon
                 their
                 part
                 :
                 And
                 yet
                 though
                 there
                 were
                 no
                 Positive
                 Law
                 for
                 it
                 ,
                 the
                 very
                 Light
                 of
                 Nature
                 would
                 teach
                 ,
                 it
                 ought
                 to
                 be
                 Recompenced
                 ;
                 and
                 therefore
                 ,
                 can
                 be
                 no
                 other
                 then
                 an
                 Obediential
                 ,
                 or
                 Natural
                 Obligation
                 ,
                 by
                 the
                 Authority
                 of
                 God
                 ,
                 and
                 our
                 obedience
                 to
                 him
                 ,
                 
                   Grotius
                   ,
                   l.
                
                 2.
                 
                 Cap.
                 10.
                 
                   de
                   Jure
                   Belli
                
                 §
                 .
                 8.
                 doth
                 not
                 own
                 this
                 Obligation
                 as
                 Natural
                 ,
                 but
                 as
                 arising
                 ,
                 
                   Ex
                   lege
                   civili
                   nullum
                   enim
                
                 (
                 saith
                 he
                 )
                 
                   habet
                   eorum
                   fundamentorum
                   ,
                   ex
                   quibus
                   natura
                   Obligationem
                   inducit
                
                 ;
                 but
                 the
                 contrary
                 appeareth
                 ,
                 not
                 only
                 from
                 what
                 is
                 said
                 ,
                 but
                 by
                 the
                 Testimony
                 of
                 the
                 Law
                 it self
                 ,
                 which
                 reckons
                 the
                 Obligations
                 ,
                 
                   Negotiorum
                   Gestorum
                
                 ;
                 not
                 amongst
                 Contracts
                 ,
                 or
                 Obligations
                 ,
                 or
                 Actions
                 ,
                 
                   ex
                   lege
                
                 ;
                 but
                 amongst
                 these
                 which
                 are
                 ,
                 
                   ex
                   quasi
                   contractu
                
                 .
              
               
                 That
                 this
                 Obligation
                 is
                 effectual
                 ,
                 if
                 it
                 be
                 profitably
                 carryed
                 on
                 ,
                 though
                 the
                 success
                 answer
                 not
                 ,
                 is
                 acknowledged
                 in
                 Law
                 ,
                 and
                 set
                 forth
                 by
                 an
                 excellent
                 Species
                 ,
                 by
                 
                   Ulpian
                   ,
                   l.
                
                 10.
                 
                 §
                 .
                 1.
                 
                 
                   F.
                   de
                   negotiis
                   gestis
                
                 ;
                 It
                 justifieth
                 (
                 saith
                 he
                 )
                 if
                 the
                 Negotiator
                 did
                 profitably
                 act
                 ,
                 although
                 the
                 Affair
                 had
                 not
                 the
                 effect
                 ;
                 as
                 if
                 he
                 had
                 Cured
                 a
                 sick
                 Servant
                 ,
                 if
                 not
                 with
                 standing
                 the
                 Cure
                 ,
                 the
                 Servant
                 died
                 ,
                 he
                 hath
                 this
                 Action
                 .
              
               
                 3.
                 
                 From
                 this
                 Obligation
                 there
                 arise
                 Mutual
                 Actions
                 ,
                 the
                 one
                 direct
                 ,
                 whereby
                 
                 he
                 whose
                 Affair
                 is
                 managed
                 ,
                 craveth
                 Accompt
                 ,
                 and
                 Restitution
                 of
                 the
                 Negotiator
                 ,
                 and
                 Reparation
                 of
                 what
                 he
                 hath
                 done
                 amiss
                 ;
                 and
                 the
                 contrair
                 Action
                 to
                 the
                 Negotiator
                 ,
                 whereby
                 he
                 craveth
                 Recompence
                 ,
                 and
                 Satisfaction
                 of
                 what
                 he
                 hath
                 profitably
                 expended
                 ,
                 and
                 for
                 his
                 labour
                 and
                 pains
                 ,
                 but
                 the
                 Action
                 is
                 valid
                 on
                 either
                 part
                 ,
                 whether
                 intended
                 ,
                 directe
                 ,
                 or
                 
                   utiliter
                   ,
                   l.
                   Actio
                   ff
                
                 .
                 47.
                 
                   de
                   negotiis
                   gestis
                
                 .
              
               
                 4.
                 
                 The
                 Negotiator
                 is
                 holden
                 ,
                 not
                 only
                 to
                 answer
                 for
                 Fraud
                 ,
                 but
                 ,
                 
                   pro
                   culpae
                   levi
                
                 ,
                 for
                 his
                 fault
                 ,
                 though
                 light
                 ;
                 yea
                 ,
                 if
                 any
                 other
                 Negotiator
                 offered
                 ,
                 whom
                 he
                 excluded
                 for
                 the
                 lightest
                 ,
                 he
                 may
                 be
                 made
                 also
                 to
                 follow
                 forth
                 his
                 Negotiation
                 ,
                 according
                 to
                 that
                 Precept
                 ,
                 
                   Susceptum
                   perfice
                   munus
                
                 ;
                 but
                 this
                 ,
                 and
                 the
                 exactness
                 of
                 diligence
                 ,
                 is
                 induced
                 by
                 Positive
                 Law
                 ;
                 Equity
                 leaving
                 the
                 Negotiator
                 free
                 ,
                 if
                 he
                 hath
                 acted
                 profitably
                 ,
                 though
                 he
                 might
                 have
                 acted
                 more
                 profitably
                 ,
                 in
                 making
                 his
                 Party
                 lyable
                 to
                 him
                 according
                 to
                 his
                 acting
                 .
              
               
                 5.
                 
                 The
                 other
                 Obligation
                 of
                 Recompence
                 ,
                 is
                 ,
                 for
                 that
                 whereby
                 we
                 are
                 inriched
                 by
                 anothers
                 Means
                 ,
                 without
                 purpose
                 of
                 Donation
                 ,
                 which
                 is
                 only
                 presumed
                 in
                 few
                 Cases
                 ,
                 even
                 he
                 who
                 
                   mala
                   fide
                
                 ,
                 buildeth
                 upon
                 another
                 Mans
                 Ground
                 ,
                 or
                 repaireth
                 unnecessarly
                 his
                 House
                 ,
                 is
                 not
                 presumed
                 to
                 do
                 it
                 ,
                 
                   animo
                   donandi
                
                 ,
                 but
                 hath
                 Recompence
                 by
                 the
                 owner
                 ,
                 
                   in
                   quantum
                   lucratus
                   ,
                   l.
                
                 38.
                 
                   ff
                   .
                   de
                   haereditatis
                   petitione
                
                 .
                 This
                 Remuneration
                 is
                 a
                 most
                 Natural
                 Obligation
                 ,
                 as
                 
                   Cicero
                   ,
                   l.
                
                 3.
                 
                   de
                   officiis
                
                 ,
                 Sayeth
                 ,
                 that
                 it
                 is
                 against
                 Nature
                 ,
                 for
                 a
                 man
                 ,
                 of
                 anothers
                 damnage
                 ,
                 to
                 increase
                 his
                 profite
                 :
                 And
                 again
                 ,
                 Justice
                 suffers
                 not
                 that
                 with
                 the
                 spoil
                 of
                 others
                 ,
                 we
                 should
                 augment
                 our
                 riches
                 ;
                 and
                 therefore
                 ,
                 this
                 is
                 a
                 common
                 exception
                 in
                 all
                 Positive
                 Laws
                 ,
                 that
                 every
                 one
                 should
                 be
                 holden
                 ,
                 
                   in
                   quantum
                   locupletior
                   factus
                   sit
                
                 .
                 So
                 Pupils
                 ,
                 though
                 they
                 cannot
                 obliege
                 themselves
                 by
                 Contract
                 ,
                 yet
                 if
                 they
                 receive
                 that
                 which
                 is
                 anothers
                 ,
                 they
                 are
                 lyable
                 to
                 Recompence
                 ,
                 
                   in
                   quantum
                   locupletiores
                   facti
                   ,
                   l.
                   sed
                   mihi
                   ff
                   .
                   commodati
                   .
                
                 Minors
                 also
                 ,
                 though
                 by
                 Positive
                 Law
                 ,
                 they
                 are
                 not
                 lyable
                 for
                 what
                 they
                 borrow
                 ,
                 and
                 receive
                 ,
                 and
                 mispend
                 ,
                 yet
                 they
                 are
                 lyable
                 ,
                 
                   in
                   quantum
                   locupletiores
                   facti
                   sunt
                
                 .
              
               
                 6.
                 
                 Hence
                 arises
                 the
                 Action
                 in
                 Law
                 ,
                 
                   de
                   in
                   rem
                   verso
                
                 ;
                 whereby
                 whatsoever
                 turneth
                 to
                 the
                 profite
                 of
                 any
                 ,
                 makes
                 him
                 thereby
                 lyable
                 ,
                 though
                 without
                 any
                 ingagement
                 of
                 his
                 own
                 .
                 We
                 are
                 inriched
                 ,
                 either
                 by
                 Accession
                 ,
                 of
                 Gain
                 ,
                 or
                 Prevention
                 of
                 loss
                 :
                 Whence
                 is
                 the
                 Obligation
                 of
                 Contribution
                 ,
                 for
                 making
                 up
                 Goods
                 ,
                 thrown
                 out
                 to
                 lighten
                 Ships
                 ,
                 whereby
                 Shipwrack
                 ,
                 and
                 the
                 loss
                 of
                 all
                 is
                 prevented
                 ,
                 
                   Lege
                   Rodia
                   de
                   jactu
                   ,
                   ff
                   .
                   l.
                
                 2.
                 by
                 which
                 ,
                 whatsoever
                 is
                 thrown
                 out
                 to
                 lighten
                 a
                 Ship
                 ,
                 for
                 preventing
                 Shipwrack
                 ,
                 is
                 to
                 be
                 satisfied
                 by
                 the
                 Contribution
                 ,
                 of
                 all
                 who
                 enjoy
                 that
                 common
                 benefite
                 of
                 Safety
                 from
                 Shipwrack
                 ,
                 proportionally
                 according
                 to
                 the
                 value
                 of
                 what
                 is
                 thereby
                 saved
                 .
                 wherein
                 the
                 owners
                 of
                 the
                 Ship
                 ,
                 bear
                 their
                 share
                 ,
                 l.
                 2.
                 
                 §
                 .
                 2.
                 eodem
                 ,
                 wherein
                 not
                 only
                 Jewels
                 ,
                 though
                 of
                 small
                 weight
                 ,
                 but
                 even
                 the
                 Clothes
                 and
                 Rings
                 of
                 Passengers
                 ,
                 bear
                 a
                 share
                 ,
                 Ibidem
                 ,
                 and
                 the
                 Master
                 of
                 the
                 Ship
                 may
                 detain
                 their
                 Goods
                 till
                 their
                 share
                 be
                 payed
                 ,
                 l.
                 2.
                 
                 §
                 .
                 1.
                 codem
                 ;
                 which
                 holds
                 also
                 ,
                 when
                 there
                 is
                 hazard
                 of
                 Naufrage
                 ,
                 by
                 entering
                 a
                 shallow
                 River
                 ,
                 or
                 Port
                 ,
                 if
                 a
                 part
                 of
                 the
                 Goods
                 be
                 put
                 in
                 a
                 Boat
                 ,
                 and
                 perish
                 ,
                 the
                 value
                 thereof
                 is
                 to
                 be
                 satisfied
                 by
                 Contribution
                 .
                 Contribution
                 is
                 also
                 made
                 ,
                 for
                 what
                 is
                 payed
                 for
                 Redemption
                 of
                 Ships
                 from
                 Pirats
                 ,
                 which
                 is
                 not
                 extended
                 to
                 things
                 taken
                 away
                 by
                 Pirats
                 ,
                 or
                 Robbers
                 out
                 of
                 Ships
                 ,
                 l.
                 2.
                 
                 §
                 .
                 3.
                 eodem
                 .
                 This
                 ,
                 
                   Lex
                   Rodia
                
                 ,
                 is
                 now
                 become
                 a
                 Law
                 of
                 Nations
                 ,
                 as
                 commonly
                 received
                 by
                 all
                 ,
                 for
                 its
                 expediency
                 to
                 prevent
                 Shipwrack
                 ,
                 and
                 to
                 incourage
                 Merchants
                 to
                 throw
                 out
                 their
                 Goods
                 ,
                 seing
                 thereby
                 they
                 will
                 but
                 bear
                 their
                 share
                 of
                 the
                 
                 loss
                 .
                 But
                 this
                 Law
                 is
                 not
                 Declaratory
                 of
                 pure
                 Equity
                 ,
                 and
                 doth
                 hold
                 by
                 Custome
                 ;
                 otherways
                 ,
                 what
                 any
                 Party
                 doth
                 for
                 his
                 own
                 profite
                 ,
                 though
                 it
                 have
                 a
                 consequential
                 advantage
                 to
                 others
                 ,
                 it
                 will
                 not
                 obliege
                 them
                 to
                 bear
                 a
                 share
                 of
                 the
                 Expenses
                 ,
                 nor
                 will
                 it
                 be
                 interpret
                 as
                 ,
                 
                   Negotium
                   〈◊〉
                
                 ;
                 for
                 ,
                 he
                 who
                 improves
                 aright
                 ,
                 though
                 it
                 becomes
                 simply
                 void
                 ,
                 and
                 other
                 Right
                 beside
                 his
                 be
                 preferreds
                 ,
                 yet
                 he
                 was
                 doing
                 his
                 own
                 business
                 ,
                 not
                 theirs
                 ,
                 and
                 can
                 claim
                 no
                 share
                 from
                 them
                 of
                 his
                 Expenses
                 .
                 It
                 was
                 found
                 ,
                 that
                 to
                 evite
                 Captor
                 by
                 a
                 Privateer
                 ,
                 a
                 Skipper
                 having
                 by
                 consent
                 of
                 some
                 Merchants
                 aboard
                 ,
                 and
                 of
                 the
                 Company
                 ,
                 made
                 a
                 hole
                 in
                 the
                 Bottom
                 of
                 the
                 Ship
                 ,
                 that
                 he
                 might
                 run
                 near
                 the
                 Shoar
                 at
                 a
                 Creik
                 ,
                 and
                 opening
                 the
                 hole
                 ,
                 make
                 the
                 Ship
                 so
                 far
                 sink
                 ,
                 that
                 she
                 could
                 not
                 be
                 carryed
                 off
                 by
                 the
                 Privateer
                 ;
                 yet
                 that
                 Privateer
                 having
                 reached
                 her
                 near
                 the
                 Shoar
                 ,
                 but
                 before
                 the
                 hole
                 was
                 opened
                 ,
                 and
                 having
                 agreed
                 for
                 a
                 Ransome
                 ,
                 for
                 which
                 the
                 Merchants
                 Contributed
                 ,
                 the
                 Ship
                 having
                 been
                 Wracked
                 five
                 days
                 after
                 by
                 a
                 Storm
                 ,
                 which
                 she
                 might
                 have
                 prevented
                 ,
                 by
                 going
                 off
                 before
                 the
                 Storm
                 arose
                 ,
                 the
                 Merchants
                 and
                 Passengers
                 ,
                 were
                 not
                 found
                 lyable
                 for
                 Contribution
                 of
                 their
                 shares
                 for
                 the
                 loss
                 of
                 the
                 Ship
                 ,
                 July
                 15.
                 1680.
                 
                 Lesly
                 and
                 
                   Millars
                   contra
                   Logan
                   ,
                   Weir
                
                 ,
                 and
                 others
                 .
              
               
                 7.
                 
                 From
                 the
                 natural
                 Obligation
                 of
                 Recompence
                 ,
                 doth
                 arise
                 the
                 Obligation
                 of
                 Relief
                 ,
                 whereby
                 when
                 many
                 persons
                 are
                 oblieged
                 ,
                 
                   in
                   solidum
                
                 ,
                 and
                 thereby
                 lyable
                 ,
                 conjunctly
                 and
                 severally
                 ,
                 payment
                 or
                 satisfaction
                 made
                 by
                 one
                 ,
                 for
                 more
                 then
                 his
                 own
                 share
                 ,
                 doth
                 obliege
                 all
                 the
                 rest
                 ,
                 
                   pro
                   rata
                
                 ,
                 although
                 there
                 be
                 no
                 conventional
                 Clause
                 of
                 relief
                 ,
                 nor
                 any
                 Law
                 nor
                 Statute
                 ,
                 but
                 the
                 natural
                 Obligation
                 of
                 Recompence
                 ;
                 for
                 he
                 who
                 payed
                 ,
                 not
                 only
                 for
                 himself
                 ,
                 but
                 for
                 others
                 ,
                 is
                 not
                 presumed
                 to
                 do
                 it
                 ,
                 
                   animo
                   donandi
                
                 ,
                 as
                 was
                 found
                 in
                 the
                 Case
                 of
                 
                   Co-principals
                   ,
                   June
                
                 19.
                 1662.
                 
                 Mr.
                 
                   John
                   Wallace
                   contra
                   Forks
                   .
                   June
                
                 28.
                 1665.
                 
                 
                   〈◊〉
                   contra
                   Anderson
                
                 .
                 It
                 was
                 so
                 found
                 before
                 ,
                 as
                 was
                 observed
                 by
                 
                   Haddingtoun
                   ,
                   〈◊〉
                   contra
                   Hunter
                
                 .
                 And
                 upon
                 the
                 same
                 ground
                 ,
                 Relief
                 is
                 competent
                 amongst
                 Cautioners
                 ,
                 without
                 Clause
                 of
                 Relief
                 ,
                 because
                 the
                 payment
                 of
                 one
                 liberats
                 all
                 ,
                 June
                 27.
                 1675.
                 
                 
                   Monteith
                   contra
                   Roger.
                
                 Yea
                 ,
                 Relief
                 was
                 found
                 competent
                 to
                 a
                 Cautioner
                 ,
                 who
                 in
                 a
                 new
                 Bond
                 of
                 Corroboration
                 ,
                 had
                 ingaged
                 for
                 the
                 Debt
                 ,
                 with
                 the
                 Principal
                 ,
                 and
                 that
                 against
                 the
                 Cautioners
                 in
                 the
                 first
                 Bond
                 ,
                 though
                 he
                 had
                 no
                 Assignation
                 to
                 the
                 Clause
                 of
                 Relief
                 ,
                 granted
                 to
                 the
                 first
                 Cautioners
                 ,
                 Spots
                 .
                 Cautioners
                 ,
                 
                   Lubra
                   contra
                   david
                   Vauns
                
                 .
                 The
                 same
                 must
                 hold
                 in
                 Con-tutors
                 ,
                 Co-curators
                 ,
                 and
                 wherever
                 more
                 Debitors
                 are
                 lyable
                 ,
                 
                   in
                   solidum
                
                 ,
                 for
                 the
                 same
                 Debt
                 or
                 deed
                 .
              
            
             
               
               
                 TITLE
                 IX
                 .
                 Reparation
                 where
                 ,
                 of
                 Delinquences
                 and
                 Damnage
                 thence
                 arising
                 .
              
               
                 
                   1.
                   
                   The
                   Obligation
                   of
                   Reparation
                   of
                   Damnages
                   by
                   Delinquence
                   ,
                   a
                   Natural
                   Obligation
                   .
                
                 
                   2.
                   
                   Delinquence
                   infers
                   the
                   Obligation
                   of
                   Punishment
                   ,
                   and
                   Reparation
                   of
                   the
                   Injured
                   .
                
                 
                   3.
                   
                   Damnage
                   Described
                   .
                
                 
                   4.
                   
                   Kinds
                   of
                   Delinquence
                   .
                
                 
                   5.
                   
                   Concurrers
                   in
                   Delinquence
                   ,
                   how
                   lyable
                   .
                
                 
                   6.
                   
                   Special
                   kinds
                   of
                   Delinquences
                   by
                   our
                   Customes
                   .
                
                 
                   7.
                   
                   Assythment
                   .
                
                 
                   8.
                   
                   Extertion
                   ,
                   
                     vi
                     majori
                     &
                     metus
                     causa
                  
                   .
                
                 
                   9.
                   
                   Circumvention
                   by
                   Fraud
                   ,
                   
                     dolo
                     malo
                  
                   .
                
                 
                   10.
                   
                   The
                   Edict
                   ,
                   
                     de
                     dolo
                     malo
                  
                   .
                
                 
                   11.
                   
                   Circumvention
                   rarely
                   inferred
                   by
                   witnesses
                   .
                
                 
                   12.
                   
                   Simulation
                   ,
                
                 
                   13.
                   
                   Collusion
                   .
                
                 
                   14.
                   
                   The
                   effect
                   of
                   Fraud
                   ,
                   as
                   to
                   the
                   party
                   Contracting
                   .
                
                 
                   15.
                   
                   Deeds
                   done
                   ,
                   
                     in
                     fraudem
                     Creditorum
                  
                   ,
                   contrair
                   the
                   Act
                   of
                   Parliament
                   ,
                   1621.
                   anent
                   Bankrupts
                   .
                
                 
                   16.
                   
                   The
                   Nature
                   of
                   Spuilzie
                   .
                
                 
                   17.
                   
                   The
                   Title
                   of
                   Possession
                   .
                
                 
                   18.
                   
                   Oath
                   ,
                   
                     in
                     litem
                  
                   ,
                   in
                   Spulzies
                   .
                
                 
                   19.
                   
                   Spuilzie
                   eleided
                   by
                   any
                   colourable
                   Title
                   ,
                   Warrand
                   ,
                   or
                   ,
                   
                     bona
                     sides
                  
                   .
                
                 
                   20.
                   
                   Spulzie
                   eleided
                   by
                   voluntar
                   Delivery
                   .
                
                 
                   21.
                   
                   By
                   lawful
                   Poynding
                   .
                
                 
                   22.
                   
                   Replyes
                   against
                   Poynding
                   .
                
                 
                   23.
                   
                   Spuilzie
                   eleided
                   by
                   Restitution
                   within
                   twenty
                   four
                   hours
                   .
                
                 
                   24.
                   
                   Prescription
                   of
                   Spuilzies
                   .
                
                 
                   25.
                   
                   Intrusion
                   and
                   Ejection
                   described
                   and
                   distinguisbed
                   .
                
                 
                   26.
                   
                   Ejection
                   propper
                   to
                   the
                   Natural
                   Possessour
                   .
                
                 
                   27.
                   
                   Exceptions
                   against
                   Ejections
                   .
                
                 
                   28.
                   
                   Mollestation
                   .
                
                 
                   29.
                   
                   Breach
                   of
                   Arrestment
                   and
                   Deforcement
                   .
                
                 
                   30.
                   
                   Contravention
                   .
                
              
               
               
                 AMONGST
                 Obligations
                 Obediential
                 ,
                 we
                 have
                 placed
                 these
                 ,
                 which
                 are
                 by
                 Delinquence
                 ,
                 because
                 they
                 arise
                 without
                 any
                 Convention
                 ,
                 Consent
                 ,
                 or
                 Contract
                 ,
                 either
                 particularly
                 ,
                 or
                 by
                 vertue
                 of
                 any
                 Positive
                 Law
                 ;
                 and
                 therefore
                 ,
                 they
                 must
                 needs
                 have
                 their
                 Original
                 from
                 the
                 Authority
                 and
                 Will
                 of
                 God
                 ,
                 and
                 of
                 our
                 Obedience
                 due
                 thereto
                 ;
                 for
                 ,
                 though
                 they
                 do
                 proceed
                 from
                 our
                 Fact
                 ,
                 and
                 from
                 our
                 Will
                 ,
                 whence
                 that
                 Fact
                 is
                 voluntarly
                 committed
                 ,
                 yet
                 it
                 is
                 not
                 from
                 our
                 Contracting
                 Will
                 ;
                 and
                 therefore
                 ,
                 these
                 Obligations
                 do
                 not
                 receive
                 their
                 measure
                 ,
                 or
                 extent
                 by
                 our
                 will.
                 
              
               
                 1.
                 
                 That
                 Obligations
                 of
                 Delinquence
                 ,
                 are
                 introduced
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 the
                 Suffrage
                 of
                 all
                 Men
                 ,
                 and
                 all
                 Nations
                 will
                 evince
                 ,
                 who
                 do
                 every
                 where
                 acknowledge
                 the
                 Reparation
                 of
                 Damnages
                 ,
                 and
                 Punishment
                 of
                 Crimes
                 ,
                 and
                 Injuries
                 ,
                 as
                 having
                 by
                 Nature
                 ,
                 a
                 clear
                 Evidence
                 ,
                 and
                 sharp
                 Sense
                 thereof
                 ;
                 and
                 thereupon
                 ,
                 can
                 without
                 Reluctancy
                 ,
                 concur
                 with
                 the
                 Magistrate
                 in
                 the
                 Punishment
                 of
                 Citizens
                 ,
                 and
                 of
                 Enemies
                 by
                 the
                 sword
                 .
              
               
                 But
                 it
                 may
                 be
                 doubted
                 ,
                 how
                 the
                 Law
                 of
                 Nature
                 ,
                 which
                 is
                 perpetual
                 ,
                 and
                 had
                 place
                 chiefly
                 in
                 Innocency
                 ,
                 can
                 prescribe
                 any
                 thing
                 in
                 relation
                 to
                 Delinquency
                 ,
                 or
                 Malifice
                 ,
                 which
                 was
                 not
                 to
                 be
                 found
                 in
                 that
                 condition
                 .
                 This
                 will
                 be
                 easily
                 cleared
                 ,
                 if
                 it
                 be
                 considered
                 ,
                 that
                 though
                 Man
                 was
                 made
                 in
                 the
                 state
                 of
                 Innocency
                 ;
                 yet
                 had
                 he
                 a
                 natural
                 Instability
                 ,
                 for
                 which
                 God
                 did
                 warn
                 and
                 arm
                 him
                 ;
                 and
                 though
                 the
                 Principal
                 ,
                 and
                 direct
                 Law
                 of
                 Nature
                 ,
                 did
                 teach
                 Man
                 ,
                 
                   to
                   love
                   his
                   Neighbour
                   as
                   himself
                
                 ;
                 yet
                 he
                 could
                 not
                 but
                 by
                 consequence
                 know
                 (
                 though
                 he
                 had
                 stood
                 in
                 Innocency
                 ,
                 as
                 do
                 the
                 Angels
                 )
                 that
                 any
                 who
                 acted
                 against
                 that
                 Royal
                 Law
                 of
                 Love
                 ,
                 by
                 doing
                 evil
                 to
                 his
                 Neighbour
                 ,
                 and
                 taking
                 away
                 from
                 him
                 that
                 which
                 is
                 his
                 ,
                 ought
                 to
                 Repair
                 him
                 ,
                 and
                 to
                 be
                 lyable
                 to
                 Divine
                 Justice
                 ,
                 which
                 is
                 that
                 Certification
                 ,
                 which
                 God
                 put
                 upon
                 his
                 Natural
                 Law
                 ,
                 as
                 he
                 did
                 more
                 expresly
                 upon
                 the
                 forbidden
                 Fruit
                 ,
                 
                   morte
                   morieris
                
                 .
              
               
                 2.
                 
                 An
                 Obligation
                 of
                 Delinquence
                 ,
                 is
                 then
                 ,
                 that
                 whereunto
                 Injury
                 ,
                 or
                 Malifice
                 doth
                 obliege
                 ,
                 as
                 the
                 meritorious
                 cause
                 thereof
                 ,
                 as
                 the
                 Will
                 of
                 God
                 thereupon
                 is
                 the
                 efficient
                 cause
                 ;
                 and
                 it
                 is
                 twofold
                 ,
                 either
                 that
                 which
                 relateth
                 to
                 God
                 ,
                 or
                 that
                 which
                 relateth
                 to
                 Man
                 ;
                 the
                 former
                 is
                 the
                 Obligation
                 of
                 Punishment
                 ,
                 Pain
                 ,
                 or
                 Penalty
                 ;
                 for
                 unto
                 God
                 ,
                 there
                 can
                 properly
                 no
                 Reparation
                 be
                 made
                 by
                 the
                 Creature
                 ,
                 whose
                 duty
                 and
                 service
                 is
                 due
                 to
                 him
                 :
                 so
                 that
                 to
                 him
                 the
                 Creature
                 is
                 oblieged
                 to
                 underly
                 the
                 Punishment
                 .
                 In
                 reference
                 to
                 Man
                 is
                 ,
                 the
                 Obligation
                 of
                 Reparing
                 his
                 Damnage
                 ,
                 putting
                 him
                 in
                 as
                 good
                 condition
                 as
                 he
                 was
                 in
                 before
                 the
                 Injury
                 ,
                 and
                 this
                 only
                 is
                 Mans
                 part
                 for
                 himself
                 ;
                 for
                 the
                 inflicting
                 of
                 Punishment
                 is
                 for
                 God
                 ,
                 in
                 so
                 far
                 as
                 it
                 is
                 Authorized
                 ,
                 or
                 allowed
                 by
                 him
                 :
                 but
                 it
                 is
                 not
                 for
                 ,
                 or
                 from
                 Man
                 of
                 himself
                 ,
                 
                   Revenge
                   is
                   mine
                   ,
                   and
                   I
                   will
                   repay
                   ,
                   saith
                   the
                   Lord
                   :
                
                 For
                 ,
                 as
                 hath
                 been
                 said
                 before
                 ,
                 an
                 Obligation
                 in
                 the
                 Debitor
                 ,
                 hath
                 a
                 correspondent
                 power
                 of
                 exaction
                 in
                 the
                 Creditor
                 ,
                 which
                 is
                 the
                 personal
                 Right
                 .
                 So
                 in
                 Delinquence
                 ,
                 the
                 power
                 of
                 
                 exaction
                 of
                 Reparation
                 of
                 his
                 Damnage
                 ,
                 is
                 Mans
                 for
                 himself
                 :
                 but
                 the
                 power
                 of
                 exacting
                 Punishment
                 ,
                 is
                 in
                 God
                 ;
                 and
                 ,
                 as
                 for
                 him
                 ,
                 or
                 〈◊〉
                 it
                 is
                 〈◊〉
                 to
                 Man
                 ;
                 it
                 is
                 but
                 a
                 Ministerial
                 Power
                 ,
                 and
                 not
                 Dispensible
                 at
                 〈◊〉
                 pleasure
                 ,
                 and
                 hath
                 an
                 Obligation
                 ,
                 whereby
                 Man
                 〈◊〉
                 bound
                 to
                 God
                 ,
                 for
                 doing
                 his
                 duty
                 therein
                 :
                 Though
                 Positive
                 Law
                 ,
                 and
                 〈◊〉
                 of
                 〈◊〉
                 ,
                 and
                 in
                 some
                 things
                 ,
                 the
                 Positive
                 Law
                 of
                 God
                 it self
                 ,
                 may
                 〈◊〉
                 a
                 〈◊〉
                 ,
                 and
                 imploy
                 it
                 for
                 the
                 proper
                 use
                 of
                 the
                 Injured
                 ;
                 yet
                 it
                 is
                 not
                 a
                 proper
                 punishment
                 ,
                 that
                 hath
                 its
                 force
                 by
                 Paction
                 ,
                 or
                 Positive
                 Law
                 ,
                 and
                 nor
                 by
                 the
                 Law
                 of
                 Nature
                 .
                 The
                 Obligation
                 to
                 Punishment
                 ,
                 arising
                 from
                 〈◊〉
                 ,
                 and
                 Mans
                 Power
                 ,
                 and
                 duty
                 to
                 inflict
                 the
                 same
                 ,
                 is
                 a
                 publick
                 Right
                 ;
                 which
                 ,
                 though
                 naturally
                 did
                 concern
                 every
                 man
                 ,
                 yet
                 it
                 is
                 now
                 with
                 Divine
                 approbation
                 ,
                 for
                 most
                 part
                 devolved
                 upon
                 Publick
                 Authority
                 ,
                 which
                 is
                 said
                 ,
                 Rom.
                 13.
                 
                 〈◊〉
                 3
                 ,
                 4.
                 
                 
                   To
                   be
                   a
                   terrour
                   to
                   evil
                   doers
                   ,
                   and
                   not
                   to
                   bear
                   the
                   sword
                   in
                   vain
                   ;
                   for
                   be
                   〈◊〉
                   the
                   Minister
                   of
                   God
                   ,
                   a
                   Revenger
                   ,
                   to
                   execute
                   wrath
                   upon
                   him
                   that
                   〈◊〉
                   〈◊〉
                   :
                
                 by
                 which
                 it
                 is
                 clear
                 ,
                 that
                 the
                 Magistrate
                 ,
                 as
                 he
                 Executeth
                 Revenge
                 ,
                 doth
                 〈◊〉
                 not
                 of
                 ,
                 or
                 for
                 himself
                 ;
                 nor
                 for
                 ,
                 or
                 from
                 the
                 people
                 ,
                 as
                 their
                 proper
                 Right
                 or
                 power
                 of
                 exaction
                 ;
                 but
                 therein
                 as
                 he
                 is
                 
                   the
                   Minister
                   of
                   God
                   ,
                   he
                   doth
                   〈◊〉
                   for
                   ,
                   and
                   from
                   God
                   ,
                
                 even
                 though
                 his
                 Authority
                 and
                 Commission
                 ,
                 were
                 not
                 immediatly
                 from
                 God
                 ,
                 but
                 from
                 Man
                 ;
                 yet
                 he
                 stands
                 in
                 the
                 place
                 of
                 these
                 Men
                 to
                 God
                 ,
                 to
                 Execute
                 that
                 Revenge
                 ,
                 which
                 they
                 themselves
                 are
                 naturally
                 oblieged
                 unto
                 .
                 But
                 how
                 far
                 Mans
                 Natural
                 Duties
                 ,
                 or
                 the
                 Magistrats
                 ,
                 in
                 the
                 Punishment
                 of
                 Crimes
                 reacheth
                 ,
                 the
                 Lines
                 of
                 the
                 Law
                 of
                 Nature
                 ,
                 are
                 become
                 dark
                 in
                 many
                 Points
                 .
                 It
                 is
                 manifest
                 ,
                 and
                 agreed
                 by
                 all
                 ,
                 that
                 though
                 in
                 all
                 Damnages
                 done
                 to
                 man
                 ,
                 there
                 are
                 also
                 Punishments
                 which
                 may
                 be
                 inflicted
                 by
                 God
                 :
                 yet
                 ,
                 where
                 the
                 matter
                 is
                 chiefly
                 Mans
                 Interest
                 ,
                 and
                 so
                 Repairable
                 to
                 him
                 ;
                 none
                 will
                 think
                 ,
                 that
                 it
                 is
                 a
                 duty
                 in
                 all
                 of
                 these
                 cases
                 ,
                 to
                 inflict
                 vengeance
                 on
                 such
                 ;
                 neither
                 doth
                 any
                 own
                 a
                 Power
                 ,
                 and
                 necessity
                 to
                 inflict
                 Punishments
                 for
                 Mans
                 Spiritual
                 Delinquence
                 ,
                 standing
                 in
                 his
                 Mind
                 and
                 Affection
                 ,
                 as
                 for
                 want
                 of
                 Love
                 ,
                 and
                 Confidence
                 ,
                 Hope
                 ,
                 &c.
                 
                 In
                 somethings
                 also
                 ,
                 the
                 power
                 of
                 Punishment
                 is
                 no
                 less
                 evident
                 ,
                 even
                 when
                 there
                 can
                 be
                 no
                 Reparation
                 to
                 man
                 ,
                 as
                 in
                 that
                 general
                 Precept
                 ,
                 of
                 equal
                 Crimes
                 and
                 Punishments
                 ,
                 
                   Life
                   for
                   Life
                   ,
                   Eye
                   for
                   Eye
                   ,
                   Tooth
                   for
                   Tooth
                   ,
                
                 &c.
                 
                 But
                 there
                 are
                 many
                 middle
                 Crimes
                 ,
                 that
                 are
                 much
                 more
                 unclear
                 ,
                 wherein
                 the
                 Word
                 of
                 God
                 ,
                 even
                 in
                 the
                 Judicial
                 Law
                 ,
                 is
                 an
                 excellent
                 Light
                 ;
                 for
                 we
                 may
                 safely
                 conclude
                 ,
                 that
                 it
                 would
                 be
                 no
                 Injustice
                 or
                 Intrusion
                 ,
                 for
                 man
                 to
                 vindicate
                 these
                 Crimes
                 for
                 the
                 Lord
                 ,
                 which-himself
                 gave
                 order
                 to
                 Revenge
                 .
                 But
                 our
                 purpose
                 being
                 here
                 ,
                 only
                 to
                 insist
                 in
                 private
                 Rights
                 ,
                 we
                 shall
                 not
                 follow
                 these
                 ,
                 nor
                 the
                 many
                 〈◊〉
                 Questions
                 that
                 rise
                 on
                 that
                 matter
                 ;
                 but
                 shall
                 return
                 to
                 the
                 private
                 Rights
                 of
                 Men
                 ,
                 arising
                 to
                 them
                 by
                 Delinquence
                 ,
                 by
                 exacting
                 Reparation
                 of
                 their
                 Damnages
                 inferred
                 thereby
                 .
              
               
                 3.
                 
                 Damnage
                 is
                 called
                 ,
                 
                   damnum
                   a
                   〈◊〉
                
                 ;
                 because
                 it
                 〈◊〉
                 ,
                 or
                 taketh
                 away
                 something
                 from
                 an
                 other
                 ,
                 which
                 of
                 Right
                 he
                 had
                 .
                 The
                 Greeks
                 for
                 the
                 like
                 reason
                 ,
                 call
                 it
                 
                   〈◊〉
                   〈◊〉
                   〈◊〉
                   〈◊〉
                   〈◊〉
                
                 by
                 which
                 Man
                 hath
                 less
                 then
                 he
                 had
                 .
                 It
                 is
                 not
                 every
                 Damnage
                 that
                 raiseth
                 this
                 Obligation
                 ;
                 for
                 ,
                 some
                 Damnages
                 may
                 be
                 just
                 ,
                 as
                 these
                 which
                 are
                 inflicted
                 by
                 way
                 of
                 Punishment
                 ;
                 and
                 others
                 may
                 have
                 their
                 Reparation
                 arising
                 from
                 Contracts
                 ,
                 whereby
                 ,
                 though
                 a
                 Delinquence
                 may
                 arise
                 ,
                 in
                 non-performance
                 of
                 the
                 Contract
                 ;
                 yet
                 the
                 Original
                 Cause
                 of
                 the
                 Obligation
                 is
                 the
                 Contract
                 .
                 Some
                 also
                 arise
                 from
                 deeds
                 or
                 things
                 ,
                 the
                 non-performance
                 whereof
                 is
                 also
                 a
                 Delinquence
                 ,
                 as
                 in
                 the
                 Obligations
                 of
                 Restitution
                 and
                 Recompence
                 :
                 but
                 here
                 are
                 only
                 understood
                 ,
                 Obligations
                 which
                 Originally
                 arise
                 from
                 Delinquences
                 ,
                 as
                 the
                 first
                 Cause
                 thereof
                 .
              
               
               
                 4.
                 
                 Delinquence
                 in
                 the
                 Romon
                 Law
                 ,
                 is
                 reduced
                 into
                 these
                 four
                 ,
                 
                   furtum
                   ,
                   rapina
                   ,
                   damnum
                   ,
                   injuria
                
                 ;
                 all
                 which
                 are
                 separate
                 from
                 the
                 publick
                 Crimes
                 ,
                 wherein
                 we
                 shall
                 not
                 insist
                 ,
                 but
                 follow
                 Delinquences
                 privat
                 ,
                 and
                 Obligations
                 and
                 Actions
                 thence
                 arising
                 ,
                 as
                 they
                 are
                 known
                 by
                 the
                 Terms
                 in
                 our
                 Law
                 ,
                 in
                 so
                 far
                 as
                 they
                 use
                 to
                 be
                 civilly
                 prosecute
                 ;
                 for
                 though
                 in
                 publick
                 Crimes
                 ,
                 which
                 are
                 Criminally
                 pursued
                 ,
                 there
                 is
                 competent
                 Reparation
                 ,
                 either
                 from
                 the
                 Nature
                 of
                 the
                 Crime
                 ,
                 or
                 from
                 Law
                 or
                 Custome
                 ;
                 yet
                 that
                 is
                 incident
                 unto
                 a
                 publick
                 Right
                 ,
                 and
                 not
                 ordinar
                 ,
                 it
                 shall
                 in
                 general
                 suffice
                 here
                 to
                 consider
                 ,
                 that
                 according
                 to
                 several
                 Rights
                 and
                 Injoyments
                 ,
                 our
                 Damnages
                 and
                 Delinquencies
                 ,
                 may
                 be
                 esteemed
                 .
              
               
                 As
                 first
                 ,
                 our
                 Life
                 ,
                 and
                 Members
                 ,
                 and
                 Health
                 ;
                 which
                 ,
                 though
                 they
                 be
                 inesteemable
                 ,
                 and
                 can
                 have
                 no
                 Price
                 ,
                 yet
                 there
                 are
                 therewith
                 incident
                 Damnages
                 ,
                 and
                 that
                 either
                 
                   lucrum
                   cessans
                
                 ,
                 ceasing
                 gain
                 ;
                 or
                 
                   damnum
                   emergens
                
                 ,
                 loss
                 .
                 So
                 the
                 Life
                 of
                 any
                 being
                 taken
                 away
                 ,
                 the
                 Damnage
                 of
                 these
                 who
                 were
                 intertained
                 ,
                 and
                 maintained
                 by
                 his
                 Life
                 ,
                 as
                 his
                 Wife
                 and
                 Children
                 ,
                 may
                 be
                 Repared
                 .
                 So
                 likewise
                 ,
                 the
                 loss
                 any
                 man
                 hath
                 by
                 the
                 expenses
                 of
                 his
                 Cure
                 ,
                 or
                 the
                 loss
                 of
                 his
                 Labour
                 ,
                 and
                 Industry
                 in
                 his
                 Affairs
                 ,
                 is
                 also
                 Reparable
                 .
              
               
                 Next
                 to
                 our
                 Life
                 ,
                 is
                 our
                 Liberty
                 ,
                 and
                 the
                 Delinquences
                 against
                 it
                 ,
                 are
                 Restraint
                 and
                 Constraint
                 ;
                 though
                 Liberty
                 it self
                 be
                 inesteemable
                 ,
                 yet
                 the
                 Damnages
                 sustained
                 through
                 these
                 Delinquences
                 ,
                 are
                 Reparable
                 .
              
               
                 The
                 third
                 is
                 Fame
                 ,
                 Reputation
                 and
                 Honour
                 ,
                 which
                 is
                 also
                 in
                 some
                 way
                 Reparable
                 ;
                 First
                 ,
                 by
                 making
                 up
                 the
                 Damnage
                 that
                 is
                 inferred
                 in
                 Mens
                 Goods
                 ,
                 by
                 the
                 hurt
                 of
                 then
                 Fame
                 ,
                 whereby
                 their
                 Gain
                 ceaseth
                 ,
                 in
                 that
                 being
                 repute
                 such
                 Persons
                 ,
                 they
                 are
                 disinabled
                 for
                 their
                 Affairs
                 ;
                 as
                 if
                 a
                 Merchant
                 be
                 called
                 a
                 Bankrupt
                 ,
                 it
                 may
                 not
                 only
                 hinder
                 his
                 Traffique
                 ,
                 but
                 make
                 all
                 his
                 Creditors
                 fall
                 upon
                 him
                 suddenly
                 to
                 his
                 ruine
                 :
                 so
                 if
                 a
                 Man
                 be
                 called
                 a
                 Cheater
                 ,
                 Deceiver
                 ,
                 or
                 the
                 like
                 ,
                 it
                 disables
                 him
                 to
                 mannage
                 his
                 Affairs
                 ,
                 Men
                 being
                 unwilling
                 to
                 medle
                 with
                 such
                 .
                 And
                 if
                 a
                 Man
                 being
                 about
                 to
                 Marry
                 ,
                 be
                 called
                 Impotent
                 ,
                 or
                 to
                 be
                 infected
                 with
                 any
                 noisom
                 Disease
                 ,
                 he
                 may
                 be
                 Demnified
                 in
                 his
                 Match
                 and
                 Tocher
                 :
                 such
                 Actions
                 upon
                 Injurious
                 Words
                 ,
                 as
                 they
                 may
                 relate
                 to
                 Damnage
                 and
                 Means
                 ,
                 are
                 frequent
                 and
                 curious
                 among
                 the
                 English
                 ;
                 but
                 with
                 us
                 ,
                 there
                 is
                 little
                 of
                 it
                 accustomed
                 to
                 be
                 pursued
                 ,
                 though
                 we
                 own
                 the
                 same
                 Grounds
                 ,
                 and
                 would
                 proceed
                 to
                 the
                 same
                 effects
                 with
                 them
                 ,
                 if
                 questioned
                 .
                 Secondly
                 ,
                 Damnage
                 in
                 Fame
                 or
                 Honour
                 ,
                 is
                 Repaired
                 by
                 Homage
                 ,
                 acknowledgement
                 ,
                 or
                 Ignominy
                 put
                 upon
                 the
                 Delinquent
                 .
                 Thirdly
                 ,
                 By
                 equivalent
                 Honour
                 ,
                 and
                 Vindication
                 of
                 the
                 Injured
                 .
                 Slander
                 is
                 competent
                 to
                 be
                 Judged
                 by
                 Commissars
                 ;
                 and
                 therefore
                 ,
                 a
                 Decreet
                 of
                 the
                 Commissars
                 of
                 Edinburgh
                 ,
                 upon
                 a
                 pursuit
                 for
                 Slander
                 and
                 Defamation
                 ,
                 decerning
                 the
                 Slanderer
                 to
                 make
                 acknowledgement
                 of
                 the
                 Injury
                 before
                 the
                 Congregation
                 ,
                 and
                 to
                 pay
                 an
                 hundred
                 Pounds
                 Scots
                 to
                 the
                 Party
                 ,
                 and
                 as
                 much
                 to
                 the
                 Poor
                 ,
                 was
                 sustained
                 by
                 the
                 Lords
                 ,
                 February
                 5.
                 1669.
                 
                 
                   James
                   Deans
                   contra
                   Alexander
                   Bothwel
                
                 .
              
               
                 The
                 Fourth
                 Interest
                 that
                 may
                 be
                 Damnified
                 ,
                 is
                 our
                 Content
                 ,
                 Delight
                 ,
                 or
                 Satisfaction
                 ;
                 and
                 especially
                 by
                 the
                 singular
                 Affection
                 to
                 ,
                 or
                 our
                 opinion
                 of
                 ,
                 the
                 value
                 or
                 worth
                 of
                 any
                 thing
                 that
                 owners
                 have
                 :
                 in
                 which
                 consideration
                 it
                 is
                 said
                 ,
                 that
                 every
                 thing
                 is
                 to
                 every
                 Man
                 as
                 he
                 esteemeth
                 it
                 ,
                 and
                 though
                 this
                 be
                 not
                 the
                 Intrinsick
                 Value
                 of
                 the
                 thing
                 ,
                 nor
                 the
                 common
                 Rate
                 of
                 it
                 in
                 the
                 accompt
                 of
                 Men
                 ,
                 but
                 
                   praetium
                   affectionis
                
                 ,
                 the
                 Rate
                 that
                 the
                 affection
                 of
                 the
                 owner
                 puts
                 upon
                 it
                 ;
                 yet
                 ,
                 that
                 being
                 free
                 to
                 him
                 ,
                 and
                 his
                 Right
                 ,
                 his
                 Damnage
                 therein
                 ought
                 to
                 be
                 Repaired
                 ,
                 according
                 to
                 the
                 value
                 himself
                 ,
                 
                 esteemed
                 the
                 thing
                 taken
                 from
                 him
                 worth
                 :
                 on
                 this
                 Ground
                 ,
                 in
                 most
                 Actions
                 in
                 the
                 Civil
                 Law
                 ,
                 wherein
                 there
                 is
                 force
                 ,
                 or
                 Attrocious
                 Injury
                 ,
                 Reparation
                 is
                 to
                 be
                 made
                 ,
                 according
                 to
                 the
                 reasonable
                 estimation
                 of
                 the
                 injured
                 ;
                 and
                 therefore
                 ,
                 he
                 hath
                 ,
                 
                   juramentum
                   in
                   litem
                
                 ,
                 his
                 Oath
                 to
                 declare
                 how
                 much
                 he
                 accounted
                 himself
                 damnified
                 ;
                 the
                 exorbitancy
                 whereof
                 ,
                 might
                 have
                 been
                 taxed
                 by
                 the
                 Judge
                 :
                 but
                 otherways
                 ,
                 though
                 his
                 estimation
                 be
                 much
                 above
                 the
                 common
                 value
                 ,
                 it
                 were
                 receivable
                 .
                 This
                 hath
                 also
                 place
                 with
                 us
                 ,
                 as
                 in
                 Actions
                 of
                 Spuilzie
                 ,
                 &c.
                 and
                 other
                 Delinquences
                 by
                 violence
                 .
              
               
                 The
                 last
                 Damnage
                 is
                 in
                 Goods
                 and
                 Possession
                 ,
                 the
                 Redress
                 whereof
                 ,
                 is
                 more
                 clear
                 ,
                 because
                 the
                 things
                 themselves
                 are
                 more
                 valuable
                 and
                 esteemable
                 .
                 In
                 all
                 Reparations
                 ,
                 the
                 Natural
                 Fruits
                 and
                 Profits
                 of
                 the
                 thing
                 taken
                 away
                 ,
                 come
                 in
                 as
                 part
                 thereof
                 :
                 and
                 in
                 many
                 cases
                 ,
                 the
                 Industrial
                 Fruits
                 and
                 Profits
                 ,
                 which
                 the
                 owner
                 might
                 have
                 had
                 ,
                 at
                 least
                 used
                 to
                 make
                 thereof
                 .
              
               
                 Reparation
                 is
                 either
                 by
                 Restitution
                 of
                 the
                 same
                 thing
                 ,
                 in
                 the
                 same
                 case
                 ,
                 that
                 it
                 would
                 have
                 been
                 in
                 ,
                 if
                 it
                 had
                 remained
                 with
                 the
                 owner
                 ,
                 and
                 this
                 is
                 most
                 exact
                 :
                 or
                 ,
                 where
                 that
                 cannot
                 be
                 ,
                 by
                 giving
                 the
                 like
                 value
                 ,
                 or
                 that
                 which
                 is
                 nearest
                 to
                 make
                 up
                 the
                 Damnage
                 ,
                 according
                 to
                 the
                 desire
                 of
                 the
                 Damnified
                 ;
                 and
                 if
                 none
                 be
                 found
                 fitter
                 ,
                 Reparation
                 must
                 be
                 made
                 in
                 Money
                 ,
                 which
                 is
                 the
                 common
                 token
                 of
                 exchange
                 ,
                 and
                 hath
                 in
                 it
                 the
                 value
                 of
                 every
                 thing
                 esteemable
                 .
              
               
                 5.
                 
                 In
                 the
                 Reparation
                 of
                 Delinquences
                 ,
                 it
                 would
                 be
                 considered
                 ,
                 when
                 many
                 have
                 a
                 hand
                 in
                 it
                 ,
                 who
                 come
                 in
                 to
                 be
                 lyable
                 ,
                 and
                 how
                 far
                 ;
                 for
                 in
                 some
                 cases
                 ,
                 the
                 Delinquence
                 is
                 committed
                 by
                 one
                 principally
                 ,
                 and
                 others
                 are
                 but
                 accessory
                 :
                 in
                 other
                 cases
                 the
                 Delinquence
                 is
                 equally
                 and
                 principally
                 committed
                 by
                 more
                 ,
                 though
                 unto
                 these
                 also
                 ,
                 there
                 may
                 be
                 accessories
                 .
              
               
                 Accession
                 to
                 Delinquence
                 ,
                 is
                 either
                 Anterior
                 ,
                 Concomitant
                 ,
                 or
                 Posterior
                 to
                 the
                 Delinquence
                 it self
                 :
                 Anterior
                 ,
                 is
                 either
                 by
                 Counsel
                 ,
                 Instigation
                 ,
                 or
                 Provocation
                 ,
                 or
                 by
                 Connivance
                 ,
                 in
                 foreknowing
                 ,
                 and
                 not
                 hindering
                 these
                 whom
                 they
                 might
                 ,
                 or
                 ought
                 to
                 have
                 stopped
                 ;
                 and
                 that
                 either
                 specially
                 ,
                 in
                 relation
                 to
                 one
                 singular
                 Delinquence
                 ,
                 or
                 generally
                 ,
                 in
                 knowing
                 and
                 not
                 restraining
                 ,
                 the
                 common
                 and
                 known
                 inclination
                 of
                 the
                 actors
                 towards
                 Delinquences
                 of
                 that
                 kind
                 ;
                 as
                 when
                 a
                 Master
                 keeps
                 outragious
                 and
                 pernicicious
                 Servants
                 ,
                 or
                 Beasts
                 ;
                 and
                 therefore
                 ,
                 in
                 many
                 cases
                 ,
                 even
                 by
                 Natural
                 Equity
                 ,
                 the
                 Master
                 is
                 lyable
                 for
                 the
                 Damnage
                 done
                 by
                 his
                 Beast
                 ,
                 as
                 is
                 clearly
                 resolved
                 in
                 the
                 Judicial
                 Law
                 ,
                 in
                 the
                 case
                 of
                 
                   the
                   pushing
                   oxe
                   ,
                   which
                   if
                   it
                   was
                   accustomed
                   that
                   he
                   pushed
                   before-times
                   ,
                   the
                   owner
                   is
                   lyable
                   for
                   the
                   damnage
                   thereof
                   ,
                   as
                   being
                   oblieged
                   to
                   restrain
                   :
                   but
                   if
                   not
                   ,
                   he
                   is
                   free
                   .
                
                 So
                 the
                 like
                 may
                 be
                 said
                 of
                 Mastives
                 ,
                 and
                 other
                 Dogs
                 ,
                 if
                 they
                 be
                 accustomed
                 to
                 assault
                 Men
                 ,
                 their
                 Goods
                 ,
                 or
                 Cattel
                 ,
                 and
                 be
                 not
                 destroyed
                 ,
                 or
                 restrained
                 ,
                 their
                 owner
                 is
                 lyable
                 .
              
               
                 Hence
                 also
                 is
                 that
                 Famous
                 Edict
                 of
                 the
                 Pretor
                 ,
                 in
                 the
                 Roman
                 Law
                 ,
                 
                   Nuntae
                   caupones
                   stabularii
                   ,
                   quod
                   salvum
                   fore
                   receperunt
                   nisi
                   restituant
                   in
                   eos
                   judicium
                   dabo
                   ,
                
                 by
                 which
                 the
                 Masters
                 of
                 Taverns
                 ,
                 Stables
                 ,
                 or
                 Ships
                 ,
                 are
                 lyable
                 for
                 Restitution
                 (
                 of
                 what
                 is
                 brought
                 in
                 upon
                 the
                 account
                 of
                 their
                 Imployments
                 )
                 of
                 the
                 Damnages
                 that
                 may
                 be
                 sustained
                 by
                 their
                 Servants
                 ,
                 or
                 any
                 other
                 that
                 shall
                 happen
                 to
                 be
                 there
                 for
                 the
                 time
                 .
              
               
                 Concomitant
                 Accession
                 is
                 ,
                 when
                 the
                 Accessories
                 are
                 not
                 equally
                 concurrent
                 in
                 the
                 Act
                 ,
                 but
                 countenance
                 ,
                 or
                 otherways
                 assist
                 ,
                 abett
                 ,
                 cherish
                 ,
                 praise
                 ,
                 or
                 connive
                 at
                 the
                 Delinquence
                 .
                 Posterior
                 Accession
                 ,
                 is
                 by
                 Ratihabition
                 ,
                 Approbation
                 ,
                 
                 Praise
                 ,
                 〈◊〉
                 Defence
                 ,
                 or
                 Support
                 of
                 the
                 〈◊〉
                 ,
                 in
                 order
                 to
                 the
                 〈◊〉
                 all
                 these
                 〈◊〉
                 in
                 our
                 Law
                 ,
                 〈◊〉
                 〈◊〉
                 
                   〈◊〉
                   and
                   Part.
                
                 
              
               
                 As
                 to
                 the
                 Question
                 then
                 ,
                 who
                 of
                 these
                 co-operants
                 are
                 oblieged
                 ,
                 and
                 how
                 far
                 ?
                 First
                 ,
                 It
                 is
                 clear
                 ,
                 that
                 where
                 the
                 Delinquence
                 is
                 committed
                 by
                 many
                 alike
                 ,
                 there
                 all
                 of
                 them
                 are
                 lyable
                 alike
                 ;
                 but
                 whether
                 in
                 equity
                 they
                 be
                 all
                 lyable
                 ,
                 
                   in
                   solidum
                
                 ,
                 or
                 for
                 the
                 whole
                 Reparation
                 ,
                 it
                 is
                 not
                 so
                 〈◊〉
                 .
                 Positive
                 Law
                 hath
                 made
                 them
                 all
                 lyable
                 ,
                 
                   in
                   solidum
                
                 ,
                 for
                 the
                 repressing
                 such
                 concurrences
                 ,
                 and
                 that
                 the
                 injured
                 be
                 not
                 put
                 to
                 the
                 trouble
                 of
                 seeking
                 in
                 by
                 parts
                 ,
                 from
                 the
                 several
                 Delinquents
                 ;
                 yet
                 Equity
                 would
                 rather
                 lay
                 the
                 Reparation
                 of
                 every
                 Mans
                 part
                 upon
                 himself
                 ;
                 and
                 in
                 case
                 of
                 his
                 not
                 being
                 found
                 Solvent
                 or
                 sufficient
                 ,
                 upon
                 the
                 rest
                 ,
                 making
                 up
                 with
                 all
                 the
                 trouble
                 of
                 obtaining
                 Reparation
                 from
                 many
                 ,
                 by
                 refounding
                 the
                 expences
                 in
                 obtaining
                 thereof
                 ,
                 and
                 the
                 labour
                 and
                 pains
                 ,
                 and
                 content
                 of
                 the
                 injured
                 .
                 As
                 to
                 the
                 Obligation
                 of
                 Punishment
                 ,
                 of
                 many
                 concurring
                 Delinquents
                 ,
                 if
                 an
                 Army
                 ,
                 or
                 a
                 part
                 of
                 it
                 in
                 a
                 Mutiny
                 ,
                 all
                 shoot
                 at
                 on
                 Person
                 ,
                 if
                 he
                 be
                 killed
                 ,
                 it
                 would
                 not
                 be
                 thought
                 just
                 ,
                 for
                 that
                 ones
                 life
                 ,
                 to
                 take
                 the
                 lives
                 of
                 all
                 ;
                 and
                 therefore
                 ,
                 because
                 it
                 cannot
                 be
                 known
                 whose
                 Ball
                 killed
                 the
                 man
                 ,
                 it
                 is
                 accustomed
                 ,
                 and
                 not
                 without
                 good
                 ground
                 ,
                 by
                 lot
                 ,
                 to
                 single
                 out
                 who
                 are
                 to
                 suffer
                 ,
                 and
                 the
                 rest
                 are
                 free
                 ;
                 from
                 whence
                 it
                 may
                 be
                 gathered
                 ,
                 as
                 in
                 the
                 Punishment
                 ,
                 so
                 in
                 Reparation
                 ,
                 fellow
                 Delinquents
                 ,
                 
                   socii
                   criminis
                
                 ,
                 are
                 to
                 concur
                 in
                 the
                 Reparation
                 ,
                 as
                 they
                 concurred
                 in
                 the
                 Action
                 ;
                 though
                 ,
                 as
                 hath
                 been
                 said
                 ,
                 Positive
                 Law
                 doth
                 well
                 to
                 make
                 all
                 lyable
                 ,
                 
                   in
                   solidum
                
                 ;
                 yet
                 so
                 ,
                 that
                 the
                 satisfaction
                 of
                 one
                 or
                 more
                 ,
                 liberats
                 the
                 rest
                 .
                 Secondly
                 ,
                 As
                 to
                 the
                 Accessory
                 Delinquents
                 ,
                 though
                 Delinquents
                 by
                 Command
                 ,
                 be
                 numbered
                 among
                 them
                 ,
                 yet
                 (
                 as
                 we
                 say
                 )
                 he
                 doeth
                 ,
                 that
                 causeth
                 do
                 ;
                 therefore
                 such
                 are
                 propper
                 Efficients
                 ,
                 though
                 mediat
                 ;
                 and
                 therefore
                 ,
                 no
                 less
                 lyable
                 then
                 Concurrents
                 .
              
               
                 Thirdly
                 ,
                 Other
                 Accessories
                 ,
                 albeit
                 by
                 Positive
                 Law
                 ,
                 they
                 are
                 〈◊〉
                 all
                 ,
                 or
                 many
                 of
                 them
                 ,
                 made
                 lyable
                 ,
                 
                   in
                   solidum
                
                 ;
                 yet
                 as
                 we
                 have
                 said
                 of
                 Concurrents
                 ,
                 in
                 Equity
                 they
                 are
                 lyable
                 ;
                 but
                 according
                 to
                 the
                 influence
                 they
                 had
                 in
                 the
                 Delinquence
                 :
                 but
                 in
                 these
                 ,
                 the
                 Obligation
                 may
                 be
                 much
                 more
                 to
                 the
                 Punishment
                 ,
                 where
                 the
                 Will
                 comes
                 in
                 to
                 be
                 considered
                 with
                 the
                 Act
                 ,
                 then
                 in
                 the
                 Reparation
                 ,
                 where
                 the
                 damnage
                 (
                 which
                 is
                 the
                 outward
                 and
                 more
                 conspicuous
                 thing
                 )
                 is
                 mainly
                 considered
                 ;
                 but
                 in
                 these
                 we
                 shall
                 insist
                 no
                 further
                 ,
                 but
                 come
                 to
                 the
                 Obligations
                 by
                 Delinquence
                 ,
                 which
                 are
                 civilly
                 cognoscible
                 by
                 our
                 Custome
                 ,
                 according
                 to
                 their
                 known
                 Names
                 and
                 Titles
                 in
                 Law
                 :
                 which
                 ,
                 though
                 they
                 do
                 rather
                 signifie
                 the
                 Act
                 or
                 Actions
                 ,
                 whereby
                 such
                 Obligations
                 are
                 incurred
                 ,
                 or
                 prosecute
                 ,
                 then
                 the
                 Obligations
                 themselves
                 ,
                 yet
                 will
                 they
                 be
                 sufficient
                 to
                 hold
                 out
                 both
                 .
              
               
                 6.
                 
                 These
                 are
                 either
                 general
                 ,
                 having
                 no
                 particular
                 Name
                 or
                 Designation
                 ,
                 and
                 such
                 are
                 pursued
                 under
                 the
                 general
                 Names
                 of
                 Damnage
                 and
                 Interest
                 ,
                 which
                 hath
                 as
                 many
                 Branches
                 and
                 Specialities
                 ,
                 as
                 there
                 can
                 be
                 valuable
                 and
                 reparable
                 damnages
                 ;
                 besides
                 these
                 of
                 a
                 special
                 Name
                 and
                 Nature
                 ,
                 which
                 are
                 chiefly
                 these
                 ,
                 Assythment
                 ,
                 Extortion
                 ,
                 Circumvention
                 ,
                 Spuilzie
                 ,
                 Intrusion
                 ,
                 Ejection
                 ,
                 Molestation
                 ,
                 breach
                 of
                 Arrestments
                 ,
                 Deforcement
                 ,
                 Contravention
                 .
              
               
                 7.
                 
                 Assythment
                 ,
                 as
                 it
                 signifies
                 the
                 Reparation
                 made
                 ,
                 so
                 it
                 insinuats
                 the
                 Obligation
                 to
                 Repair
                 Damnage
                 sustained
                 by
                 Slaughter
                 ,
                 Mutilation
                 ,
                 or
                 other
                 Injuries
                 in
                 the
                 Members
                 ,
                 or
                 health
                 of
                 the
                 Body
                 ;
                 but
                 it
                 is
                 chiefly
                 pursued
                 by
                 the
                 Wife
                 ,
                 or
                 Bairns
                 ,
                 or
                 nearest
                 of
                 Kin
                 ,
                 of
                 Parties
                 slain
                 .
                 In
                 other
                 cases
                 ,
                 it
                 is
                 competent
                 to
                 the
                 Party
                 mutilat
                 or
                 hurt
                 ,
                 or
                 otherways
                 prejudged
                 by
                 the
                 Muti
                 
                 the
                 mutilation
                 ,
                 or
                 hurt
                 ;
                 and
                 though
                 the
                 private
                 Interest
                 be
                 only
                 for
                 Reparation
                 of
                 Damnage
                 and
                 loss
                 ,
                 yet
                 our
                 Custome
                 applyeth
                 much
                 of
                 that
                 ,
                 which
                 is
                 paenal
                 therein
                 to
                 the
                 Injured
                 ;
                 and
                 therefore
                 ,
                 consideration
                 is
                 had
                 of
                 the
                 Ability
                 and
                 Estate
                 of
                 the
                 Offender
                 ,
                 and
                 the
                 Assythment
                 is
                 accordingly
                 modified
                 ,
                 all
                 Circumstances
                 being
                 considered
                 ,
                 and
                 that
                 either
                 against
                 the
                 Principal
                 Offender
                 ,
                 or
                 the
                 Accessories
                 :
                 So
                 was
                 it
                 found
                 in
                 the
                 pursuit
                 ,
                 at
                 the
                 Instance
                 of
                 Patrick
                 and
                 
                   Isobel
                   Greers
                
                 ,
                 for
                 the
                 Assythment
                 and
                 Slaughter
                 of
                 their
                 Brother
                 against
                 
                   Thomas
                   Horn
                
                 Baxter
                 ,
                 
                   Nic.
                   de
                   siccariis
                
                 ,
                 this
                 Action
                 was
                 so
                 favourable
                 ,
                 that
                 it
                 was
                 sustained
                 ,
                 though
                 there
                 was
                 no
                 particular
                 quantity
                 of
                 Damnage
                 libelled
                 ,
                 but
                 the
                 same
                 referred
                 to
                 the
                 Lords
                 ,
                 Spots
                 .
                 Summonds
                 and
                 Libel
                 ;
                 and
                 though
                 it
                 was
                 pursued
                 by
                 one
                 of
                 many
                 Brethren
                 ,
                 his
                 part
                 was
                 decerned
                 ,
                 reserving
                 the
                 Right
                 of
                 the
                 rest
                 ,
                 January
                 8.
                 1577.
                 
                 
                   Ker
                   contra
                
              
               
                 Yea
                 ,
                 it
                 was
                 sustained
                 ,
                 at
                 the
                 instance
                 of
                 some
                 of
                 the
                 Kin
                 ,
                 though
                 not
                 of
                 the
                 nearest
                 degree
                 ,
                 and
                 though
                 there
                 were
                 not
                 some
                 concurring
                 of
                 the
                 four
                 Branches
                 of
                 the
                 slain
                 ,
                 it
                 is
                 a
                 sufficient
                 proof
                 in
                 this
                 Action
                 ,
                 if
                 the
                 Defender
                 have
                 taken
                 Remission
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 Greer
                 .
                 And
                 the
                 like
                 is
                 observed
                 ,
                 January
                 25.
                 1611.
                 
                 
                   Drew
                   contra
                   Home
                
                 in
                 Montrose
                 ,
                 where
                 the
                 Defender
                 was
                 not
                 freed
                 ,
                 though
                 he
                 had
                 an
                 acknowledgement
                 under
                 the
                 Defuncts
                 hand
                 ,
                 and
                 that
                 he
                 was
                 cause
                 of
                 the
                 wound
                 ,
                 and
                 therefore
                 quit
                 the
                 wrong
                 .
                 Assythment
                 is
                 a
                 Priviledged
                 Action
                 ,
                 as
                 recent
                 Spulzie
                 ,
                 Par.
                 1528.
                 cap.
                 7.
                 
              
               
                 8.
                 
                 Extortion
                 signifies
                 the
                 Act
                 of
                 Force
                 ,
                 or
                 other
                 mean
                 of
                 fear
                 ,
                 whereby
                 a
                 Person
                 is
                 compelled
                 to
                 do
                 that
                 ,
                 which
                 of
                 their
                 proper
                 inclination
                 ,
                 they
                 would
                 not
                 have
                 done
                 .
                 It
                 doth
                 also
                 imply
                 the
                 Obligation
                 of
                 the
                 Injurer
                 to
                 the
                 Injured
                 ,
                 to
                 Repair
                 his
                 loss
                 and
                 damnage
                 by
                 such
                 Acts
                 ;
                 things
                 so
                 done
                 ,
                 are
                 said
                 to
                 be
                 done
                 ,
                 
                   vi
                   majori
                
                 ,
                 or
                 
                   metus
                   causa
                
                 ,
                 by
                 force
                 or
                 fear
                 ;
                 deeds
                 or
                 obligations
                 extorted
                 ,
                 are
                 in
                 their
                 own
                 nature
                 and
                 equity
                 ,
                 efficacious
                 ,
                 because
                 they
                 have
                 truely
                 the
                 consent
                 or
                 act
                 of
                 the
                 will
                 ,
                 by
                 which
                 such
                 Rights
                 are
                 constitute
                 ;
                 and
                 therefore
                 ,
                 the
                 Romans
                 had
                 no
                 civil
                 remeid
                 in
                 their
                 ancient
                 Law
                 for
                 such
                 ,
                 till
                 the
                 Edict
                 of
                 the
                 Pretor
                 ,
                 
                   quod
                   metus
                   causa
                   gestum
                   erat
                   ratum
                   non
                   habebo
                   ,
                   l.
                
                 1.
                 
                   ff
                   .
                   quod
                   metus
                   causa
                
                 ;
                 but
                 by
                 that
                 Edict
                 ,
                 and
                 the
                 Custome
                 of
                 this
                 and
                 other
                 Nations
                 ,
                 such
                 Deeds
                 and
                 Obligations
                 ,
                 as
                 are
                 by
                 force
                 and
                 fear
                 ,
                 are
                 made
                 utterly
                 void
                 ,
                 though
                 in
                 equity
                 ,
                 the
                 effect
                 almost
                 would
                 be
                 the
                 same
                 ;
                 for
                 seing
                 the
                 Delinquence
                 done
                 by
                 Extortion
                 ,
                 oblieges
                 to
                 Reparation
                 ;
                 if
                 any
                 should
                 be
                 pursued
                 upon
                 an
                 extorted
                 Obligation
                 ,
                 he
                 would
                 have
                 the
                 exception
                 of
                 Compensation
                 upon
                 the
                 obliegement
                 of
                 Reparation
                 ,
                 and
                 so
                 might
                 also
                 by
                 Action
                 ,
                 obtain
                 such
                 Obligation
                 ,
                 or
                 other
                 Right
                 to
                 be
                 anulled
                 .
              
               
                 This
                 Edict
                 was
                 not
                 Competent
                 upon
                 every
                 force
                 or
                 fear
                 ,
                 but
                 first
                 ,
                 it
                 behoved
                 to
                 be
                 unlawful
                 ,
                 l.
                 3.
                 
                 §
                 .
                 1.
                 
                   ff
                   .
                   quod
                   metus
                   causa
                   .
                   Secondly
                   ,
                
                 Such
                 as
                 might
                 befal
                 a
                 constant
                 man
                 ,
                 as
                 of
                 Life
                 ,
                 l.
                 6
                 ,
                 7
                 ,
                 8
                 ,
                 9.
                 
                   ff
                   .
                   l.
                
                 9.
                 
                 
                   C.
                   eodem
                
                 ,
                 or
                 torment
                 of
                 the
                 Body
                 ,
                 l.
                 4.
                 
                 
                   C.
                   eodem
                
                 ,
                 or
                 of
                 bondage
                 ,
                 l.
                 8.
                 
                 §
                 .
                 1.
                 
                   ff
                   .
                   eodem
                
                 ,
                 or
                 the
                 loss
                 of
                 Estate
                 ,
                 l.
                 9.
                 
                   ff
                   .
                   quod
                   metus
                   causa
                
                 ,
                 or
                 infamy
                 or
                 disgrace
                 ,
                 l.
                 8.
                 
                 §
                 .
                 2.
                 
                   ff
                   .
                   eodem
                
                 ,
                 or
                 of
                 bonds
                 and
                 prison
                 ,
                 l.
                 22.
                 
                   ff
                   .
                   eodem
                
                 :
                 but
                 only
                 unlawful
                 and
                 private
                 ,
                 and
                 not
                 publick
                 Imprisonment
                 ,
                 l.
                 3.
                 
                 §
                 .
                 1.
                 
                   ff
                   .
                   eodem
                
                 ,
                 it
                 was
                 not
                 Competent
                 upon
                 reverential
                 fear
                 ,
                 l.
                 8.
                 
                   ff
                   .
                   l.
                
                 6.
                 
                 
                   C.
                   eodem
                
                 :
                 nor
                 upon
                 fear
                 contracted
                 upon
                 power
                 ,
                 and
                 dignity
                 ,
                 
                   d.
                   l.
                
                 6.
                 nor
                 of
                 threats
                 ,
                 l.
                 9.
                 
                 
                   C.
                   eodem
                
                 ,
                 except
                 they
                 were
                 from
                 powerful
                 persons
                 ,
                 l.
                 23.
                 
                 §
                 .
                 1.
                 
                   quod
                   metus
                   causa
                
                 .
                 The
                 effect
                 of
                 the
                 Edict
                 was
                 ,
                 being
                 pursued
                 within
                 a
                 year
                 ,
                 unless
                 Reparation
                 was
                 made
                 before
                 Sentence
                 ,
                 the
                 Party
                 was
                 condemned
                 in
                 the
                 quadruple
                 ,
                 and
                 the
                 penalty
                 was
                 triple
                 ,
                 and
                 applyed
                 to
                 the
                 Injured
                 ,
                 and
                 after
                 the
                 year
                 simple
                 Reparation
                 ,
                 l.
                 14.
                 
                 §
                 .
                 1.
                 
                   ff
                   .
                   eodem
                
                 .
                 Our
                 Customs
                 go
                 much
                 along
                 with
                 the
                 course
                 of
                 the
                 Civil
                 Law
                 in
                 this
                 ,
                 but
                 
                 so
                 ,
                 as
                 not
                 bound
                 thereby
                 ,
                 respecting
                 most
                 when
                 the
                 true
                 Reciprocal
                 Cause
                 of
                 the
                 Obligation
                 or
                 Deed
                 ,
                 is
                 Force
                 or
                 Fear
                 ,
                 not
                 being
                 vain
                 or
                 foolish
                 Fear
                 .
                 And
                 it
                 is
                 competent
                 ordinarily
                 by
                 way
                 of
                 Action
                 ,
                 or
                 sometimes
                 by
                 exception
                 ,
                 Spots
                 .
                 Exceptions
                 ,
                 Tennants
                 of
                 
                   Cockburns-path
                   contra
                
                 the
                 Earl
                 of
                 Home
                 ,
                 it
                 was
                 eleided
                 by
                 a
                 Judicial
                 Ratification
                 of
                 the
                 Deed
                 upon
                 Oath
                 ,
                 July
                 4.
                 1642.
                 
                 
                   Agnes
                   Graham
                   contra
                   Anthony
                   Balvaird
                
                 .
                 Extortion
                 is
                 more
                 easily
                 sustained
                 in
                 deeds
                 of
                 weaker
                 persons
                 ;
                 and
                 therefore
                 ,
                 Extortion
                 was
                 found
                 relevant
                 to
                 reduce
                 a
                 Disposition
                 ,
                 by
                 a
                 facile
                 weak
                 person
                 ,
                 who
                 was
                 apprehended
                 by
                 the
                 purchaser
                 upon
                 a
                 Caption
                 of
                 a
                 third
                 party
                 ,
                 and
                 detained
                 by
                 his
                 Servants
                 and
                 Officers
                 ,
                 and
                 not
                 by
                 Messengers
                 ,
                 and
                 keeped
                 latent
                 in
                 obscure
                 Houses
                 ,
                 and
                 carried
                 from
                 Place
                 to
                 Place
                 in
                 the
                 Night
                 ,
                 till
                 he
                 subscribed
                 a
                 Disposition
                 of
                 his
                 whole
                 Estate
                 ,
                 for
                 a
                 cause
                 not
                 near
                 the
                 third
                 of
                 its
                 value
                 ,
                 albeit
                 there
                 was
                 produced
                 a
                 cancelled
                 minute
                 to
                 the
                 same
                 effect
                 ,
                 with
                 the
                 Disposition
                 in
                 question
                 ,
                 wherein
                 the
                 two
                 Actors
                 of
                 the
                 Force
                 ,
                 were
                 Witnesses
                 insert
                 ;
                 but
                 the
                 Disponers
                 name
                 ,
                 nor
                 no
                 part
                 of
                 it
                 was
                 to
                 be
                 seen
                 ,
                 but
                 a
                 lacerat
                 place
                 ,
                 as
                 if
                 it
                 had
                 been
                 cancelled
                 ,
                 without
                 any
                 anterior
                 adminicle
                 to
                 astruct
                 the
                 truth
                 of
                 it
                 ,
                 January
                 10.
                 1677.
                 
                 Sir
                 
                   Archibald
                   Stuart
                
                 of
                 
                   Castlemilk
                   contra
                
                 Sir
                 
                   John
                   Whitefoord
                
                 and
                 the
                 Duke
                 of
                 Hamiltoun
                 .
                 Extortion
                 falls
                 most
                 to
                 be
                 contraverted
                 in
                 deeds
                 done
                 by
                 Wives
                 ;
                 and
                 therefore
                 ,
                 when
                 the
                 deed
                 is
                 extreamly
                 to
                 their
                 prejudice
                 ,
                 and
                 to
                 the
                 behove
                 of
                 their
                 Husbands
                 ,
                 it
                 is
                 presumed
                 as
                 done
                 ,
                 
                   ex
                   reverentia
                   maritali
                
                 .
                 Thus
                 a
                 Wifes
                 Discharge
                 of
                 her
                 whole
                 Contract
                 ,
                 was
                 found
                 null
                 ,
                 without
                 alledging
                 any
                 Compulsion
                 ,
                 January
                 9.
                 1623.
                 
                 
                   Marshel
                   contra
                   Marshel
                
                 :
                 But
                 ordinarily
                 ,
                 Marital
                 reverence
                 is
                 not
                 sufficient
                 ,
                 though
                 the
                 Husband
                 were
                 
                   vir
                   foerox
                
                 ,
                 and
                 was
                 thereafter
                 Divorced
                 ,
                 Hope
                 ,
                 Husband
                 and
                 Wife
                 ,
                 
                   Hepburn
                   contra
                   Nasmith
                
                 .
                 In
                 the
                 case
                 of
                 Wives
                 Dispositions
                 ,
                 or
                 consent
                 to
                 their
                 Husbands
                 Disposition
                 ,
                 it
                 was
                 found
                 relevant
                 to
                 reduce
                 the
                 same
                 ,
                 that
                 the
                 Wife
                 ,
                 at
                 the
                 time
                 of
                 the
                 subscribing
                 ,
                 before
                 the
                 Witnesses
                 declared
                 that
                 she
                 was
                 compelled
                 ,
                 providing
                 that
                 a
                 third
                 party
                 ,
                 a
                 stranger
                 to
                 the
                 Husbands
                 fault
                 ,
                 were
                 restored
                 ,
                 
                   Nicol.
                   de
                   his
                   quae
                   vi
                
                 ,
                 Lady
                 
                   Cockpen
                   contra
                
                 Laird
                 of
                 Conheath
                 .
                 It
                 was
                 also
                 found
                 relevant
                 ,
                 to
                 reduce
                 a
                 Wifes
                 consent
                 to
                 her
                 Husbands
                 Disposition
                 ;
                 because
                 ,
                 before
                 he
                 had
                 beaten
                 ,
                 menaced
                 ,
                 and
                 extruded
                 her
                 for
                 not
                 consenting
                 :
                 But
                 in
                 this
                 case
                 ,
                 it
                 being
                 alledged
                 ,
                 that
                 the
                 Wife
                 appeared
                 well
                 content
                 at
                 the
                 subscription
                 ,
                 Witnesses
                 were
                 examined
                 ,
                 
                   hinc
                   inde
                   ex
                   officio
                
                 ,
                 for
                 tryal
                 of
                 the
                 truth
                 June
                 27.
                 1632.
                 
                 
                   Cassie
                   contra
                   Fleming
                
                 .
                 But
                 where
                 a
                 Husband
                 was
                 proven
                 to
                 be
                 ,
                 
                   vir
                   foerox
                
                 ,
                 and
                 that
                 he
                 did
                 threaten
                 his
                 Wife
                 to
                 do
                 the
                 deed
                 in
                 question
                 ,
                 and
                 that
                 she
                 appeared
                 to
                 the
                 Witnesses
                 ,
                 unwilling
                 the
                 time
                 of
                 the
                 subscription
                 ,
                 it
                 was
                 found
                 relevant
                 ,
                 June
                 24.
                 1664.
                 
                 
                   Woodhead
                   contra
                   Barbara
                   Nairn
                
                 .
                 But
                 a
                 Wife
                 subscribing
                 her
                 Husbands
                 Testament
                 ,
                 containing
                 provisions
                 prejudicial
                 to
                 her
                 Contract
                 of
                 Marriage
                 ,
                 was
                 not
                 reponed
                 ,
                 as
                 having
                 done
                 it
                 ,
                 
                   ex
                   reverentia
                   maritali
                
                 ,
                 at
                 her
                 Husbands
                 desire
                 ,
                 who
                 was
                 moribundus
                 ,
                 he
                 having
                 lien
                 long
                 sick
                 ,
                 and
                 she
                 having
                 married
                 within
                 a
                 year
                 thereafter
                 ,
                 and
                 the
                 deed
                 done
                 to
                 her
                 only
                 Daughter
                 ,
                 January
                 24.
                 1674.
                 
                 
                   Marjory
                   Murray
                
                 and
                 
                   Michael
                   Jaffray
                   contra
                   Isobel
                   Murray
                
                 .
                 Upon
                 the
                 like
                 ground
                 ,
                 Extortion
                 will
                 be
                 the
                 more
                 easily
                 presumed
                 ,
                 and
                 sustained
                 in
                 the
                 deeds
                 of
                 the
                 persons
                 ,
                 who
                 are
                 weak
                 and
                 infirm
                 of
                 Judgement
                 or
                 Courage
                 ,
                 then
                 of
                 these
                 who
                 are
                 Knowing
                 and
                 Confident
                 ,
                 and
                 more
                 easily
                 in
                 Deeds
                 and
                 Obligations
                 gratuitous
                 and
                 free
                 ,
                 then
                 in
                 such
                 as
                 are
                 for
                 an
                 Onerous
                 Cause
                 ,
                 which
                 will
                 not
                 easily
                 be
                 anulled
                 ,
                 unless
                 manifest
                 Lesion
                 do
                 appear
                 ,
                 or
                 that
                 the
                 compulsion
                 be
                 very
                 evident
                 .
                 Yet
                 the
                 Resignation
                 of
                 the
                 Earldome
                 of
                 Mortoun
                 in
                 the
                 hands
                 of
                 King
                 James
                 the
                 fifth
                 ,
                 was
                 reduced
                 ,
                 because
                 the
                 Resigner
                 was
                 then
                 imprisoned
                 by
                 the
                 King
                 ,
                 without
                 any
                 visible
                 cause
                 ,
                 and
                 was
                 discharged
                 the
                 same
                 day
                 he
                 made
                 the
                 Resignation
                 ,
                 
                   Sinclar
                   ,
                   April
                
                 ,
                 12.
                 1543.
                 
                 Earl
                 of
                 
                   Mortoun
                   contra
                
                 the
                 Queen
                 .
                 Metus
                 was
                 sustained
                 
                 to
                 reduce
                 a
                 Bond
                 granted
                 by
                 a
                 party
                 ,
                 because
                 he
                 was
                 taken
                 by
                 Caption
                 ,
                 being
                 sick
                 ,
                 January
                 22.
                 1667.
                 
                 Mr.
                 
                   John
                   Mair
                   contra
                   Stuart
                
                 of
                 Shambelly
                 .
                 It
                 was
                 also
                 sustained
                 ,
                 to
                 reduce
                 a
                 Bond
                 ,
                 granted
                 by
                 two
                 Sons
                 ,
                 for
                 freeing
                 their
                 Father
                 ,
                 who
                 was
                 taken
                 by
                 a
                 Caption
                 ,
                 though
                 the
                 Charge
                 was
                 suspended
                 ,
                 he
                 being
                 carryed
                 to
                 the
                 hills
                 ,
                 and
                 Menaced
                 on
                 his
                 Life
                 ,
                 though
                 the
                 Sons
                 got
                 abatement
                 ,
                 and
                 so
                 there
                 appeared
                 a
                 Transaction
                 ,
                 December
                 8.
                 1671.
                 
                 
                   Mcnish
                   contra
                   Spalding
                
                 and
                 Farquherson
                 .
              
               
                 9.
                 
                 Circumvention
                 signifieth
                 the
                 Act
                 of
                 Fraud
                 ,
                 whereby
                 a
                 person
                 is
                 induced
                 to
                 a
                 Deed
                 or
                 Obligation
                 by
                 deceit
                 ,
                 it
                 is
                 called
                 
                   dolus
                   malus
                
                 ,
                 and
                 it
                 must
                 needs
                 be
                 the
                 cause
                 of
                 the
                 Obligation
                 or
                 Deed
                 ,
                 and
                 so
                 not
                 be
                 known
                 to
                 the
                 party
                 induced
                 ,
                 before
                 it
                 can
                 have
                 any
                 legal
                 effect
                 ;
                 for
                 he
                 who
                 knoweth
                 the
                 snare
                 ,
                 cannot
                 be
                 said
                 to
                 be
                 insnared
                 ,
                 but
                 to
                 insnare
                 himself
                 ;
                 and
                 though
                 deceit
                 were
                 used
                 ,
                 yet
                 where
                 it
                 was
                 not
                 deceit
                 that
                 was
                 the
                 cause
                 of
                 the
                 Obligation
                 or
                 Deed
                 ,
                 but
                 the
                 parties
                 proper
                 motion
                 ,
                 inclination
                 ,
                 or
                 an
                 equivalent
                 cause
                 ,
                 Onerous
                 ,
                 it
                 infers
                 not
                 Circumvention
                 ;
                 so
                 neither
                 doth
                 error
                 ,
                 nor
                 mistake
                 ,
                 though
                 it
                 be
                 the
                 cause
                 of
                 the
                 Obligation
                 or
                 Deed
                 ,
                 and
                 be
                 very
                 prejudicial
                 to
                 the
                 erring
                 party
                 ;
                 and
                 though
                 if
                 it
                 had
                 been
                 fraudulently
                 induced
                 by
                 the
                 other
                 party
                 ,
                 it
                 would
                 have
                 been
                 sufficient
                 ;
                 yet
                 not
                 being
                 so
                 ,
                 there
                 is
                 no
                 Circumvention
                 ,
                 and
                 the
                 Deed
                 is
                 valid
                 ,
                 unless
                 the
                 error
                 be
                 in
                 the
                 Substantials
                 of
                 the
                 deed
                 ,
                 and
                 then
                 there
                 is
                 no
                 true
                 consent
                 ,
                 and
                 the
                 deed
                 is
                 null
                 ,
                 as
                 if
                 one
                 Married
                 Sempronia
                 ,
                 supposing
                 she
                 were
                 Maevia
                 ;
                 the
                 Marriage
                 hath
                 no
                 further
                 progress
                 (
                 but
                 by
                 subsequent
                 consent
                 )
                 and
                 it
                 is
                 void
                 ;
                 but
                 if
                 he
                 Married
                 Sempronia
                 ,
                 supposing
                 her
                 to
                 be
                 a
                 Virgin
                 ,
                 rich
                 or
                 well
                 natured
                 ,
                 which
                 were
                 the
                 inductives
                 to
                 his
                 consent
                 ,
                 though
                 he
                 be
                 mistaken
                 therein
                 ,
                 seing
                 it
                 is
                 not
                 in
                 the
                 Substantials
                 ,
                 the
                 Contract
                 is
                 valid
                 ,
                 but
                 if
                 the
                 error
                 or
                 mistake
                 ,
                 which
                 gave
                 the
                 cause
                 to
                 the
                 Contract
                 ,
                 were
                 by
                 Machination
                 ,
                 Project
                 or
                 Indeavour
                 of
                 any
                 other
                 then
                 the
                 party
                 errant
                 ,
                 it
                 would
                 be
                 Circumvention
                 ,
                 l.
                 2.
                 
                 §
                 .
                 1.
                 
                 &
                 2.
                 
                   ff
                   .
                   de
                   doli
                   mali
                   &
                   metus
                   exceptione
                   ,
                
                 so
                 that
                 there
                 is
                 nothing
                 more
                 frequently
                 to
                 be
                 adverted
                 ,
                 then
                 whether
                 the
                 error
                 be
                 through
                 the
                 parties
                 own
                 fault
                 ,
                 or
                 through
                 the
                 deceit
                 of
                 an
                 other
                 ;
                 and
                 therefore
                 
                   errore
                   lapsus
                
                 and
                 
                   dolo
                   circumventus
                
                 are
                 distinct
                 defects
                 in
                 deeds
                 .
              
               
                 10.
                 
                 The
                 Roman
                 Pretor
                 ,
                 among
                 other
                 perpetual
                 Edicts
                 ,
                 did
                 give
                 this
                 of
                 fraud
                 ,
                 
                   quae
                   dolo
                   malo
                   facta
                   esse
                   dicuntur
                   ,
                   si
                   de
                   his
                   rebus
                   alia
                   actio
                   non
                   erit
                   ,
                   &
                   justa
                   causa
                   videbitur
                   judicium
                   dabo
                   ,
                   l.
                
                 1.
                 
                 §
                 .
                 1.
                 
                   ff
                   .
                   de
                   dolo
                   malo
                
                 .
                 This
                 Edict
                 was
                 competent
                 ,
                 either
                 by
                 way
                 of
                 Action
                 or
                 Exception
                 ,
                 
                   l.
                   finali
                   ,
                   ff
                   .
                   eodem
                
                 ;
                 and
                 in
                 hatred
                 of
                 Fraud
                 ,
                 these
                 who
                 were
                 condemned
                 of
                 this
                 action
                 became
                 infamous
                 ,
                 
                   l.
                   ff
                   .
                   de
                   his
                   qui
                   notantur
                   infamia
                
                 ;
                 and
                 therefore
                 ,
                 as
                 the
                 Edict
                 expresses
                 it
                 ,
                 it
                 was
                 not
                 competent
                 ,
                 if
                 there
                 was
                 any
                 other
                 more
                 favourable
                 remeid
                 :
                 neither
                 was
                 it
                 competent
                 for
                 a
                 very
                 small
                 sum
                 ,
                 not
                 exceeding
                 two
                 Crowns
                 ,
                 l.
                 9.
                 
                 §
                 .
                 
                   finali
                   ,
                   ff
                   .
                   de
                   dolo
                   malo
                   :
                
                 neither
                 was
                 it
                 competent
                 to
                 Children
                 against
                 their
                 Parents
                 ,
                 nor
                 to
                 the
                 Vulgar
                 against
                 these
                 of
                 consular
                 Dignity
                 ,
                 nor
                 to
                 vile
                 persons
                 ,
                 against
                 those
                 of
                 an
                 orderly
                 life
                 ,
                 l.
                 11.
                 
                   ff
                   .
                   eodem
                
                 .
                 It
                 was
                 also
                 personal
                 ,
                 and
                 reached
                 no
                 further
                 then
                 the
                 person
                 committing
                 the
                 Fraud
                 ,
                 and
                 not
                 
                   in
                   rem
                
                 ,
                 reaching
                 the
                 thing
                 ,
                 if
                 lawfully
                 it
                 came
                 to
                 any
                 other
                 not
                 partaking
                 of
                 the
                 Fraud
                 ,
                 
                   dolus
                   authoris
                   non
                   nocet
                   successori
                   ,
                   l.
                
                 4.
                 
                 §
                 .
                 27.
                 
                 
                   C.
                   de
                   doli
                   mali
                   &
                   metus
                   exceptione
                   nisi
                   in
                   causa
                   lucrativa
                   Ibidem
                   ,
                
                 so
                 that
                 the
                 deed
                 done
                 thereby
                 ,
                 was
                 not
                 rendered
                 null
                 ,
                 as
                 in
                 Extortion
                 .
                 But
                 Reparation
                 given
                 to
                 the
                 injured
                 ,
                 to
                 the
                 single
                 value
                 only
                 ,
                 Infamy
                 being
                 a
                 sufficient
                 penalty
                 ,
                 but
                 according
                 to
                 the
                 estimation
                 ,
                 by
                 the
                 Oath
                 ,
                 
                   in
                   litem
                
                 ,
                 of
                 the
                 party
                 injured
                 ,
                 l.
                 18.
                 
                   ff
                   .
                   eodem
                   ,
                   &
                   tit
                   .
                   ff
                   .
                   &
                   Cod.
                   de
                   in
                   litem
                   jurando
                   .
                
              
               
                 The
                 Romans
                 had
                 also
                 their
                 
                   actio
                   redhibitoria
                   &
                   quanti
                   minoris
                
                 ,
                 whereby
                 the
                 
                 deceived
                 might
                 obtain
                 ,
                 what
                 damnage
                 they
                 had
                 by
                 the
                 Fraud
                 ,
                 or
                 might
                 thereby
                 anull
                 the
                 bargain
                 .
                 And
                 where
                 Lesion
                 was
                 very
                 great
                 ,
                 Fraud
                 was
                 presumed
                 ,
                 as
                 when
                 the
                 price
                 exceeded
                 the
                 double
                 value
                 of
                 the
                 Ware
                 :
                 but
                 they
                 did
                 not
                 consider
                 small
                 differences
                 betwixt
                 the
                 Ware
                 and
                 price
                 ,
                 which
                 would
                 have
                 raised
                 multitudes
                 of
                 Debates
                 ,
                 hurtful
                 to
                 Trade
                 ,
                 the
                 design
                 whereof
                 ,
                 is
                 to
                 gain
                 ;
                 and
                 therefore
                 ,
                 nothing
                 to
                 induce
                 a
                 moderate
                 gain
                 was
                 questionable
                 :
                 as
                 when
                 Merchants
                 set
                 out
                 their
                 Ware
                 ,
                 or
                 though
                 they
                 should
                 falsely
                 assert
                 ,
                 it
                 cost
                 them
                 so
                 much
                 ,
                 and
                 others
                 had
                 given
                 them
                 so
                 much
                 ,
                 or
                 that
                 the
                 Ware
                 was
                 fashionable
                 or
                 good
                 ;
                 there
                 was
                 no
                 civil
                 remeid
                 ,
                 unless
                 the
                 damnage
                 were
                 considerable
                 .
                 In
                 which
                 sense
                 only
                 it
                 is
                 true
                 ,
                 
                   in
                   comercio
                   licet
                   decipere
                
                 ;
                 because
                 ,
                 though
                 it
                 be
                 not
                 simply
                 lawful
                 ,
                 yet
                 it
                 is
                 against
                 no
                 Civil
                 Law.
                 But
                 the
                 Sophistication
                 of
                 Ware
                 ,
                 or
                 concealing
                 of
                 the
                 insufficiency
                 thereof
                 ,
                 was
                 held
                 Fraudulent
                 and
                 Reparable
                 ,
                 
                   actione
                   redhibitoria
                   aut
                   quanti
                   minoris
                
                 .
              
               
                 We
                 have
                 the
                 more
                 fully
                 summed
                 up
                 the
                 Sentence
                 of
                 the
                 Civil
                 Law
                 ,
                 in
                 the
                 matter
                 of
                 Fraud
                 ,
                 because
                 it
                 is
                 most
                 equitable
                 and
                 expedient
                 ;
                 and
                 therefore
                 ,
                 is
                 generally
                 followed
                 by
                 our
                 Custome
                 ,
                 which
                 regardeth
                 not
                 inconsiderable
                 damnages
                 in
                 Traffique
                 ,
                 that
                 it
                 may
                 be
                 current
                 and
                 secure
                 ,
                 for
                 nothing
                 is
                 more
                 prejudicial
                 to
                 Trade
                 ,
                 then
                 to
                 be
                 easily
                 involved
                 in
                 pleas
                 ,
                 which
                 diverts
                 Merchants
                 from
                 their
                 Trade
                 ,
                 and
                 frequently
                 marres
                 their
                 gain
                 ,
                 and
                 sometimes
                 their
                 credit
                 ;
                 therefore
                 we
                 allow
                 not
                 the
                 quarrelling
                 of
                 Bargains
                 upon
                 presumed
                 Fraud
                 ,
                 
                   ex
                   re
                   ipsa
                
                 ,
                 although
                 that
                 which
                 is
                 bought
                 be
                 within
                 the
                 half
                 of
                 the
                 just
                 price
                 ,
                 if
                 there
                 be
                 not
                 sophistication
                 ,
                 or
                 latent
                 insufficiency
                 ,
                 which
                 we
                 exactly
                 consider
                 ,
                 because
                 it
                 is
                 destructive
                 to
                 Trade
                 ,
                 
                   Vide
                   tit
                
                 .
                 10.
                 
                 §
                 .
                 14
                 ,
                 &
                 15.
                 
              
               
                 11.
                 
                 Fraud
                 is
                 not
                 to
                 be
                 presumed
                 ,
                 but
                 must
                 be
                 proven
                 ,
                 and
                 is
                 always
                 competent
                 to
                 be
                 proven
                 by
                 the
                 Oath
                 or
                 Write
                 of
                 the
                 Party
                 committing
                 the
                 Fraud
                 ,
                 when
                 the
                 question
                 is
                 betwixt
                 himself
                 and
                 the
                 Party
                 prejudged
                 ,
                 whereby
                 it
                 may
                 be
                 proven
                 ,
                 that
                 he
                 designed
                 to
                 deceive
                 ,
                 or
                 that
                 he
                 did
                 such
                 Acts
                 from
                 whence
                 Fraud
                 is
                 presumed
                 ,
                 which
                 by
                 his
                 Oath
                 he
                 may
                 qualifie
                 ,
                 what
                 he
                 did
                 ,
                 and
                 why
                 he
                 did
                 it
                 ,
                 and
                 if
                 there
                 be
                 a
                 probable
                 construction
                 ,
                 that
                 the
                 deeds
                 done
                 were
                 not
                 to
                 deceive
                 ,
                 Fraud
                 will
                 not
                 be
                 thence
                 presumed
                 ,
                 and
                 will
                 hardly
                 be
                 presumed
                 in
                 a
                 person
                 of
                 intire
                 Fame
                 and
                 honest
                 Life
                 ,
                 but
                 much
                 more
                 easily
                 in
                 these
                 who
                 have
                 been
                 found
                 to
                 Defraud
                 ,
                 or
                 are
                 so
                 reputed
                 :
                 And
                 it
                 being
                 ordinar
                 for
                 Parties
                 to
                 alledge
                 contrary
                 or
                 different
                 Circumstances
                 ,
                 to
                 infer
                 or
                 exclude
                 Fraud
                 ;
                 therefore
                 the
                 Lords
                 do
                 neither
                 give
                 the
                 benefit
                 or
                 burden
                 of
                 Probation
                 to
                 the
                 one
                 Party
                 ,
                 but
                 do
                 state
                 the
                 points
                 of
                 moment
                 alledged
                 ,
                 or
                 what
                 others
                 they
                 think
                 fit
                 for
                 clearing
                 the
                 truth
                 ,
                 and
                 allow
                 either
                 Party
                 to
                 prove
                 ,
                 where
                 their
                 alledgeances
                 are
                 not
                 contrary
                 ;
                 and
                 where
                 they
                 are
                 contrary
                 ,
                 there
                 are
                 abstract
                 Queries
                 stated
                 ,
                 as
                 to
                 which
                 ,
                 either
                 Party
                 may
                 adduce
                 such
                 an
                 equal
                 number
                 of
                 Witnesses
                 as
                 is
                 prescribed
                 ,
                 as
                 whether
                 a
                 Write
                 was
                 read
                 at
                 the
                 signing
                 ,
                 and
                 what
                 the
                 condition
                 of
                 the
                 Parties
                 then
                 were
                 ;
                 for
                 the
                 not
                 reading
                 of
                 a
                 Write
                 at
                 subscribing
                 ,
                 will
                 not
                 alone
                 infer
                 Fraud
                 ,
                 because
                 it
                 might
                 have
                 been
                 read
                 before
                 ;
                 yea
                 ,
                 it
                 was
                 not
                 sustained
                 to
                 be
                 proven
                 by
                 Witnesses
                 ,
                 that
                 a
                 Write
                 was
                 not
                 read
                 at
                 subscribing
                 ,
                 though
                 there
                 was
                 great
                 Lesion
                 to
                 the
                 subscriber
                 ,
                 in
                 favours
                 of
                 his
                 Curator
                 ,
                 
                   sine
                   quo
                   non
                
                 ,
                 within
                 six
                 Moneths
                 after
                 his
                 Majority
                 ,
                 
                   ante
                   redditas
                   rationes
                
                 .
                 And
                 that
                 a
                 Wodset
                 was
                 commoned
                 ,
                 yet
                 the
                 Write
                 bore
                 an
                 irredeemable
                 Disposition
                 ,
                 July
                 4.
                 1635.
                 
                 Laird
                 of
                 
                   Monymusk
                   contra
                
                 Laird
                 Lesly
                 .
                 But
                 these
                 Circumstances
                 would
                 have
                 been
                 certainly
                 relevant
                 by
                 the
                 Oath
                 of
                 Party
                 ,
                 or
                 Write
                 .
                 Neither
                 was
                 Witnesses
                 admitted
                 to
                 prove
                 Circumvention
                 ,
                 in
                 causing
                 a
                 Testator
                 give
                 Warrand
                 to
                 a
                 Nottar
                 to
                 subscribe
                 a
                 Testament
                 unread
                 ,
                 of
                 a
                 Tenor
                 ,
                 〈◊〉
                 to
                 what
                 the
                 Testator
                 expressed
                 ,
                 Hope
                 ,
                 Testament
                 ,
                 nearest
                 of
                 Kin
                 of
                 the
                 Lady
                 
                   Innerleith
                   
                   contra
                
                 her
                 Executors
                 .
                 Neither
                 were
                 Witnesses
                 admitted
                 to
                 prove
                 the
                 Fraud
                 of
                 a
                 Debitor
                 ,
                 retiring
                 a
                 Bond
                 from
                 a
                 Person
                 ,
                 whose
                 Name
                 was
                 only
                 in
                 trust
                 for
                 another
                 ,
                 to
                 whom
                 the
                 Debitor
                 had
                 payed
                 Annualrent
                 ,
                 July
                 4.
                 1622.
                 
                 
                   Barckley
                   contra
                   Cuningham
                
                 .
                 But
                 where
                 the
                 deeds
                 alledged
                 can
                 have
                 no
                 fair
                 construction
                 ,
                 but
                 do
                 infer
                 Fraud
                 ,
                 Witnesses
                 are
                 receivable
                 ,
                 as
                 in
                 a
                 Collusion
                 betwixt
                 a
                 Creditor
                 and
                 Debitor
                 ,
                 whom
                 the
                 Creditor
                 brought
                 home
                 from
                 abroad
                 ,
                 that
                 he
                 might
                 prevent
                 the
                 diligence
                 of
                 an
                 other
                 Creditor
                 ,
                 who
                 had
                 denunced
                 that
                 Debitors
                 Lands
                 to
                 be
                 Apprized
                 ,
                 upon
                 sixty
                 days
                 :
                 but
                 upon
                 return
                 of
                 the
                 Debitor
                 ,
                 this
                 Creditor
                 denunced
                 upon
                 fifteen
                 days
                 ,
                 and
                 so
                 did
                 first
                 Apprize
                 :
                 yet
                 the
                 first
                 Denunciation
                 and
                 last
                 Apprysing
                 was
                 preferred
                 ,
                 
                   Hope
                   ,
                   de
                   dolo
                
                 ,
                 Sir
                 
                   Hendry
                   Wardlaw
                   contra
                   Thomas
                   Dalyel
                
                 .
                 And
                 the
                 Liferent
                 Escheat
                 of
                 a
                 Vassal
                 was
                 excluded
                 ,
                 because
                 the
                 Superior
                 ,
                 upon
                 whose
                 Horning
                 it
                 fell
                 ,
                 had
                 taken
                 payment
                 of
                 the
                 Debt
                 ,
                 and
                 had
                 not
                 acquainted
                 the
                 Vassal
                 that
                 he
                 was
                 Denunced
                 ,
                 that
                 he
                 might
                 have
                 relaxed
                 within
                 the
                 year
                 ,
                 as
                 was
                 found
                 in
                 the
                 same
                 case
                 ,
                 Ibidem
                 .
                 Though
                 this
                 case
                 and
                 that
                 of
                 latent
                 insufficiency
                 ,
                 be
                 rather
                 ,
                 
                   lata
                   culpa
                   quae
                   dolo
                   equiparatur
                
                 ,
                 for
                 the
                 difference
                 betwixt
                 
                   dolus
                   &
                   lata
                   culpa
                
                 ,
                 is
                 ,
                 that
                 
                   dole
                   est
                   magis
                   animi
                
                 ,
                 and
                 oftentimes
                 by
                 Positive
                 Acts
                 ,
                 and
                 
                   lata
                   culpa
                
                 ,
                 is
                 rather
                 facti
                 ,
                 and
                 oftentimes
                 by
                 Omission
                 of
                 that
                 which
                 the
                 Party
                 is
                 oblieged
                 to
                 show
                 .
                 A
                 Discharge
                 was
                 found
                 null
                 ,
                 as
                 to
                 an
                 Assigney
                 ,
                 to
                 a
                 Bond
                 granted
                 by
                 one
                 Brother
                 to
                 another
                 ,
                 the
                 Discharge
                 being
                 of
                 the
                 same
                 date
                 with
                 the
                 Bond
                 ,
                 which
                 could
                 have
                 no
                 construction
                 ,
                 but
                 that
                 the
                 Brother
                 by
                 assigning
                 the
                 Bond
                 might
                 deceive
                 ,
                 December
                 4.
                 1665.
                 
                 
                   Thomson
                   contra
                   Henderson
                
                 .
                 And
                 a
                 Discharge
                 by
                 a
                 Son
                 to
                 his
                 Father
                 ,
                 of
                 a
                 Sum
                 provided
                 to
                 him
                 by
                 his
                 Contract
                 of
                 Marriage
                 ,
                 without
                 satisfaction
                 ,
                 But
                 upon
                 agreement
                 betwixt
                 the
                 Father
                 and
                 the
                 Son
                 ,
                 the
                 time
                 of
                 the
                 Contract
                 ,
                 that
                 the
                 Sum
                 in
                 the
                 Contract
                 should
                 be
                 Discharged
                 gratis
                 ,
                 was
                 found
                 fraudulent
                 and
                 null
                 ,
                 as
                 to
                 the
                 Sons
                 Creditors
                 ,
                 who
                 Traded
                 with
                 him
                 ,
                 even
                 after
                 the
                 Discharge
                 ,
                 January
                 21.
                 1680.
                 
                 
                   Isobel
                   Caddel
                   contra
                   John
                   Raith
                
                 .
                 And
                 a
                 Liferent
                 by
                 a
                 Husband
                 to
                 his
                 Wife
                 ,
                 of
                 his
                 whole
                 Estate
                 ,
                 providing
                 she
                 disponed
                 the
                 half
                 to
                 the
                 Children
                 of
                 the
                 Marriage
                 ,
                 was
                 found
                 fraudulent
                 ,
                 as
                 to
                 that
                 half
                 ,
                 and
                 the
                 Creditors
                 of
                 the
                 Husband
                 preferred
                 to
                 the
                 Children
                 therein
                 ,
                 December
                 23.
                 1679.
                 
                 
                   John
                   Erskin
                   contra
                   Carnagies
                
                 and
                 Smith
                 .
                 But
                 where
                 the
                 Liferent
                 was
                 but
                 suitable
                 to
                 the
                 Parties
                 ,
                 a
                 clause
                 therein
                 ,
                 that
                 so
                 much
                 of
                 it
                 should
                 be
                 applyed
                 for
                 the
                 Aliment
                 of
                 the
                 Children
                 ,
                 that
                 clause
                 was
                 not
                 found
                 fraudulent
                 ,
                 in
                 prejudice
                 of
                 the
                 Husbands
                 Creditors
                 ,
                 but
                 was
                 sustained
                 to
                 the
                 Children
                 ,
                 it
                 flowing
                 only
                 from
                 the
                 Mother
                 ,
                 November
                 16.
                 1668.
                 
                 
                   Wat
                   contra
                   Russel
                
                 .
              
               
                 12.
                 
                 Under
                 Fraud
                 ,
                 Simulation
                 and
                 Collusion
                 are
                 comprehended
                 ;
                 Simulation
                 occurs
                 mainly
                 in
                 two
                 cases
                 ,
                 in
                 Dispositions
                 ,
                 
                   retenta
                   possessione
                
                 ;
                 for
                 although
                 the
                 Disposition
                 be
                 delivered
                 ,
                 and
                 that
                 there
                 be
                 Instruments
                 of
                 delivery
                 of
                 the
                 Goods
                 Disponed
                 :
                 yet
                 if
                 the
                 natural
                 Possession
                 be
                 retained
                 ,
                 the
                 Disposition
                 is
                 presumed
                 simulat
                 ,
                 and
                 others
                 affecting
                 the
                 things
                 disponed
                 by
                 Legal
                 Diligence
                 ,
                 or
                 by
                 natural
                 Possession
                 are
                 preferred
                 .
              
               
                 Simulation
                 in
                 Gifts
                 of
                 Escheat
                 and
                 Liferent
                 ,
                 are
                 very
                 frequent
                 and
                 easily
                 presumed
                 ,
                 
                   retenta
                   possessione
                   ,
                   Vide
                   Tit.
                
                 25.
                 
                 §
                 .
                 12.
                 
              
               
                 13.
                 
                 Collusion
                 occurs
                 chiefly
                 ,
                 when
                 the
                 Debitor
                 or
                 common
                 Authour
                 opposes
                 some
                 Creditors
                 ,
                 and
                 concurs
                 with
                 others
                 ,
                 that
                 these
                 may
                 attain
                 the
                 first
                 compleat
                 Diligences
                 ,
                 which
                 imports
                 direct
                 Fraud
                 :
                 or
                 if
                 he
                 oppose
                 one
                 ,
                 though
                 he
                 do
                 not
                 concur
                 with
                 an
                 other
                 ,
                 but
                 only
                 not
                 oppose
                 that
                 other
                 ,
                 his
                 opposition
                 is
                 holden
                 as
                 Fraudulent
                 .
              
               
                 14.
                 
                 Fraud
                 gives
                 remeid
                 by
                 Reparation
                 ,
                 to
                 all
                 that
                 are
                 damnified
                 thereby
                 ,
                 
                 against
                 the
                 Actor
                 of
                 the
                 Fraud
                 ,
                 either
                 by
                 anulling
                 of
                 the
                 Contract
                 ,
                 or
                 other
                 deed
                 elicit
                 or
                 induced
                 by
                 Fraud
                 ,
                 or
                 by
                 making
                 up
                 the
                 damnage
                 sustained
                 by
                 the
                 Fraud
                 ,
                 at
                 the
                 option
                 of
                 the
                 injured
                 ,
                 and
                 so
                 Fraud
                 was
                 sustained
                 at
                 the
                 instance
                 of
                 a
                 Seller
                 ,
                 to
                 anull
                 a
                 Bargain
                 of
                 sale
                 of
                 Wines
                 ,
                 delivered
                 to
                 a
                 Skipper
                 ,
                 upon
                 the
                 Buyers
                 order
                 ;
                 because
                 the
                 time
                 of
                 that
                 order
                 ,
                 the
                 Buyer
                 knew
                 himself
                 to
                 be
                 insolvent
                 ,
                 which
                 might
                 appear
                 by
                 his
                 Books
                 :
                 and
                 though
                 the
                 Wines
                 were
                 Arrested
                 by
                 a
                 Creditor
                 of
                 the
                 Buyers
                 ,
                 in
                 the
                 Ship
                 ,
                 and
                 a
                 Decreet
                 for
                 making
                 forth-coming
                 recovered
                 ;
                 yet
                 the
                 Wines
                 were
                 ordained
                 to
                 be
                 restored
                 to
                 the
                 Seller
                 ,
                 December
                 22.
                 1680.
                 
                 
                   Magnus
                   Prince
                   contra
                   Peter
                   Pallet
                
                 .
              
               
                 15.
                 
                 Reparation
                 of
                 Fraud
                 ,
                 is
                 not
                 only
                 competent
                 to
                 the
                 Party
                 defrauded
                 ,
                 but
                 also
                 to
                 his
                 Creditors
                 ,
                 or
                 Assignays
                 ,
                 for
                 which
                 the
                 Romans
                 had
                 a
                 peculiar
                 remeid
                 ,
                 
                   Per
                   actionem
                   Paulianam
                
                 ,
                 for
                 anulling
                 all
                 deeds
                 ,
                 
                   in
                   fraudem
                   Creditorum
                
                 :
                 in
                 imitation
                 whereof
                 ,
                 the
                 Lords
                 of
                 Session
                 made
                 an
                 Act
                 of
                 Sederunt
                 ,
                 in
                 July
                 ,
                 1620.
                 against
                 unlawful
                 Dispositions
                 and
                 Alienations
                 ,
                 made
                 by
                 Dyvers
                 and
                 Bankrupts
                 ,
                 which
                 was
                 Ratified
                 by
                 Act
                 of
                 Parliament
                 ,
                 1621.
                 cap.
                 18.
                 
                 By
                 this
                 Act
                 of
                 Sederunt
                 ,
                 the
                 Lords
                 declare
                 ,
                 that
                 according
                 to
                 the
                 Power
                 given
                 to
                 them
                 to
                 set
                 down
                 Orders
                 for
                 Administration
                 of
                 Justice
                 ,
                 meaning
                 to
                 follow
                 and
                 practise
                 the
                 good
                 and
                 commendable
                 Laws
                 ,
                 Civil
                 and
                 Canon
                 ,
                 made
                 against
                 Fraudful
                 Alienations
                 ,
                 in
                 prejudice
                 of
                 Creditors
                 ,
                 against
                 the
                 Authors
                 and
                 Partakers
                 of
                 such
                 Fraud
                 ,
                 that
                 they
                 wil
                 Decern
                 all
                 Alienations
                 ,
                 Dispositions
                 ,
                 Assignations
                 and
                 Translations
                 ,
                 made
                 by
                 the
                 debitor
                 of
                 any
                 of
                 his
                 Lands
                 ,
                 Teinds
                 ,
                 Reversions
                 ,
                 Actions
                 ,
                 Debts
                 ,
                 or
                 Goods
                 whatsomever
                 ,
                 to
                 any
                 conjunct
                 and
                 confident
                 Person
                 ,
                 without
                 true
                 ,
                 just
                 and
                 necessary
                 Causes
                 ,
                 and
                 without
                 a
                 just
                 price
                 ,
                 really
                 payed
                 ,
                 the
                 same
                 being
                 done
                 after
                 contracting
                 of
                 lawful
                 Debts
                 ,
                 to
                 have
                 been
                 from
                 the
                 beginning
                 null
                 ,
                 by
                 way
                 of
                 Action
                 or
                 Exception
                 ,
                 without
                 further
                 Declarator
                 ,
                 but
                 prejudice
                 to
                 purchasers
                 of
                 the
                 Bankrupts
                 Lands
                 and
                 Goods
                 ,
                 for
                 just
                 and
                 competent
                 Prices
                 ,
                 or
                 in
                 satisfaction
                 of
                 their
                 lawful
                 Debts
                 ,
                 from
                 the
                 Interposed
                 Persons
                 :
                 But
                 the
                 Receiver
                 of
                 the
                 Price
                 from
                 the
                 Buyer
                 ,
                 shall
                 be
                 holden
                 to
                 make
                 it
                 forthcoming
                 to
                 the
                 Creditors
                 :
                 and
                 it
                 shall
                 be
                 sufficient
                 to
                 prove
                 by
                 Write
                 ,
                 or
                 Oath
                 of
                 the
                 Receiver
                 of
                 the
                 Disposition
                 from
                 the
                 Bankrupt
                 ,
                 that
                 the
                 same
                 was
                 made
                 without
                 a
                 true
                 and
                 just
                 Cause
                 ,
                 or
                 that
                 the
                 Lands
                 and
                 Goods
                 being
                 sold
                 by
                 him
                 that
                 bought
                 them
                 from
                 the
                 Dyver
                 ,
                 that
                 the
                 most
                 part
                 of
                 the
                 Price
                 was
                 converted
                 ,
                 or
                 to
                 be
                 converted
                 to
                 the
                 Bankrupts
                 profit
                 and
                 use
                 :
                 And
                 in
                 case
                 the
                 Bankrupt
                 ,
                 or
                 interposed
                 Person
                 ,
                 shall
                 make
                 any
                 voluntar
                 Payment
                 ,
                 or
                 Right
                 to
                 any
                 Person
                 ,
                 he
                 shall
                 be
                 holden
                 to
                 make
                 the
                 same
                 forthcoming
                 to
                 the
                 Creditor
                 ,
                 having
                 used
                 the
                 first
                 lawful
                 Diligence
                 ,
                 and
                 he
                 shall
                 be
                 preferred
                 to
                 the
                 Con-creditor
                 ,
                 who
                 being
                 posterior
                 to
                 him
                 in
                 diligence
                 ,
                 hath
                 obtained
                 payment
                 by
                 the
                 partial
                 favour
                 of
                 the
                 Debitor
                 ,
                 or
                 his
                 interposed
                 Confident
                 ;
                 and
                 shall
                 recover
                 from
                 the
                 said
                 Creditor
                 ,
                 what
                 he
                 hath
                 so
                 obtained
                 :
                 But
                 what
                 the
                 interposed
                 Person
                 hath
                 payed
                 ,
                 or
                 assigned
                 to
                 the
                 Bankrupts
                 lawful
                 Creditor
                 ,
                 before
                 preferable
                 diligence
                 done
                 by
                 others
                 ,
                 shall
                 be
                 allowed
                 to
                 him
                 ,
                 and
                 he
                 shall
                 be
                 lyable
                 to
                 make
                 forthcoming
                 the
                 rest
                 of
                 the
                 price
                 :
                 Yea
                 ,
                 the
                 saids
                 Bankrupts
                 ,
                 and
                 interposed
                 Persons
                 ,
                 and
                 all
                 others
                 who
                 shall
                 give
                 Counsel
                 and
                 Assistance
                 ,
                 in
                 devising
                 and
                 practizing
                 the
                 Fraud
                 ,
                 shall
                 be
                 holden
                 infamous
                 ,
                 incapable
                 of
                 Honour
                 ,
                 Dignity
                 ,
                 or
                 Office
                 ,
                 or
                 to
                 be
                 Witnesses
                 ,
                 or
                 Assyzers
                 .
              
               
                 This
                 excellent
                 Statute
                 hath
                 been
                 cleared
                 by
                 Limitations
                 and
                 Extentions
                 ,
                 in
                 multitudes
                 of
                 Decisions
                 ,
                 occurring
                 since
                 ,
                 relating
                 to
                 defrauding
                 of
                 Creditors
                 ,
                 which
                 being
                 of
                 the
                 greatest
                 importance
                 for
                 Publick
                 Good
                 and
                 Security
                 .
                 We
                 shall
                 distinctly
                 and
                 in
                 order
                 ,
                 hold
                 forth
                 the
                 several
                 Cases
                 that
                 have
                 been
                 decided
                 in
                 this
                 matter
                 .
              
               
               
                 First
                 then
                 ,
                 though
                 the
                 Statute
                 be
                 only
                 in
                 favours
                 of
                 anterior
                 Creditors
                 ,
                 for
                 anulling
                 posterior
                 Deeds
                 ;
                 yet
                 it
                 is
                 not
                 exclusive
                 of
                 other
                 Remeids
                 ,
                 for
                 anulling
                 Deeds
                 done
                 in
                 defraud
                 of
                 Creditors
                 ,
                 though
                 contracting
                 after
                 these
                 Deeds
                 ,
                 where
                 Fraud
                 in
                 the
                 design
                 doth
                 evidently
                 appear
                 ,
                 whereof
                 we
                 have
                 now
                 instanced
                 several
                 Decisions
                 .
                 So
                 a
                 Bond
                 granted
                 by
                 a
                 Father
                 to
                 a
                 Son
                 ,
                 forisfamiliat
                 ,
                 payable
                 after
                 the
                 Fathers
                 Death
                 ,
                 was
                 Reduced
                 at
                 the
                 Instance
                 of
                 the
                 Fathers
                 posterior
                 Creditors
                 ,
                 continuing
                 Traffick
                 with
                 him
                 ;
                 February
                 1669.
                 
                 
                   Pott
                   contra
                   Pollock
                
                 .
                 And
                 a
                 Bond
                 payable
                 only
                 by
                 the
                 granters
                 Heir
                 ,
                 if
                 he
                 had
                 no
                 Heir
                 of
                 his
                 own
                 Body
                 ,
                 was
                 Reduced
                 as
                 Fraudulent
                 ,
                 January
                 ,
                 24.
                 1677.
                 
                 Blair
                 of
                 
                   Ardblair
                   contra
                   Wilson
                
                 .
                 And
                 a
                 Disposition
                 of
                 Lands
                 ,
                 purchased
                 by
                 a
                 Merchant
                 to
                 his
                 Son
                 ,
                 was
                 found
                 Affectable
                 for
                 the
                 Debts
                 of
                 Merchants
                 Strangers
                 ,
                 who
                 began
                 to
                 Trade
                 with
                 the
                 Father
                 before
                 the
                 Disposition
                 ,
                 and
                 continued
                 after
                 ,
                 even
                 as
                 to
                 the
                 posterior
                 Debts
                 ,
                 seing
                 the
                 Father
                 continued
                 still
                 to
                 act
                 as
                 Proprietar
                 ,
                 though
                 by
                 his
                 Compt
                 Book
                 ,
                 it
                 appeared
                 he
                 knew
                 himself
                 to
                 be
                 Insolvent
                 :
                 And
                 though
                 the
                 Sons
                 Infeftment
                 was
                 publick
                 and
                 Registrat
                 ,
                 which
                 stranger
                 Merchants
                 were
                 not
                 oblieged
                 to
                 know
                 ,
                 July
                 2.
                 1673.
                 
                 Street
                 and
                 
                   Jackson
                   contra
                   Masson
                
                 .
                 Yea
                 ,
                 an
                 Infeftment
                 by
                 a
                 Father
                 to
                 his
                 eldest
                 Son
                 ,
                 an
                 Infant
                 was
                 reduced
                 at
                 the
                 Instance
                 of
                 posterior
                 Creditors
                 his
                 neighbours
                 ;
                 where
                 the
                 Seasing
                 was
                 Registrat
                 ,
                 seing
                 the
                 Register
                 was
                 carried
                 out
                 of
                 the
                 Countrey
                 ,
                 and
                 the
                 Father
                 continued
                 to
                 act
                 ,
                 not
                 as
                 Liferenter
                 ,
                 but
                 as
                 Proprietar
                 ,
                 December
                 4.
                 1673.
                 
                 Reid
                 of
                 
                   Bullochmyle
                   contra
                   Reid
                
                 of
                 Daldillin
                 .
                 And
                 generally
                 ,
                 Latent
                 Rights
                 amongst
                 confident
                 persons
                 ,
                 are
                 reduceable
                 by
                 posterior
                 Creditors
                 :
                 But
                 the
                 Liferent
                 of
                 the
                 whole
                 Conquest
                 of
                 a
                 Merchant
                 ,
                 provided
                 in
                 a
                 Contract
                 of
                 Marriage
                 to
                 his
                 Wife
                 ,
                 being
                 an
                 ordinary
                 Clause
                 ,
                 was
                 not
                 found
                 fraudulent
                 ,
                 February
                 10.
                 1674.
                 
                 
                   Marion
                   Gray
                   contra
                
                 the
                 Son
                 and
                 Creditors
                 of
                 her
                 Husband
                 .
              
               
                 Secondly
                 ,
                 though
                 this
                 Statute
                 bears
                 all
                 Alienations
                 ,
                 without
                 Cause
                 onerous
                 ,
                 in
                 prejudice
                 of
                 prior
                 Creditors
                 to
                 be
                 null
                 ,
                 
                   ab
                   initio
                
                 ,
                 and
                 without
                 declarator
                 by
                 exception
                 ,
                 or
                 reply
                 :
                 Yet
                 Custome
                 hath
                 found
                 this
                 inconsistent
                 with
                 the
                 nature
                 of
                 Infeftments
                 ,
                 which
                 cannot
                 be
                 reduced
                 ,
                 till
                 they
                 be
                 first
                 produced
                 ,
                 and
                 all
                 the
                 Authors
                 called
                 ,
                 which
                 cannot
                 be
                 by
                 way
                 of
                 exception
                 ,
                 but
                 by
                 action
                 .
                 But
                 a
                 Disposition
                 of
                 Moveables
                 was
                 found
                 anullable
                 by
                 reply
                 ,
                 November
                 18.
                 1669.
                 
                 
                   Henderson
                   contra
                   Henderson
                   .
                   June
                
                 18.
                 1671.
                 
                 
                   Bower
                   contra
                
                 Lady
                 Couper
                 .
                 And
                 likeways
                 ,
                 a
                 profitable
                 Tack
                 ,
                 February
                 6.
                 1662.
                 
                 Doctor
                 
                   Hay
                   contra
                   Marjory
                   Jamison
                
                 .
                 Neither
                 are
                 the
                 receivers
                 of
                 such
                 Alienations
                 comptable
                 for
                 the
                 profits
                 ,
                 
                   ab
                   initio
                
                 ,
                 till
                 they
                 be
                 put
                 ,
                 
                   in
                   mala
                   fide
                
                 ,
                 by
                 the
                 pursuites
                 of
                 anterior
                 Creditors
                 ,
                 whose
                 Rights
                 they
                 are
                 not
                 presumed
                 to
                 know
                 ,
                 till
                 they
                 be
                 produced
                 ,
                 and
                 found
                 preferable
                 .
              
               
                 Thirdly
                 ,
                 Though
                 the
                 Title
                 of
                 this
                 Statute
                 ,
                 and
                 much
                 of
                 the
                 Body
                 of
                 it
                 be
                 against
                 the
                 Alienations
                 of
                 Bankrupts
                 ,
                 in
                 prejudice
                 of
                 their
                 Creditors
                 :
                 yet
                 the
                 Statutory
                 part
                 declares
                 against
                 all
                 Alienations
                 to
                 any
                 conjunct
                 or
                 confident
                 person
                 ,
                 without
                 a
                 just
                 price
                 ,
                 being
                 in
                 prejudice
                 of
                 anterior
                 Creditors
                 to
                 be
                 anulled
                 ,
                 which
                 hath
                 always
                 been
                 extended
                 ,
                 not
                 only
                 to
                 Dispositions
                 of
                 Bankrupts
                 ,
                 made
                 to
                 confident
                 persons
                 ,
                 but
                 to
                 any
                 person
                 without
                 a
                 competent
                 price
                 ,
                 or
                 equivalent
                 cause
                 onerous
                 ;
                 and
                 therefore
                 ,
                 such
                 gratuitous
                 Deeds
                 are
                 reduceable
                 by
                 anterior
                 Creditors
                 ,
                 though
                 the
                 granter
                 was
                 not
                 then
                 Bankrupt
                 ,
                 as
                 a
                 broken
                 Merchant
                 flying
                 :
                 But
                 if
                 he
                 were
                 before
                 ,
                 or
                 did
                 by
                 these
                 fraudulent
                 Deeds
                 become
                 insolvent
                 ,
                 Hope
                 ,
                 Usury
                 ,
                 
                   Pringle
                   contra
                   Ker.
                   February
                
                 16.
                 1628.
                 
                 
                   Kilgour
                   contra
                   Thomson
                   .
                   January
                
                 17.
                 1632.
                 
                 
                   Skeen
                   contra
                   Belstoun
                
                 .
                 Yea
                 ,
                 if
                 thereby
                 his
                 Estate
                 cannot
                 afford
                 ready
                 Satisfaction
                 or
                 Security
                 ,
                 as
                 being
                 incumbred
                 with
                 many
                 Appryzings
                 ,
                 or
                 Adjudications
                 ,
                 though
                 
                 the
                 Reversions
                 may
                 be
                 equivalent
                 to
                 all
                 his
                 Debt
                 :
                 Yet
                 anterior
                 Creditors
                 may
                 reduce
                 gratuitous
                 deeds
                 done
                 by
                 such
                 persons
                 ,
                 being
                 more
                 fit
                 that
                 anterior
                 Creditors
                 should
                 be
                 preferred
                 ,
                 and
                 the
                 obtainers
                 of
                 these
                 gratuitous
                 Rights
                 should
                 be
                 put
                 to
                 recur
                 upon
                 the
                 Reversions
                 ,
                 by
                 their
                 warrandice
                 ,
                 February
                 10.
                 1665.
                 
                 Lady
                 
                   Craig
                   contra
                
                 Lord
                 Lour
                 .
              
               
                 But
                 there
                 is
                 nothing
                 in
                 this
                 Statute
                 ,
                 or
                 by
                 Custome
                 ,
                 to
                 anull
                 any
                 gratuitous
                 deed
                 in
                 favours
                 of
                 Wives
                 ,
                 Children
                 or
                 Strangers
                 ,
                 if
                 at
                 the
                 time
                 of
                 the
                 granting
                 and
                 delivery
                 thereof
                 ,
                 the
                 granter
                 had
                 an
                 Estate
                 sufficient
                 for
                 these
                 ,
                 and
                 all
                 his
                 Debts
                 unaffected
                 by
                 Appryzing
                 ,
                 Adjudication
                 ,
                 or
                 Arrestment
                 .
                 Neither
                 will
                 Inhibition
                 suffice
                 ,
                 nor
                 Apprizing
                 ,
                 or
                 Arrestment
                 for
                 small
                 Sums
                 ,
                 to
                 be
                 a
                 ground
                 for
                 this
                 Reduction
                 .
              
               
                 Competent
                 provisions
                 to
                 Wives
                 or
                 Husbands
                 ,
                 are
                 not
                 accompted
                 gratuitous
                 ,
                 but
                 onerous
                 ,
                 
                   ad
                   sustinenda
                   onera
                   Matrimonij
                
                 ,
                 and
                 for
                 mutual
                 Provisions
                 :
                 But
                 if
                 exorbitant
                 ,
                 they
                 will
                 be
                 lyable
                 ,
                 
                   in
                   quantum
                   locupletiores
                   facti
                   ,
                   December
                
                 23.
                 1661.
                 
                 Dam
                 
                   Rachel
                   Burnet
                   contra
                   Lepers
                
                 .
                 Neither
                 are
                 Provisions
                 or
                 Gifts
                 to
                 Children
                 anullable
                 by
                 anterior
                 Creditors
                 ,
                 if
                 the
                 granter
                 had
                 then
                 a
                 visible
                 Estate
                 ,
                 sufficient
                 for
                 these
                 ,
                 and
                 all
                 his
                 Debts
                 ,
                 as
                 was
                 found
                 in
                 a
                 provision
                 by
                 a
                 Father
                 to
                 his
                 Son
                 ,
                 by
                 his
                 Contract
                 of
                 Marriage
                 ,
                 though
                 the
                 Son
                 received
                 the
                 Tocher
                 ,
                 June
                 22.
                 1680.
                 
                 Grant
                 of
                 
                   Cairnhauch
                   Contra
                   Grant
                
                 of
                 
                   Elshes
                   .
                   November
                
                 10.
                 1680.
                 
                 
                   Mckel
                   contra
                   Jamison
                
                 and
                 Wilson
                 .
                 Yea
                 ,
                 the
                 Portions
                 of
                 Children
                 were
                 not
                 excluded
                 by
                 prior
                 Creditors
                 ,
                 their
                 Father
                 having
                 then
                 a
                 sufficient
                 visible
                 Estate
                 ,
                 though
                 
                   ex
                   eventu
                
                 ,
                 it
                 proved
                 insufficient
                 ,
                 by
                 running
                 on
                 of
                 Annuals
                 ,
                 and
                 Accumulations
                 of
                 Appryzings
                 ,
                 December
                 11.
                 1679.
                 
                 Creditors
                 of
                 
                   Muswall
                   contra
                
                 Children
                 of
                 
                   Nuswald
                   .
                   June
                
                 30.
                 1675.
                 
                 
                   Clerk
                   contra
                   Stuart
                
                 and
                 Williamson
                 .
                 And
                 so
                 a
                 Disposition
                 by
                 a
                 Grand-Father
                 to
                 his
                 Oye
                 ,
                 was
                 not
                 annulled
                 by
                 Anterior
                 Creditors
                 ,
                 March
                 6.
                 1632.
                 
                 Laird
                 of
                 
                   Grantoun
                   contra
                   Ker.
                
                 
              
               
                 Fourthly
                 ,
                 Though
                 this
                 Statute
                 requires
                 a
                 just
                 price
                 ,
                 it
                 did
                 not
                 anull
                 a
                 Disposition
                 ,
                 though
                 a
                 prior
                 Creditor
                 offered
                 a
                 greater
                 price
                 ,
                 if
                 the
                 price
                 received
                 was
                 the
                 ordinary
                 Rate
                 of
                 the
                 Countrey
                 ;
                 and
                 though
                 there
                 was
                 a
                 personal
                 Reversion
                 to
                 the
                 Disponers
                 eldest
                 Son
                 only
                 ,
                 January
                 16.
                 1677.
                 
                 Earl
                 of
                 
                   Glencairn
                   contra
                   John
                   Brishane
                
                 .
                 The
                 like
                 ,
                 where
                 the
                 pursuer
                 had
                 obtained
                 a
                 prior
                 minute
                 of
                 Sale
                 ,
                 for
                 a
                 greater
                 price
                 ;
                 yet
                 it
                 did
                 not
                 reduce
                 a
                 posterior
                 Infeftment
                 purchased
                 ,
                 bonafide
                 ,
                 though
                 for
                 a
                 lesser
                 price
                 ,
                 being
                 competent
                 ,
                 July
                 18.
                 1677.
                 
                 Murray
                 of
                 
                   Kilor
                   contra
                   Drummond
                
                 of
                 Machanie
                 .
              
               
                 Fifthly
                 ,
                 Though
                 the
                 Statute
                 mentions
                 only
                 the
                 anulling
                 of
                 Dispositions
                 ,
                 &c.
                 yet
                 it
                 is
                 ordinarly
                 extended
                 to
                 Bonds
                 ,
                 or
                 obliegements
                 ,
                 whereupon
                 Appryzing
                 ,
                 Adjudication
                 ,
                 or
                 Arrestment
                 follow
                 .
              
               
                 Sixthly
                 ,
                 Though
                 Dispositions
                 or
                 other
                 Rights
                 be
                 ,
                 fore
                 equivalent
                 Causes
                 Onerous
                 :
                 yet
                 by
                 the
                 posterior
                 part
                 of
                 the
                 Statute
                 ,
                 they
                 are
                 accompted
                 fraudulent
                 and
                 reducible
                 ,
                 if
                 the
                 Bankrupt
                 ,
                 or
                 the
                 interposed
                 person
                 in
                 Trust
                 ,
                 do
                 by
                 voluntar
                 gratification
                 ,
                 prefer
                 one
                 Creditor
                 to
                 another
                 ,
                 who
                 hath
                 done
                 more
                 timeous
                 and
                 lawful
                 diligence
                 :
                 where
                 by
                 ,
                 Bankrupt
                 ,
                 is
                 not
                 only
                 to
                 be
                 understood
                 a
                 notour
                 Bankrupt
                 ,
                 but
                 any
                 person
                 insolvent
                 ,
                 or
                 by
                 the
                 preference
                 becoming
                 insolvent
                 ,
                 or
                 who
                 hath
                 not
                 a
                 sufficient
                 visible
                 inaffected
                 Estate
                 ,
                 for
                 his
                 other
                 Creditors
                 .
                 But
                 where
                 a
                 Debitor
                 of
                 an
                 intear
                 Estate
                 ,
                 pays
                 his
                 lawful
                 Creditor
                 ,
                 or
                 satisfies
                 him
                 by
                 Dispositions
                 ,
                 or
                 Assignations
                 ,
                 neither
                 the
                 Tenor
                 nor
                 Extention
                 of
                 the
                 Statute
                 reacheth
                 these
                 Cases
                 ;
                 albeit
                 there
                 be
                 inchoat
                 and
                 incompleat
                 Diligence
                 ,
                 at
                 the
                 Instance
                 of
                 other
                 Creditors
                 .
              
               
               
                 Seventhly
                 ,
                 Where
                 that
                 Clause
                 of
                 the
                 Statute
                 bears
                 the
                 annulling
                 of
                 Deeds
                 done
                 in
                 gratification
                 ,
                 or
                 preference
                 of
                 one
                 Creditor
                 to
                 another
                 ,
                 who
                 hath
                 done
                 more
                 timeous
                 Diligence
                 by
                 Inhibition
                 ,
                 Horning
                 ,
                 Arrestment
                 ,
                 Compryzing
                 ,
                 or
                 other
                 lawful
                 mean
                 ,
                 duly
                 to
                 affect
                 the
                 Dyvers
                 Lands
                 ,
                 or
                 Goods
                 ,
                 or
                 Price
                 thereof
                 ;
                 the
                 meaning
                 is
                 ,
                 that
                 when
                 these
                 Diligences
                 are
                 not
                 compleat
                 ,
                 but
                 Inchoat
                 ,
                 and
                 the
                 Creditor
                 is
                 ,
                 
                   in
                   cursu
                   diligentiae
                
                 ;
                 the
                 Debitor
                 or
                 his
                 Trustee
                 ,
                 cannot
                 prevent
                 the
                 course
                 of
                 that
                 Diligence
                 ,
                 by
                 preferring
                 another
                 Creditor
                 ,
                 doing
                 less
                 Diligence
                 :
                 For
                 ,
                 if
                 the
                 meaning
                 were
                 ,
                 of
                 Appryzing
                 ,
                 perfected
                 by
                 Infeftment
                 ,
                 or
                 Arrestment
                 ,
                 by
                 Decreet
                 ,
                 to
                 make
                 forthcoming
                 ,
                 there
                 needed
                 not
                 this
                 remeid
                 ;
                 for
                 these
                 Diligences
                 being
                 compleat
                 ,
                 would
                 exclude
                 any
                 other
                 posterior
                 Disposition
                 or
                 Diligence
                 :
                 Yea
                 ,
                 Inhibition
                 ,
                 if
                 the
                 Executions
                 were
                 compleat
                 and
                 Registrat
                 ,
                 would
                 of
                 it self
                 be
                 effectual
                 to
                 Reduce
                 ,
                 
                   ex
                   capite
                   inhibitionis
                
                 :
                 But
                 if
                 these
                 Diligences
                 be
                 only
                 Inchoat
                 ,
                 as
                 if
                 the
                 Inhibitor
                 had
                 begun
                 his
                 Execution
                 ;
                 but
                 had
                 not
                 compleated
                 it
                 at
                 all
                 the
                 Mercat
                 Crosses
                 requisite
                 ,
                 any
                 Disposition
                 ,
                 Infeftment
                 ,
                 or
                 other
                 real
                 Right
                 made
                 to
                 another
                 Creditor
                 ,
                 
                   medio
                   tempore
                
                 ,
                 less
                 vigilent
                 ,
                 is
                 anullable
                 thereby
                 ,
                 December
                 15.
                 1665.
                 and
                 February
                 27.
                 1667.
                 
                 Mr.
                 
                   John
                   Eleis
                   contra
                   Keith
                
                 and
                 Wishart
                 .
                 Or
                 if
                 Lands
                 be
                 Denunced
                 to
                 be
                 Appryzed
                 ,
                 or
                 Summonds
                 of
                 Adjudication
                 be
                 execute
                 ,
                 Rights
                 thereafter
                 made
                 to
                 other
                 Creditors
                 doing
                 less
                 Diligence
                 ,
                 
                   in
                   cursu
                   diligentiae
                
                 ,
                 with
                 the
                 first
                 ,
                 are
                 thereby
                 reducible
                 ,
                 although
                 done
                 before
                 the
                 Decreet
                 of
                 Apprysing
                 or
                 Infeftment
                 :
                 But
                 Inhibition
                 ,
                 Apprysing
                 ,
                 or
                 Adjudication
                 Inchoat
                 ,
                 have
                 no
                 effect
                 as
                 to
                 Moveable
                 Rights
                 ,
                 not
                 being
                 as
                 the
                 Statute
                 requires
                 ,
                 Diligences
                 duely
                 to
                 affect
                 that
                 subject
                 .
                 Neither
                 doth
                 the
                 laying
                 on
                 of
                 Arrestment
                 affect
                 Heretable
                 Rights
                 ,
                 and
                 so
                 cannot
                 hinder
                 the
                 Debitor
                 to
                 Dispone
                 these
                 to
                 lawful
                 Creditors
                 ,
                 doing
                 less
                 Diligence
                 :
                 But
                 Horning
                 is
                 a
                 Diligence
                 ,
                 relating
                 both
                 to
                 the
                 Moveable
                 Estate
                 ,
                 by
                 single
                 Escheat
                 ,
                 and
                 the
                 Heretable
                 Estate
                 ,
                 by
                 Liferent
                 Escheat
                 ;
                 and
                 therefore
                 ,
                 after
                 the
                 Charge
                 of
                 Horning
                 it
                 is
                 effectual
                 ,
                 February
                 12.
                 1675.
                 
                 
                   Veach
                   contra
                
                 the
                 Executors
                 of
                 Ker
                 and
                 
                   Pallat.
                   July
                
                 18.
                 1677.
                 
                 Murray
                 of
                 
                   Kilor
                   contra
                   Drummond
                
                 of
                 
                   Machany
                   .
                   January
                
                 25.
                 1681.
                 
                 
                   Bathgate
                   contra
                   Bogil
                
                 .
                 It
                 hath
                 not
                 been
                 yet
                 cleared
                 by
                 practice
                 ,
                 if
                 insisting
                 in
                 Processes
                 for
                 constituting
                 Debts
                 ,
                 be
                 comprehended
                 under
                 other
                 lawful
                 means
                 ,
                 duely
                 to
                 affect
                 the
                 Debitors
                 Lands
                 or
                 Goods
                 .
              
               
                 But
                 this
                 Statute
                 will
                 not
                 〈◊〉
                 Dispositions
                 ,
                 or
                 other
                 Rights
                 made
                 in
                 favours
                 of
                 these
                 persons
                 ,
                 who
                 have
                 used
                 the
                 most
                 effectual
                 Diligence
                 ,
                 duely
                 to
                 affect
                 the
                 Subject
                 ,
                 because
                 this
                 prevents
                 Expences
                 ,
                 prejudicial
                 both
                 to
                 the
                 Debitor
                 and
                 Con-creditors
                 ,
                 and
                 is
                 not
                 contrary
                 this
                 Statute
                 .
              
               
                 Neither
                 will
                 Dispositions
                 ,
                 or
                 other
                 Rights
                 for
                 equivalent
                 Causes
                 Onerous
                 ,
                 made
                 to
                 Creditors
                 ,
                 be
                 anulled
                 ,
                 if
                 not
                 done
                 ,
                 
                   in
                   cursu
                   diligentiae
                
                 ;
                 but
                 if
                 the
                 Con-creditor
                 insist
                 not
                 in
                 his
                 Inchoat
                 Dillgence
                 ,
                 till
                 it
                 be
                 compleat
                 ,
                 he
                 hath
                 not
                 the
                 benefit
                 of
                 the
                 Statute
                 ,
                 
                   vigilantibus
                   ,
                   non
                   dormientibus
                   jura
                   subveniunt
                
                 ;
                 and
                 therefore
                 ,
                 a
                 Disposition
                 was
                 not
                 Reduced
                 at
                 the
                 Instance
                 of
                 a
                 Creditor
                 ,
                 who
                 had
                 Appryzed
                 before
                 the
                 Disposition
                 ,
                 but
                 for
                 several
                 years
                 had
                 neither
                 obtained
                 Infeftment
                 ,
                 nor
                 charged
                 the
                 Superior
                 ,
                 February
                 8.
                 1681.
                 
                 
                   John
                   Neilson
                   contra
                   Ross
                
                 of
                 Pittendreich
                 .
                 But
                 how
                 long
                 this
                 negligence
                 must
                 be
                 to
                 exclude
                 it
                 ,
                 must
                 necessarily
                 be
                 ,
                 
                   in
                   arbitrio
                   judicis
                
                 .
              
               
                 But
                 this
                 Clause
                 of
                 the
                 Statute
                 will
                 not
                 anull
                 Dispositions
                 made
                 to
                 buyers
                 ,
                 for
                 a
                 just
                 price
                 payed
                 ,
                 where
                 the
                 price
                 was
                 not
                 an
                 anterior
                 Debt
                 due
                 to
                 the
                 buyer
                 ;
                 for
                 there
                 ,
                 there
                 is
                 not
                 preference
                 of
                 one
                 Creditor
                 to
                 another
                 ,
                 but
                 a
                 lawful
                 Bargain
                 in
                 Commerce
                 ,
                 where
                 the
                 buyer
                 neither
                 doth
                 ,
                 nor
                 can
                 know
                 Inchoat
                 Diligences
                 ,
                 but
                 only
                 such
                 as
                 are
                 compleat
                 and
                 Registrat
                 ,
                 except
                 in
                 
                 the
                 case
                 where
                 the
                 Subject
                 becomes
                 Litigious
                 ,
                 which
                 is
                 not
                 to
                 be
                 extended
                 to
                 every
                 diligence
                 ,
                 in
                 prejudice
                 of
                 Puchasers
                 of
                 Lands
                 ,
                 whereby
                 Rights
                 would
                 become
                 very
                 uncertain
                 ,
                 especially
                 when
                 Irredeemable
                 Rights
                 are
                 purchased
                 ;
                 but
                 against
                 the
                 purchasing
                 of
                 Bonds
                 ,
                 Annualrents
                 ,
                 or
                 Wodsets
                 ,
                 it
                 may
                 be
                 more
                 extended
                 as
                 in
                 the
                 former
                 case
                 ,
                 February
                 8.
                 1681.
                 
                 
                   Neilson
                   contra
                   Ross
                
                 of
                 Pittendreich
                 .
                 This
                 Defence
                 was
                 also
                 sustained
                 ,
                 that
                 the
                 Disposition
                 was
                 for
                 a
                 price
                 payed
                 ,
                 and
                 for
                 no
                 anterior
                 Debt
                 .
                 And
                 in
                 the
                 former
                 case
                 ,
                 
                   Bathgate
                   contra
                   Bogil
                
                 ,
                 the
                 Disposition
                 after
                 Horning
                 ,
                 though
                 it
                 was
                 in
                 the
                 terms
                 of
                 sale
                 ,
                 was
                 only
                 anulled
                 ,
                 because
                 it
                 was
                 granted
                 for
                 anterior
                 Debts
                 ,
                 due
                 to
                 the
                 buyer
                 .
              
               
                 Fraud
                 is
                 no
                 
                   vitium
                   reale
                
                 ,
                 affecting
                 the
                 Subject
                 ,
                 but
                 only
                 the
                 committer
                 of
                 the
                 Fraud
                 ,
                 and
                 these
                 who
                 are
                 partakers
                 of
                 the
                 Fraud
                 ,
                 as
                 is
                 clear
                 by
                 this
                 Statute
                 ,
                 bearing
                 an
                 exception
                 of
                 lawful
                 Purchasers
                 ,
                 not
                 partakers
                 of
                 the
                 Fraud
                 .
                 But
                 where
                 the
                 Right
                 purchased
                 ,
                 hath
                 evidence
                 of
                 Fraud
                 in
                 it self
                 ,
                 the
                 Purchaser
                 ,
                 though
                 for
                 a
                 just
                 price
                 payed
                 ,
                 is
                 thereby
                 partaker
                 of
                 the
                 Fraud
                 ,
                 and
                 so
                 may
                 be
                 excluded
                 ,
                 as
                 if
                 the
                 Right
                 acquired
                 bore
                 ,
                 
                   for
                   love
                   and
                   favour
                
                 :
                 or
                 if
                 it
                 be
                 betwixt
                 conjunct
                 persons
                 ,
                 the
                 Purchaser
                 must
                 instruct
                 the
                 Cause
                 Onerous
                 ;
                 as
                 when
                 the
                 Right
                 purchased
                 was
                 from
                 one
                 Brother
                 to
                 another
                 ,
                 December
                 28.
                 1679.
                 
                 Gordoun
                 of
                 
                   〈◊〉
                   contra
                   Ferguson
                
                 of
                 
                   Keroch
                   .
                   January
                
                 24.
                 1680.
                 
                 
                   Andrew
                   Crawford
                   contra
                   James
                   Ker.
                
                 
              
               
                 Eightly
                 ,
                 Though
                 the
                 manner
                 of
                 Probation
                 by
                 this
                 Statute
                 ,
                 be
                 by
                 the
                 Oath
                 of
                 the
                 Purchaser
                 ,
                 or
                 Write
                 :
                 Yet
                 the
                 Narrative
                 of
                 such
                 Rights
                 ,
                 being
                 betwixt
                 conjunct
                 Persons
                 ,
                 albeit
                 it
                 bear
                 Causes
                 Onerous
                 ;
                 must
                 be
                 otherways
                 astructed
                 ,
                 wherein
                 Witnesses
                 ,
                 and
                 other
                 Exidences
                 will
                 be
                 received
                 ,
                 which
                 is
                 not
                 only
                 sustained
                 .
                 As
                 to
                 Dispositions
                 by
                 Parents
                 to
                 Children
                 ,
                 but
                 by
                 Brothers
                 and
                 Sisters
                 to
                 Brothers
                 ,
                 or
                 to
                 Good-Brothers
                 and
                 Good-Sisters
                 :
                 yet
                 not
                 to
                 two
                 persons
                 Marrying
                 two
                 Sisters
                 ,
                 or
                 two
                 Brothers
                 ,
                 where
                 there
                 is
                 but
                 
                   affinitas
                   affinitatis
                
                 :
                 It
                 hath
                 also
                 been
                 extended
                 to
                 Uncle
                 and
                 Nephew
                 ,
                 where
                 other
                 Circumstances
                 concurred
                 ,
                 January
                 18.
                 1678.
                 
                 Kinloch
                 of
                 
                   Gourdy
                   contra
                
                 Mr.
                 
                   George
                   Blair
                   .
                   December
                
                 18.
                 1673.
                 
                 Creditors
                 of
                 
                   Tarsapy
                   contra
                
                 Laird
                 of
                 Kinsans
                 .
              
               
                 The
                 like
                 effect
                 is
                 in
                 Rights
                 ,
                 acquired
                 in
                 name
                 of
                 Children
                 in
                 the
                 Family
                 ,
                 who
                 have
                 no
                 visible
                 Estate
                 ,
                 for
                 these
                 are
                 held
                 fraudulent
                 ,
                 and
                 may
                 be
                 affected
                 for
                 the
                 Fathers
                 Debt
                 ,
                 as
                 hath
                 been
                 frequently
                 decided
                 .
              
               
                 This
                 Case
                 only
                 remains
                 ,
                 whither
                 a
                 notour
                 Bankrupt
                 may
                 prefer
                 one
                 Creditor
                 to
                 another
                 ,
                 though
                 neither
                 have
                 done
                 Diligence
                 .
                 The
                 Tenor
                 of
                 the
                 Statute
                 favours
                 the
                 Negative
                 ,
                 annulling
                 Alienations
                 by
                 Bankrupts
                 ,
                 not
                 being
                 for
                 an
                 equivalent
                 and
                 necessar
                 Cause
                 ;
                 and
                 therefore
                 ,
                 it
                 is
                 not
                 safe
                 to
                 purchase
                 from
                 such
                 ,
                 even
                 by
                 buying
                 .
              
               
                 16.
                 
                 Spuilzie
                 is
                 the
                 taking
                 away
                 of
                 Moveables
                 without
                 consent
                 of
                 the
                 Owner
                 ,
                 or
                 Order
                 of
                 Law
                 ,
                 oblieging
                 to
                 Restitution
                 of
                 the
                 things
                 taken
                 away
                 ,
                 with
                 all
                 possible
                 profits
                 ,
                 or
                 Reparation
                 thereof
                 ,
                 according
                 to
                 the
                 estimation
                 of
                 the
                 Injured
                 ,
                 made
                 by
                 his
                 
                   juramentum
                   in
                   litem
                
                 .
                 Thus
                 things
                 Stollen
                 or
                 Robbed
                 ,
                 though
                 they
                 might
                 be
                 Criminally
                 pursued
                 ,
                 as
                 Thest
                 or
                 Robbery
                 :
                 Yet
                 may
                 they
                 be
                 civily
                 pursued
                 as
                 a
                 Spuilzie
                 .
              
               
                 Spuilzie
                 ,
                 
                   inurit
                   labem
                   realem
                
                 ,
                 whereby
                 the
                 Goods
                 may
                 be
                 recovered
                 from
                 Purchasers
                 ,
                 
                   bona
                   fide
                   ,
                   November
                
                 21.
                 1677.
                 
                 
                   James
                   Key
                   contra
                   Leonard
                   Carnagy
                
                 and
                 others
                 .
                 The
                 profit
                 of
                 things
                 Spuilzied
                 ,
                 are
                 called
                 violent
                 profits
                 ;
                 because
                 they
                 are
                 not
                 such
                 ordinary
                 profits
                 ,
                 as
                 the
                 Persons
                 Spuilzied
                 used
                 to
                 make
                 
                 of
                 the
                 Goods
                 ,
                 but
                 such
                 as
                 he
                 might
                 have
                 made
                 thereof
                 .
                 Where
                 the
                 things
                 Spuilzied
                 have
                 profits
                 ,
                 as
                 Horse
                 ,
                 Oxen
                 ,
                 or
                 other
                 Cattel
                 ,
                 and
                 Instruments
                 ,
                 or
                 other
                 Tools
                 ;
                 but
                 Corns
                 and
                 the
                 like
                 have
                 no
                 profits
                 .
                 The
                 violent
                 profits
                 of
                 a
                 Horse
                 Spuilzied
                 in
                 Labouring
                 time
                 ,
                 was
                 modified
                 to
                 five
                 Shilling
                 
                   Scots
                   ,
                   per
                   diem
                   ,
                   February
                
                 28.
                 1668.
                 
                 Lord
                 Justice
                 Clerk
                 
                   contra
                   Home
                
                 of
                 Lenthil
                 :
                 but
                 the
                 modification
                 depends
                 much
                 upon
                 the
                 violence
                 ,
                 and
                 attrocity
                 of
                 the
                 Spuilzie
                 .
              
               
                 17.
                 
                 In
                 Spuilzies
                 ,
                 the
                 Pursuer
                 needs
                 no
                 other
                 Title
                 but
                 Possession
                 ,
                 from
                 whence
                 ,
                 in
                 Moveables
                 a
                 Right
                 is
                 presumed
                 ;
                 and
                 therefore
                 ,
                 Spuilzie
                 of
                 Goods
                 in
                 Coffers
                 was
                 sustained
                 upon
                 the
                 Pursuers
                 having
                 the
                 Keys
                 ,
                 and
                 the
                 Defenders
                 breaking
                 up
                 the
                 Coffers
                 ,
                 not
                 being
                 done
                 by
                 Parents
                 or
                 Masters
                 ,
                 July
                 25.
                 1676.
                 
                 
                   Rachel
                   Maxwel
                   contra
                
                 Mr.
                 
                   Hugh
                   Maxwel
                
                 and
                 
                   Marion
                   Maxwel
                
                 .
                 A
                 Relict
                 in
                 Possession
                 was
                 admitted
                 to
                 pursue
                 a
                 Spuilzie
                 of
                 Corns
                 ,
                 Sowen
                 and
                 Reaped
                 by
                 her
                 Husband
                 ,
                 though
                 not
                 Comfirmed
                 by
                 her
                 ,
                 July
                 26.
                 1626.
                 
                 
                   Janet
                   Russel
                   contra
                
                 Spuilzies
                 must
                 be
                 by
                 unlawful
                 medling
                 ,
                 or
                 accession
                 thereto
                 ;
                 and
                 therefore
                 ,
                 it
                 was
                 found
                 relevantly
                 Lybelled
                 ,
                 that
                 the
                 Goods
                 Spuilzied
                 were
                 immediatly
                 received
                 into
                 the
                 Defenders
                 House
                 ,
                 January
                 26.
                 1628.
                 
                 Earl
                 of
                 
                   Roxburgh
                   contra
                
                 Laird
                 of
                 Lugtoun
                 .
                 The
                 like
                 was
                 found
                 ,
                 that
                 it
                 was
                 Spuilzie
                 in
                 the
                 case
                 of
                 accession
                 ;
                 because
                 the
                 Defender
                 received
                 the
                 Spuilzied
                 Goods
                 ,
                 that
                 night
                 in
                 his
                 Byres
                 ,
                 December
                 2.
                 1609.
                 
                   contra
                   Dennistoun
                
                 .
                 Yet
                 a
                 Spuilzie
                 was
                 not
                 sustained
                 against
                 a
                 Person
                 as
                 accessory
                 ,
                 who
                 being
                 charged
                 by
                 the
                 Messenger
                 ,
                 did
                 Appryze
                 the
                 Goods
                 upon
                 the
                 Ground
                 ,
                 though
                 in
                 other
                 Solemnities
                 the
                 Poynding
                 was
                 illegal
                 ,
                 for
                 which
                 he
                 was
                 not
                 answerable
                 ,
                 Hope
                 ,
                 Spuilzie
                 ,
                 
                   Patrick
                   Butter
                   contra
                   Alexander
                   Gordoun
                
                 .
                 But
                 where
                 the
                 Pursuer
                 transacted
                 with
                 one
                 of
                 the
                 Parties
                 guilty
                 for
                 good
                 deed
                 ,
                 all
                 the
                 rest
                 were
                 freed
                 ,
                 though
                 he
                 may
                 freely
                 pass
                 or
                 forbear
                 the
                 Pursuit
                 of
                 any
                 of
                 them
                 ,
                 June
                 20.
                 1611.
                 
                 
                   Dowglas
                   contra
                   Leich
                
                 and
                 Jamison
                 .
                 Yea
                 ,
                 Sums
                 were
                 proven
                 payed
                 by
                 Witnesses
                 ,
                 which
                 was
                 found
                 sufficient
                 .
                 The
                 like
                 found
                 by
                 a
                 Discharge
                 to
                 one
                 of
                 the
                 Parties
                 ,
                 though
                 it
                 bore
                 not
                 Satisfaction
                 ,
                 Hope
                 ,
                 Spuilzie
                 ,
                 Mr.
                 
                   John
                   Dowglas
                   contra
                   Young
                
                 ,
                 though
                 the
                 Discharge
                 did
                 bear
                 ,
                 but
                 prejudice
                 of
                 the
                 Spuilzie
                 against
                 the
                 rest
                 .
              
               
                 18.
                 
                 In
                 Spuilzie
                 ,
                 the
                 Fact
                 being
                 proven
                 or
                 acknowledged
                 ,
                 as
                 to
                 some
                 particulars
                 libelled
                 ,
                 the
                 Pursuers
                 Oath
                 will
                 be
                 admitted
                 to
                 prove
                 the
                 rest
                 of
                 the
                 Libel
                 ,
                 though
                 consisting
                 of
                 divers
                 Kinds
                 of
                 things
                 ,
                 March
                 8.
                 1628.
                 
                 
                   Brown
                   contra
                   Murray
                
                 .
              
               
                 19.
                 
                 Spuilzie
                 is
                 elided
                 ,
                 if
                 the
                 Deed
                 was
                 warrantably
                 done
                 ,
                 at
                 least
                 ,
                 
                   bona
                   fide
                
                 ,
                 by
                 a
                 collourable
                 Title
                 ,
                 as
                 by
                 Custome
                 ,
                 and
                 so
                 the
                 Spuilzie
                 of
                 a
                 Horse
                 was
                 elided
                 ,
                 because
                 he
                 was
                 medled
                 with
                 ,
                 as
                 being
                 carrying
                 Corn
                 out
                 of
                 the
                 Thirle
                 to
                 another
                 Miln
                 ,
                 according
                 to
                 the
                 Custome
                 of
                 the
                 Countrey
                 ,
                 whereby
                 the
                 Horse
                 is
                 forefaulted
                 to
                 the
                 Master
                 of
                 the
                 Miln
                 ,
                 and
                 the
                 Corn
                 to
                 the
                 Miller
                 ,
                 January
                 22.
                 1635.
                 
                 
                   Menzies
                   contra
                
                 but
                 not
                 eleided
                 by
                 a
                 Disposition
                 of
                 the
                 Goods
                 Libelled
                 ,
                 for
                 relief
                 ,
                 being
                 medled
                 with
                 ,
                 
                   brevi
                   manu
                
                 ,
                 seing
                 Distress
                 was
                 not
                 instructed
                 ,
                 July
                 19.
                 1633.
                 
                 
                   Kirkwood
                   contra
                   Ferguson
                
                 ,
                 so
                 where
                 there
                 was
                 a
                 Disposition
                 ,
                 and
                 Instrument
                 of
                 Possession
                 ,
                 albeit
                 the
                 Disposition
                 was
                 ,
                 
                   omnium
                   bonorum
                
                 ,
                 and
                 Possession
                 retained
                 for
                 two
                 year
                 ,
                 yet
                 it
                 was
                 found
                 sufficient
                 ,
                 
                   contra
                   spolium
                
                 ,
                 especially
                 ,
                 seing
                 there
                 was
                 no
                 violence
                 used
                 in
                 attaining
                 real
                 Possession
                 of
                 the
                 Goods
                 ,
                 January
                 29.
                 1662.
                 
                 
                   Halbert
                   Irving
                   contra
                   Mccairtnay
                
                 .
                 And
                 the
                 Spuilzie
                 of
                 a
                 Horse
                 was
                 eleided
                 ,
                 because
                 the
                 Pursuer
                 having
                 committed
                 Hamsucken
                 ,
                 and
                 Slaughter
                 ,
                 was
                 taken
                 by
                 the
                 Defender
                 with
                 a
                 Horse
                 ,
                 as
                 being
                 Bailzie
                 of
                 the
                 Barrony
                 where
                 he
                 did
                 it
                 ,
                 January
                 8.
                 1611.
                 
                 
                   John
                   Bailie
                   contra
                
                 Lord
                 Torphichen
                 .
                 And
                 a
                 Spuilzie
                 of
                 Corns
                 was
                 eleided
                 by
                 the
                 Defenders
                 entring
                 in
                 Possession
                 of
                 the
                 Corns
                 upon
                 the
                 
                 Ground
                 ,
                 whereupon
                 the
                 Corns
                 were
                 growing
                 ,
                 Hope
                 ,
                 Spuilzie
                 ,
                 
                   Elliot
                   contra
                
                 Lord
                 Bucleuch
                 .
                 It
                 was
                 also
                 eleided
                 as
                 to
                 a
                 Messenger
                 ,
                 because
                 he
                 Poynded
                 the
                 Goods
                 ,
                 Libelled
                 by
                 vertue
                 of
                 Letters
                 of
                 Poynding
                 ,
                 directed
                 against
                 the
                 Pursuer
                 ,
                 unwarrantably
                 raised
                 ,
                 because
                 there
                 was
                 no
                 conclusion
                 in
                 the
                 Decreet
                 against
                 him
                 ,
                 March
                 4.
                 1628.
                 
                 
                   Scot
                   contra
                   Catharin
                   Banks
                
                 .
                 The
                 like
                 ,
                 if
                 the
                 Defender
                 meddle
                 with
                 Goods
                 by
                 a
                 Title
                 or
                 Warrand
                 from
                 any
                 other
                 Party
                 to
                 whom
                 they
                 belonged
                 ;
                 And
                 though
                 this
                 be
                 contrary
                 the
                 Libel
                 ,
                 it
                 will
                 be
                 sufficient
                 :
                 And
                 if
                 either
                 Party
                 alledge
                 Right
                 ,
                 the
                 most
                 pregnant
                 will
                 be
                 preferred
                 :
                 And
                 it
                 was
                 found
                 sufficient
                 to
                 evite
                 Spuilzie
                 ,
                 because
                 the
                 Defender
                 bought
                 the
                 Horse
                 in
                 question
                 from
                 the
                 Pursuers
                 Son
                 ,
                 who
                 had
                 ridden
                 upon
                 him
                 to
                 several
                 Mercats
                 ,
                 as
                 his
                 own
                 Horse
                 ,
                 by
                 the
                 space
                 of
                 nineteen
                 days
                 ,
                 
                   Nic.
                   hic
                   .
                   Ross
                   contra
                   Stuart
                   .
                
              
               
                 20.
                 
                 The
                 second
                 exception
                 in
                 Spuilzies
                 ,
                 is
                 voluntar
                 delivery
                 ,
                 which
                 was
                 sustained
                 ,
                 though
                 it
                 seemed
                 contrair
                 the
                 Libel
                 ,
                 Spotswood
                 ,
                 Spuilzie
                 ,
                 
                   Margaret
                   Cunninghame
                   contra
                   Peter
                   Mcculloch
                   ,
                   Nic.
                   de
                   .
                   vi
                   .
                   bon
                   .
                   rapt
                   .
                   Russel
                   contra
                
                 Lord
                 Ross.
                 
              
               
                 21.
                 
                 The
                 third
                 exception
                 against
                 Spuilzie
                 ,
                 is
                 ,
                 that
                 the
                 Goods
                 Libelled
                 were
                 lawfully
                 Poynded
                 ,
                 for
                 though
                 the
                 Decreet
                 ,
                 whereupon
                 the
                 Poynding
                 was
                 ,
                 should
                 be
                 reduced
                 for
                 want
                 of
                 formality
                 ;
                 Yet
                 it
                 will
                 not
                 be
                 a
                 Spuilzie
                 ,
                 unless
                 it
                 proceeded
                 ,
                 
                   mala
                   fide
                
                 ,
                 or
                 ,
                 
                   spreta
                   authoritate
                   judicis
                
                 ,
                 as
                 when
                 a
                 Decreet
                 proceeded
                 ,
                 and
                 was
                 used
                 after
                 Advocation
                 ,
                 intimated
                 to
                 the
                 Party
                 ,
                 though
                 the
                 Inferiour
                 Judge
                 refused
                 to
                 receive
                 ,
                 or
                 record
                 it
                 Judicially
                 ,
                 or
                 when
                 the
                 Debt
                 contained
                 in
                 the
                 Decreet
                 ,
                 was
                 throughly
                 satisfied
                 before
                 the
                 Poynding
                 ,
                 Spots
                 .
                 Spuilzie
                 ,
                 
                   contra
                   Brown.
                
                 But
                 the
                 exception
                 of
                 Poynding
                 will
                 be
                 elided
                 by
                 this
                 reply
                 ,
                 that
                 the
                 Pursuer
                 offered
                 the
                 sum
                 Poynded
                 for
                 the
                 time
                 of
                 the
                 Poynding
                 ,
                 when
                 the
                 Poynded
                 Goods
                 were
                 offered
                 .
              
               
                 22.
                 
                 The
                 most
                 ordinar
                 Reply
                 against
                 Poynding
                 ,
                 is
                 that
                 the
                 Goods
                 were
                 not
                 Poyndable
                 ,
                 as
                 being
                 Pleugh
                 Goods
                 ,
                 which
                 are
                 not
                 Poyndable
                 the
                 time
                 of
                 Pleughing
                 the
                 Ground
                 ,
                 if
                 there
                 be
                 any
                 other
                 Goods
                 upon
                 the
                 Ground
                 sufficient
                 for
                 paying
                 the
                 Debt
                 ,
                 according
                 to
                 the
                 Act
                 of
                 Parliament
                 ,
                 1503.
                 cap.
                 98.
                 
                 
                   Nic.
                   de
                   .
                   vi
                   .
                   bon
                   .
                   rapt
                   .
                   Hepburn
                   contra
                   Binning
                   .
                
                 And
                 
                   Morison
                   contra
                   Fordice
                
                 .
                 And
                 it
                 was
                 found
                 sufficient
                 ,
                 that
                 there
                 were
                 other
                 Goods
                 upon
                 the
                 Ground
                 ,
                 without
                 necessity
                 to
                 alledge
                 ,
                 that
                 they
                 were
                 the
                 Debitors
                 proper
                 Goods
                 ;
                 or
                 that
                 the
                 Goods
                 Poynded
                 were
                 then
                 in
                 Labour
                 ,
                 being
                 two
                 or
                 three
                 days
                 before
                 in
                 the
                 Pleugh
                 ,
                 December
                 10.
                 1631.
                 
                 
                   Gibson
                   contra
                   Corsbie
                
                 .
                 Yea
                 ,
                 Poynding
                 of
                 Plough-goods
                 was
                 found
                 a
                 Spuilzie
                 ,
                 being
                 done
                 in
                 the
                 ordinary
                 time
                 of
                 Plowing
                 ,
                 though
                 the
                 Goods
                 were
                 not
                 yoked
                 that
                 year
                 ,
                 because
                 of
                 Frost
                 ,
                 June
                 7.
                 1678.
                 
                 
                   Wood
                   contra
                   Stuart
                
                 .
                 There
                 is
                 an
                 other
                 Reply
                 against
                 Poynding
                 ,
                 that
                 the
                 Goods
                 Poynded
                 were
                 not
                 the
                 Debitors
                 ,
                 but
                 an
                 other
                 offered
                 to
                 depone
                 they
                 were
                 his
                 ,
                 or
                 that
                 this
                 offer
                 was
                 made
                 by
                 his
                 Warrand
                 ,
                 or
                 by
                 his
                 Servant
                 ,
                 but
                 it
                 is
                 not
                 enough
                 that
                 this
                 offer
                 was
                 made
                 by
                 these
                 who
                 had
                 no
                 direct
                 ,
                 or
                 presumed
                 Commission
                 ,
                 July
                 6.
                 1666.
                 
                 
                   Corbet
                   contra
                   Stirling
                
                 .
                 This
                 offer
                 must
                 be
                 made
                 before
                 the
                 solemnity
                 of
                 Poynding
                 be
                 ended
                 ,
                 but
                 was
                 not
                 sustained
                 ,
                 being
                 offered
                 about
                 an
                 hour
                 after
                 ,
                 to
                 give
                 summar
                 Restitution
                 July
                 9.
                 1675.
                 
                 
                   Cots
                   contra
                   Harper
                
                 :
                 But
                 this
                 Oath
                 will
                 not
                 exclude
                 Probation
                 ,
                 that
                 the
                 Goods
                 were
                 the
                 Debitors
                 ,
                 or
                 anothers
                 by
                 way
                 of
                 declarator
                 ,
                 that
                 thereafter
                 they
                 might
                 be
                 affected
                 by
                 Poynding
                 ,
                 but
                 is
                 only
                 like
                 an
                 Oath
                 of
                 Calumny
                 ,
                 that
                 
                   in
                   possessorio
                
                 hinders
                 Poyncing
                 .
              
               
                 23.
                 
                 The
                 last
                 exception
                 against
                 Spuilzie
                 ,
                 is
                 Restitution
                 of
                 the
                 Goods
                 Spuilzied
                 within
                 twenty
                 four
                 hours
                 ,
                 
                   re
                   integra
                
                 ,
                 it
                 was
                 also
                 eleided
                 by
                 Restitution
                 of
                 the
                 Goods
                 within
                 fourty
                 eight
                 hours
                 ,
                 they
                 being
                 accepted
                 ,
                 and
                 keeped
                 
                 by
                 the
                 pursuer
                 ,
                 
                   Nic.
                   de
                   vi
                   .
                   bon
                   .
                   rapt
                   .
                   Sym.
                   contra
                   Ambross
                
                 ;
                 but
                 not
                 eleided
                 by
                 Restitution
                 within
                 twenty
                 four
                 hours
                 ,
                 not
                 being
                 
                   re
                   integra
                
                 ,
                 the
                 Spuilzied
                 Horse
                 his
                 back
                 being
                 broken
                 by
                 the
                 Spuilzier
                 ,
                 
                   Nic.
                   Ibid.
                   Robert
                   Knows
                   contra
                   Joseph
                   Lermont
                   :
                
                 Neither
                 eleided
                 by
                 Restitution
                 within
                 four
                 or
                 five
                 days
                 ,
                 before
                 which
                 ,
                 the
                 pursuit
                 was
                 intented
                 ;
                 and
                 here
                 the
                 Spuilziers
                 Brother
                 had
                 taken
                 away
                 the
                 Goods
                 shortly
                 after
                 Restitution
                 ,
                 January
                 12.
                 1610.
                 
                   contra
                   Forrester
                
                 .
              
               
                 24.
                 
                 There
                 is
                 also
                 a
                 common
                 exception
                 against
                 Spuilzies
                 upon
                 prescription
                 of
                 three
                 years
                 ,
                 they
                 not
                 being
                 pursued
                 within
                 that
                 space
                 ,
                 after
                 the
                 committing
                 thereof
                 ,
                 and
                 that
                 by
                 express
                 Statute
                 ,
                 Par.
                 1579.
                 cap.
                 51.
                 
                 But
                 this
                 prescription
                 is
                 only
                 against
                 the
                 Spuilzie
                 as
                 such
                 ,
                 so
                 that
                 it
                 taketh
                 away
                 the
                 Priviledge
                 thereof
                 ,
                 as
                 to
                 the
                 violent
                 profits
                 ,
                 &
                 
                   juramentum
                   in
                   litem
                
                 ;
                 yet
                 may
                 it
                 thereafter
                 be
                 pursued
                 ,
                 as
                 wrongous
                 intromission
                 ,
                 for
                 Restitution
                 only
                 ;
                 and
                 if
                 many
                 be
                 pursued
                 ,
                 they
                 are
                 not
                 lyable
                 ,
                 
                   in
                   solidum
                
                 ,
                 but
                 equally
                 ,
                 unless
                 a
                 greater
                 Intromission
                 of
                 some
                 of
                 them
                 be
                 proven
                 ,
                 January
                 17.
                 1668.
                 
                 Captain
                 
                   Strachen
                   contra
                   George
                   Morison
                
                 ,
                 which
                 also
                 is
                 competent
                 in
                 many
                 Cases
                 ,
                 where
                 Spuilzie
                 is
                 either
                 not
                 sustainable
                 ,
                 or
                 eleidable
                 in
                 its
                 Atrocity
                 ,
                 as
                 a
                 Spuilzie
                 ,
                 
                   nam
                   levis
                   exceptioexcusat
                   a
                   spolio
                
                 ,
                 and
                 yet
                 action
                 for
                 Restitution
                 remains
                 :
                 And
                 sometimes
                 the
                 Spuilzie
                 may
                 be
                 restricted
                 thereto
                 ,
                 if
                 the
                 Pursuer
                 please
                 ,
                 before
                 〈◊〉
                 ,
                 so
                 to
                 do
                 ;
                 or
                 otherways
                 he
                 hath
                 therefore
                 a
                 several
                 action
                 ,
                 as
                 if
                 Spuilzie
                 be
                 pursued
                 ,
                 and
                 an
                 exception
                 of
                 lawful
                 Poynding
                 admitted
                 to
                 be
                 proven
                 ,
                 the
                 Defender
                 will
                 be
                 assoilzied
                 from
                 the
                 Spuilzie
                 ,
                 even
                 though
                 the
                 Decreet
                 ,
                 whereupon
                 the
                 Poynding
                 proceeded
                 ,
                 be
                 reduced
                 for
                 informality
                 ;
                 and
                 yet
                 he
                 will
                 have
                 a
                 several
                 action
                 for
                 Restitution
                 ,
                 which
                 may
                 be
                 also
                 decerned
                 in
                 the
                 Action
                 of
                 Spuilzie
                 .
                 But
                 Spuilzie
                 is
                 not
                 eleided
                 by
                 Masters
                 of
                 the
                 Ground
                 ,
                 their
                 bringing
                 back
                 the
                 Goods
                 of
                 their
                 Tennants
                 ,
                 by
                 vertue
                 of
                 their
                 
                   Hypotheck
                   ,
                   ex
                   intervallo
                   ,
                   February
                
                 9.
                 1676.
                 
                 
                   Park
                   contra
                   Cockburn
                
                 of
                 Roslin
                 .
                 Neither
                 was
                 the
                 Spuilzie
                 of
                 a
                 Horse
                 eleided
                 ,
                 because
                 he
                 was
                 found
                 in
                 the
                 skaith
                 ,
                 and
                 was
                 offered
                 back
                 within
                 fourty
                 eight
                 hours
                 ,
                 upon
                 payment
                 of
                 the
                 skaith
                 ,
                 unless
                 he
                 had
                 been
                 put
                 in
                 a
                 Poind-fold
                 ,
                 or
                 safe
                 place
                 ,
                 having
                 Water
                 ,
                 Grass
                 ,
                 or
                 Fodder
                 ;
                 And
                 that
                 by
                 the
                 Sentence
                 of
                 a
                 Judge
                 the
                 skaith
                 had
                 been
                 estimate
                 ,
                 and
                 the
                 Horse
                 Poynded
                 therefore
                 ,
                 February
                 10.
                 1676.
                 
                 
                   Duncan
                   contra
                   Kids
                   .
                   December
                
                 2.
                 1679.
                 
                 Mr.
                 
                   John
                   Beaton
                   contra
                   Home
                
                 .
                 So
                 spuilzie
                 was
                 not
                 eleided
                 upon
                 alledging
                 the
                 Pursuer
                 had
                 Spuilzied
                 ,
                 or
                 recept
                 as
                 much
                 of
                 the
                 Defenders
                 Goods
                 ,
                 by
                 the
                 Act
                 112.
                 
                 Par.
                 7.
                 
                 &
                 Act
                 16.
                 
                 Par.
                 10.
                 
                 King
                 James
                 6.
                 unless
                 the
                 Pursuer
                 had
                 been
                 a
                 broken
                 man
                 ,
                 and
                 notorious
                 Thief
                 ,
                 of
                 a
                 Clan
                 who
                 could
                 not
                 be
                 reached
                 by
                 the
                 ordinary
                 course
                 of
                 Law
                 ,
                 July
                 23.
                 1678.
                 
                 
                   James
                   Baird
                   contra
                
                 Parochioners
                 of
                 Fivie
                 .
              
               
                 25.
                 
                 Intrusion
                 and
                 Ejection
                 ,
                 are
                 Delinquences
                 in
                 Lands
                 and
                 Immoveables
                 ,
                 as
                 Spuilzie
                 is
                 in
                 Moveables
                 ,
                 and
                 they
                 differ
                 in
                 this
                 ,
                 that
                 Intrusion
                 is
                 the
                 enter
                 ing
                 in
                 Possession
                 ,
                 being
                 for
                 the
                 time
                 void
                 ,
                 without
                 consent
                 of
                 the
                 Parties
                 Interressed
                 ,
                 or
                 Order
                 of
                 Law
                 :
                 But
                 Ejection
                 ,
                 as
                 its
                 Etymon
                 intimats
                 ,
                 is
                 not
                 only
                 the
                 unwarrantable
                 entring
                 in
                 Lands
                 ,
                 but
                 the
                 casting
                 out
                 violently
                 ,
                 of
                 the
                 then
                 Possessor
                 :
                 In
                 this
                 there
                 is
                 violence
                 ,
                 in
                 the
                 other
                 wrong
                 ,
                 but
                 no
                 violence
                 in
                 the
                 entry
                 ,
                 though
                 it
                 be
                 a
                 violent
                 detention
                 :
                 And
                 in
                 either
                 case
                 ,
                 the
                 Injured
                 must
                 be
                 at
                 least
                 repute
                 in
                 Possession
                 :
                 But
                 as
                 the
                 Possession
                 must
                 begin
                 by
                 some
                 bodily
                 Act
                 ,
                 it
                 may
                 be
                 continued
                 alone
                 by
                 the
                 Act
                 of
                 the
                 Mind
                 ,
                 willing
                 ,
                 or
                 affecting
                 the
                 Possession
                 ,
                 which
                 is
                 conjectured
                 or
                 presumed
                 from
                 Circumstances
                 ;
                 for
                 ,
                 if
                 it
                 be
                 but
                 a
                 short
                 time
                 since
                 the
                 Possessour
                 did
                 corporally
                 possess
                 ,
                 and
                 nothing
                 appear
                 that
                 he
                 hath
                 relinquished
                 his
                 Possession
                 ,
                 or
                 his
                 Affection
                 thereto
                 ceased
                 ;
                 then
                 he
                 is
                 still
                 Possessor
                 ,
                 and
                 is
                 so
                 presumed
                 ,
                 because
                 of
                 his
                 interest
                 ;
                 
                 but
                 if
                 his
                 abstinence
                 be
                 total
                 ,
                 or
                 long
                 ,
                 that
                 he
                 hath
                 retained
                 nothing
                 ,
                 as
                 Keys
                 ,
                 or
                 keeping
                 of
                 Doors
                 closs
                 ,
                 then
                 the
                 Possession
                 is
                 holden
                 as
                 〈◊〉
                 :
                 And
                 he
                 who
                 enters
                 by
                 a
                 real
                 or
                 colourable
                 Title
                 ,
                 is
                 no
                 Intruder
                 ,
                 and
                 cannot
                 be
                 Extruded
                 ,
                 but
                 by
                 Warning
                 ,
                 and
                 Process
                 of
                 〈◊〉
                 ;
                 and
                 therefore
                 ,
                 though
                 Intrusion
                 be
                 said
                 to
                 be
                 in
                 the
                 void
                 Possession
                 ,
                 it
                 is
                 only
                 meaned
                 ;
                 as
                 to
                 corporal
                 Possession
                 ,
                 there
                 being
                 still
                 a
                 presumed
                 
                   possession
                   animo
                
                 on
                 the
                 part
                 of
                 the
                 injured
                 In
                 other
                 things
                 ,
                 Intrusion
                 and
                 Ejection
                 do
                 in
                 all
                 things
                 agree
                 ,
                 Ejection
                 must
                 be
                 pursued
                 within
                 three
                 years
                 ,
                 Pa.
                 1579.
                 cap.
                 81.
                 which
                 is
                 extended
                 to
                 Intrusion
                 by
                 these
                 words
                 of
                 the
                 Statute
                 ,
                 
                   That
                   Eject
                   and
                   others
                   of
                   that
                   Nature
                   ,
                   be
                   pursued
                   within
                   three
                   years
                   ,
                   after
                   committing
                   thereof
                   ,
                   February
                
                 2.
                 1610.
                 
                 〈◊〉
                 of
                 
                   Craighall
                   contra
                
              
               
                 26.
                 
                 Ejection
                 is
                 only
                 competent
                 to
                 the
                 natural
                 Possessors
                 ,
                 Possessing
                 by
                 themselves
                 ,
                 their
                 Hinds
                 and
                 Cottars
                 ;
                 but
                 not
                 to
                 an
                 Heretor
                 for
                 Ejection
                 of
                 his
                 Tennants
                 ,
                 unless
                 the
                 Tennants
                 concur
                 ,
                 November
                 26.
                 1626.
                 
                 〈◊〉
                 〈◊〉
                 
                   contra
                   Bruce
                   .
                   Hope
                
                 ,
                 Ejection
                 ,
                 
                   Margaret
                   Cunninghame
                   contra
                   Peter
                   〈◊〉
                
                 .
                 Hence
                 it
                 is
                 ,
                 that
                 Intrusion
                 or
                 Ejection
                 is
                 not
                 committed
                 ,
                 but
                 by
                 entering
                 in
                 natural
                 Possession
                 ;
                 or
                 at
                 least
                 ,
                 by
                 out-putting
                 ,
                 or
                 in-putting
                 of
                 Tennants
                 :
                 For
                 though
                 Possessours
                 invert
                 their
                 Masters
                 Possession
                 ,
                 and
                 pay
                 their
                 Rents
                 to
                 another
                 ,
                 this
                 will
                 not
                 infer
                 against
                 them
                 Intrusion
                 or
                 Ejection
                 :
                 But
                 in
                 both
                 these
                 cases
                 ,
                 there
                 are
                 other
                 remeids
                 in
                 Law
                 ,
                 by
                 removing
                 ,
                 or
                 action
                 for
                 Mails
                 and
                 Duties
                 ,
                 which
                 is
                 competent
                 against
                 Intrometters
                 :
                 though
                 Ejection
                 and
                 Intrusion
                 prescrive
                 by
                 this
                 Statute
                 ,
                 yet
                 it
                 is
                 only
                 as
                 such
                 ,
                 for
                 taking
                 away
                 of
                 its
                 singular
                 Priviledges
                 ,
                 viz.
                 the
                 violent
                 profits
                 ;
                 for
                 though
                 they
                 be
                 not
                 pursued
                 within
                 three
                 years
                 ,
                 yet
                 they
                 are
                 competent
                 ,
                 being
                 libelled
                 ,
                 and
                 restricted
                 to
                 Restitution
                 of
                 Possession
                 ,
                 and
                 for
                 the
                 ordinary
                 profits
                 ;
                 and
                 in
                 this
                 they
                 differ
                 from
                 Removing
                 ,
                 which
                 cannot
                 be
                 pursued
                 but
                 upon
                 Warning
                 fourty
                 days
                 preceeding
                 Whitsonday
                 :
                 But
                 these
                 may
                 be
                 pursued
                 at
                 any
                 time
                 ,
                 without
                 Warning
                 ,
                 March
                 16.
                 1627.
                 
                 
                   Walter
                   Hay
                   contra
                   Mark
                   Ker.
                   Spots
                   .
                
                 Ejection
                 ,
                 
                   James
                   Mowat
                   contra
                   James
                   Davidson
                   .
                   July
                
                 15.
                 1626.
                 
                 
                   Mcphedrick
                   contra
                   〈◊〉
                
                 .
                 Yet
                 where
                 the
                 pursuers
                 Title
                 was
                 only
                 an
                 Assignation
                 to
                 a
                 years
                 Tack
                 ,
                 though
                 he
                 restricted
                 the
                 Ejection
                 to
                 the
                 Possession
                 ,
                 and
                 the
                 ordinary
                 profits
                 ,
                 the
                 same
                 was
                 not
                 sustained
                 ,
                 in
                 respect
                 the
                 years
                 Tack
                 was
                 long
                 before
                 expired
                 ,
                 and
                 was
                 only
                 sustained
                 for
                 Damnage
                 and
                 Interest
                 ,
                 in
                 not
                 possessing
                 his
                 years
                 Tack
                 ,
                 during
                 the
                 time
                 ,
                 and
                 for
                 the
                 profits
                 thereof
                 during
                 that
                 year
                 ,
                 December
                 17.
                 1631.
                 
                 Lord
                 
                   Lowdoun
                   contra
                
                 Laird
                 of
                 Capringtoun
                 .
                 Ejection
                 and
                 Intrusion
                 are
                 founded
                 ,
                 especialy
                 upon
                 Possession
                 ,
                 and
                 the
                 Pursuer
                 needs
                 not
                 dispute
                 his
                 Right
                 ,
                 neither
                 his
                 Entering
                 in
                 Possession
                 ,
                 which
                 ,
                 though
                 it
                 were
                 Vitious
                 ;
                 yet
                 if
                 it
                 be
                 continued
                 by
                 a
                 considerable
                 space
                 ,
                 and
                 the
                 〈◊〉
                 being
                 then
                 ejected
                 ,
                 he
                 will
                 not
                 be
                 excluded
                 ,
                 by
                 alledging
                 his
                 entry
                 was
                 vitious
                 ,
                 as
                 if
                 he
                 had
                 entered
                 in
                 the
                 vice
                 of
                 a
                 Tennent
                 ,
                 removed
                 by
                 the
                 Defender
                 :
                 Yea
                 ,
                 after
                 the
                 death
                 of
                 the
                 Person
                 Ejected
                 ,
                 the
                 Action
                 was
                 sustained
                 at
                 the
                 instance
                 of
                 his
                 appearand
                 Heir
                 ,
                 upon
                 condition
                 he
                 Infeft
                 himself
                 before
                 ,
                 Extracting
                 
                   Nicol
                   .
                   de
                   haeredibus
                   ,
                   Blair
                   contra
                   Mathie
                   .
                
                 As
                 also
                 Ejection
                 was
                 sustained
                 at
                 the
                 Instance
                 of
                 Infants
                 ,
                 whose
                 Father
                 died
                 in
                 Possession
                 ,
                 and
                 had
                 an
                 old
                 Infeftment
                 ,
                 albeit
                 a
                 Decreet
                 of
                 Removing
                 was
                 obtained
                 against
                 the
                 Mother
                 ,
                 they
                 not
                 being
                 called
                 ;
                 nor
                 was
                 the
                 Ejecter
                 allowed
                 ,
                 
                   in
                   hoc
                   〈◊〉
                
                 ,
                 to
                 dispute
                 the
                 Infants
                 Right
                 :
                 But
                 spoliatus
                 was
                 found
                 instantly
                 to
                 be
                 restored
                 to
                 Possession
                 ,
                 February
                 19.
                 1663.
                 
                 
                   Scot
                   contra
                
                 Earl
                 of
                 Home
                 .
              
               
                 27.
                 
                 Ejection
                 or
                 Intrusion
                 ,
                 are
                 excluded
                 ,
                 by
                 alledging
                 the
                 Pursuer
                 relinquished
                 the
                 Possession
                 ,
                 or
                 did
                 voluntarly
                 Remove
                 ;
                 especially
                 ,
                 if
                 he
                 be
                 the
                 〈◊〉
                 Tennant
                 ,
                 July
                 2.
                 1678.
                 
                 Laird
                 of
                 
                   〈◊〉
                   contra
                
                 〈◊〉
                 
                 which
                 must
                 be
                 proven
                 by
                 Write
                 ,
                 or
                 Oath
                 of
                 Party
                 ,
                 if
                 there
                 be
                 no
                 matters
                 of
                 Fact
                 ,
                 from
                 whence
                 the
                 Dereliction
                 doth
                 evidently
                 appear
                 ,
                 as
                 transporting
                 of
                 the
                 Parties
                 Goods
                 ,
                 June
                 19.
                 1634.
                 
                 Collonel
                 
                   Ruthven
                   contra
                   Gairn
                
                 .
                 This
                 was
                 also
                 found
                 proven
                 by
                 Instrument
                 ,
                 and
                 the
                 Witnesses
                 insert
                 ,
                 though
                 the
                 Pursuer
                 Libelled
                 Violence
                 ,
                 contrair
                 to
                 the
                 Instrument
                 ,
                 Hope
                 ,
                 Ejection
                 ,
                 
                   Cunninghame
                   contra
                   Mcculloch
                
                 .
                 And
                 also
                 found
                 proven
                 by
                 a
                 Renunciation
                 ,
                 attested
                 by
                 an
                 Act
                 of
                 the
                 Defenders
                 Court
                 ,
                 and
                 other
                 Circumstances
                 ,
                 Hope
                 ,
                 Ejection
                 ,
                 Laird
                 of
                 
                   Monyntusk
                   contra
                
                 his
                 Tennants
                 .
                 The
                 like
                 upon
                 voluntary
                 Removing
                 and
                 Renuncing
                 in
                 the
                 Pursuers
                 Masters
                 Court
                 ,
                 June
                 15.
                 1610.
                 
                 
                   Brown
                   contra
                
                 〈…〉
                 It
                 was
                 also
                 found
                 probable
                 by
                 Witnesses
                 ,
                 viz.
                 that
                 the
                 Keys
                 were
                 delivered
                 ,
                 though
                 the
                 Pursuer
                 offered
                 to
                 prove
                 Violence
                 ,
                 
                   Nicol.
                   de
                   vi
                   .
                   bon
                   .
                   rapt
                   .
                   Home
                   contra
                   Dickson
                   .
                
                 And
                 it
                 was
                 elided
                 by
                 voluntar
                 Removing
                 ,
                 or
                 Renuncing
                 ,
                 after
                 the
                 Defenders
                 entry
                 .
                 But
                 Ejection
                 was
                 not
                 elided
                 by
                 a
                 personal
                 obliegement
                 ,
                 to
                 Possess
                 the
                 Ejector
                 ,
                 or
                 a
                 Decreet
                 Arbitral
                 ;
                 seing
                 the
                 entry
                 thereto
                 was
                 not
                 by
                 order
                 of
                 Law
                 ,
                 or
                 consent
                 to
                 Possess
                 ,
                 Spots
                 .
                 Arbiter
                 ,
                 
                   Wood
                   contra
                   Scot.
                
                 
              
               
                 Violent
                 Profits
                 in
                 Ejection
                 and
                 Intrusion
                 within
                 Burgh
                 ,
                 are
                 ordinarly
                 sustained
                 for
                 the
                 double
                 Mail
                 :
                 But
                 in
                 Landward
                 ,
                 the
                 violent
                 Profits
                 are
                 accompted
                 by
                 the
                 quantity
                 of
                 the
                 Seed
                 the
                 Land
                 can
                 Sow
                 ,
                 and
                 the
                 Increase
                 such
                 Land
                 can
                 Yield
                 ,
                 deducing
                 the
                 Expences
                 of
                 Seed
                 and
                 Labourage
                 ,
                 and
                 the
                 profits
                 the
                 sums
                 can
                 yield
                 which
                 the
                 Land
                 can
                 hold
                 ,
                 wherein
                 are
                 comprehended
                 the
                 Calf
                 ,
                 and
                 Milk
                 of
                 Cows
                 ;
                 and
                 the
                 Wool
                 ,
                 Lamb
                 ,
                 and
                 Milk
                 of
                 Sheep
                 ,
                 deducing
                 the
                 Expences
                 of
                 hirding
                 .
              
               
                 In
                 Ejection
                 and
                 Intrusion
                 ,
                 the
                 Defender
                 must
                 find
                 Caution
                 for
                 his
                 violent
                 Profits
                 at
                 the
                 first
                 term
                 after
                 Litiscontestation
                 ;
                 or
                 otherways
                 ,
                 Decreet
                 is
                 to
                 be
                 given
                 against
                 him
                 ,
                 Parl.
                 1594.
                 cap.
                 217.
                 
              
               
                 Succeeding
                 in
                 the
                 Vice
                 ;
                 is
                 a
                 kind
                 of
                 Intrusion
                 ,
                 but
                 because
                 it
                 is
                 ordinarly
                 consequent
                 upon
                 Removing
                 ,
                 it
                 is
                 spoken
                 to
                 ,
                 
                   Title
                   Tacks
                
                 .
              
               
                 28.
                 
                 Molestation
                 is
                 the
                 troubling
                 of
                 Possession
                 ,
                 chiefly
                 in
                 and
                 about
                 Marches
                 of
                 Lands
                 ,
                 whereby
                 the
                 Party
                 Injurer
                 is
                 oblieged
                 to
                 refound
                 the
                 Damnage
                 to
                 the
                 Party
                 injured
                 ;
                 and
                 the
                 Marches
                 being
                 cognosced
                 ,
                 he
                 will
                 be
                 decerned
                 to
                 desist
                 ,
                 and
                 cease
                 from
                 troubling
                 in
                 time
                 coming
                 ,
                 whereupon
                 all
                 Execution
                 Personal
                 is
                 competent
                 .
                 It
                 is
                 also
                 competent
                 when
                 Possession
                 is
                 troubled
                 otherways
                 ,
                 and
                 there
                 is
                 no
                 special
                 remeid
                 at
                 the
                 Heretors
                 Instance
                 ,
                 as
                 upon
                 taking
                 away
                 the
                 Tennants
                 Corns
                 upon
                 the
                 Marches
                 ,
                 November
                 30.
                 1596.
                 
                 Laird
                 of
                 
                   Dalgety
                   contra
                
                 the
                 Constable
                 of
                 Dundee
                 :
                 This
                 is
                 ordinarly
                 a
                 Mutual
                 action
                 ,
                 and
                 Probation
                 allowed
                 
                   hinc
                   inde
                
                 ,
                 for
                 it
                 is
                 the
                 same
                 with
                 the
                 Roman
                 Action
                 
                   finium
                   regundorum
                
                 ;
                 and
                 in
                 case
                 of
                 further
                 trouble
                 ,
                 Lawborrows
                 and
                 Contraventions
                 will
                 be
                 sustained
                 ,
                 after
                 the
                 Marches
                 are
                 cognosced
                 ,
                 which
                 otherways
                 can
                 have
                 no
                 effect
                 while
                 the
                 Marches
                 and
                 Possession
                 are
                 dubious
                 .
                 The
                 Process
                 whereby
                 Molestation
                 is
                 determined
                 ,
                 is
                 called
                 a
                 Cognition
                 ,
                 the
                 whole
                 course
                 whereof
                 is
                 clearly
                 ordered
                 ,
                 and
                 set
                 down
                 by
                 the
                 Statute
                 of
                 Session
                 ,
                 ratified
                 in
                 Parl.
                 1587.
                 cap.
                 42.
                 whereby
                 it
                 is
                 clear
                 ,
                 that
                 Molestations
                 were
                 of
                 old
                 decided
                 by
                 Sheriffs
                 ,
                 Bailiffs
                 of
                 Regalities
                 ,
                 and
                 other
                 Judges
                 ordinar
                 ,
                 where
                 the
                 Lands
                 lay
                 ,
                 by
                 the
                 determination
                 of
                 an
                 Assize
                 or
                 Inquest
                 of
                 the
                 best
                 and
                 worthiest
                 of
                 the
                 Countrey
                 ,
                 and
                 they
                 may
                 be
                 still
                 so
                 pursued
                 ,
                 but
                 if
                 before
                 the
                 Session
                 ;
                 the
                 Lords
                 are
                 not
                 to
                 hear
                 and
                 determine
                 the
                 cause
                 themselves
                 ,
                 but
                 to
                 remit
                 the
                 same
                 to
                 the
                 Judges
                 ordinar
                 ,
                 or
                 in
                 case
                 they
                 be
                 suspect
                 ,
                 to
                 name
                 others
                 ,
                 as
                 Judges
                 delegat
                 for
                 that
                 Act
                 ,
                 except
                 only
                 in
                 those
                 Molestations
                 ,
                 
                 which
                 do
                 concern
                 the
                 Lords
                 of
                 Session
                 ,
                 which
                 are
                 to
                 be
                 heard
                 and
                 determined
                 before
                 themselves
                 :
                 The
                 said
                 Judges
                 ordinar
                 ,
                 or
                 delegat
                 ,
                 are
                 first
                 to
                 hear
                 Parties
                 Debate
                 ,
                 and
                 to
                 make
                 Litiscontestation
                 ,
                 and
                 so
                 much
                 thereof
                 as
                 is
                 found
                 probable
                 by
                 Witnesse
                 ,
                 is
                 to
                 be
                 done
                 by
                 an
                 Inquest
                 ,
                 the
                 most
                 part
                 whereof
                 is
                 to
                 be
                 Landed-men
                 ,
                 worth
                 three
                 hundred
                 Merks
                 of
                 Rent
                 and
                 above
                 ,
                 in
                 the
                 Paroch
                 where
                 the
                 Lands
                 lay
                 ,
                 or
                 failing
                 them
                 ,
                 in
                 the
                 next
                 adjacent
                 Paroches
                 ,
                 as
                 is
                 fully
                 set
                 forth
                 in
                 the
                 said
                 Statute
                 .
                 In
                 these
                 Cognitions
                 ;
                 the
                 Superior
                 must
                 be
                 called
                 in
                 all
                 the
                 dyets
                 of
                 Process
                 ,
                 
                   Hope
                   ,
                   cog
                   .
                   Calden
                   contra
                   Purvess
                   of
                   Corfindie
                   .
                
                 And
                 if
                 the
                 Cognition
                 be
                 pursued
                 by
                 a
                 Liferenter
                 ,
                 ●or
                 others
                 ,
                 the
                 Heretor
                 must
                 be
                 called
                 ,
                 or
                 otherways
                 the
                 Cognition
                 is
                 null
                 ,
                 Ibid.
                 Lord
                 
                   Lothian
                   contra
                   Traquair
                
                 .
              
               
                 29.
                 
                 Breach
                 of
                 Arrestment
                 ,
                 and
                 Deforcement
                 ,
                 are
                 by
                 our
                 Law
                 and
                 Custome
                 in
                 all
                 things
                 Equiparat
                 ,
                 both
                 being
                 violations
                 of
                 Legal
                 Acts
                 ;
                 and
                 concerning
                 both
                 ,
                 it
                 is
                 Statute
                 ,
                 Par.
                 1581.
                 cap.
                 117.
                 
                 That
                 breakers
                 of
                 Arrestment
                 ,
                 or
                 the
                 Deforcers
                 of
                 Poinding
                 ,
                 or
                 any
                 other
                 Legal
                 Execution
                 ,
                 shall
                 Escheat
                 all
                 their
                 whole
                 Moveables
                 ,
                 and
                 the
                 Party
                 injured
                 shall
                 be
                 first
                 payed
                 of
                 his
                 Debt
                 and
                 Damnages
                 ,
                 for
                 which
                 he
                 shall
                 have
                 ready
                 Execution
                 against
                 the
                 Injurer
                 ,
                 which
                 is
                 further
                 extended
                 ,
                 Par.
                 1592.
                 cap.
                 150.
                 
                 
                   That
                   the
                   one
                   half
                   of
                   the
                   Escheat
                   of
                   the
                   Moveables
                   shall
                   belong
                   to
                   the
                   Party
                   Injured
                   ,
                   if
                   the
                   executer
                   of
                   the
                   Process
                   ,
                   or
                   Letters
                   ,
                   be
                   deforced
                   or
                   molested
                   in
                   the
                   execution
                   ,
                   which
                   yet
                   shal
                   stand
                   as
                   a
                   valid
                   execution
                   ,
                   which
                   must
                   be
                   understood
                   in
                   executions
                   of
                   summonds
                   ,
                   or
                   Charges
                   of
                   Horning
                
                 though
                 the
                 latter
                 act
                 be
                 more
                 favourable
                 to
                 the
                 injured
                 ;
                 yet
                 being
                 in
                 his
                 favour
                 ,
                 he
                 may
                 make
                 use
                 of
                 the
                 first
                 ,
                 which
                 wil
                 infer
                 a
                 personal
                 obliegement
                 upon
                 the
                 Deforcer
                 ,
                 or
                 breaker
                 of
                 Arrestment
                 ,
                 to
                 pay
                 the
                 Sums
                 due
                 to
                 the
                 Injured
                 ,
                 whereupon
                 the
                 Arrestment
                 ,
                 or
                 Execution
                 did
                 proceed
                 ,
                 with
                 the
                 Damnage
                 and
                 Interest
                 ,
                 July
                 25.
                 1633.
                 
                 
                   Mitchel
                   contra
                   Laws
                
                 and
                 Stuart
                 .
                 The
                 like
                 was
                 found
                 in
                 the
                 Deforcement
                 of
                 a
                 Caption
                 ,
                 and
                 that
                 the
                 Pursuers
                 having
                 insisted
                 Criminally
                 ,
                 
                   ad
                   vindi
                   I
                   am
                   publicam
                
                 ,
                 did
                 not
                 hinder
                 him
                 to
                 insist
                 civilly
                 for
                 privat
                 interest
                 ,
                 December
                 13.
                 1672.
                 
                 
                   Murray
                   contra
                   French
                
                 of
                 Frenchland
                 ,
                 which
                 takes
                 no
                 place
                 where
                 the
                 Arrestment
                 is
                 not
                 for
                 Debt
                 ,
                 but
                 upon
                 conraverted
                 Rights
                 and
                 Possession
                 ,
                 which
                 hinders
                 not
                 continuation
                 of
                 Possession
                 ,
                 but
                 only
                 Innovation
                 ,
                 as
                 when
                 Tennants
                 continue
                 to
                 pay
                 contraverted
                 Ferms
                 to
                 the
                 former
                 Possessor
                 ,
                 June
                 10.
                 1579.
                 
                 Kings
                 Advocat
                 and
                 
                   Kirkaldy
                   contra
                
                 Tennants
                 :
                 Or
                 the
                 taking
                 away
                 Corn
                 sown
                 upon
                 contraverted
                 Ground
                 ,
                 the
                 first
                 year
                 by
                 the
                 sower
                 ,
                 July
                 30.
                 1566.
                 
                 
                   Seaton
                   contra
                
                 Tennants
                 of
                 
                   William
                   Foulis
                
                 .
                 Neither
                 is
                 it
                 competent
                 against
                 any
                 ,
                 but
                 those
                 to
                 whom
                 intimation
                 of
                 the
                 Arrestment
                 ,
                 or
                 Citation
                 thereon
                 was
                 made
                 ,
                 
                   Ibid.
                   February
                
                 1574.
                 
                 
                   Dawson
                   contra
                   Bairdie
                
                 .
              
               
                 Deforcement
                 of
                 a
                 Poynding
                 was
                 elided
                 ,
                 because
                 the
                 same
                 was
                 not
                 done
                 in
                 lawful
                 time
                 of
                 day
                 ,
                 but
                 before
                 the
                 Sun
                 ,
                 but
                 not
                 elided
                 because
                 the
                 goods
                 were
                 attested
                 to
                 pertain
                 to
                 another
                 party
                 ,
                 whose
                 oath
                 had
                 been
                 made
                 thereon
                 the
                 time
                 of
                 the
                 poinding
                 ;
                 neither
                 when
                 keeped
                 on
                 the
                 Ground
                 for
                 the
                 Masters
                 Rent
                 ,
                 by
                 his
                 Servants
                 ,
                 seing
                 they
                 exprest
                 not
                 that
                 cause
                 ,
                 nor
                 craved
                 not
                 security
                 therefore
                 ,
                 from
                 the
                 Poynder
                 ,
                 February
                 1.
                 1628.
                 
                 Laird
                 of
                 
                   Halkertoun
                   contra
                   Kadie
                
                 and
                 Grieves
                 :
                 But
                 if
                 it
                 had
                 been
                 expresly
                 for
                 the
                 Rents
                 resting
                 ,
                 it
                 would
                 not
                 infer
                 Deforcement
                 ,
                 if
                 such
                 were
                 truely
                 resting
                 .
                 Neither
                 did
                 resistance
                 of
                 poynding
                 of
                 Plough-Goods
                 in
                 Labouring
                 time
                 ,
                 where
                 there
                 were
                 other
                 Goods
                 sufficient
                 ,
                 infer
                 Deforcement
                 ,
                 
                   February
                   last
                
                 ,
                 1561.
                 
                 Abbot
                 of
                 
                   Kilwinning
                   contra
                
                 Tennants
                 :
                 stopping
                 of
                 poynding
                 by
                 the
                 Master
                 of
                 the
                 Groundor
                 Landlord
                 of
                 an
                 House
                 ,
                 for
                 that
                 years
                 Rent
                 ,
                 infered
                 not
                 Deforcement
                 ,
                 December
                 .
                 7.
                 1630.
                 
                 
                   Dick
                   contra
                   Lands
                
                 ;
                 or
                 that
                 he
                 hindred
                 entry
                 ,
                 unless
                 there
                 were
                 special
                 Warrant
                 in
                 the
                 Letters
                 to
                 make
                 open
                 Doors
                 .
              
               
                 30.
                 
                 Contravention
                 as
                 it
                 signifies
                 any
                 Act
                 done
                 against
                 Lawborrows
                 ,
                 so
                 it
                 
                 implys
                 the
                 Obligation
                 of
                 the
                 Contraveener
                 and
                 the
                 personal
                 Right
                 ,
                 which
                 the
                 user
                 of
                 the
                 Lawborrows
                 hath
                 thereby
                 ,
                 and
                 likewise
                 the
                 Action
                 ,
                 by
                 which
                 it
                 is
                 pursued
                 .
                 For
                 the
                 uptaking
                 of
                 all
                 ,
                 it
                 must
                 be
                 considered
                 what
                 Lawborrows
                 are
                 ,
                 which
                 the
                 word
                 it self
                 insinuats
                 to
                 be
                 Caution
                 ,
                 found
                 to
                 do
                 nothing
                 but
                 by
                 order
                 of
                 Law
                 ;
                 for
                 a
                 Burrow
                 or
                 Burgh
                 in
                 our
                 ancient
                 Language
                 ,
                 is
                 a
                 Cautioner
                 ,
                 and
                 Lawborrows
                 is
                 Caution
                 to
                 keep
                 the
                 Law
                 ;
                 the
                 reason
                 hereof
                 is
                 ,
                 the
                 safety
                 and
                 security
                 of
                 the
                 people
                 ,
                 who
                 in
                 equity
                 have
                 no
                 more
                 then
                 the
                 Reparation
                 of
                 the
                 Damnage
                 they
                 sustain
                 through
                 Delinquences
                 ,
                 or
                 illegal
                 Acts
                 :
                 But
                 to
                 prevent
                 such
                 ,
                 and
                 terrifie
                 evil
                 doers
                 ,
                 a
                 greater
                 penalty
                 then
                 Reparation
                 is
                 appointed
                 ,
                 according
                 to
                 the
                 Quality
                 and
                 Estate
                 of
                 the
                 Injurer
                 Par.
                 1593.
                 cap.
                 166.
                 
                 
                   The
                   half
                   of
                   the
                   Penalty
                   is
                   applyed
                   to
                   the
                   Injured
                   ,
                   and
                   the
                   other
                   half
                   is
                   Publick
                   .
                   Par.
                
                 1581.
                 cap.
                 117.
                 
                 By
                 the
                 Narrative
                 of
                 which
                 Statute
                 ,
                 it
                 is
                 clear
                 ,
                 that
                 before
                 Lawborrows
                 were
                 granted
                 ,
                 only
                 for
                 safety
                 against
                 bodily
                 harm
                 ,
                 in
                 the
                 persons
                 of
                 the
                 Complainers
                 ;
                 yet
                 for
                 the
                 reason
                 therein
                 expressed
                 ,
                 the
                 same
                 was
                 extended
                 ,
                 that
                 
                   the
                   Complainers
                   ,
                   their
                   Wives
                   ,
                   Bairns
                   ,
                   〈◊〉
                   and
                   Servants
                   ,
                   shall
                   be
                   harmless
                   and
                   skaithless
                   in
                   their
                   Bodies
                   ,
                   Lands
                   ,
                   Tacks
                   ,
                   Possessions
                   ,
                   Goods
                   and
                   Gear
                   ,
                   and
                   no
                   ways
                   molested
                   or
                   troubled
                   therein
                   ,
                   by
                   the
                   persons
                   complained
                   on
                   ,
                   nor
                   no
                   others
                   of
                   their
                   causing
                   ,
                   sending
                   ,
                   hounding
                   out
                   ,
                   ressetting
                   ,
                   command
                   ,
                   assistance
                   and
                   ratihabition
                   ,
                   whom
                   they
                   may
                   stop
                   ,
                   or
                   let
                   ,
                   directly
                   or
                   indirectly
                   ,
                   otherways
                   then
                   by
                   order
                   of
                   Law
                   ,
                   or
                   Justice
                
                 ;
                 By
                 the
                 same
                 Statute
                 it
                 is
                 also
                 evident
                 ,
                 that
                 Lawborrows
                 are
                 granted
                 upon
                 the
                 supplication
                 of
                 parties
                 fearing
                 harm
                 ,
                 who
                 without
                 citing
                 the
                 other
                 party
                 ,
                 but
                 making
                 Faith
                 upon
                 their
                 Complaint
                 ,
                 have
                 Letters
                 of
                 Horning
                 ,
                 summarly
                 to
                 Charge
                 the
                 party
                 complained
                 on
                 ,
                 to
                 find
                 Caution
                 ,
                 
                   ut
                   supra
                
                 ;
                 and
                 if
                 Caution
                 be
                 found
                 ,
                 the
                 Action
                 of
                 Contravention
                 doth
                 proceed
                 upon
                 ,
                 and
                 conform
                 to
                 the
                 Act
                 of
                 Caution
                 :
                 but
                 if
                 obedience
                 be
                 not
                 given
                 ,
                 the
                 Complainer
                 may
                 proceed
                 to
                 Denunciation
                 or
                 Caption
                 ;
                 but
                 the
                 Contravention
                 will
                 proceed
                 ,
                 though
                 there
                 be
                 no
                 Caution
                 found
                 ,
                 but
                 only
                 a
                 Charge
                 upon
                 the
                 Letters
                 ,
                 without
                 Denunciation
                 ,
                 unless
                 the
                 Charge
                 be
                 suspended
                 ,
                 as
                 uses
                 to
                 be
                 done
                 ,
                 when
                 the
                 penalty
                 charged
                 for
                 is
                 exorbitant
                 ,
                 and
                 not
                 conform
                 to
                 the
                 act
                 of
                 Parliament
                 ,
                 January
                 8.
                 1628.
                 
                 
                   John
                   Semple
                   contra
                   Cunninghame
                
                 .
              
               
                 Contravention
                 may
                 proceed
                 upon
                 any
                 Delinquence
                 ,
                 according
                 to
                 the
                 Tenor
                 of
                 the
                 Act
                 of
                 Caution
                 ,
                 or
                 Letters
                 of
                 Lawborrows
                 ,
                 which
                 ,
                 though
                 very
                 comprehensive
                 ,
                 yet
                 is
                 not
                 extended
                 to
                 Acts
                 done
                 without
                 Order
                 of
                 Law
                 ,
                 being
                 matters
                 of
                 inconsiderable
                 moment
                 ,
                 as
                 the
                 Tilling
                 up
                 of
                 some
                 Furrows
                 in
                 a
                 March
                 ,
                 the
                 same
                 being
                 offered
                 to
                 be
                 laid
                 down
                 ,
                 and
                 the
                 Damnage
                 to
                 be
                 repaired
                 ,
                 
                   Nic.
                   hic
                   ,
                   Nicolson
                   contra
                   Hay
                   .
                
                 Neither
                 is
                 it
                 sustained
                 upon
                 any
                 illegal
                 deed
                 ,
                 when
                 the
                 matter
                 of
                 Right
                 was
                 dubious
                 ,
                 as
                 in
                 matters
                 of
                 Molestation
                 ,
                 before
                 the
                 Cognition
                 ,
                 or
                 before
                 that
                 the
                 Marches
                 be
                 clear
                 ,
                 Spots
                 .
                 contravention
                 ,
                 Laird
                 of
                 
                   Balcaskie
                   contra
                   Florence
                   Strang.
                
                 
              
               
                 Neither
                 upon
                 a
                 deed
                 done
                 by
                 a
                 colourable
                 Title
                 ,
                 though
                 afterward
                 reduced
                 ,
                 as
                 entering
                 in
                 Possession
                 by
                 a
                 null
                 Decreet
                 ,
                 
                   Hope
                   ,
                   hic
                   ,
                   George
                   Moorhead
                   contra
                
                 Laird
                 of
                 Barskub
                 .
                 Neither
                 upon
                 Pasturing
                 upon
                 Bounds
                 contraverted
                 ,
                 or
                 where
                 there
                 was
                 no
                 violence
                 ,
                 nor
                 unlawfulness
                 in
                 Pasturage
                 ,
                 upon
                 clear
                 Marches
                 ,
                 July
                 14.
                 1626.
                 
                 Laird
                 of
                 
                   Grange
                   contra
                   Lesly
                
                 .
                 Neither
                 upon
                 a
                 deed
                 of
                 Spuilzie
                 against
                 the
                 pursuers
                 Tennant
                 ,
                 not
                 complaining
                 ,
                 though
                 the
                 Lawborrows
                 bears
                 ,
                 Men-tennants
                 and
                 Servants
                 to
                 be
                 harmless
                 ,
                 which
                 was
                 esteemed
                 ,
                 
                   stilus
                   curiae
                   ,
                   January
                
                 28.
                 1632.
                 
                 
                   Grant
                   contra
                   Grant
                
                 ,
                 and
                 February
                 9.
                 1633.
                 
                 
                   Lindsay
                   contra
                   Dennistoun
                
                 .
                 Neither
                 was
                 it
                 sustained
                 upon
                 Deeds
                 done
                 by
                 the
                 Defenders
                 Tennants
                 ,
                 without
                 alledging
                 Command
                 or
                 Ratihabition
                 ,
                 unless
                 the
                 Deeds
                 be
                 manifest
                 ,
                 or
                 known
                 to
                 their
                 Masters
                 ,
                 as
                 in
                 conveening
                 dayly
                 ,
                 and
                 cutting
                 anothers
                 
                 Woods
                 ,
                 July
                 9.
                 1611.
                 
                 
                   Vauns
                   contra
                
                 Laird
                 of
                 Balnagown
                 .
                 Neither
                 upon
                 Deeds
                 done
                 by
                 Servants
                 without
                 Warrand
                 ,
                 unless
                 they
                 be
                 menial
                 Servants
                 ,
                 
                   Hope
                   ,
                   bic
                   ,
                   John
                   Galbraith
                   contra
                   William
                   Anderson
                   :
                
                 Yet
                 Contravention
                 was
                 sustained
                 ,
                 upon
                 hurt
                 done
                 to
                 the
                 Pursuers
                 servant
                 ,
                 though
                 he
                 was
                 then
                 Rebel
                 ,
                 being
                 afterwards
                 relaxed
                 ,
                 Hope
                 ,
                 Horning
                 ,
                 Bruce
                 of
                 
                   Clackmannan
                   contra
                   Bruce
                
                 .
                 It
                 was
                 also
                 sustained
                 upon
                 attempts
                 of
                 injury
                 ,
                 though
                 there
                 was
                 no
                 hurt
                 ,
                 as
                 a
                 stroke
                 on
                 the
                 Cloathes
                 ,
                 and
                 one
                 offer
                 to
                 strike
                 with
                 a
                 Whinger
                 ,
                 December
                 21.
                 1609.
                 
                 
                   Greenyards
                   contra
                   Clackmannan
                
                 .
                 And
                 also
                 upon
                 a
                 violent
                 troubling
                 the
                 Pursuer
                 ,
                 without
                 Order
                 of
                 Law
                 ,
                 though
                 without
                 Damnage
                 ,
                 
                   Spots
                   .
                   hic
                
                 .
                 Laird
                 of
                 
                   Balcaskie
                   contra
                   Florence
                   Strang.
                
                 It
                 is
                 also
                 sustained
                 upon
                 a
                 Delinquence
                 ,
                 though
                 there
                 be
                 another
                 Action
                 competent
                 therefore
                 ,
                 as
                 for
                 Molestation
                 ,
                 November
                 29.
                 1609.
                 
                 
                   Dundass
                   contra
                   Cuming
                
                 of
                 Ironside
                 :
                 Or
                 for
                 violent
                 Possession
                 after
                 Warning
                 ,
                 
                   Hope
                   ,
                   de
                   actionibus
                   ,
                   Cuthbert
                   Cunninghame
                   contra
                
                 But
                 if
                 the
                 other
                 ordinar
                 Action
                 was
                 insisted
                 in
                 ,
                 and
                 Decreet
                 obtained
                 ,
                 Contravention
                 also
                 cannot
                 be
                 pursued
                 ,
                 though
                 the
                 other
                 were
                 offered
                 to
                 be
                 renounced
                 ,
                 
                   Hope
                   ,
                   contro
                   .
                   Johnstoun
                   contra
                
                 Sir
                 
                   John
                   Charters
                
                 .
              
               
                 Contravention
                 was
                 elided
                 by
                 granting
                 a
                 Factory
                 after
                 the
                 Deeds
                 Lybelled
                 to
                 do
                 the
                 like
                 ,
                 reserving
                 only
                 Damnage
                 and
                 Interest
                 ,
                 February
                 ,
                 19.
                 1633.
                 
                 
                   Dennistoun
                   contra
                   Lindsay
                
                 .
                 Contravention
                 on
                 several
                 Deeds
                 sustained
                 ,
                 
                   separatim
                   toties
                   quoties
                
                 :
                 And
                 against
                 many
                 Contraveeners
                 ,
                 Contraveening
                 in
                 one
                 Act
                 ;
                 but
                 in
                 such
                 cases
                 the
                 Lords
                 will
                 modifie
                 and
                 lesten
                 the
                 Penalty
                 ,
                 within
                 the
                 Rate
                 of
                 the
                 
                   Act
                   of
                   Parliament
                   ,
                   Novemb.
                
                 29.
                 
                 〈◊〉
                 .
                 
                   Dundass
                   contra
                   Cuming
                
                 of
                 
                   Ironside
                   .
                   Nic.
                   contro
                
                 .
                 Sir
                 
                   John
                   Scot
                   contra
                   Barns
                
                 .
                 Contravention
                 is
                 not
                 found
                 pursuable
                 before
                 any
                 inferiour
                 Judge
                 ,
                 otherways
                 the
                 Decreet
                 thereof
                 will
                 be
                 null
                 by
                 exception
                 ,
                 July
                 6.
                 1611.
                 
                 
                   Kennedy
                   Taylzeor
                   contra
                   Kennedy
                
                 of
                 Garriehorn
                 :
                 Yet
                 it
                 was
                 sustained
                 ,
                 where
                 the
                 matter
                 was
                 small
                 ,
                 and
                 the
                 parties
                 poor
                 ,
                 March
                 12.
                 1622.
                 
                 
                   Blair
                   contra
                   Marshel
                
                 .
                 In
                 Contraventions
                 ,
                 the
                 Kings
                 Advocat
                 must
                 concur
                 for
                 the
                 Kings
                 Interest
                 ,
                 but
                 he
                 cannot
                 insist
                 alone
                 ,
                 as
                 when
                 the
                 private
                 party
                 hath
                 discharged
                 the
                 Deeds
                 ,
                 even
                 after
                 the
                 intenting
                 of
                 the
                 cause
                 ,
                 
                   Hope
                   ,
                   entro
                   .
                   Forrest
                   contra
                   Malcolme
                   Turnbul
                   .
                
              
            
             
               
               
                 TITLE
                 X.
                 Obligations
                 Conventional
                 ,
                 by
                 Promise
                 ,
                 Paction
                 and
                 Contract
                 .
              
               
                 
                   1.
                   
                   The
                   Original
                   of
                   Conventional
                   Obligations
                   .
                
                 
                   2.
                   
                   The
                   Acts
                   of
                   the
                   Will
                   ,
                   Desire
                   ,
                   Resolution
                   and
                   Ingagement
                   ,
                   and
                   their
                   Effects
                   .
                
                 
                   3.
                   
                   Pollicitation
                   or
                   Offer
                   ,
                   and
                   its
                   Effects
                   .
                
                 
                   4.
                   
                   Promise
                   .
                
                 
                   5.
                   
                   Contracts
                   in
                   favours
                   of
                   third
                   parties
                   valid
                   .
                
                 
                   6.
                   
                   Pactions
                   ,
                   and
                   how
                   Words
                   are
                   Obligatory
                   .
                
                 
                   7.
                   
                   Naked
                   Pactions
                   .
                
                 
                   8.
                   
                   Pactum
                   corvinum
                   .
                
                 
                   9.
                   
                   Locus
                   penitentiae
                   .
                
                 
                   10.
                   
                   Promises
                   and
                   Pactions
                   are
                   morally
                   Obligatory
                   ,
                   by
                   Canon
                   Law
                   and
                   our
                   Customes
                   .
                
                 
                   11.
                   
                   Kinds
                   of
                   Contracts
                   amongst
                   the
                   Romans
                   ,
                   with
                   the
                   Exception
                   ,
                   
                     de
                     non
                     numerata
                     pecunia
                  
                   ,
                   and
                   Homologation
                   .
                
                 
                   12.
                   
                   Distinction
                   of
                   Contracts
                   according
                   to
                   the
                   matter
                   .
                
                 
                   13.
                   
                   Common
                   Requisits
                   to
                   Contracts
                   .
                
                 
                   14.
                   
                   Permutative
                   Contracts
                   ,
                   and
                   the
                   Equality
                   to
                   be
                   keeped
                   in
                   them
                   .
                
                 
                   15.
                   
                   Latent
                   insufficiency
                   altereth
                   Contracts
                   .
                
                 
                   16.
                   
                   How
                   far
                   Mutual
                   Contracts
                   are
                   effectual
                   to
                   Assignays
                   ,
                   without
                   performing
                   the
                   Cedents
                   part
                   .
                
                 
                   17.
                   
                   Loan
                   comprehendeth
                   ,
                   
                     mutuum
                     and
                     commodatum
                  
                   .
                
                 
                   18.
                   
                   In
                   mutuo
                   transfertur
                   Dominium
                   ,
                   Senatus
                   consultum
                   Macedonianum
                   ,
                   &
                   Velleianum
                   .
                
                 
                   
                     20.
                     
                     Mutuum
                  
                   can
                   only
                   be
                   in
                   Fungibles
                   and
                   Quantities
                   .
                
                 
                   21.
                   
                   Specialities
                   ,
                   
                     in
                     mutuo
                  
                   ,
                   and
                   Bills
                   of
                   Exchange
                   ,
                   
                     mutuum
                     strict
                     juris
                  
                   .
                
                 
                   
                   
                     23.
                     
                     Commodatum
                  
                   described
                   .
                
                 
                   24.
                   
                   Borrowers
                   diligence
                   .
                
                 
                   25.
                   
                   Precarium
                   .
                
                 
                   
                     26.
                     
                     Commodatum
                  
                   ,
                   how
                   ended
                   .
                
                 
                   27.
                   
                   Actions
                   arising
                   from
                   Commodatum
                   .
                
                 
                   
                     28.
                     
                     Mandatum
                  
                   ,
                   or
                   Commission
                   .
                
                 
                   29.
                   
                   The
                   Terms
                   of
                   Mandats
                   .
                
                 
                   30.
                   
                   Acceptance
                   of
                   the
                   Mandatar
                   .
                
                 
                   31.
                   
                   Mandats
                   in
                   things
                   lawful
                   .
                
                 
                   32.
                   
                   Acceptance
                   must
                   be
                   freely
                   .
                
                 
                   33.
                   
                   Mandats
                   are
                   personal
                   .
                
                 
                   34.
                   
                   How
                   far
                   Mandatars
                   may
                   intrust
                   others
                   .
                
                 
                   35.
                   
                   Mandats
                   are
                   Ambulatory
                   ,
                   and
                   Revockable
                   by
                   the
                   Mandant
                   .
                
                 
                   36.
                   
                   Mandatars
                   must
                   perform
                   ,
                   
                     in
                     forma
                     specifica
                  
                   .
                
                 
                   37.
                   
                   Mandatars
                   Diligence
                   .
                
                 
                   38.
                   
                   The
                   Obligations
                   of
                   Mandatars
                   .
                
                 
                   39.
                   
                   Kinds
                   of
                   Mandats
                   .
                
                 
                   40.
                   
                   Tacit
                   Mandats
                   .
                
                 
                   41.
                   
                   More
                   Mandatars
                   ,
                   how
                   far
                   they
                   may
                   Act
                   severally
                   .
                
                 
                   42.
                   
                   Whether
                   joynt
                   Mandatars
                   are
                   lyable
                   ,
                   
                     in
                     solidum
                  
                   .
                
                 
                   43.
                   
                   The
                   Effects
                   of
                   general
                   Mandats
                   .
                
                 
                   44.
                   
                   What
                   is
                   special
                   in
                   Offices
                   amongst
                   Mandats
                   .
                
                 
                   45.
                   
                   Specialities
                   of
                   Trust
                   amongst
                   Mandats
                   .
                
                 
                   46.
                   
                   Obligations
                   of
                   Exercitors
                   .
                
                 
                   47.
                   
                   Obligations
                   of
                   Institors
                   .
                
                 
                   48.
                   
                   The
                   nature
                   of
                   Custody
                   ,
                   or
                   depositum
                   .
                
                 
                   49.
                   
                   Diligence
                   of
                   Depositars
                   .
                
                 
                   50.
                   
                   Nautae
                   caupones
                   stabularij
                   .
                
                 
                   51.
                   
                   Depositation
                   of
                   Writes
                   .
                
                 
                   52.
                   
                   Sequestration
                   .
                
                 
                   53.
                   
                   Consignation
                   and
                   Trust.
                   
                
                 
                   54.
                   
                   Depositation
                   admits
                   no
                   Compensation
                   .
                
                 
                   55.
                   
                   But
                   admits
                   Retention
                   .
                
                 
                   56.
                   
                   Joint
                   Depositars
                   ,
                   how
                   far
                   lyable
                   .
                
                 
                   57.
                   
                   The
                   Nature
                   of
                   Pledge
                   ,
                   or
                   pignus
                   .
                
                 
                   58.
                   
                   Specialities
                   in
                   Pledges
                   .
                
                 
                   59.
                   
                   How
                   Pledges
                   may
                   become
                   Irredeemable
                   .
                
                 
                   60.
                   
                   Clauses
                   irritant
                   in
                   Pledges
                   .
                
                 
                   61.
                   
                   Hypothecation
                   of
                   the
                   Cropt
                   or
                   Goods
                   for
                   the
                   Rent
                   .
                
                 
                   62.
                   
                   Hypothecation
                   of
                   the
                   Teinds
                   ,
                   for
                   the
                   Teind-Duty
                   or
                   Stipend
                   .
                
                 
                   63.
                   
                   Exchange
                   and
                   Sale
                   ,
                   wherein
                   they
                   agree
                   and
                   differ
                   .
                
                 
                   64.
                   
                   What
                   things
                   are
                   lyable
                   to
                   sale
                   ,
                   and
                   of
                   buying
                   of
                   Pleas
                   ,
                   by
                   the
                   Members
                   of
                   the
                   Colledge
                   of
                   Justice
                   .
                
                 
                   65.
                   
                   Effect
                   of
                   Earnest
                   .
                
                 
                   66.
                   
                   Reversion
                   of
                   things
                   sold.
                   
                
                 
                   67.
                   
                   Clauses
                   irritant
                   ,
                   or
                   resolutive
                   in
                   sale
                   .
                
                 
                   68.
                   
                   Knowledge
                   of
                   Acquirers
                   of
                   an
                   anterior
                   incompleat
                   Right
                   ,
                   how
                   Effectual
                   .
                
                 
                   69.
                   
                   After
                   sale
                   ,
                   before
                   delivery
                   ,
                   to
                   whom
                   the
                   thing
                   perisheth
                   .
                
                 
                   70.
                   
                   Location
                   described
                   ,
                   and
                   compared
                   with
                   Sale.
                   
                
                 
                   71.
                   
                   Whether
                   sterility
                   frees
                   from
                   the
                   Pension
                   .
                
                 
                   72.
                   
                   The
                   effect
                   of
                   Vastation
                   .
                
                 
                   73.
                   
                   Location
                   is
                   personal
                   ,
                   and
                   ceaseth
                   with
                   the
                   Constituents
                   Right
                   .
                
                 
                   74.
                   
                   Usury
                   ,
                   or
                   Annualrent
                   of
                   Money
                   .
                
                 
                   75.
                   
                   Annualrent
                   due
                   by
                   Law
                   ,
                   without
                   Paction
                   .
                
                 
                   
                   76.
                   
                   The
                   Conductors
                   Obligation
                   .
                
                 
                   77.
                   
                   The
                   Locators
                   Obligation
                   .
                
                 
                   78.
                   
                   The
                   effect
                   of
                   Society
                   .
                
                 
                   79.
                   
                   The
                   matter
                   of
                   Society
                   .
                
                 
                   80.
                   
                   The
                   nature
                   of
                   Society
                   ,
                   and
                   equaquality
                   therein
                   .
                
                 
                   81.
                   
                   The
                   power
                   of
                   the
                   Partners
                   in
                   Society
                   .
                
                 
                   82.
                   
                   How
                   Society
                   ceaseth
                   .
                
                 
                   83.
                   
                   Partners
                   acting
                   severally
                   ,
                   how
                   these
                   things
                   accress
                   to
                   the
                   Society
                   .
                
                 
                   84.
                   
                   Diligence
                   of
                   Partners
                   .
                
                 
                   85.
                   
                   Contracts
                   mediat
                   and
                   immediat
                   .
                
                 
                   86.
                   
                   Kinds
                   of
                   Cautioners
                   .
                
                 
                   87.
                   
                   Cautioners
                   how
                   far
                   lyable
                   .
                
                 
                   88.
                   
                   Cautioners
                   for
                   Executors
                   .
                
                 
                   89.
                   
                   Cautioners
                   for
                   Tutors
                   and
                   Curators
                   .
                
                 
                   90.
                   
                   Cautioners
                   for
                   the
                   Factors
                   in
                   Camphire
                   .
                
                 
                   91.
                   
                   Cautioners
                   for
                   loosing
                   Arrestments
                   .
                
                 
                   92.
                   
                   Cautioners
                   are
                   lyable
                   according
                   by
                   the
                   Oath
                   of
                   the
                   Principals
                   .
                
                 
                   93.
                   
                   Cautioners
                   as
                   law
                   will.
                   
                
                 
                   94.
                   
                   When
                   the
                   Cautioners
                   are
                   lyable
                   ,
                   and
                   the
                   Principal
                   not
                   .
                
                 
                   95.
                   
                   Cautioners
                   ,
                   when
                   lyable
                   ,
                   
                     in
                     solidum
                  
                   .
                
                 
                   96.
                   
                   Relief
                   of
                   Cautioners
                   .
                
                 
                   97.
                   
                   Effects
                   of
                   promissary
                   Oaths
                   .
                
                 
                   98.
                   
                   Delay
                   .
                
                 
                   99.
                   
                   Interest
                   .
                
                 
                   100.
                   
                   Profite
                   of
                   performance
                   .
                
                 
                   101.
                   
                   Time
                   of
                   performance
                   .
                
                 
                   102.
                   
                   Place
                   of
                   performance
                   .
                
                 
                   103.
                   
                   Maner
                   of
                   performance
                   .
                
              
               
                 FROM
                 Obligations
                 Obediential
                 ,
                 flowing
                 from
                 the
                 Will
                 of
                 God
                 ;
                 Order
                 leads
                 us
                 over
                 to
                 Obligations
                 Conventional
                 ,
                 arising
                 from
                 the
                 Will
                 of
                 Man
                 ,
                 whereby
                 our
                 own
                 Will
                 tyeth
                 us
                 in
                 that
                 ,
                 wherein
                 God
                 hath
                 left
                 us
                 free
                 ;
                 for
                 as
                 Obligations
                 Obediential
                 descend
                 from
                 the
                 Principle
                 of
                 Obedience
                 to
                 God
                 ,
                 and
                 have
                 their
                 Rise
                 and
                 Reason
                 from
                 his
                 Soveraign
                 Power
                 to
                 Command
                 ,
                 and
                 our
                 absolute
                 obliegement
                 to
                 Obey
                 ;
                 so
                 in
                 his
                 gracious
                 goodness
                 ,
                 in
                 the
                 greatest
                 part
                 ,
                 he
                 hath
                 left
                 us
                 free
                 ,
                 and
                 hath
                 given
                 power
                 to
                 none
                 to
                 exact
                 ,
                 or
                 compel
                 us
                 :
                 Yet
                 so
                 as
                 he
                 hath
                 given
                 that
                 liberty
                 in
                 our
                 power
                 ,
                 that
                 we
                 may
                 give
                 it
                 up
                 to
                 others
                 ,
                 or
                 restrain
                 and
                 ingage
                 it
                 ,
                 whereby
                 God
                 oblieges
                 us
                 to
                 performance
                 ,
                 by
                 mediation
                 of
                 our
                 own
                 will
                 ;
                 yet
                 such
                 Obligations
                 ,
                 as
                 to
                 their
                 Original
                 ,
                 are
                 Conventional
                 ,
                 not
                 Obediential
                 .
              
               
                 Conventional
                 Obligations
                 do
                 arise
                 from
                 our
                 Will
                 and
                 Consent
                 ;
                 for
                 as
                 in
                 the
                 beginning
                 hath
                 been
                 shown
                 ,
                 the
                 Will
                 is
                 the
                 only
                 Faculty
                 constituting
                 Rights
                 ,
                 whether
                 real
                 or
                 personal
                 ;
                 for
                 it
                 is
                 the
                 will
                 of
                 the
                 owner
                 ,
                 that
                 naturally
                 transferreth
                 Right
                 from
                 him
                 to
                 the
                 acquirer
                 :
                 So
                 in
                 personal
                 Rights
                 ,
                 that
                 freedom
                 we
                 have
                 of
                 disposal
                 of
                 our selves
                 ,
                 our
                 actions
                 ,
                 and
                 things
                 which
                 naturally
                 is
                 in
                 us
                 ,
                 is
                 by
                 our
                 ingagement
                 ,
                 placed
                 in
                 another
                 ,
                 and
                 so
                 ingagement
                 
                 is
                 a
                 diminution
                 of
                 freedom
                 ,
                 and
                 constituting
                 of
                 power
                 in
                 another
                 ,
                 whereby
                 he
                 may
                 restrain
                 ,
                 or
                 constrain
                 to
                 the
                 doing
                 or
                 performing
                 of
                 that
                 whereof
                 we
                 have
                 given
                 him
                 power
                 of
                 exaction
                 ,
                 as
                 in
                 the
                 Debitor
                 ,
                 it
                 is
                 the
                 Debitors
                 duty
                 or
                 necessity
                 to
                 perform
                 ;
                 but
                 it
                 is
                 not
                 every
                 act
                 of
                 the
                 will
                 that
                 raiseth
                 an
                 Obligation
                 ,
                 or
                 power
                 of
                 exaction
                 ;
                 and
                 therefore
                 ,
                 that
                 it
                 may
                 appear
                 ,
                 what
                 act
                 of
                 it
                 is
                 Obligatory
                 ,
              
               
                 2.
                 
                 We
                 must
                 distinguish
                 three
                 acts
                 in
                 the
                 will
                 ,
                 
                   Desire
                   ,
                   Resolution
                
                 and
                 Ingagement
                 ;
                 desire
                 is
                 a
                 tendency
                 or
                 inclination
                 of
                 the
                 will
                 towards
                 its
                 object
                 ,
                 and
                 it
                 is
                 the
                 first
                 motion
                 thereof
                 ,
                 which
                 is
                 not
                 sufficient
                 to
                 constitute
                 a
                 Right
                 ;
                 neither
                 is
                 resolution
                 (
                 which
                 is
                 a
                 determinate
                 purpose
                 to
                 do
                 that
                 which
                 is
                 desired
                 )
                 efficacious
                 ;
                 because
                 ,
                 whatsoever
                 is
                 resolved
                 or
                 purposed
                 ,
                 may
                 be
                 without
                 fault
                 altered
                 ,
                 unless
                 by
                 accident
                 the
                 matter
                 be
                 necessar
                 ,
                 or
                 that
                 the
                 resolution
                 be
                 holden
                 forth
                 to
                 assure
                 others
                 :
                 the
                 alteration
                 whereof
                 ,
                 without
                 evident
                 ground
                 ,
                 importeth
                 levity
                 and
                 inconstancy
                 ,
                 and
                 sometimes
                 deceit
                 and
                 unfaithfulness
                 :
                 but
                 still
                 resolution
                 is
                 but
                 an
                 act
                 of
                 the
                 will
                 with
                 it self
                 ,
                 as
                 deliberation
                 is
                 of
                 the
                 understanding
                 ,
                 acting
                 with
                 it self
                 ;
                 and
                 it
                 is
                 unquestionable
                 ,
                 nothing
                 can
                 be
                 oblieged
                 to
                 it self
                 ,
                 though
                 it
                 be
                 oblieged
                 to
                 God
                 ,
                 or
                 an
                 other
                 in
                 relation
                 to
                 it self
                 ;
                 and
                 therefore
                 ,
                 if
                 a
                 party
                 should
                 express
                 a
                 resolution
                 ,
                 to
                 give
                 unto
                 ,
                 or
                 bestow
                 upon
                 an
                 other
                 any
                 thing
                 ,
                 though
                 that
                 resolution
                 related
                 to
                 the
                 good
                 of
                 an
                 other
                 ;
                 yet
                 it
                 is
                 not
                 Obligatory
                 ,
                 nor
                 can
                 that
                 other
                 compel
                 the
                 resolver
                 to
                 perform
                 ,
                 though
                 it
                 were
                 never
                 so
                 fully
                 cleared
                 ,
                 or
                 confirmed
                 by
                 word
                 or
                 write
                 .
                 It
                 was
                 found
                 ,
                 that
                 a
                 resolution
                 exprest
                 both
                 by
                 word
                 and
                 write
                 ,
                 in
                 favours
                 of
                 near
                 relations
                 ,
                 did
                 infer
                 no
                 Obligation
                 ,
                 February
                 27.
                 1673.
                 
                 Mr.
                 
                   John
                   Kincaid
                   contra
                
                 Mr.
                 
                   Alexander
                   Dickson
                
                 .
                 It
                 remaineth
                 then
                 ,
                 that
                 the
                 only
                 act
                 of
                 the
                 will
                 ,
                 which
                 is
                 efficacious
                 ,
                 is
                 that
                 ,
                 whereby
                 the
                 will
                 conferreth
                 or
                 stateth
                 a
                 power
                 of
                 exaction
                 in
                 an
                 other
                 ,
                 and
                 thereby
                 becomes
                 ingaged
                 to
                 that
                 other
                 to
                 perform
                 .
              
               
                 3.
                 
                 Again
                 ,
                 we
                 must
                 distinguish
                 betwixt
                 Promise
                 ,
                 Pollicitation
                 ,
                 or
                 Offer
                 ,
                 Paction
                 and
                 Contract
                 ;
                 the
                 difference
                 amongst
                 which
                 ,
                 is
                 this
                 ,
                 that
                 the
                 Obligatory
                 act
                 of
                 the
                 will
                 ,
                 is
                 sometime
                 absolute
                 and
                 pure
                 ,
                 and
                 sometime
                 conditional
                 ,
                 wherein
                 the
                 condition
                 relates
                 either
                 unto
                 the
                 obligation
                 it self
                 ,
                 or
                 to
                 the
                 performance
                 ,
                 such
                 are
                 the
                 ordinar
                 conditional
                 Obligations
                 ;
                 which
                 ,
                 though
                 they
                 be
                 presently
                 (
                 upon
                 the
                 granting
                 thereof
                 )
                 binding
                 ,
                 and
                 cannot
                 be
                 recalled
                 ;
                 yet
                 they
                 are
                 only
                 to
                 be
                 performed
                 ,
                 and
                 have
                 effect
                 when
                 the
                 condition
                 shall
                 be
                 existent
                 ,
                 but
                 when
                 the
                 condition
                 is
                 relating
                 to
                 the
                 constituting
                 of
                 the
                 Obligation
                 ,
                 then
                 the
                 very
                 Obligation
                 it self
                 is
                 pendent
                 ,
                 till
                 the
                 condition
                 be
                 purified
                 ,
                 and
                 till
                 then
                 it
                 is
                 no
                 Obligation
                 ;
                 as
                 when
                 any
                 offer
                 or
                 tender
                 is
                 made
                 ,
                 there
                 is
                 implyed
                 a
                 Condition
                 ,
                 that
                 before
                 it
                 become
                 Obligatory
                 ,
                 the
                 party
                 to
                 whom
                 it
                 is
                 offered
                 ,
                 mustaccept
                 ;
                 and
                 therefore
                 ,
                 an
                 offer
                 by
                 a
                 Son
                 ,
                 to
                 pay
                 a
                 Debt
                 due
                 by
                 his
                 Mother
                 ,
                 if
                 it
                 were
                 made
                 known
                 to
                 be
                 accepted
                 at
                 such
                 a
                 time
                 ,
                 and
                 in
                 such
                 a
                 place
                 ,
                 found
                 not
                 Obligator
                 after
                 the
                 Mothers
                 death
                 ,
                 unless
                 it
                 had
                 been
                 so
                 accepted
                 ,
                 June
                 24.
                 1664.
                 
                 
                   Alexander
                   Allan
                   contra
                
                 Mr.
                 
                   John
                   Collier
                
                 .
                 So
                 then
                 ,
                 an
                 offer
                 accepted
                 is
                 a
                 Contract
                 ,
                 because
                 it
                 is
                 the
                 deed
                 of
                 two
                 ,
                 the
                 offerer
                 and
                 accepter
                 .
              
               
                 4.
                 
                 But
                 a
                 Promise
                 is
                 that
                 which
                 is
                 simple
                 and
                 pure
                 ,
                 and
                 hath
                 not
                 implyed
                 as
                 a
                 Condition
                 ,
                 in
                 its
                 being
                 the
                 acceptance
                 of
                 another
                 ,
                 in
                 this
                 Grotius
                 differeth
                 ,
                 
                   de
                   jure
                   belli
                   l.
                
                 2.
                 
                 C.
                 11.
                 
                 §
                 ,
                 14.
                 holding
                 ,
                 
                   that
                   acceptance
                   is
                   necessar
                   to
                   every
                   Conventional
                   Obligation
                   in
                   equity
                   ,
                   without
                   consideration
                   of
                   positive
                   Law
                
                 ;
                 and
                 to
                 prevent
                 that
                 obvious
                 objection
                 ,
                 that
                 Promises
                 are
                 made
                 to
                 Absents
                 ,
                 Infants
                 ,
                 Idiots
                 ,
                 or
                 persons
                 not
                 yet
                 born
                 ,
                 who
                 cannot
                 accept
                 ;
                 and
                 therefore
                 ,
                 such
                 Obligations
                 should
                 
                 ever
                 be
                 Revockable
                 ,
                 till
                 their
                 acceptation
                 ,
                 which
                 in
                 some
                 of
                 them
                 can
                 never
                 be
                 :
                 he
                 answereth
                 ,
                 that
                 the
                 Civil
                 Law
                 withholdeth
                 ,
                 that
                 such
                 offers
                 cannot
                 be
                 revocked
                 ,
                 until
                 these
                 be
                 in
                 such
                 capacity
                 ,
                 as
                 to
                 accept
                 or
                 refuse
                 ;
                 though
                 promises
                 now
                 be
                 commonly
                 held
                 Obligatory
                 ,
                 the
                 Canon
                 Law
                 having
                 taken
                 off
                 the
                 exception
                 of
                 the
                 Civil
                 Law
                 ,
                 
                   de
                   nudo
                   pacto
                
                 ;
                 It
                 is
                 true
                 ,
                 if
                 he
                 in
                 whose
                 favours
                 they
                 are
                 made
                 ,
                 accept
                 not
                 ,
                 they
                 become
                 void
                 ,
                 not
                 by
                 the
                 Negative
                 none
                 acceptance
                 ,
                 but
                 by
                 the
                 contrair
                 rejection
                 :
                 for
                 as
                 the
                 will
                 of
                 the
                 Promiser
                 constitutes
                 a
                 Right
                 in
                 the
                 other
                 ;
                 so
                 the
                 others
                 will
                 by
                 renouncing
                 ,
                 and
                 ,
                 rejecting
                 that
                 Right
                 ,
                 avoids
                 it
                 ,
                 and
                 makes
                 it
                 return
                 .
                 This
                 also
                 quadrats
                 with
                 the
                 nature
                 of
                 a
                 Right
                 ,
                 which
                 consisteth
                 in
                 a
                 faculty
                 or
                 power
                 ,
                 which
                 may
                 be
                 in
                 these
                 ,
                 who
                 exerce
                 no
                 act
                 of
                 will
                 about
                 it
                 ,
                 nor
                 know
                 not
                 of
                 it
                 ,
                 so
                 Infants
                 truely
                 have
                 right
                 as
                 well
                 as
                 men
                 ,
                 though
                 they
                 do
                 not
                 know
                 ,
                 nor
                 cannot
                 exerce
                 it
                 themselves
                 :
                 Promises
                 with
                 us
                 are
                 not
                 probable
                 by
                 Witness
                 ,
                 though
                 within
                 an
                 hundred
                 Pounds
                 ,
                 July
                 3.
                 1668.
                 
                 
                   James
                   Donaldson
                   contra
                   Harrower
                   .
                   February
                
                 9.
                 1672.
                 
                 
                   William
                   〈◊〉
                   contra
                   Thomas
                   Robertson
                
                 .
                 The
                 like
                 was
                 found
                 of
                 a
                 Promise
                 ingaging
                 for
                 a
                 Party
                 ,
                 who
                 bought
                 Goods
                 ,
                 not
                 being
                 a
                 partner
                 in
                 the
                 bargain
                 ;
                 for
                 promises
                 ,
                 when
                 parts
                 of
                 bargains
                 about
                 Moveables
                 ,
                 are
                 probable
                 by
                 Witnesses
                 ,
                 June
                 19.
                 1672.
                 
                 
                   John
                   Deuar
                   contra
                   Thomas
                   Brown.
                
                 
              
               
                 5.
                 
                 It
                 is
                 likewise
                 the
                 opinion
                 of
                 
                   Molina
                   ,
                   cap.
                
                 263.
                 and
                 it
                 quadrats
                 to
                 our
                 Customes
                 ;
                 that
                 when
                 parties
                 Contract
                 ,
                 if
                 there
                 be
                 any
                 Article
                 in
                 favour
                 of
                 a
                 third
                 party
                 ,
                 at
                 any
                 time
                 ,
                 &
                 
                   jus
                   quaesitum
                   tertio
                
                 ,
                 it
                 cannot
                 be
                 recalled
                 by
                 both
                 the
                 Contracters
                 ,
                 but
                 he
                 may
                 compel
                 either
                 of
                 them
                 to
                 exhibite
                 the
                 Contract
                 ,
                 and
                 thereupon
                 the
                 oblieged
                 may
                 be
                 compelled
                 to
                 perform
                 .
                 So
                 a
                 Promise
                 ,
                 though
                 gratuitous
                 ,
                 made
                 in
                 favours
                 of
                 a
                 third
                 party
                 ,
                 that
                 party
                 ,
                 albeit
                 not
                 present
                 ,
                 nor
                 accepting
                 ,
                 was
                 found
                 to
                 have
                 Right
                 thereby
                 ,
                 November
                 25.
                 1609.
                 
                 
                   Achinmoutie
                   contra
                   Hay
                
                 .
                 Promises
                 dependent
                 upon
                 acceptance
                 ,
                 may
                 either
                 be
                 made
                 by
                 way
                 of
                 offer
                 ,
                 or
                 when
                 the
                 promise
                 requires
                 some
                 things
                 to
                 to
                 be
                 done
                 on
                 the
                 part
                 of
                 him
                 to
                 whom
                 it
                 is
                 made
                 ,
                 not
                 as
                 a
                 condition
                 annexed
                 only
                 to
                 the
                 performance
                 ,
                 for
                 then
                 the
                 promise
                 is
                 presently
                 Obligatory
                 ,
                 though
                 the
                 Effect
                 be
                 suspended
                 ,
                 till
                 the
                 condition
                 exist
                 ;
                 but
                 if
                 the
                 condition
                 be
                 so
                 meant
                 ,
                 or
                 exprest
                 ,
                 that
                 it
                 must
                 preceed
                 the
                 Obligation
                 it self
                 ,
                 as
                 in
                 mutual
                 Contracts
                 ,
                 the
                 one
                 party
                 subscribing
                 ,
                 is
                 not
                 oblieged
                 untill
                 the
                 other
                 also
                 subscribe
                 ,
                 or
                 that
                 the
                 other
                 partie
                 accept
                 or
                 consent
                 .
                 And
                 so
                 a
                 Contract
                 being
                 Registrat
                 ,
                 was
                 found
                 orderly
                 proceeded
                 ,
                 though
                 he
                 who
                 Registrated
                 it
                 had
                 not
                 subscribed
                 ,
                 seing
                 at
                 the
                 discussing
                 he
                 did
                 summarly
                 consent
                 to
                 the
                 Registration
                 thereof
                 against
                 himself
                 ,
                 February
                 9.
                 1627.
                 
                 
                   Mcduff
                   contra
                   Mcculloch
                
                 .
                 Hence
                 is
                 our
                 vulgar
                 distinction
                 betwixt
                 Obligations
                 and
                 Contracts
                 ,
                 the
                 former
                 being
                 only
                 where
                 the
                 Obligation
                 is
                 
                   〈◊〉
                   〈◊〉
                   〈◊〉
                   〈◊〉
                   〈◊〉
                
                 on
                 the
                 one
                 part
                 ;
                 the
                 other
                 where
                 the
                 Obligation
                 is
                 
                   〈◊〉
                   〈◊〉
                   〈◊〉
                   〈◊〉
                   〈◊〉
                
                 an
                 Obligation
                 on
                 both
                 parts
                 .
              
               
                 6.
                 
                 Pactum
                 ,
                 or
                 a
                 Paction
                 ,
                 in
                 the
                 Law
                 is
                 defined
                 ,
                 
                   duorum
                   pluriumve
                   in
                   idem
                   placitum
                   consensus
                   atque
                   conventio
                   ,
                   l.
                
                 1.
                 
                   ff
                   .
                   de
                   pactis
                
                 ,
                 it
                 is
                 the
                 consent
                 of
                 two
                 or
                 more
                 parties
                 ,
                 to
                 some
                 things
                 to
                 be
                 performed
                 by
                 either
                 of
                 them
                 ;
                 for
                 it
                 is
                 not
                 a
                 consent
                 in
                 their
                 opinions
                 ,
                 but
                 a
                 consent
                 in
                 their
                 wills
                 ,
                 to
                 obliege
                 any
                 of
                 them
                 ;
                 and
                 it
                 is
                 much
                 to
                 be
                 considered
                 ,
                 whether
                 the
                 consent
                 be
                 given
                 ,
                 
                   animo
                   obligandi
                
                 ,
                 to
                 obliege
                 ,
                 for
                 the
                 same
                 words
                 will
                 sometime
                 be
                 interpret
                 as
                 obligator
                 ,
                 and
                 sometimes
                 not
                 according
                 to
                 the
                 circumstances
                 ,
                 as
                 if
                 it
                 be
                 jestingly
                 or
                 merrily
                 exprest
                 ,
                 whatsoever
                 the
                 words
                 be
                 ,
                 there
                 is
                 no
                 obligation
                 ;
                 because
                 thereby
                 it
                 appears
                 there
                 is
                 no
                 mind
                 to
                 obliege
                 ;
                 or
                 if
                 the
                 words
                 be
                 in
                 Affairs
                 ,
                 or
                 Negotiations
                 ,
                 they
                 are
                 interpret
                 obligator
                 ,
                 though
                 they
                 express
                 no
                 obligation
                 but
                 a
                 Futurition
                 ,
                 which
                 otherways
                 would
                 import
                 no
                 more
                 then
                 a
                 resolution
                 ,
                 as
                 Titius
                 is
                 to
                 give
                 Mevius
                 an
                 hundred
                 Crowns
                 in
                 any
                 matter
                 of
                 Negotiation
                 ,
                 
                 would
                 be
                 obligator
                 ;
                 but
                 otherways
                 would
                 be
                 no
                 more
                 ,
                 but
                 an
                 expression
                 of
                 Titius
                 his
                 purpose
                 ,
                 so
                 to
                 do
                 ;
                 yet
                 because
                 it
                 is
                 inward
                 and
                 unknown
                 ,
                 it
                 must
                 be
                 taken
                 by
                 the
                 words
                 or
                 other
                 signs
                 ,
                 so
                 if
                 the
                 words
                 be
                 clearly
                 obligator
                 and
                 serious
                 ,
                 no
                 pretence
                 ,
                 that
                 there
                 was
                 no
                 purpose
                 to
                 obliege
                 ,
                 will
                 take
                 place
                 ,
                 if
                 the
                 promise
                 be
                 pendent
                 upon
                 acceptation
                 ,
                 and
                 no
                 more
                 then
                 an
                 offer
                 ,
                 it
                 is
                 imperfect
                 and
                 ambulatory
                 ,
                 and
                 in
                 the
                 power
                 of
                 the
                 offerer
                 ,
                 till
                 acceptance
                 ,
                 and
                 if
                 he
                 died
                 before
                 acceptance
                 ,
                 it
                 is
                 revocked
                 as
                 a
                 Commission
                 or
                 Mandat
                 ,
                 which
                 necessarly
                 imports
                 acceptance
                 ,
                 expires
                 by
                 the
                 Mandators
                 death
                 ,
                 
                   morte
                   mandatoris
                   perit
                   mandatum
                
                 ,
                 so
                 acceptance
                 cannot
                 be
                 by
                 any
                 third
                 party
                 ,
                 unless
                 he
                 have
                 Warrand
                 for
                 that
                 effect
                 ;
                 and
                 so
                 if
                 a
                 promise
                 be
                 made
                 by
                 one
                 to
                 another
                 ,
                 in
                 favour
                 of
                 a
                 third
                 ,
                 importing
                 the
                 acceptance
                 of
                 that
                 third
                 ,
                 it
                 is
                 pendent
                 and
                 revockable
                 by
                 these
                 contracters
                 ,
                 till
                 the
                 third
                 accept
                 .
              
               
                 7.
                 
                 The
                 Romans
                 ,
                 that
                 they
                 might
                 have
                 clear
                 proof
                 of
                 Pactions
                 and
                 Agreements
                 ,
                 would
                 second
                 none
                 with
                 their
                 civil
                 Authority
                 ,
                 but
                 such
                 as
                 had
                 a
                 solemnity
                 of
                 words
                 ,
                 by
                 way
                 of
                 stipulation
                 ,
                 whereby
                 the
                 one
                 party
                 going
                 before
                 ,
                 by
                 an
                 Interrogation
                 ,
                 other
                 party
                 closed
                 by
                 an
                 answer
                 conform
                 ,
                 which
                 was
                 both
                 clear
                 to
                 the
                 Parties
                 and
                 Witness
                 ;
                 or
                 otherways
                 ,
                 unless
                 there
                 were
                 the
                 intervention
                 of
                 some
                 deed
                 ,
                 or
                 thing
                 beside
                 the
                 consent
                 ,
                 or
                 that
                 it
                 were
                 a
                 Contract
                 allowed
                 of
                 the
                 Law
                 ,
                 or
                 such
                 other
                 paction
                 as
                 it
                 specially
                 confirmeth
                 ;
                 without
                 all
                 which
                 ,
                 it
                 was
                 called
                 
                   nudum
                   pactum
                   inefficax
                   ad
                   agendum
                
                 .
                 We
                 shall
                 not
                 insist
                 in
                 these
                 ,
                 because
                 the
                 common
                 Custome
                 of
                 Nations
                 hath
                 refiled
                 therefrom
                 ,
                 following
                 rather
                 the
                 Canon
                 Law
                 ,
                 by
                 which
                 every
                 paction
                 produceth
                 action
                 ,
                 
                   omne
                   verbum
                   de
                   ore
                   fideli
                   cadit
                   in
                   debitum
                   ,
                   C.
                
                 1.
                 
                 &
                 3.
                 
                   de
                   pactis
                
                 .
                 And
                 so
                 observeth
                 
                   Guidilinus
                   ,
                   de
                   jure
                   ,
                   Nov.
                   l.
                
                 3.
                 cap.
                 5.
                 
                 
                   §
                   .
                   ust
                
                 .
                 and
                 
                   Corvinus
                   de
                   pactis
                
                 ,
                 we
                 have
                 a
                 special
                 Statute
                 of
                 Session
                 ,
                 November
                 27.
                 1592.
                 
                   acknowledging
                   all
                   pactions
                   and
                   promises
                   as
                   effectual
                   :
                
                 So
                 it
                 hath
                 been
                 ever
                 decided
                 since
                 ,
                 January
                 14.
                 1631.
                 
                 
                   Sharp
                   contra
                   Sharp
                
                 .
              
               
                 8.
                 
                 And
                 even
                 
                   pactum
                   corvinum
                   de
                   haereditate
                   viventis
                
                 ,
                 is
                 found
                 binding
                 ,
                 though
                 among
                 the
                 most
                 odious
                 ,
                 July
                 6.
                 1630.
                 
                 Mr.
                 
                   James
                   Aikenhead
                   contra
                   Both
                   we
                   l.
                
                 But
                 ,
                 
                   pactum
                   de
                   quota
                   litis
                
                 ,
                 whether
                 it
                 be
                 a
                 naked
                 Paction
                 or
                 Promise
                 ,
                 or
                 a
                 mutual
                 Contract
                 ,
                 is
                 rejected
                 both
                 by
                 the
                 Civil
                 Law
                 and
                 our
                 Custome
                 ,
                 whereby
                 Advocats
                 ,
                 in
                 place
                 of
                 their
                 Honorary
                 ,
                 take
                 a
                 share
                 of
                 the
                 profit
                 of
                 the
                 Plea
                 ,
                 to
                 prevent
                 the
                 stirring
                 up
                 ,
                 and
                 too
                 much
                 eagerness
                 in
                 Pleas
                 ,
                 which
                 was
                 extended
                 to
                 an
                 Agent
                 or
                 Writer
                 ,
                 if
                 he
                 had
                 made
                 such
                 a
                 Paction
                 before
                 ,
                 or
                 during
                 the
                 Plea
                 ,
                 but
                 not
                 after
                 all
                 Plea
                 was
                 ended
                 ,
                 having
                 given
                 Bond
                 to
                 an
                 appear
                 and
                 Heir
                 ,
                 to
                 denude
                 himself
                 of
                 a
                 Right
                 he
                 had
                 acquired
                 for
                 Sums
                 of
                 Money
                 ,
                 getting
                 his
                 expenses
                 ,
                 and
                 a
                 fourth
                 part
                 for
                 his
                 pains
                 and
                 hazard
                 ,
                 February
                 24.
                 1675.
                 
                 
                   Catharine
                   Home
                   contra
                
                 Mr.
                 
                   Archibald
                   Nisbit
                
                 Writer
                 .
                 Yea
                 ,
                 an
                 Advocat
                 taking
                 Assignation
                 to
                 a
                 part
                 of
                 a
                 Plea
                 ,
                 it
                 was
                 found
                 ,
                 
                   pactum
                   de
                   quota
                   litis
                
                 ,
                 and
                 Process
                 was
                 thereby
                 excluded
                 ,
                 though
                 proponed
                 by
                 the
                 Debitor
                 ,
                 and
                 not
                 by
                 the
                 party
                 with
                 whom
                 the
                 Paction
                 was
                 made
                 ,
                 but
                 it
                 was
                 not
                 found
                 probable
                 by
                 that
                 parties
                 Oath
                 alone
                 ,
                 as
                 being
                 but
                 one
                 Witness
                 ,
                 June
                 23.
                 1680.
                 
                 
                   Edward
                   Ruthven
                   contra
                
                 Mr.
                 
                   William
                   Weir
                
                 .
              
               
                 Pactions
                 for
                 Money
                 played
                 ,
                 or
                 other
                 Prize
                 played
                 at
                 Games
                 of
                 Fortoun
                 ,
                 such
                 as
                 Cards
                 ,
                 Dice
                 ,
                 &c.
                 found
                 valid
                 as
                 to
                 the
                 Debitor
                 ,
                 but
                 the
                 excress
                 to
                 be
                 consigned
                 for
                 the
                 use
                 of
                 the
                 poor
                 ,
                 if
                 it
                 exceed
                 an
                 hundred
                 Merk
                 ,
                 by
                 the
                 Act
                 of
                 Par.
                 1621.
                 cap.
                 14.
                 
                 Nevember
                 12.
                 1668.
                 
                 
                   Patrick
                   Park
                   contra
                   Nicol
                   Somervel
                
                 .
                 Instead
                 of
                 the
                 remeids
                 of
                 Stipulation
                 ,
                 the
                 inconveniences
                 that
                 rejected
                 naked
                 Paction
                 among
                 the
                 Romans
                 ,
                 are
                 remeided
                 with
                 us
                 by
                 this
                 means
                 .
              
               
                 9.
                 
                 First
                 ,
                 If
                 the
                 matter
                 be
                 of
                 great
                 Moment
                 ,
                 and
                 which
                 requireth
                 to
                 its
                 perfection
                 ,
                 solemnity
                 in
                 Write
                 ;
                 all
                 such
                 Agreements
                 ,
                 Promises
                 and
                 Pactions
                 
                 are
                 accounted
                 imperfect
                 ,
                 and
                 not
                 Obligator
                 ,
                 untill
                 Write
                 be
                 subscribed
                 ,
                 such
                 as
                 Dispositions
                 of
                 Lands
                 ,
                 and
                 Heretable
                 Rights
                 ,
                 Tacks
                 ,
                 Rentals
                 ,
                 and
                 Assignations
                 to
                 Writs
                 ,
                 &c.
                 
                 In
                 all
                 which
                 ,
                 there
                 is
                 
                   locus
                   penitentiae
                
                 ,
                 even
                 after
                 the
                 agreement
                 ,
                 and
                 either
                 party
                 may
                 resile
                 till
                 the
                 Write
                 be
                 subscribed
                 and
                 delivered
                 .
                 It
                 was
                 so
                 found
                 ,
                 though
                 the
                 buyer
                 by
                 a
                 missive
                 Letter
                 ,
                 wrote
                 ,
                 that
                 he
                 thought
                 he
                 would
                 not
                 be
                 able
                 to
                 furnish
                 the
                 Money
                 ,
                 but
                 that
                 he
                 would
                 not
                 pass
                 from
                 the
                 communing
                 ,
                 seing
                 there
                 was
                 no
                 minute
                 nor
                 obligation
                 otherways
                 ,
                 January
                 20.
                 1663.
                 
                 Sir
                 
                   Robert
                   Montgomery
                
                 of
                 
                   Skermorly
                   contra
                   John
                   Brown.
                
                 So
                 was
                 it
                 also
                 sound
                 ,
                 that
                 a
                 Cautioner
                 subscribing
                 a
                 Bond
                 ,
                 might
                 resile
                 before
                 it
                 was
                 delivered
                 by
                 him
                 ,
                 though
                 it
                 was
                 subscribed
                 ,
                 and
                 delivered
                 by
                 the
                 Principal
                 and
                 other
                 Cautioners
                 before
                 ,
                 March
                 5.
                 1628.
                 
                 
                   Megil
                   contra
                   Thenilstoun
                
                 .
                 The
                 like
                 of
                 a
                 Disposition
                 subscribed
                 ,
                 and
                 left
                 in
                 the
                 Writers
                 hand
                 to
                 frame
                 a
                 Charter
                 by
                 ,
                 and
                 a
                 promise
                 made
                 after
                 to
                 abide
                 by
                 it
                 ,
                 seing
                 there
                 was
                 no
                 delivery
                 to
                 the
                 party
                 ,
                 nor
                 to
                 the
                 Writer
                 to
                 be
                 given
                 to
                 him
                 ,
                 Laird
                 of
                 
                   Innerleith
                   contra
                   Byres
                
                 .
                 The
                 like
                 of
                 a
                 bargain
                 of
                 Land
                 ,
                 agreed
                 upon
                 by
                 Word
                 ,
                 some
                 things
                 being
                 done
                 by
                 the
                 buyer
                 in
                 contemplation
                 thereof
                 ,
                 being
                 restored
                 ,
                 October
                 5.
                 1628.
                 
                 
                   Oliphant
                   contra
                   Monorgan
                
                 .
                 The
                 like
                 in
                 a
                 Tack
                 for
                 years
                 ,
                 which
                 was
                 found
                 to
                 endure
                 but
                 one
                 year
                 ,
                 though
                 the
                 Tacks-man
                 was
                 thereby
                 in
                 Possession
                 ,
                 January
                 24.
                 1630.
                 
                 
                   Lowry
                   contra
                   Ker.
                   July
                
                 16.
                 1636.
                 
                 
                   Keith
                   contra
                
                 his
                 Tennents
                 .
                 Yet
                 a
                 verbal
                 Tack
                 for
                 a
                 year
                 ,
                 found
                 not
                 to
                 be
                 past
                 from
                 ,
                 seing
                 the
                 Tennant
                 was
                 thereby
                 in
                 Possession
                 ,
                 and
                 had
                 been
                 warned
                 ,
                 Hope
                 ,
                 Process
                 ,
                 
                   John
                   Adamson
                   contra
                   John
                   Fullartoun
                
                 .
                 Neither
                 was
                 it
                 found
                 competent
                 to
                 pass
                 from
                 a
                 verbal
                 Rental
                 ,
                 where
                 the
                 Grassoum
                 was
                 payed
                 ,
                 
                   Nicol.
                   de
                   migrando
                   ,
                   Angus
                   contra
                   Mckie
                   .
                
                 Neither
                 to
                 pass
                 from
                 a
                 Rental
                 delivered
                 to
                 the
                 Chamberlain
                 ,
                 to
                 be
                 given
                 to
                 the
                 Tennants
                 upon
                 payment
                 of
                 the
                 Grassoums
                 ,
                 in
                 so
                 far
                 as
                 concerned
                 these
                 Tennants
                 ,
                 who
                 had
                 payed
                 a
                 part
                 of
                 their
                 Grassoums
                 ,
                 Nic.
                 Removing
                 ,
                 
                   Eglintoun
                   contra
                
                 his
                 Tennants
                 .
                 Neither
                 was
                 place
                 found
                 to
                 resile
                 from
                 a
                 Transaction
                 verbal
                 ,
                 seing
                 a
                 considerable
                 part
                 of
                 the
                 Soum
                 Transacted
                 for
                 ,
                 was
                 satisfied
                 ,
                 February
                 25.
                 1679.
                 
                 Kings
                 Advocat
                 contra
                 Earl
                 of
                 Nithisdale
                 .
                 Neither
                 is
                 there
                 
                   locus
                   poenitentiae
                   in
                   pactis
                   liberatoriis
                
                 ,
                 where
                 any
                 Right
                 is
                 past
                 from
                 or
                 restricted
                 ,
                 and
                 no
                 new
                 Right
                 to
                 be
                 made
                 ,
                 December
                 5.
                 1661.
                 
                 
                   Hellen
                   Hepburn
                   contra
                
                 Sir
                 
                   James
                   Hamiltoun
                
                 of
                 Orbistoun
                 .
                 The
                 like
                 in
                 restricting
                 an
                 Annualrent
                 ,
                 to
                 a
                 part
                 of
                 Lands
                 affected
                 therewith
                 ,
                 February
                 8.
                 1666.
                 
                 
                   Ker
                   contra
                   Hunter
                   ,
                   locus
                   poenitentiae
                
                 was
                 found
                 competent
                 to
                 a
                 defender
                 ,
                 who
                 produced
                 a
                 Right
                 granted
                 by
                 the
                 Charger
                 ,
                 with
                 a
                 blank
                 Assignation
                 to
                 instruct
                 compensation
                 ,
                 which
                 he
                 got
                 up
                 before
                 it
                 was
                 delivered
                 to
                 the
                 Charger
                 ,
                 or
                 any
                 Decreet
                 thereon
                 ;
                 and
                 no
                 minut
                 of
                 the
                 Decreet
                 being
                 extant
                 ,
                 the
                 suspender
                 was
                 found
                 ,
                 
                   in
                   tuto
                
                 ,
                 to
                 make
                 use
                 of
                 the
                 Right
                 compensed
                 on
                 ,
                 December
                 9.
                 1674.
                 
                 Lord
                 
                   Balmerino
                   contra
                
                 the
                 Tennants
                 of
                 Northberwick
                 ,
                 and
                 Creditors
                 of
                 Sir
                 
                   William
                   Dick.
                
                 Yea
                 ,
                 
                   locus
                   poenitentiae
                
                 ,
                 was
                 found
                 competent
                 to
                 resile
                 from
                 a
                 bargain
                 ,
                 which
                 might
                 have
                 been
                 valid
                 without
                 Write
                 ,
                 because
                 it
                 was
                 expresly
                 agreed
                 to
                 be
                 redacted
                 in
                 Write
                 ,
                 January
                 12.
                 1676.
                 
                 
                   Robert
                   Campbel
                   contra
                   Robert
                   Dowglas
                
                 .
                 The
                 other
                 remedy
                 we
                 have
                 in
                 stead
                 of
                 Stipulation
                 ,
                 is
                 that
                 by
                 a
                 Statute
                 of
                 Par.
                 1579.
                 cap.
                 80.
                 all
                 Writes
                 of
                 great
                 importance
                 ,
                 are
                 to
                 be
                 subscribed
                 by
                 the
                 party
                 ,
                 or
                 by
                 two
                 Nottars
                 and
                 four
                 Witnesses
                 ,
                 wherein
                 custome
                 hath
                 interpret
                 matters
                 of
                 importance
                 to
                 be
                 that
                 which
                 exceeds
                 an
                 hundred
                 Pound
                 Scots
                 ,
                 and
                 it
                 is
                 so
                 far
                 extended
                 ,
                 that
                 in
                 matters
                 where
                 Writes
                 may
                 ,
                 and
                 uses
                 to
                 be
                 adhibit
                 ,
                 probation
                 is
                 not
                 admitted
                 by
                 Witnesses
                 ,
                 but
                 only
                 by
                 Oath
                 of
                 party
                 or
                 Write
                 ;
                 by
                 these
                 remeids
                 very
                 necessarly
                 introduced
                 ,
                 the
                 inconveniencies
                 foresaid
                 are
                 sufficiently
                 caveat
                 .
              
               
                 10.
                 
                 But
                 to
                 inquire
                 whether
                 Promises
                 or
                 naked
                 Paction
                 ,
                 are
                 morally
                 Obligatory
                 
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 few
                 do
                 contravert
                 ;
                 yet
                 
                   Conanus
                   ,
                   l.
                
                 1.
                 
                 C.
                 6.
                 l.
                 5.
                 
                 C.
                 9.
                 holdeth
                 ,
                 that
                 Promises
                 or
                 naked
                 Pactions
                 ,
                 where
                 there
                 is
                 no
                 equivalent
                 Cause
                 Onerous
                 interveening
                 ,
                 do
                 morally
                 produce
                 no
                 Obligation
                 or
                 Action
                 ,
                 though
                 in
                 congruity
                 or
                 decency
                 ,
                 it
                 be
                 fit
                 to
                 perform
                 ,
                 least
                 it
                 be
                 an
                 argument
                 of
                 Levity
                 ,
                 against
                 which
                 ,
                 there
                 is
                 not
                 only
                 the
                 Testimony
                 of
                 the
                 Canon
                 Law
                 ,
                 which
                 insinuats
                 an
                 anterior
                 Reason
                 to
                 its
                 own
                 position
                 ;
                 but
                 also
                 the
                 Civil
                 Law
                 l.
                 1.
                 
                   ff
                   .
                   de
                   pactis
                
                 ,
                 there
                 is
                 nothing
                 so
                 congruous
                 to
                 humane
                 trust
                 ,
                 as
                 to
                 perform
                 what
                 is
                 agreed
                 among
                 them
                 ;
                 and
                 the
                 Edict
                 ,
                 
                   de
                   constituta
                   pecunia
                
                 ,
                 saith
                 ,
                 
                   it
                   is
                   suitable
                   to
                   natural
                   Equity
                   ,
                
                 and
                 saith
                 farther
                 ,
                 
                   that
                   he
                   is
                   debitor
                   by
                   the
                   Law
                   of
                   Nature
                   ,
                   who
                   must
                   pay
                   by
                   the
                   Law
                   of
                   Nations
                   ,
                
                 whose
                 faith
                 we
                 have
                 followed
                 ,
                 
                   l.
                   cumamplius
                   ,
                   ff
                   .
                   de
                   regulis
                   juris
                   ,
                
                 but
                 especially
                 ,
                 this
                 is
                 confirmed
                 by
                 the
                 Law
                 of
                 God
                 ,
                 Prov.
                 6.
                 1.
                 
                 
                   If
                   thou
                   be
                   surety
                   for
                   a
                   friend
                   ,
                   if
                   thou
                   hast
                   stricken
                   thy
                   hand
                   with
                   a
                   stranger
                   ,
                   thou
                   art
                   taken
                   with
                   the
                   words
                   of
                   thy
                   mouth
                   ,
                
                 and
                 the
                 performance
                 of
                 words
                 is
                 acknowledged
                 ,
                 
                   a
                   part
                   of
                   Gods
                   righteousness
                   ,
                   Nehemiah
                
                 9.
                 vers
                 .
                 8.
                 
                 Hebrews
                 10.
                 vers
                 .
                 23.
                 where
                 it
                 is
                 acknowledged
                 
                   a
                   part
                   of
                   Gods
                   faithfulness
                
                 .
                 And
                 if
                 Promises
                 were
                 not
                 morally
                 oblieging
                 ,
                 they
                 could
                 have
                 no
                 effect
                 ,
                 but
                 by
                 Positive
                 Law
                 (
                 which
                 is
                 no
                 more
                 it self
                 then
                 a
                 publick
                 Paction
                 ,
                 
                   laborans
                   eodem
                   morbo
                
                 )
                 and
                 then
                 all
                 Pactions
                 and
                 Agreements
                 among
                 Nations
                 would
                 be
                 ineffectual
                 ,
                 and
                 all
                 Commerce
                 and
                 Society
                 among
                 men
                 should
                 be
                 destroyed
                 ,
                 Pactions
                 ,
                 Contracts
                 ,
                 Covenants
                 and
                 Agreements
                 ,
                 are
                 Synonimous
                 Terms
                 ,
                 both
                 in
                 themselves
                 ,
                 and
                 according
                 to
                 the
                 recent
                 Customes
                 of
                 this
                 and
                 other
                 Nations
                 ;
                 so
                 that
                 it
                 will
                 be
                 unnecessar
                 to
                 trace
                 the
                 many
                 subtilties
                 and
                 differences
                 amongst
                 Pactions
                 and
                 Contracts
                 in
                 the
                 Roman
                 Law.
                 
              
               
                 11.
                 
                 This
                 much
                 only
                 in
                 a
                 word
                 ,
                 their
                 Contracts
                 were
                 of
                 four
                 kinds
                 ,
                 either
                 perfected
                 by
                 Things
                 ,
                 Words
                 ,
                 Write
                 ,
                 or
                 sole
                 consent
                 .
                 Contracts
                 by
                 intervention
                 of
                 things
                 ,
                 remain
                 naked
                 Pactions
                 ,
                 ineffectual
                 ,
                 until
                 something
                 be
                 given
                 or
                 done
                 by
                 either
                 party
                 to
                 other
                 ;
                 such
                 are
                 all
                 these
                 Contracts
                 ,
                 which
                 are
                 called
                 innominat
                 ,
                 which
                 have
                 not
                 a
                 special
                 Name
                 and
                 Nature
                 ,
                 acknowledged
                 in
                 the
                 Law
                 ;
                 and
                 therefore
                 ,
                 obliege
                 not
                 by
                 sole
                 consent
                 ,
                 but
                 the
                 giving
                 or
                 doing
                 of
                 the
                 one
                 party
                 only
                 ,
                 obliegeth
                 the
                 other
                 ,
                 as
                 Permutation
                 ,
                 Excambion
                 ,
                 or
                 Exchange
                 ,
                 when
                 either
                 a
                 thing
                 is
                 given
                 for
                 another
                 ,
                 or
                 a
                 thing
                 is
                 given
                 for
                 a
                 Deed
                 ,
                 Work
                 ,
                 or
                 Use
                 ,
                 or
                 one
                 Deed
                 or
                 Work
                 is
                 done
                 for
                 another
                 ,
                 for
                 the
                 which
                 ,
                 the
                 Law
                 hath
                 no
                 special
                 Name
                 ;
                 and
                 therefore
                 ,
                 names
                 them
                 ,
                 
                   do
                   ut
                   des
                   ,
                   do
                   ut
                   facias
                   ,
                   facio
                   ut
                   facias
                   .
                
              
               
                 Amongst
                 real
                 Contracts
                 ,
                 the
                 Law
                 numbereth
                 matuum
                 and
                 commodatum
                 ,
                 (
                 for
                 which
                 ,
                 we
                 have
                 but
                 the
                 one
                 name
                 of
                 Loan
                 )
                 Depositation
                 or
                 Custody
                 ,
                 Pignus
                 or
                 Pledge
                 ,
                 of
                 which
                 anone
                 .
              
               
                 Contracts
                 perfected
                 by
                 words
                 are
                 stipulations
                 ,
                 which
                 being
                 wholly
                 out
                 of
                 use
                 ,
                 we
                 shall
                 say
                 no
                 more
                 of
                 them
                 ,
                 then
                 that
                 before
                 is
                 hinted
                 .
                 The
                 third
                 kind
                 of
                 Contracts
                 is
                 these
                 ,
                 which
                 have
                 their
                 force
                 by
                 Write
                 ;
                 and
                 therefore
                 ,
                 are
                 called
                 ,
                 Chyrographa
                 .
                 The
                 hand
                 Write
                 ,
                 or
                 Subscription
                 of
                 the
                 Debitor
                 ,
                 by
                 which
                 ,
                 he
                 acknowledges
                 the
                 receipt
                 of
                 so
                 much
                 Money
                 ,
                 either
                 in
                 borrowing
                 ,
                 or
                 Tocher
                 ,
                 and
                 accordingly
                 is
                 oblieged
                 to
                 pay
                 at
                 his
                 day
                 ,
                 or
                 at
                 the
                 dissolution
                 of
                 the
                 Marriage
                 ;
                 these
                 Writes
                 for
                 the
                 space
                 of
                 two
                 years
                 after
                 their
                 date
                 and
                 delivery
                 ,
                 do
                 not
                 prove
                 the
                 recept
                 of
                 the
                 Money
                 ,
                 as
                 they
                 express
                 ;
                 but
                 during
                 that
                 time
                 ,
                 if
                 the
                 Creditor
                 pursue
                 thereupon
                 ,
                 he
                 must
                 prove
                 the
                 delivery
                 of
                 the
                 Money
                 :
                 and
                 the
                 Law
                 presumes
                 ,
                 that
                 the
                 Write
                 was
                 given
                 ,
                 
                   spe
                   numerandaepecuniae
                
                 ,
                 upon
                 hope
                 of
                 delivery
                 of
                 the
                 Money
                 ,
                 but
                 after
                 the
                 two
                 years
                 ,
                 it
                 presumes
                 the
                 Money
                 to
                 be
                 delivered
                 ;
                 and
                 therefore
                 ,
                 
                 then
                 the
                 Write
                 is
                 〈◊〉
                 ,
                 and
                 is
                 the
                 cause
                 of
                 the
                 Obligation
                 ;
                 whether
                 the
                 Money
                 was
                 delivered
                 or
                 not
                 ,
                 after
                 which
                 ,
                 the
                 Debitor
                 could
                 not
                 prove
                 the
                 not
                 delivery
                 of
                 the
                 Money
                 ,
                 even
                 by
                 the
                 Oath
                 of
                 the
                 Creditor
                 ,
                 
                   l.
                   in
                   contractibus
                   ,
                   ff
                   .
                   de
                   non
                   numerata
                   pecunia
                   ,
                
                 but
                 this
                 is
                 also
                 changed
                 with
                 us
                 ,
                 and
                 with
                 the
                 Neighbour
                 Nations
                 ,
                 as
                 Baldimius
                 testifieth
                 ,
                 
                   ad
                   titulum
                   ,
                   Just.
                   de
                   lit
                   .
                   oblig
                   .
                
                 And
                 
                   Boetius
                   ,
                   de
                   consuetudine
                   ,
                   tit
                   .
                   de
                   jurisdic
                   .
                
                 And
                 
                   Rebuffus
                   ,
                   ad
                   proximum
                   ,
                   const
                   .
                   Reg.
                   gloss
                   .
                
                 5.
                 num
                 .
                 59.
                 
                 So
                 now
                 the
                 Custome
                 is
                 ,
                 that
                 the
                 Write
                 is
                 not
                 the
                 Substance
                 of
                 the
                 Obligation
                 ,
                 but
                 is
                 only
                 a
                 Probation
                 of
                 the
                 Promise
                 ;
                 though
                 in
                 some
                 case
                 it
                 be
                 a
                 necessar
                 solemnity
                 ,
                 till
                 which
                 ,
                 the
                 parties
                 may
                 resile
                 ,
                 as
                 hath
                 been
                 formerly
                 showen
                 :
                 But
                 the
                 Write
                 being
                 subscribed
                 and
                 delivered
                 ,
                 proves
                 from
                 its
                 date
                 ,
                 and
                 is
                 valide
                 ,
                 unless
                 it
                 be
                 improven
                 ,
                 yet
                 so
                 ,
                 as
                 it
                 admitteth
                 contrair
                 Probation
                 by
                 the
                 Creditors
                 Oath
                 or
                 Write
                 ,
                 though
                 the
                 Write
                 bear
                 the
                 numeration
                 of
                 Money
                 ,
                 and
                 do
                 expresly
                 renounce
                 the
                 exception
                 of
                 not
                 numerate
                 Money
                 .
              
               
                 The
                 last
                 kind
                 of
                 Contracts
                 are
                 these
                 ,
                 which
                 are
                 by
                 sole
                 consent
                 ,
                 as
                 are
                 the
                 Contracts
                 of
                 Sale
                 ,
                 Location
                 ,
                 or
                 Hyring
                 ,
                 Society
                 ,
                 and
                 Mandat
                 or
                 Commission
                 ;
                 but
                 not
                 only
                 now
                 these
                 ,
                 but
                 all
                 other
                 Promises
                 and
                 Pactions
                 are
                 valide
                 Contracts
                 ,
                 by
                 sole
                 consent
                 ,
                 except
                 where
                 Write
                 is
                 requisite
                 ,
                 as
                 is
                 before
                 expressed
                 ,
                 and
                 this
                 consent
                 may
                 be
                 either
                 express
                 by
                 Word
                 ,
                 Write
                 ,
                 or
                 Fact
                 ,
                 by
                 doing
                 Deeds
                 importing
                 consent
                 ,
                 which
                 therefore
                 is
                 called
                 Homologation
                 ,
                 whereof
                 acceptance
                 of
                 any
                 Right
                 is
                 a
                 special
                 kind
                 ,
                 and
                 it
                 takes
                 place
                 in
                 many
                 cases
                 ,
                 but
                 it
                 cannot
                 take
                 place
                 unless
                 it
                 be
                 proven
                 ,
                 or
                 presumed
                 that
                 the
                 Homologator
                 knew
                 the
                 Right
                 ;
                 and
                 therefore
                 ,
                 a
                 Bond
                 drawen
                 in
                 name
                 of
                 several
                 Apprizers
                 ,
                 to
                 communicate
                 their
                 Rights
                 ,
                 and
                 subscribed
                 by
                 some
                 ,
                 found
                 not
                 Homologat
                 by
                 one
                 who
                 subscribed
                 not
                 ,
                 seing
                 it
                 appeared
                 not
                 that
                 he
                 knew
                 thereof
                 ,
                 though
                 
                   de
                   facto
                
                 ,
                 he
                 concurred
                 in
                 pursuits
                 with
                 these
                 Apprizers
                 to
                 exclude
                 other
                 Rights
                 ,
                 July
                 6.
                 1661.
                 
                 
                   Telfair
                   contra
                   Maxtoun
                
                 and
                 Cunninghame
                 .
                 Neither
                 doth
                 Homologation
                 take
                 place
                 ,
                 where
                 the
                 Deed
                 done
                 may
                 be
                 attribute
                 to
                 another
                 cause
                 ,
                 and
                 so
                 possessing
                 Lands
                 ,
                 whereof
                 there
                 was
                 an
                 Infeftment
                 granted
                 ,
                 in
                 satisfaction
                 of
                 a
                 Wifes
                 Contract
                 ,
                 was
                 not
                 inferred
                 ,
                 where
                 she
                 was
                 appearand
                 Heir
                 to
                 another
                 person
                 Infeft
                 ,
                 December
                 12.
                 1665.
                 
                 
                   Christian
                   Barns
                   contra
                   Helen
                   Young.
                
                 But
                 such
                 an
                 Infeftment
                 was
                 found
                 Homologat
                 by
                 seven
                 years
                 Possession
                 ,
                 and
                 setting
                 several
                 Tacks
                 ,
                 as
                 Liferenter
                 ,
                 though
                 there
                 was
                 a
                 general
                 obliegement
                 to
                 Infeft
                 the
                 Wife
                 in
                 Lands
                 of
                 such
                 a
                 value
                 ,
                 none
                 being
                 exprest
                 ,
                 though
                 it
                 was
                 not
                 instructed
                 that
                 the
                 warrand
                 of
                 the
                 Seasing
                 was
                 ever
                 known
                 to
                 the
                 woman
                 ,
                 and
                 only
                 generally
                 mentioned
                 in
                 the
                 Band
                 ,
                 but
                 her
                 knowledge
                 was
                 presumed
                 after
                 so
                 many
                 Acts
                 ,
                 November
                 14.
                 1665.
                 
                 
                   Barbara
                   Skein
                
                 and
                 Mr.
                 
                   David
                   Thores
                   contra
                
                 Sir
                 
                   Andrew
                   Ramsay
                
                 .
                 Neither
                 was
                 a
                 Debt
                 found
                 Homologate
                 by
                 payment
                 on
                 a
                 Decreet
                 ,
                 being
                 pronounced
                 by
                 the
                 English
                 Officers
                 ,
                 before
                 Law
                 was
                 patent
                 ,
                 July
                 24.
                 1661.
                 
                 
                   Jack
                   contra
                   Fiddes
                
                 .
                 Neither
                 doth
                 payment
                 of
                 one
                 Article
                 of
                 a
                 Decret
                 Arbitral
                 ,
                 Homologate
                 others
                 of
                 a
                 different
                 Nature
                 ,
                 November
                 22.
                 1662.
                 
                 
                   Pringle
                   contra
                   Dune
                
                 .
                 Homologation
                 of
                 a
                 Fathers
                 Legacy
                 ,
                 as
                 to
                 his
                 Children
                 ,
                 was
                 inferred
                 by
                 his
                 Relicts
                 Confirming
                 the
                 Testament
                 without
                 Protestation
                 ,
                 not
                 to
                 aprove
                 that
                 Legacy
                 ,
                 February
                 19.
                 1663.
                 
                 
                   Bessie
                   Muir
                   contra
                   Jean
                   Stirling
                
                 .
                 But
                 where
                 a
                 Relict
                 in
                 the
                 Confirmation
                 ,
                 Protested
                 not
                 to
                 prejudge
                 her
                 own
                 Right
                 ,
                 by
                 a
                 provision
                 contained
                 in
                 the
                 Testament
                 ,
                 in
                 favours
                 of
                 her
                 Daughter
                 ,
                 it
                 was
                 not
                 found
                 to
                 Homologate
                 the
                 same
                 ,
                 July
                 12.
                 1671.
                 
                 
                   Marjory
                   Murray
                   contra
                   Isobel
                   Murray
                
                 .
                 Homologation
                 of
                 a
                 Fewars
                 Right
                 ,
                 not
                 inferred
                 by
                 acceptance
                 of
                 two
                 years
                 Duty
                 ,
                 after
                 declarator
                 of
                 the
                 nullity
                 ,
                 further
                 then
                 that
                 no
                 more
                 could
                 be
                 demanded
                 for
                 these
                 two
                 years
                 ,
                 June
                 6.
                 1666.
                 
                 Earl
                 of
                 
                   Cassils
                   contra
                
                 Sir
                 
                   Andrew
                   Agnew
                
                 .
                 Neither
                 did
                 the
                 payment
                 of
                 some
                 years
                 Annualrent
                 
                 Homologat
                 a
                 Decret
                 of
                 Poinding
                 the
                 Ground
                 ,
                 as
                 being
                 an
                 Act
                 necessary
                 to
                 shun
                 Poinding
                 of
                 the
                 Tennants
                 ,
                 February
                 9.
                 1672.
                 
                 Cockburn
                 of
                 
                   Piltoun
                   contra
                   Halyburtoun
                
                 and
                 Burnet
                 .
                 Neither
                 did
                 a
                 Ministers
                 receiving
                 a
                 Tack
                 Duty
                 of
                 Teinds
                 ,
                 hinder
                 him
                 to
                 reduce
                 the
                 Tack
                 thereafter
                 ,
                 as
                 being
                 without
                 consent
                 of
                 the
                 Patron
                 ,
                 February
                 27.
                 1668.
                 
                 Mr.
                 
                   William
                   Chalmer
                   contra
                   Wood
                
                 of
                 Balbegno
                 .
                 Neither
                 did
                 the
                 payment
                 of
                 Annualrent
                 after
                 Majority
                 ,
                 by
                 a
                 Minor
                 Cautioner
                 ,
                 paying
                 with
                 the
                 Principals
                 Money
                 ,
                 and
                 taking
                 Discharge
                 to
                 him
                 only
                 ,
                 hinder
                 the
                 Minor
                 to
                 Reduce
                 ,
                 February
                 14.
                 1668.
                 
                 Sir
                 
                   George
                   Mckenzie
                   contra
                
                 Mr.
                 
                   John
                   Fairholme
                
                 .
                 Neither
                 the
                 payment
                 of
                 Annualrent
                 to
                 an
                 indigent
                 Sister
                 ,
                 after
                 Majority
                 ,
                 exclude
                 Reduction
                 upon
                 Minority
                 ,
                 but
                 Registrating
                 the
                 Contract
                 after
                 Majority
                 ,
                 without
                 Charge
                 or
                 Execution
                 ,
                 was
                 found
                 to
                 infer
                 Homologation
                 ,
                 June
                 28.
                 1671.
                 
                 
                   Helen
                   Homecontra
                   Rentoun
                
                 Justice
                 Clerk.
                 Neither
                 did
                 the
                 Confirming
                 of
                 a
                 Sum
                 as
                 Moveable
                 ,
                 hinder
                 the
                 Confirmer
                 to
                 recover
                 it
                 as
                 Heretable
                 ,
                 June
                 28.
                 1672.
                 
                 
                   Kilgour
                   contra
                   Menzies
                   .
                   December
                
                 23.
                 1673.
                 
                 
                   Mitchel
                   contra
                   Mitchel
                
                 .
                 Neither
                 doth
                 the
                 granting
                 of
                 a
                 Precept
                 of
                 Seasing
                 on
                 obedience
                 ,
                 import
                 acknowledgement
                 of
                 Right
                 ,
                 or
                 exclude
                 Reduction
                 ,
                 and
                 Improbation
                 ,
                 December
                 20.
                 1662.
                 
                 
                   Mochrum
                   contra
                   Myretoun
                
                 and
                 Airiolland
                 .
                 Neither
                 was
                 a
                 Decret
                 found
                 Homologat
                 by
                 taking
                 Discharge
                 ,
                 and
                 giving
                 a
                 Bond
                 without
                 abatement
                 ,
                 which
                 might
                 import
                 transaction
                 ,
                 the
                 granter
                 being
                 in
                 the
                 Messengers
                 hands
                 ,
                 under
                 Caption
                 ,
                 July
                 3.
                 1668.
                 
                 
                   Thomas
                   Row
                   contra
                   Andrew
                   Houston
                
                 .
                 Neither
                 was
                 Homologation
                 of
                 the
                 truth
                 of
                 a
                 Debt
                 ,
                 inferred
                 by
                 granting
                 Bond
                 by
                 a
                 Party
                 in
                 Prison
                 ,
                 for
                 not
                 finding
                 Caution
                 ,
                 
                   Judicatum
                   solvi
                   ,
                   February
                
                 18.
                 1680.
                 
                 Mr.
                 
                   Andrew
                   Burnet
                   contra
                   John
                   Ewing
                
                 .
                 Neither
                 did
                 allowance
                 to
                 a
                 Tennant
                 in
                 his
                 Rent
                 of
                 Annualrent
                 payed
                 by
                 him
                 ,
                 exclude
                 Reduction
                 of
                 the
                 Bond
                 on
                 Minority
                 ,
                 though
                 the
                 allowance
                 was
                 after
                 Majority
                 ,
                 December
                 14.
                 1675.
                 
                 
                   James
                   Moodie
                   contra
                   Mcintosh
                
                 .
                 Neither
                 accepting
                 a
                 Bond
                 joyntly
                 with
                 another
                 ,
                 did
                 Homologate
                 the
                 Right
                 of
                 that
                 other
                 ,
                 February
                 1.
                 1676.
                 
                 
                   Veich
                   contra
                   Ker
                
                 and
                 Pallat.
                 
              
               
                 Consent
                 may
                 be
                 adhibit
                 by
                 signes
                 ,
                 as
                 the
                 borrowing
                 of
                 a
                 Watch
                 by
                 a
                 sign
                 made
                 by
                 the
                 borrowers
                 hand
                 ,
                 was
                 found
                 to
                 obliege
                 him
                 to
                 restore
                 ,
                 though
                 another
                 instantly
                 borrowed
                 it
                 that
                 same
                 way
                 from
                 him
                 ;
                 nor
                 was
                 the
                 first
                 lenders
                 silence
                 in
                 an
                 Act
                 so
                 subite
                 ,
                 interpret
                 a
                 consent
                 to
                 the
                 second
                 loan
                 ,
                 July
                 3.
                 1662.
                 
                 Lord
                 
                   Couper
                   contra
                
                 Lord
                 Pitsligo
                 .
                 But
                 a
                 Dumb
                 man
                 subscribing
                 a
                 Discharge
                 ,
                 was
                 not
                 found
                 to
                 infer
                 his
                 consent
                 ,
                 in
                 favours
                 of
                 his
                 Sister
                 ,
                 seing
                 he
                 knew
                 not
                 what
                 it
                 imported
                 ,
                 July
                 9.
                 1663.
                 
                 
                   Hamiltoun
                   contra
                   〈◊〉
                
                 .
                 Neither
                 was
                 consent
                 to
                 a
                 March
                 inferred
                 by
                 the
                 one
                 Heretors
                 building
                 a
                 Dyke
                 ,
                 and
                 anothers
                 silence
                 for
                 a
                 time
                 ,
                 January
                 8.
                 1663.
                 
                 
                   Patrick
                   Nicol
                   contra
                
                 Sir
                 
                   Alexander
                   Hope
                
                 .
                 Neither
                 was
                 the
                 knowledge
                 and
                 silence
                 of
                 a
                 Husband
                 ,
                 found
                 to
                 infer
                 his
                 consent
                 to
                 his
                 future
                 Spouse
                 ,
                 renuncing
                 a
                 part
                 of
                 her
                 jointure
                 ,
                 after
                 Proclamation
                 ,
                 and
                 yet
                 going
                 on
                 in
                 the
                 Marriage
                 ,
                 January
                 5
                 1666.
                 
                 Lady
                 Bute
                 and
                 her
                 Husband
                 contra
                 Sheriff
                 of
                 Bute
                 .
                 And
                 albeit
                 consent
                 to
                 the
                 Contents
                 of
                 a
                 Write
                 ,
                 is
                 not
                 always
                 inferred
                 from
                 subscribing
                 as
                 a
                 witness
                 ;
                 yet
                 in
                 some
                 cases
                 it
                 is
                 ,
                 when
                 the
                 consent
                 relates
                 not
                 to
                 the
                 Tenor
                 ,
                 but
                 to
                 the
                 time
                 of
                 subscribing
                 ,
                 as
                 an
                 Heirs
                 subscribing
                 as
                 a
                 witness
                 to
                 a
                 Write
                 on
                 death
                 bed
                 ,
                 June
                 25.
                 1663.
                 
                 Stuart
                 of
                 
                   Ascock
                   contra
                   Stuart
                
                 of
                 Arnholm
                 .
                 But
                 the
                 consent
                 of
                 a
                 Party
                 to
                 a
                 Decret
                 ,
                 was
                 not
                 found
                 probable
                 by
                 the
                 Decret
                 ,
                 without
                 a
                 warrant
                 under
                 the
                 Consenters
                 hand
                 ,
                 seing
                 it
                 appeared
                 that
                 the
                 minut
                 of
                 the
                 Decret
                 ,
                 on
                 the
                 judicial
                 consent
                 was
                 not
                 instantly
                 written
                 ,
                 but
                 long
                 after
                 ,
                 and
                 it
                 was
                 no
                 ordinar
                 point
                 in
                 Process
                 consented
                 to
                 ,
                 but
                 a
                 transaction
                 of
                 a
                 special
                 Nature
                 ,
                 July
                 24.
                 1661.
                 
                 Laird
                 of
                 
                   Buchannan
                   contra
                
                 L.
                 Collonel
                 Osburn
                 ,
                 but
                 one
                 of
                 the
                 parties
                 having
                 offered
                 Implement
                 by
                 Instrument
                 ,
                 〈◊〉
                 
                 by
                 the
                 Witnesses
                 insert
                 ,
                 was
                 not
                 suffered
                 to
                 quarrel
                 his
                 consent
                 ,
                 as
                 not
                 under
                 his
                 hand
                 ,
                 February
                 4.
                 1671.
                 
                 
                   Lowrie
                   contra
                   Gibson
                
                 .
                 But
                 consent
                 was
                 not
                 found
                 to
                 be
                 inferred
                 by
                 subscribing
                 Witness
                 ,
                 as
                 to
                 the
                 Contents
                 of
                 the
                 Writ
                 ,
                 February
                 1.
                 1676.
                 
                 
                   Veich
                   contra
                   Ker
                
                 and
                 Pallat.
                 Yea
                 ,
                 though
                 the
                 Write
                 did
                 bear
                 the
                 Witness
                 to
                 be
                 Cautioner
                 ,
                 unless
                 it
                 were
                 proven
                 by
                 the
                 Witnesses
                 insert
                 ,
                 that
                 the
                 Write
                 was
                 fully
                 Read
                 to
                 that
                 Witness
                 before
                 he
                 subscribed
                 ,
                 July
                 26.
                 1672.
                 
                 Mr.
                 
                   Airthur
                   Gordoun
                   contra
                   Menzies
                
                 .
              
               
                 12.
                 
                 All
                 Pactions
                 and
                 Contracts
                 ,
                 being
                 now
                 equally
                 efficacious
                 ,
                 may
                 according
                 to
                 their
                 subject
                 matter
                 be
                 taken
                 up
                 thus
                 ;
                 they
                 are
                 either
                 meerly
                 gratuitous
                 ,
                 as
                 he
                 who
                 oblieges
                 himself
                 to
                 bestow
                 a
                 Horse
                 ,
                 is
                 thereby
                 bound
                 ,
                 But
                 there
                 is
                 no
                 Obligation
                 on
                 the
                 other
                 ;
                 but
                 if
                 the
                 Donation
                 be
                 perfected
                 by
                 a
                 present
                 tradition
                 of
                 the
                 thing
                 Gifted
                 ,
                 there
                 is
                 no
                 Obligation
                 contracted
                 on
                 either
                 hand
                 ;
                 or
                 next
                 the
                 Obligation
                 is
                 gratuitous
                 on
                 the
                 one
                 part
                 as
                 Loan
                 ,
                 which
                 is
                 either
                 by
                 the
                 free
                 lending
                 of
                 things
                 ,
                 consistent
                 in
                 number
                 ,
                 measure
                 ,
                 and
                 weight
                 ,
                 which
                 the
                 Law
                 regardeth
                 as
                 a
                 quantity
                 ,
                 without
                 regard
                 to
                 the
                 individual
                 body
                 or
                 thing
                 ,
                 such
                 being
                 commonly
                 of
                 equal
                 value
                 ,
                 according
                 to
                 their
                 quantities
                 ,
                 these
                 are
                 called
                 Fungibles
                 ,
                 as
                 Money
                 ,
                 Corn
                 ,
                 Wine
                 ,
                 either
                 where
                 the
                 Loan
                 is
                 expresly
                 ,
                 or
                 implicitly
                 ,
                 for
                 the
                 delivery
                 of
                 the
                 like
                 quantities
                 ,
                 though
                 not
                 the
                 same
                 very
                 thing
                 .
                 Or
                 otherways
                 ,
                 it
                 is
                 the
                 lending
                 the
                 use
                 of
                 a
                 particular
                 thing
                 ,
                 to
                 be
                 delivered
                 again
                 ,
                 the
                 same
                 in
                 substance
                 ,
                 the
                 former
                 is
                 called
                 mutuum
                 ,
                 the
                 latter
                 commodatum
                 ,
                 in
                 both
                 ,
                 if
                 the
                 thing
                 lent
                 be
                 not
                 delivered
                 ,
                 this
                 will
                 be
                 effectual
                 to
                 cause
                 it
                 be
                 delivered
                 ,
                 though
                 it
                 be
                 gratuitous
                 ,
                 if
                 it
                 be
                 in
                 the
                 lenders
                 power
                 ;
                 but
                 on
                 the
                 part
                 of
                 the
                 borrower
                 ,
                 it
                 is
                 onerous
                 ,
                 for
                 he
                 is
                 oblieged
                 ,
                 either
                 to
                 restore
                 the
                 same
                 body
                 ,
                 or
                 the
                 same
                 quantity
                 .
                 Such
                 also
                 is
                 Commission
                 or
                 Mandat
                 ,
                 whereby
                 the
                 Mandatar
                 doth
                 freely
                 undertake
                 ,
                 and
                 is
                 oblieged
                 ,
                 
                   susceptum
                   perficere
                   munus
                
                 ,
                 and
                 that
                 freely
                 ;
                 but
                 he
                 is
                 onerously
                 oblieged
                 to
                 restore
                 ,
                 what
                 by
                 the
                 Mandat
                 he
                 hath
                 from
                 the
                 Mandator
                 ,
                 as
                 the
                 Mandator
                 is
                 oblieged
                 to
                 refound
                 him
                 his
                 Interest
                 and
                 Expences
                 .
                 Such
                 also
                 is
                 the
                 Contract
                 of
                 Custody
                 .
                 Or
                 Depositum
                 ,
                 which
                 is
                 a
                 kind
                 of
                 Commission
                 ,
                 whereby
                 the
                 Depositar
                 undertakes
                 the
                 Custody
                 of
                 the
                 thing
                 depositate
                 .
                 Pledge
                 is
                 also
                 a
                 kind
                 of
                 Commission
                 ,
                 whereby
                 the
                 thing
                 impledged
                 is
                 given
                 to
                 a
                 Creditor
                 for
                 his
                 security
                 ,
                 that
                 he
                 may
                 detain
                 ;
                 and
                 in
                 case
                 of
                 not
                 payment
                 ,
                 he
                 may
                 sell
                 it
                 and
                 pay
                 himself
                 .
              
               
                 The
                 other
                 Contracts
                 are
                 such
                 as
                 are
                 Onerous
                 on
                 both
                 parts
                 ,
                 and
                 Obligator
                 on
                 both
                 parts
                 ,
                 and
                 in
                 them
                 there
                 is
                 also
                 always
                 ,
                 
                   quid
                   pro
                   quo
                
                 ,
                 according
                 to
                 the
                 nature
                 and
                 intent
                 of
                 these
                 Contracts
                 ,
                 observing
                 in
                 them
                 an
                 equality
                 of
                 the
                 deeds
                 or
                 things
                 to
                 be
                 done
                 or
                 given
                 on
                 either
                 part
                 ,
                 as
                 not
                 being
                 of
                 their
                 nature
                 ,
                 or
                 of
                 the
                 direct
                 purpose
                 of
                 the
                 parties
                 gratuitous
                 ,
                 or
                 donative
                 ;
                 for
                 uptaking
                 of
                 these
                 ,
                 we
                 must
                 consider
                 ,
                 that
                 all
                 that
                 can
                 come
                 in
                 these
                 Obligations
                 ,
                 is
                 either
                 something
                 to
                 be
                 given
                 ,
                 or
                 the
                 use
                 or
                 fruit
                 of
                 something
                 ,
                 or
                 the
                 labour
                 ,
                 work
                 ,
                 or
                 deeds
                 of
                 Persons
                 :
                 and
                 among
                 things
                 ,
                 special
                 consideration
                 is
                 had
                 of
                 Money
                 ,
                 which
                 is
                 the
                 common
                 token
                 of
                 Exchange
                 ;
                 and
                 therefore
                 ,
                 there
                 are
                 special
                 Contracts
                 in
                 relation
                 to
                 it
                 ,
                 different
                 from
                 the
                 Exchange
                 of
                 other
                 things
                 :
                 So
                 then
                 ,
                 all
                 these
                 Permutative
                 Contracts
                 ,
                 are
                 either
                 of
                 things
                 for
                 things
                 ,
                 as
                 are
                 Permutation
                 ,
                 Excambion
                 ,
                 Barter
                 ,
                 &c.
                 
                 Or
                 of
                 things
                 for
                 numbered
                 Money
                 ,
                 and
                 that
                 is
                 sale
                 ,
                 or
                 Money
                 for
                 Money
                 ,
                 as
                 by
                 Bill
                 of
                 Exchange
                 .
              
               
                 Secondly
                 ,
                 Profite
                 ,
                 use
                 ,
                 fruit
                 ,
                 or
                 work
                 ,
                 may
                 be
                 either
                 exchanged
                 with
                 things
                 ,
                 and
                 this
                 hath
                 no
                 proper
                 name
                 ,
                 but
                 is
                 called
                 in
                 Law
                 ,
                 
                   facio
                   ut
                   des
                
                 ;
                 or
                 otherways
                 may
                 be
                 exchanged
                 for
                 the
                 like
                 use
                 ,
                 profite
                 ,
                 or
                 work
                 ,
                 neither
                 had
                 this
                 a
                 
                 proper
                 name
                 ,
                 but
                 is
                 called
                 
                   facio
                   ut
                   facias
                
                 :
                 But
                 if
                 the
                 use
                 and
                 profite
                 of
                 things
                 ,
                 deeds
                 or
                 industry
                 of
                 persons
                 ,
                 be
                 exchanged
                 for
                 Money
                 ,
                 or
                 other
                 Fugibles
                 ,
                 it
                 is
                 called
                 Location
                 ,
                 and
                 Conduction
                 .
              
               
                 And
                 Lastly
                 ,
                 If
                 the
                 Contract
                 be
                 not
                 to
                 Exchange
                 totally
                 things
                 ,
                 use
                 ,
                 or
                 work
                 for
                 the
                 like
                 ,
                 but
                 to
                 communicate
                 them
                 together
                 ,
                 where
                 there
                 is
                 an
                 Exchange
                 in
                 part
                 ,
                 there
                 arises
                 the
                 Contract
                 of
                 Society
                 ;
                 in
                 which
                 ,
                 sometimes
                 Money
                 or
                 things
                 ,
                 by
                 the
                 Society
                 are
                 communicate
                 ,
                 and
                 the
                 property
                 constitute
                 in
                 the
                 Society
                 without
                 division
                 ;
                 or
                 sometime
                 the
                 use
                 of
                 things
                 ,
                 or
                 Money
                 ,
                 are
                 by
                 the
                 Society
                 communicat
                 on
                 the
                 one
                 part
                 ,
                 and
                 the
                 substance
                 of
                 Money
                 on
                 the
                 other
                 ,
                 so
                 that
                 the
                 property
                 of
                 the
                 ones
                 Money
                 remains
                 his
                 own
                 ,
                 and
                 the
                 profite
                 becomes
                 common
                 ;
                 or
                 there
                 may
                 be
                 communication
                 of
                 work
                 with
                 Money
                 ,
                 or
                 work
                 with
                 work
                 ,
                 though
                 these
                 be
                 the
                 most
                 ordinar
                 Contracts
                 among
                 men
                 ,
                 yet
                 there
                 be
                 as
                 many
                 varieties
                 as
                 the
                 conjunction
                 or
                 variety
                 of
                 these
                 things
                 ,
                 in
                 the
                 various
                 use
                 or
                 humours
                 of
                 men
                 can
                 make
                 up
                 ,
                 as
                 the
                 contract
                 of
                 Assurance
                 :
                 where
                 Money
                 or
                 things
                 are
                 given
                 ,
                 for
                 the
                 hazard
                 of
                 any
                 thing
                 that
                 is
                 in
                 danger
                 ,
                 whether
                 it
                 be
                 Goods
                 or
                 Persons
                 .
                 We
                 shall
                 only
                 then
                 touch
                 the
                 common
                 requisites
                 ,
                 First
                 of
                 all
                 Contracts
                 ,
                 and
                 next
                 the
                 specialities
                 of
                 the
                 prime
                 ,
                 unto
                 which
                 Law
                 or
                 Custome
                 hath
                 given
                 a
                 special
                 Nature
                 ,
                 that
                 by
                 the
                 very
                 naming
                 of
                 the
                 Contract
                 and
                 Agreement
                 ,
                 therein
                 all
                 the
                 Obligations
                 interests
                 and
                 consequences
                 thence
                 arising
                 ,
                 are
                 known
                 commonly
                 and
                 presumed
                 ,
                 and
                 as
                 effectual
                 as
                 if
                 they
                 were
                 all
                 exprest
                 ,
                 without
                 necessity
                 ,
                 to
                 dispute
                 precisely
                 ,
                 what
                 Reason
                 and
                 Equity
                 will
                 conclude
                 ,
                 from
                 the
                 nature
                 of
                 what
                 is
                 done
                 or
                 said
                 .
                 This
                 seems
                 to
                 be
                 the
                 only
                 profitable
                 distinction
                 betwixt
                 Contracts
                 nominate
                 and
                 innominate
                 ;
                 for
                 in
                 all
                 Contracts
                 ,
                 not
                 only
                 that
                 which
                 is
                 exprest
                 must
                 be
                 performed
                 ,
                 but
                 that
                 which
                 is
                 necessarly
                 consequent
                 and
                 implyed
                 ,
                 but
                 in
                 nominate
                 Contracts
                 ,
                 Law
                 hath
                 determined
                 these
                 implications
                 ;
                 we
                 shall
                 therefore
                 speak
                 specially
                 of
                 the
                 Contracts
                 of
                 Loan
                 ,
                 Commission
                 ,
                 Custody
                 ,
                 Pledge
                 ,
                 Excambion
                 ,
                 Sale
                 ,
                 Location
                 and
                 Contracts
                 ,
                 Usurary
                 and
                 Society
                 .
                 Transaction
                 may
                 well
                 be
                 numbered
                 amongst
                 mutual
                 onerous
                 Contracts
                 ,
                 for
                 thereby
                 either
                 party
                 quiteth
                 a
                 part
                 of
                 what
                 he
                 claims
                 ,
                 for
                 shunning
                 the
                 hazard
                 and
                 expences
                 of
                 Law
                 ,
                 which
                 being
                 an
                 useful
                 mean
                 to
                 terminat
                 Pleas
                 ,
                 the
                 Law
                 of
                 this
                 and
                 most
                 Nations
                 observe
                 the
                 same
                 unviolably
                 ,
                 and
                 will
                 not
                 admit
                 the
                 recalling
                 thereof
                 ,
                 upon
                 any
                 thing
                 can
                 be
                 pretended
                 from
                 new
                 discovery
                 of
                 the
                 parties
                 Rights
                 ,
                 as
                 finding
                 of
                 Writes
                 or
                 Witnesse
                 ;
                 but
                 if
                 nothing
                 be
                 abated
                 ,
                 there
                 is
                 no
                 Transaction
                 ;
                 and
                 therefore
                 ,
                 a
                 Bond
                 for
                 a
                 sum
                 ,
                 for
                 which
                 the
                 party
                 was
                 under
                 Caption
                 ,
                 being
                 without
                 any
                 abatement
                 ,
                 was
                 found
                 no
                 Transaction
                 ,
                 July
                 13.
                 1668.
                 
                 
                   Thomas
                   Rew
                   contra
                   Houstoun
                
                 .
                 Neither
                 was
                 payment
                 made
                 ,
                 
                   pendente
                   processu
                
                 ,
                 without
                 abatement
                 found
                 a
                 Transaction
                 ,
                 January
                 8.
                 1673.
                 
                 Sir
                 
                   James
                   Ramsay
                   contra
                   Robison
                
                 .
                 Neither
                 was
                 Transaction
                 inferred
                 by
                 granting
                 a
                 Bond
                 for
                 Accompts
                 ,
                 for
                 which
                 the
                 granter
                 of
                 the
                 Bond
                 was
                 Arrested
                 ,
                 unless
                 a
                 lesser
                 sum
                 had
                 been
                 accepted
                 ,
                 then
                 what
                 was
                 claimed
                 by
                 the
                 Accompts
                 ;
                 here
                 the
                 instructinos
                 of
                 the
                 Accompts
                 were
                 not
                 given
                 up
                 ,
                 nor
                 a
                 Discharge
                 thereof
                 ,
                 but
                 an
                 obliegement
                 to
                 give
                 a
                 general
                 Discharge
                 upon
                 payment
                 of
                 the
                 Sum
                 contained
                 in
                 the
                 Bond
                 ,
                 February
                 18.
                 1680.
                 
                 Mr.
                 
                   Andrew
                   Burnet
                   contra
                   John
                   Ewing
                
                 .
              
               
                 13.
                 
                 For
                 the
                 common
                 requisites
                 and
                 properties
                 of
                 Contracts
                 ,
                 First
                 ,
                 They
                 must
                 be
                 deeds
                 of
                 the
                 rational
                 appetitte
                 or
                 will
                 ,
                 which
                 ,
                 as
                 we
                 have
                 said
                 ,
                 can
                 only
                 constitute
                 Rights
                 ;
                 therefore
                 the
                 consent
                 of
                 Infants
                 can
                 work
                 nothing
                 ,
                 because
                 they
                 have
                 not
                 the
                 use
                 of
                 Reason
                 ;
                 and
                 though
                 equity
                 keepeth
                 not
                 one
                 time
                 for
                 the
                 attainment
                 of
                 Reason
                 ,
                 but
                 takes
                 it
                 as
                 soon
                 as
                 truely
                 it
                 is
                 ,
                 which
                 in
                 some
                 is
                 much
                 sooner
                 ,
                 and
                 in
                 some
                 much
                 later
                 ;
                 yet
                 Positive
                 Law
                 ,
                 
                 following
                 that
                 which
                 is
                 most
                 ordinary
                 for
                 stabilities
                 sake
                 ,
                 fixes
                 it
                 at
                 the
                 end
                 of
                 Pupilarity
                 ,
                 which
                 in
                 men
                 is
                 fourteen
                 ,
                 and
                 in
                 women
                 twelve
                 years
                 of
                 age
                 ;
                 so
                 neither
                 Infants
                 ,
                 Idiots
                 ,
                 nor
                 Furious
                 Persons
                 ,
                 except
                 in
                 their
                 lucide
                 Intervals
                 ,
                 can
                 contract
                 :
                 This
                 is
                 to
                 be
                 cognosced
                 by
                 an
                 Inquest
                 ,
                 upon
                 a
                 Brief
                 of
                 the
                 Chancellary
                 ,
                 called
                 the
                 Brief
                 of
                 Idiotry
                 ,
                 which
                 is
                 mainly
                 for
                 appointing
                 the
                 nearest
                 Agnat
                 to
                 be
                 Tutor
                 to
                 such
                 :
                 And
                 the
                 deeds
                 of
                 Idiots
                 are
                 not
                 only
                 void
                 after
                 this
                 Inquest
                 ,
                 but
                 after
                 their
                 Idiotry
                 ,
                 or
                 Furiosity
                 ,
                 when
                 ever
                 it
                 began
                 ,
                 which
                 therefore
                 must
                 be
                 cognosced
                 ,
                 yet
                 it
                 was
                 sustained
                 by
                 Reduction
                 without
                 a
                 Brief
                 ,
                 at
                 the
                 furious
                 persons
                 instance
                 ,
                 Convalescing
                 ,
                 February
                 21.
                 1531.
                 
                 
                   Elizabeth
                   Alexander
                   contra
                   Kinneir
                
                 .
                 And
                 at
                 the
                 Instance
                 of
                 the
                 Furious
                 Persons
                 Heir
                 ,
                 for
                 anulling
                 an
                 Assignation
                 ,
                 July
                 28.
                 1638.
                 
                 
                   James
                   Loch
                   contra
                   William
                   Dyke
                
                 .
                 But
                 it
                 was
                 not
                 found
                 competent
                 by
                 exception
                 ,
                 Spots
                 Idiots
                 ,
                 
                   Crawford
                   contra
                   Kinneir
                
                 .
                 Furiosity
                 taketh
                 away
                 the
                 Escheat
                 of
                 these
                 ,
                 as
                 self-murtherers
                 ,
                 being
                 then
                 Furious
                 ,
                 Hope
                 ,
                 horning
                 ,
                 
                   Robert
                   Ripeth
                   contra
                   William
                   Wauchop
                
                 .
              
               
                 Secondly
                 ,
                 These
                 also
                 ,
                 who
                 through
                 Fear
                 or
                 Drunkenness
                 ,
                 or
                 Disease
                 ,
                 have
                 not
                 for
                 the
                 time
                 ,
                 the
                 use
                 of
                 Reason
                 ,
                 do
                 not
                 Contract
                 .
              
               
                 Thirdly
                 ,
                 These
                 who
                 erre
                 in
                 the
                 Substantials
                 of
                 what
                 is
                 done
                 ,
                 contract
                 not
                 ;
                 we
                 shall
                 not
                 here
                 debate
                 of
                 the
                 effect
                 of
                 Extortion
                 ,
                 Error
                 or
                 Circumvention
                 ,
                 what
                 influence
                 they
                 have
                 upon
                 Contracts
                 ,
                 but
                 refer
                 that
                 to
                 the
                 former
                 Title
                 .
                 These
                 who
                 are
                 Deaf
                 or
                 Dumb
                 may
                 Contract
                 ,
                 if
                 they
                 have
                 the
                 use
                 of
                 Reason
                 ,
                 if
                 it
                 appear
                 they
                 understood
                 what
                 was
                 done
                 ,
                 and
                 exprest
                 their
                 consent
                 ,
                 by
                 their
                 ordinary
                 known
                 signs
                 .
              
               
                 And
                 Last
                 ,
                 Positive
                 Law
                 for
                 Utilities
                 sake
                 ,
                 hath
                 disabled
                 Minors
                 ,
                 having
                 Curators
                 ,
                 to
                 Contract
                 without
                 their
                 consent
                 .
                 Like
                 unto
                 these
                 are
                 Persons
                 Interdicted
                 ,
                 of
                 which
                 before
                 ,
                 this
                 much
                 for
                 requisite
                 in
                 the
                 persons
                 Contracting
                 .
              
               
                 Secondly
                 ,
                 In
                 the
                 Act
                 of
                 Contracting
                 ,
                 it
                 must
                 be
                 of
                 purpose
                 to
                 obliege
                 ,
                 either
                 really
                 or
                 presumptively
                 ,
                 and
                 so
                 must
                 be
                 serious
                 ,
                 so
                 that
                 what
                 is
                 exprest
                 in
                 jest
                 or
                 scorn
                 ,
                 makes
                 no
                 Contract
                 .
              
               
                 Thirdly
                 ,
                 In
                 the
                 matter
                 of
                 Contracts
                 it
                 is
                 requisite
                 ,
                 that
                 it
                 be
                 of
                 things
                 in
                 our
                 power
                 in
                 their
                 kind
                 ;
                 and
                 so
                 Contracts
                 of
                 impossibilities
                 are
                 void
                 ;
                 and
                 Contracts
                 in
                 things
                 unlawful
                 are
                 also
                 void
                 ;
                 but
                 though
                 the
                 particular
                 thing
                 be
                 not
                 in
                 our
                 power
                 ,
                 and
                 be
                 not
                 manifestly
                 impossible
                 ,
                 the
                 Contract
                 is
                 obligator
                 ;
                 and
                 albeit
                 it
                 cannot
                 obtain
                 its
                 effect
                 ,
                 upon
                 that
                 thing
                 it
                 is
                 effectual
                 for
                 the
                 equivalent
                 ,
                 as
                 damnage
                 and
                 interest
                 ,
                 Contracts
                 may
                 interveen
                 where
                 there
                 interceeds
                 a
                 Natural
                 and
                 Obediential
                 Obligation
                 ,
                 where
                 it
                 hath
                 this
                 use
                 to
                 declare
                 and
                 express
                 the
                 Natural
                 Obligation
                 to
                 avoid
                 debate
                 thereupon
                 :
                 But
                 the
                 proper
                 matter
                 of
                 Contracts
                 ,
                 are
                 things
                 free
                 ,
                 and
                 the
                 declaration
                 or
                 acknowledgement
                 of
                 necessar
                 duties
                 may
                 be
                 free
                 ,
                 though
                 the
                 duty
                 it self
                 be
                 necessar
                 ,
                 yet
                 where
                 Obediential
                 and
                 Conventional
                 Obligations
                 are
                 concurring
                 ,
                 they
                 are
                 both
                 Obligator
                 .
              
               
                 14.
                 
                 It
                 is
                 the
                 property
                 of
                 permutative
                 Contracts
                 ,
                 that
                 the
                 purpose
                 of
                 the
                 Contracters
                 is
                 to
                 keep
                 an
                 equality
                 in
                 the
                 worth
                 and
                 value
                 of
                 the
                 things
                 ,
                 fruit
                 or
                 works
                 interchanged
                 ,
                 the
                 value
                 is
                 regulate
                 according
                 to
                 the
                 common
                 esteem
                 and
                 custome
                 of
                 men
                 in
                 every
                 place
                 ,
                 and
                 its
                 liquidat
                 or
                 known
                 by
                 Money
                 ,
                 or
                 some
                 fungible
                 like
                 unto
                 Money
                 ,
                 as
                 Suggar
                 and
                 Tobacco
                 in
                 the
                 American
                 Islands
                 ,
                 for
                 Money
                 being
                 the
                 common
                 token
                 of
                 Exchange
                 ;
                 and
                 therefore
                 ,
                 having
                 virtually
                 in
                 it
                 all
                 things
                 ,
                 they
                 are
                 accounted
                 better
                 or
                 worse
                 ,
                 or
                 equal
                 ,
                 according
                 to
                 the
                 common
                 rate
                 of
                 the
                 place
                 ,
                 as
                 they
                 are
                 worth
                 in
                 Money
                 for
                 
                 the
                 time
                 ,
                 the
                 prime
                 grounds
                 of
                 this
                 common
                 estimate
                 are
                 necessity
                 ,
                 utility
                 ,
                 and
                 delectation
                 ,
                 whether
                 it
                 be
                 real
                 or
                 imaginary
                 ,
                 as
                 
                   Plin.
                   lib.
                
                 9.
                 cap.
                 55.
                 
                 
                   Margaritis
                   pretium
                   luxuria
                   fecit
                
                 ,
                 such
                 is
                 the
                 value
                 of
                 Portraits
                 ,
                 Tulips
                 ,
                 or
                 other
                 Flowers
                 ,
                 upon
                 which
                 ,
                 in
                 some
                 places
                 ,
                 a
                 far
                 greater
                 rate
                 hath
                 been
                 put
                 ,
                 then
                 any
                 usefulness
                 thereof
                 would
                 allow
                 ;
                 hence
                 it
                 is
                 that
                 the
                 rate
                 of
                 things
                 does
                 frequently
                 change
                 ,
                 as
                 the
                 necessity
                 or
                 esteem
                 of
                 them
                 changeth
                 ,
                 and
                 the
                 more
                 they
                 abound
                 ,
                 the
                 easier
                 is
                 their
                 rate
                 .
              
               
                 But
                 the
                 question
                 is
                 here
                 ,
                 whether
                 in
                 these
                 Contracts
                 there
                 be
                 a
                 moral
                 necessity
                 to
                 keep
                 an
                 exact
                 equality
                 ,
                 that
                 whosoever
                 ,
                 
                   ex
                   post
                   facto
                
                 ,
                 shall
                 be
                 found
                 to
                 have
                 made
                 an
                 unequal
                 Bargain
                 ,
                 the
                 advantager
                 ought
                 to
                 repair
                 the
                 loser
                 :
                 in
                 this
                 the
                 Romans
                 did
                 not
                 notice
                 every
                 inequality
                 ,
                 but
                 that
                 which
                 was
                 enorm
                 ,
                 above
                 the
                 half
                 of
                 the
                 just
                 value
                 ,
                 which
                 our
                 Custome
                 alloweth
                 not
                 ,
                 June
                 23.
                 1669.
                 
                 
                   Robert
                   Farie
                   contra
                   James
                   Inglis
                
                 .
                 And
                 the
                 opinion
                 of
                 
                   Grotius
                   ,
                   de
                   jure
                   belli
                   ,
                   l.
                
                 2.
                 cap.
                 12.
                 
                 Is
                 for
                 the
                 affirmative
                 upon
                 this
                 ground
                 ,
                 chiefly
                 that
                 the
                 purpose
                 of
                 the
                 Contracters
                 is
                 to
                 give
                 one
                 thing
                 for
                 an
                 other
                 of
                 equal
                 value
                 ,
                 without
                 purpose
                 to
                 gift
                 on
                 either
                 hand
                 ;
                 yet
                 the
                 contrair
                 opinion
                 is
                 more
                 probable
                 in
                 some
                 cases
                 ,
                 wherein
                 ,
                 though
                 it
                 be
                 the
                 purpose
                 of
                 the
                 parties
                 ,
                 to
                 interchange
                 things
                 of
                 equal
                 value
                 ,
                 without
                 Donation
                 ;
                 yet
                 that
                 equality
                 hath
                 no
                 determinate
                 or
                 certain
                 rule
                 ,
                 but
                 their
                 own
                 opinions
                 :
                 for
                 as
                 is
                 said
                 before
                 ,
                 the
                 special
                 affection
                 and
                 opinion
                 of
                 the
                 owner
                 ,
                 is
                 a
                 peice
                 of
                 his
                 interest
                 and
                 injoyment
                 ;
                 and
                 if
                 the
                 thing
                 be
                 taken
                 from
                 him
                 unwarrantably
                 ,
                 and
                 cannot
                 be
                 restored
                 ,
                 the
                 Reparation
                 is
                 not
                 according
                 to
                 the
                 common
                 rate
                 ,
                 but
                 
                   secundum
                   pretium
                   affectionis
                
                 ,
                 according
                 to
                 the
                 value
                 the
                 owner
                 had
                 of
                 it
                 ;
                 and
                 if
                 that
                 owner
                 sell
                 it
                 for
                 the
                 rate
                 he
                 thought
                 it
                 worth
                 ,
                 it
                 would
                 be
                 thought
                 no
                 less
                 then
                 cousenage
                 ,
                 for
                 the
                 buyer
                 to
                 offer
                 but
                 what
                 others
                 thought
                 it
                 worth
                 ,
                 if
                 then
                 the
                 particular
                 value
                 or
                 esteem
                 be
                 the
                 first
                 rule
                 in
                 such
                 Contracts
                 ,
                 when
                 both
                 parties
                 being
                 free
                 ,
                 do
                 agree
                 upon
                 such
                 a
                 rate
                 ,
                 there
                 is
                 here
                 no
                 Donation
                 ,
                 but
                 a
                 particular
                 Estimation
                 ,
                 wherewith
                 either
                 ought
                 to
                 rest
                 satisfied
                 :
                 It
                 is
                 true
                 ,
                 where
                 there
                 is
                 no
                 rate
                 agreed
                 upon
                 ,
                 the
                 common
                 rate
                 must
                 be
                 the
                 rule
                 ,
                 but
                 it
                 cannot
                 always
                 be
                 a
                 rule
                 ,
                 seing
                 the
                 publick
                 rate
                 doth
                 but
                 arise
                 from
                 the
                 private
                 rate
                 ,
                 otherways
                 rates
                 should
                 never
                 change
                 ,
                 except
                 where
                 by
                 publick
                 Authority
                 they
                 are
                 determinate
                 ,
                 which
                 is
                 but
                 seldome
                 :
                 But
                 ordinarly
                 the
                 change
                 of
                 rates
                 begins
                 at
                 particular
                 persons
                 ,
                 and
                 the
                 second
                 Contracters
                 use
                 for
                 a
                 patern
                 the
                 first
                 ;
                 and
                 the
                 fuller
                 the
                 example
                 be
                 ,
                 the
                 stronger
                 it
                 is
                 untill
                 it
                 become
                 common
                 ;
                 and
                 therefore
                 ,
                 it
                 is
                 safest
                 to
                 conclude
                 with
                 the
                 Law
                 ,
                 
                   l.
                   si
                   voluntate
                   ,
                   C.
                   de
                   resin
                   .
                   vend
                   .
                
                 which
                 saith
                 ,
                 this
                 is
                 the
                 substance
                 of
                 buying
                 and
                 selling
                 ,
                 that
                 the
                 buyer
                 having
                 a
                 purpose
                 to
                 buy
                 cheap
                 ,
                 and
                 the
                 seller
                 to
                 sell
                 dear
                 ,
                 they
                 come
                 to
                 this
                 Contract
                 ,
                 and
                 after
                 many
                 debates
                 ,
                 the
                 seller
                 by
                 little
                 and
                 little
                 diminishing
                 what
                 he
                 sought
                 ,
                 and
                 the
                 buyer
                 adding
                 to
                 what
                 he
                 offered
                 ,
                 at
                 last
                 they
                 agree
                 to
                 a
                 certain
                 price
                 ,
                 or
                 as
                 Seneca
                 says
                 ,
                 l.
                 6.
                 
                   de
                   beneficiis
                   ,
                   cap.
                
                 15.
                 
                 It
                 is
                 no
                 matter
                 what
                 the
                 rate
                 be
                 ,
                 seing
                 it
                 is
                 agreed
                 between
                 the
                 buyer
                 and
                 the
                 seller
                 ,
                 for
                 he
                 that
                 buyes
                 well
                 ,
                 owes
                 nothing
                 to
                 the
                 seller
                 ;
                 therefore
                 ,
                 the
                 equality
                 required
                 in
                 these
                 Contracts
                 cannot
                 be
                 in
                 any
                 other
                 rate
                 then
                 the
                 parties
                 agree
                 on
                 ;
                 but
                 in
                 other
                 things
                 ,
                 this
                 equality
                 ought
                 to
                 be
                 observed
                 ,
                 as
                 in
                 any
                 Penalty
                 adjected
                 ,
                 or
                 Clauses
                 irritant
                 ,
                 which
                 therefore
                 ought
                 to
                 be
                 ,
                 and
                 are
                 reduced
                 to
                 the
                 just
                 interest
                 ,
                 what
                 ever
                 the
                 parties
                 agreement
                 be
                 :
                 So
                 then
                 ,
                 seing
                 Promises
                 and
                 Contracts
                 are
                 morally
                 binding
                 ,
                 permutative
                 Contracts
                 must
                 also
                 be
                 such
                 ,
                 else
                 they
                 should
                 not
                 bind
                 by
                 vertue
                 of
                 the
                 consent
                 ,
                 but
                 by
                 reason
                 of
                 the
                 matter
                 ;
                 but
                 in
                 them
                 as
                 in
                 all
                 others
                 ,
                 if
                 any
                 party
                 hath
                 disadvantage
                 by
                 Fraud
                 or
                 Guile
                 ,
                 it
                 ought
                 to
                 be
                 repared
                 ,
                 but
                 not
                 by
                 vertue
                 of
                 the
                 Contract
                 ,
                 but
                 from
                 the
                 Obligation
                 arising
                 from
                 that
                 Delinquence
                 ,
                 and
                 so
                 
                   unjust
                   ballances
                   are
                   an
                   abomination
                   to
                   the
                   Lord
                   ,
                
                 because
                 of
                 the
                 deceit
                 thence
                 arising
                 :
                 as
                 also
                 ,
                 
                 false
                 Money
                 ,
                 and
                 insufficient
                 Ware
                 ,
                 by
                 any
                 latent
                 insufficiency
                 or
                 defect
                 ,
                 which
                 was
                 not
                 obvious
                 and
                 easily
                 perceivable
                 by
                 the
                 acquirer
                 ,
                 in
                 which
                 case
                 ,
                 there
                 can
                 be
                 no
                 presumption
                 of
                 Fraud
                 ,
                 
                   his
                   eye
                   is
                   his
                   merchant
                
                 ;
                 but
                 in
                 others
                 ,
                 according
                 to
                 the
                 Sentence
                 of
                 
                   Ambrose
                   ,
                   in
                   Contracts
                
                 ,
                 saith
                 he
                 ,
                 
                   even
                   the
                   defects
                   of
                   the
                   things
                   which
                   are
                   sold
                   ,
                   ought
                   to
                   be
                   laid
                   open
                   ,
                   and
                   unless
                   the
                   seller
                   intimate
                   the
                   same
                   ,
                   there
                   is
                   competent
                   to
                   the
                   buyer
                   an
                   action
                   of
                   Fraud
                
                 ;
                 so
                 also
                 ,
                 if
                 the
                 buyer
                 take
                 advantage
                 of
                 the
                 ignorance
                 and
                 simplicity
                 of
                 the
                 seller
                 ,
                 and
                 where
                 there
                 is
                 no
                 alteration
                 of
                 the
                 common
                 rate
                 ,
                 nor
                 ground
                 thereof
                 asketh
                 or
                 craveth
                 more
                 if
                 it
                 be
                 not
                 deceit
                 ,
                 at
                 least
                 it
                 is
                 against
                 Charity
                 :
                 so
                 is
                 it
                 when
                 ware
                 is
                 keeped
                 up
                 till
                 pinching
                 necessity
                 ,
                 which
                 raiseth
                 extream
                 dearth
                 ,
                 or
                 when
                 some
                 special
                 necessity
                 of
                 an
                 acquirer
                 ,
                 puts
                 him
                 so
                 upon
                 the
                 mercy
                 of
                 the
                 Disponer
                 ,
                 that
                 he
                 may
                 take
                 a
                 price
                 ,
                 even
                 above
                 that
                 which
                 himself
                 accounts
                 the
                 thing
                 worth
                 ,
                 in
                 such
                 cases
                 ,
                 there
                 is
                 the
                 violation
                 of
                 the
                 Natural
                 Obligation
                 of
                 Charity
                 ,
                 whereby
                 men
                 are
                 bound
                 in
                 some
                 cases
                 ,
                 to
                 Gift
                 freely
                 to
                 the
                 necessity
                 of
                 others
                 ;
                 but
                 frequently
                 we
                 are
                 oblieged
                 to
                 exchange
                 what
                 our
                 necessity
                 may
                 spare
                 ,
                 to
                 supply
                 others
                 necessity
                 for
                 the
                 like
                 which
                 they
                 may
                 spare
                 ,
                 and
                 so
                 without
                 injury
                 ,
                 in
                 case
                 of
                 necessity
                 ,
                 men
                 may
                 be
                 compelled
                 to
                 sell
                 that
                 which
                 is
                 their
                 own
                 .
              
               
                 15.
                 
                 This
                 agreeth
                 with
                 our
                 Custome
                 ,
                 by
                 which
                 only
                 a
                 latent
                 insufficiency
                 of
                 the
                 Goods
                 and
                 Ware
                 ,
                 at
                 the
                 time
                 of
                 the
                 sale
                 and
                 delivery
                 ,
                 is
                 sufficient
                 to
                 abate
                 or
                 take
                 down
                 of
                 the
                 price
                 ,
                 but
                 not
                 unless
                 when
                 the
                 unsufficiency
                 appeared
                 ,
                 the
                 thing
                 bought
                 be
                 offered
                 to
                 be
                 restored
                 (
                 if
                 it
                 be
                 not
                 carryed
                 abroad
                 before
                 the
                 insufficiency
                 appear
                 )
                 after
                 which
                 ,
                 retention
                 is
                 accompted
                 an
                 acquiescence
                 in
                 ,
                 and
                 Homologation
                 of
                 the
                 Contract
                 :
                 So
                 no
                 other
                 then
                 the
                 latent
                 insufficiency
                 of
                 Wines
                 ,
                 as
                 being
                 mixed
                 with
                 Peary
                 ,
                 &c.
                 is
                 relevant
                 to
                 liberate
                 from
                 a
                 Bond
                 granted
                 for
                 the
                 price
                 thereof
                 .
                 But
                 the
                 insufficiency
                 of
                 a
                 Horse
                 was
                 not
                 sustained
                 to
                 liberate
                 from
                 the
                 price
                 ,
                 he
                 not
                 being
                 offered
                 when
                 that
                 appeared
                 ,
                 January
                 9.
                 1629.
                 
                 
                   Brown
                   contra
                
                 Mr.
                 
                   James
                   Nicolson
                
                 .
                 Insufficiency
                 of
                 Skins
                 received
                 upon
                 trust
                 ,
                 was
                 found
                 only
                 probable
                 by
                 the
                 Oath
                 of
                 the
                 seller
                 ,
                 after
                 the
                 buyer
                 had
                 sold
                 them
                 again
                 ,
                 July
                 7.
                 1675.
                 
                 
                   Patton
                   contra
                   Lockhart
                
                 .
              
               
                 16.
                 
                 Before
                 we
                 come
                 to
                 the
                 special
                 Contracts
                 ,
                 this
                 question
                 which
                 is
                 of
                 much
                 importance
                 in
                 practice
                 ,
                 would
                 be
                 resolved
                 ,
                 whether
                 in
                 mutual
                 or
                 reciprocal
                 Contracts
                 ,
                 a
                 party
                 Contracter
                 ,
                 or
                 his
                 Assignay
                 ,
                 can
                 obtain
                 implement
                 of
                 the
                 Articles
                 of
                 the
                 Contract
                 in
                 his
                 favour
                 ,
                 till
                 he
                 fulfill
                 or
                 cause
                 to
                 be
                 fulfilled
                 the
                 other
                 part
                 :
                 Our
                 Decisions
                 have
                 been
                 exceeding
                 various
                 in
                 this
                 matter
                 ;
                 for
                 clearing
                 whereof
                 ,
                 several
                 cases
                 must
                 be
                 distinguished
                 ;
                 First
                 ,
                 In
                 the
                 case
                 of
                 the
                 Contracters
                 themselves
                 ,
                 and
                 in
                 that
                 ,
                 either
                 the
                 mutual
                 obliegements
                 are
                 conceived
                 conditionally
                 ,
                 that
                 the
                 one
                 part
                 being
                 performed
                 ,
                 or
                 upon
                 the
                 performance
                 thereof
                 ,
                 the
                 other
                 part
                 shall
                 be
                 performed
                 ,
                 or
                 where
                 the
                 obliegements
                 are
                 not
                 conceived
                 conditionally
                 ,
                 yet
                 they
                 are
                 properly
                 mutual
                 Causes
                 ,
                 each
                 of
                 other
                 .
                 The
                 obliegement
                 to
                 deliver
                 the
                 Ware
                 ,
                 and
                 to
                 pay
                 the
                 price
                 in
                 permutation
                 ,
                 the
                 things
                 exchanged
                 ,
                 and
                 mutual
                 obliegements
                 for
                 delivery
                 thereof
                 ,
                 are
                 the
                 mutual
                 causes
                 each
                 of
                 other
                 ,
                 in
                 Location
                 ,
                 the
                 use
                 of
                 that
                 which
                 is
                 set
                 for
                 hire
                 ,
                 and
                 the
                 hire
                 are
                 the
                 mutual
                 Causes
                 ,
                 and
                 so
                 are
                 the
                 Obligations
                 ,
                 
                   hinc
                   inde
                
                 ,
                 otherways
                 ,
                 the
                 Obliegements
                 are
                 not
                 the
                 proper
                 Causes
                 each
                 of
                 other
                 ,
                 but
                 either
                 wholly
                 different
                 matters
                 ,
                 which
                 are
                 frequently
                 accumulate
                 in
                 the
                 same
                 Contracts
                 ;
                 or
                 the
                 one
                 ,
                 but
                 the
                 occasion
                 and
                 motive
                 ,
                 and
                 not
                 the
                 proper
                 cause
                 of
                 the
                 other
                 :
                 The
                 case
                 of
                 Assignays
                 must
                 be
                 considered
                 in
                 all
                 these
                 .
              
               
               
                 For
                 the
                 first
                 ,
                 The
                 Civil
                 Law
                 is
                 for
                 the
                 Negative
                 ,
                 that
                 in
                 reciprocal
                 Contracts
                 ,
                 neither
                 party
                 can
                 have
                 effectual
                 Action
                 ,
                 except
                 he
                 perform
                 the
                 whole
                 Contract
                 on
                 his
                 part
                 .
                 As
                 to
                 the
                 first
                 member
                 of
                 the
                 first
                 case
                 ,
                 there
                 is
                 no
                 question
                 ,
                 but
                 when
                 the
                 mutual
                 obliegements
                 are
                 conceived
                 conditionally
                 ,
                 he
                 that
                 demands
                 the
                 one
                 part
                 ,
                 must
                 perform
                 the
                 other
                 .
                 As
                 to
                 the
                 other
                 member
                 when
                 the
                 Obliegments
                 are
                 mutual
                 causes
                 each
                 of
                 other
                 expresly
                 ,
                 when
                 the
                 Contract
                 bears
                 ,
                 
                   for
                   the
                   which
                   causes
                
                 ;
                 or
                 when
                 by
                 the
                 nature
                 of
                 the
                 thing
                 ;
                 appeareth
                 so
                 to
                 be
                 :
                 It
                 is
                 most
                 consonant
                 to
                 reason
                 ,
                 to
                 the
                 Civil
                 Law
                 an
                 our
                 Practice
                 ,
                 that
                 neither
                 party
                 should
                 obtain
                 implement
                 of
                 the
                 obliegement
                 to
                 him
                 ,
                 till
                 he
                 fulfil
                 the
                 obliegements
                 by
                 him
                 ,
                 it
                 was
                 so
                 found
                 ,
                 July
                 27.
                 
                 〈◊〉
                 Laird
                 of
                 
                   Keirs
                   contra
                
                 Mr.
                 
                   James
                   Marjoribanks
                   Leidingtoun
                   .
                   November
                
                 〈◊〉
                 1565.
                 
                 
                   James
                   Crichtoun
                   contra
                   Marion
                   Crichtoun
                   .
                   July
                
                 1581.
                 
                 Lord
                 
                   〈◊〉
                   contra
                
                 Provost
                 of
                 Lincluden
                 ,
                 where
                 the
                 reason
                 is
                 rendered
                 ,
                 because
                 it
                 is
                 
                   〈◊〉
                   data
                   &
                   non
                   sequuta
                
                 ,
                 till
                 he
                 who
                 craves
                 implement
                 fulfil
                 his
                 own
                 part
                 ,
                 〈◊〉
                 though
                 it
                 be
                 ordinarly
                 understood
                 ,
                 when
                 the
                 cause
                 of
                 the
                 Obligationaltogether
                 faileth
                 ;
                 yet
                 upon
                 the
                 same
                 ground
                 ,
                 so
                 long
                 as
                 the
                 cause
                 is
                 suspended
                 ,
                 or
                 delayed
                 on
                 the
                 one
                 part
                 ;
                 the
                 effect
                 is
                 also
                 to
                 be
                 delayed
                 on
                 the
                 other
                 .
                 But
                 in
                 Contracts
                 ,
                 wherein
                 the
                 Obliegements
                 are
                 not
                 the
                 proper
                 Causes
                 each
                 of
                 other
                 ;
                 the
                 one
                 part
                 hath
                 effect
                 before
                 the
                 other
                 be
                 fulfilled
                 ,
                 and
                 the
                 same
                 is
                 only
                 reserved
                 or
                 declared
                 not
                 to
                 be
                 prejudged
                 by
                 way
                 of
                 Action
                 or
                 Charge
                 ,
                 
                   Sinclar
                   ,
                   February
                
                 19.
                 1548.
                 
                 Laird
                 of
                 
                   Ker
                   contra
                   Panter
                   .
                   December
                
                 1563.
                 
                 Earl
                 of
                 
                   Glencairn
                   contra
                   Commendator
                
                 of
                 Kilwinning
                 .
              
               
                 As
                 to
                 the
                 second
                 case
                 ,
                 whether
                 an
                 Assignay
                 Charging
                 or
                 Pursuing
                 upon
                 a
                 mutual
                 Contract
                 ,
                 be
                 in
                 any
                 better
                 case
                 then
                 the
                 Cedent
                 ,
                 or
                 can
                 crave
                 implement
                 ,
                 till
                 the
                 Cedents
                 part
                 be
                 performed
                 ,
                 the
                 difficulty
                 is
                 here
                 ,
                 that
                 if
                 Assiggnays
                 be
                 cloged
                 with
                 the
                 obliegements
                 of
                 the
                 Cedent
                 ,
                 it
                 will
                 marr
                 Commerce
                 ,
                 and
                 render
                 such
                 Contracts
                 ineffectual
                 ,
                 as
                 to
                 summar
                 execution
                 ,
                 and
                 so
                 Obliegements
                 therein
                 for
                 Liquid
                 sums
                 of
                 Money
                 ,
                 might
                 not
                 be
                 Poinded
                 or
                 Apprized
                 for
                 ,
                 nor
                 any
                 Execution
                 valid
                 thereupon
                 ;
                 but
                 this
                 will
                 not
                 follow
                 ,
                 for
                 though
                 these
                 Executions
                 be
                 summarly
                 used
                 ,
                 they
                 will
                 stand
                 valide
                 ,
                 only
                 the
                 effect
                 will
                 be
                 suspended
                 ,
                 till
                 the
                 other
                 part
                 be
                 performed
                 :
                 But
                 the
                 Assignay
                 having
                 no
                 title
                 whereby
                 to
                 compel
                 his
                 Cedent
                 to
                 perform
                 his
                 part
                 ;
                 therefore
                 the
                 other
                 Contracter
                 must
                 either
                 be
                 decerned
                 to
                 assign
                 his
                 part
                 of
                 the
                 Contract
                 to
                 the
                 Assignay
                 to
                 the
                 other
                 part
                 ,
                 that
                 thereupon
                 he
                 may
                 insist
                 for
                 performance
                 ;
                 and
                 that
                 before
                 the
                 Extract
                 of
                 his
                 Decreet
                 ,
                 or
                 rather
                 execution
                 may
                 be
                 sisted
                 ,
                 except
                 as
                 to
                 Adjudication
                 for
                 his
                 security
                 ,
                 till
                 he
                 procure
                 implement
                 of
                 his
                 Cedents
                 part
                 ;
                 or
                 otherways
                 ,
                 that
                 he
                 find
                 Caution
                 ,
                 that
                 the
                 other
                 Contracter
                 using
                 diligence
                 against
                 his
                 Cedent
                 for
                 performance
                 ,
                 that
                 the
                 Assignay
                 shall
                 make
                 up
                 what
                 shall
                 be
                 wanting
                 to
                 him
                 ,
                 as
                 was
                 done
                 in
                 the
                 case
                 betwixt
                 
                   William
                   Cunningham
                   contra
                   John
                   Ross
                
                 ,
                 wherein
                 an
                 Assignay
                 Charging
                 upon
                 a
                 Contract
                 for
                 the
                 price
                 of
                 Lands
                 ;
                 by
                 which
                 Contract
                 his
                 Cedent
                 was
                 oblieged
                 to
                 cause
                 the
                 Tennants
                 pay
                 certain
                 bygone
                 Ferms
                 ;
                 therefore
                 the
                 Assignay
                 was
                 ordained
                 to
                 find
                 Caution
                 for
                 satisfying
                 of
                 these
                 Ferms
                 against
                 the
                 Cedent
                 ,
                 February
                 15.
                 1627.
                 
                 
                   William
                   Cunninghame
                   contra
                   John
                   Ross.
                   Hope
                   ,
                
                 Contracts
                 ,
                 Laird
                 of
                 
                   Rentoun
                   contra
                   Robert
                   Dowglas
                
                 .
                 And
                 though
                 a
                 Donatar
                 was
                 found
                 to
                 have
                 Right
                 to
                 the
                 price
                 of
                 Lands
                 ,
                 due
                 by
                 a
                 Contract
                 ,
                 though
                 the
                 Rebel
                 had
                 not
                 performed
                 his
                 part
                 of
                 the
                 Contract
                 ,
                 
                   Hope
                   ,
                   Cessio
                   bonorum
                   ,
                   Balfour
                   contra
                   Futhy
                   ,
                
                 there
                 was
                 nothing
                 alledged
                 of
                 the
                 insolvency
                 of
                 the
                 Cedent
                 :
                 But
                 a
                 Donatar
                 pursuing
                 for
                 the
                 price
                 of
                 Fews
                 ,
                 the
                 Fewers
                 were
                 assoilzied
                 from
                 the
                 Declarator
                 ,
                 till
                 the
                 Donatar
                 obtained
                 the
                 Fews
                 to
                 be
                 perfected
                 ;
                 here
                 it
                 was
                 known
                 ,
                 the
                 Donatar
                 was
                 in
                 trust
                 for
                 the
                 Rebel
                 who
                 was
                 in
                 power
                 to
                 perform
                 ,
                 January
                 
                 28.
                 1673.
                 
                 Lord
                 Lyon
                 
                   contra
                   Arthur
                   Forbes
                
                 .
                 But
                 there
                 can
                 be
                 no
                 reason
                 that
                 the
                 one
                 part
                 of
                 the
                 mutual
                 Cause
                 should
                 be
                 effectual
                 without
                 the
                 other
                 ,
                 for
                 if
                 the
                 Cedents
                 Back-bond
                 apart
                 would
                 affect
                 the
                 Assignay
                 ,
                 much
                 more
                 when
                 it
                 is
                 in
                 the
                 same
                 Contract
                 ;
                 yea
                 ,
                 though
                 the
                 matter
                 proceed
                 not
                 by
                 way
                 of
                 Contract
                 ,
                 but
                 by
                 Bonds
                 apart
                 ;
                 if
                 thereby
                 it
                 appear
                 ,
                 that
                 these
                 Bonds
                 are
                 mutual
                 Causes
                 one
                 of
                 another
                 ,
                 the
                 effect
                 should
                 be
                 the
                 same
                 ,
                 and
                 though
                 there
                 be
                 no
                 more
                 to
                 prove
                 that
                 they
                 are
                 mutual
                 Causes
                 ,
                 but
                 that
                 they
                 are
                 of
                 the
                 same
                 date
                 ,
                 and
                 before
                 the
                 same
                 Witnesses
                 ,
                 the
                 Lords
                 will
                 readily
                 examine
                 the
                 Witnesses
                 insert
                 ,
                 
                   ex
                   officio
                
                 ,
                 whether
                 they
                 be
                 mutual
                 Causes
                 each
                 of
                 other
                 ;
                 and
                 therefore
                 ,
                 where
                 a
                 Bond
                 apart
                 did
                 bear
                 ,
                 that
                 the
                 Creditor
                 should
                 ratifie
                 a
                 Disposition
                 of
                 the
                 same
                 date
                 ,
                 at
                 his
                 Majority
                 ,
                 under
                 a
                 great
                 penalty
                 .
                 A
                 Bond
                 granted
                 apart
                 to
                 that
                 party
                 of
                 that
                 same
                 date
                 ,
                 being
                 Assigned
                 ,
                 the
                 Assignay
                 was
                 found
                 to
                 have
                 no
                 power
                 to
                 lift
                 the
                 principal
                 sum
                 ,
                 till
                 the
                 Cedent
                 ratified
                 at
                 his
                 Majority
                 ,
                 or
                 were
                 past
                 his
                 
                   anni
                   utiles
                
                 ,
                 without
                 Reduction
                 ,
                 November
                 14.
                 1628.
                 
                 
                   Cunninghame
                   contra
                   Cunninghame
                
                 .
                 The
                 like
                 was
                 found
                 ,
                 as
                 to
                 Writes
                 of
                 the
                 same
                 date
                 ,
                 with
                 a
                 Contract
                 anent
                 the
                 same
                 matter
                 ,
                 though
                 not
                 mentioned
                 in
                 the
                 Contract
                 ,
                 Hope
                 ,
                 Contract
                 ,
                 
                   Duncrub
                   contra
                   Chapman
                
                 :
                 But
                 if
                 in
                 Contracts
                 or
                 mutual
                 Bonds
                 ,
                 the
                 mutual
                 obliegements
                 have
                 different
                 terms
                 of
                 performance
                 :
                 a
                 pursuit
                 upon
                 the
                 one
                 part
                 will
                 not
                 be
                 stoped
                 by
                 not
                 performance
                 of
                 the
                 other
                 part
                 ,
                 while
                 the
                 term
                 agreed
                 for
                 the
                 performance
                 is
                 not
                 come
                 ,
                 November
                 28.
                 1676.
                 
                 Sir
                 
                   David
                   Carmichael
                
                 of
                 
                   Basmedy
                   contra
                   Dempster
                
                 of
                 Pitliver
                 .
              
               
                 17.
                 
                 To
                 come
                 now
                 to
                 particulars
                 according
                 to
                 the
                 order
                 proposed
                 ,
                 Loan
                 comprehendeth
                 both
                 the
                 Contracts
                 in
                 the
                 Law
                 ,
                 called
                 mutuum
                 ,
                 and
                 commodatum
                 ;
                 by
                 the
                 former
                 ,
                 a
                 thing
                 Fungible
                 is
                 freely
                 given
                 ,
                 for
                 the
                 like
                 to
                 be
                 restored
                 in
                 the
                 same
                 kind
                 and
                 quantity
                 ,
                 though
                 not
                 the
                 same
                 individual
                 .
                 A
                 Fungible
                 is
                 that
                 which
                 is
                 estimate
                 according
                 to
                 the
                 quantity
                 ,
                 and
                 is
                 not
                 easily
                 decernable
                 ,
                 nor
                 noticed
                 in
                 the
                 individual
                 or
                 particular
                 body
                 ,
                 but
                 only
                 in
                 the
                 like
                 quantity
                 of
                 the
                 same
                 kind
                 ,
                 the
                 chief
                 of
                 which
                 is
                 Money
                 ,
                 where
                 ordinarly
                 the
                 extrinsick
                 value
                 and
                 common
                 rate
                 is
                 regarded
                 ,
                 without
                 respect
                 to
                 the
                 matter
                 ,
                 and
                 so
                 what
                 is
                 borrowed
                 in
                 Gold
                 may
                 be
                 payed
                 in
                 Silver
                 ,
                 according
                 to
                 the
                 common
                 rate
                 of
                 the
                 place
                 ,
                 unless
                 it
                 be
                 otherways
                 contracted
                 :
                 such
                 also
                 are
                 Wine
                 ,
                 Oil
                 and
                 Grain
                 ,
                 wherein
                 the
                 quantity
                 is
                 ever
                 respected
                 in
                 the
                 same
                 kind
                 ,
                 as
                 in
                 the
                 loan
                 of
                 Wines
                 ,
                 payment
                 must
                 be
                 had
                 ,
                 not
                 only
                 by
                 the
                 Wine
                 of
                 the
                 same
                 Countrey
                 ,
                 but
                 if
                 there
                 be
                 any
                 difference
                 by
                 the
                 Wine
                 of
                 the
                 same
                 place
                 of
                 the
                 Countrey
                 ,
                 and
                 so
                 of
                 all
                 the
                 rest
                 ;
                 for
                 it
                 is
                 never
                 accompted
                 a
                 quantity
                 ,
                 where
                 there
                 can
                 be
                 other
                 differences
                 remarked
                 :
                 these
                 Fungibles
                 have
                 no
                 fruit
                 or
                 use
                 ,
                 if
                 they
                 be
                 retained
                 ;
                 and
                 therefore
                 ,
                 the
                 end
                 of
                 the
                 Contract
                 and
                 purpose
                 of
                 the
                 Contracters
                 is
                 ,
                 that
                 the
                 property
                 thereof
                 shall
                 pass
                 to
                 the
                 borrower
                 from
                 the
                 lender
                 ,
                 and
                 may
                 be
                 by
                 him
                 alienate
                 ;
                 and
                 thence
                 is
                 its
                 name
                 ,
                 for
                 
                   mutuum
                   est
                   quasi
                   de
                   meo
                   tuum
                   ,
                   l.
                
                 2.
                 
                   ff
                   .
                   de
                   rebus
                   creditis
                   :
                   Salmasius
                
                 alone
                 denyes
                 this
                 ,
                 holding
                 that
                 the
                 intent
                 of
                 this
                 Contract
                 ,
                 
                   non
                   est
                   transferredominium
                
                 ,
                 but
                 to
                 give
                 the
                 use
                 ,
                 and
                 that
                 the
                 alienation
                 falls
                 of
                 accident
                 ,
                 because
                 Law
                 makes
                 no
                 difference
                 of
                 quantities
                 of
                 the
                 same
                 kind
                 ;
                 so
                 that
                 if
                 Money
                 be
                 found
                 ,
                 Restitution
                 may
                 be
                 made
                 without
                 any
                 Contract
                 ,
                 though
                 not
                 in
                 the
                 same
                 Money
                 ,
                 but
                 in
                 the
                 like
                 ,
                 wherein
                 there
                 is
                 no
                 consent
                 ,
                 and
                 so
                 can
                 be
                 no
                 alienation
                 .
              
               
                 18.
                 
                 Yet
                 the
                 common
                 opinion
                 holds
                 ,
                 that
                 the
                 purpose
                 of
                 the
                 Contracters
                 is
                 to
                 alienate
                 ,
                 because
                 they
                 know
                 without
                 it
                 there
                 can
                 be
                 no
                 use
                 :
                 And
                 if
                 a
                 Fungible
                 be
                 not
                 lent
                 to
                 that
                 purpose
                 ,
                 but
                 only
                 to
                 be
                 detained
                 ,
                 as
                 in
                 some
                 cases
                 it
                 may
                 ,
                 as
                 Money
                 to
                 make
                 a
                 show
                 with
                 ,
                 to
                 appear
                 rich
                 ,
                 or
                 to
                 make
                 a
                 simulate
                 
                 Consignation
                 ;
                 there
                 the
                 borrower
                 without
                 injury
                 ,
                 could
                 not
                 alienate
                 ,
                 and
                 he
                 who
                 findeth
                 ,
                 unwarrantably
                 alienateth
                 his
                 Neighbours
                 Money
                 ,
                 and
                 may
                 be
                 compelled
                 ,
                 not
                 only
                 to
                 render
                 the
                 like
                 in
                 current
                 Money
                 ,
                 but
                 to
                 render
                 the
                 same
                 Species
                 and
                 pieces
                 of
                 Money
                 .
                 So
                 he
                 who
                 hath
                 the
                 custody
                 of
                 Money
                 ,
                 if
                 he
                 medle
                 with
                 it
                 he
                 commits
                 Theft
                 by
                 the
                 Law
                 ;
                 hence
                 it
                 follows
                 ,
                 that
                 the
                 whole
                 peril
                 of
                 the
                 thing
                 lent
                 ,
                 after
                 delivery
                 ,
                 is
                 the
                 borrowers
                 ,
                 
                   ejus
                   est
                   periculum
                   eujus
                   est
                   dominium
                   ,
                
                 so
                 that
                 Money
                 or
                 any
                 other
                 Fungible
                 thing
                 lent
                 ,
                 though
                 it
                 were
                 immediatly
                 taken
                 away
                 by
                 force
                 ,
                 or
                 destroyed
                 by
                 accident
                 ,
                 the
                 borrower
                 is
                 oblieged
                 to
                 pay
                 .
              
               
                 The
                 transmission
                 of
                 the
                 Property
                 of
                 things
                 lent
                 mutuo
                 ,
                 is
                 so
                 necessary
                 ,
                 that
                 without
                 it
                 ,
                 it
                 cannot
                 consist
                 ;
                 and
                 if
                 a
                 paction
                 or
                 condition
                 be
                 adjected
                 ,
                 though
                 with
                 interposition
                 of
                 a
                 Stipulation
                 ,
                 that
                 the
                 thing
                 lent
                 shall
                 not
                 be
                 alienable
                 ,
                 it
                 destroys
                 the
                 Contract
                 ,
                 and
                 trans-changes
                 it
                 into
                 commodatum
                 .
              
               
                 It
                 is
                 not
                 here
                 fit
                 to
                 repeat
                 the
                 general
                 requisites
                 of
                 mutuum
                 ,
                 common
                 to
                 other
                 Contracts
                 ,
                 as
                 that
                 it
                 must
                 be
                 done
                 by
                 an
                 act
                 of
                 the
                 Will
                 ,
                 with
                 Understanding
                 ,
                 and
                 so
                 is
                 impeded
                 by
                 Errot
                 in
                 the
                 substance
                 of
                 the
                 Contract
                 ,
                 and
                 cannot
                 be
                 effectual
                 by
                 Infants
                 ,
                 Furious
                 Persons
                 ;
                 nor
                 by
                 the
                 Civil
                 Law
                 could
                 it
                 be
                 done
                 by
                 Prodigals
                 ,
                 which
                 we
                 notice
                 not
                 ,
                 unless
                 they
                 be
                 interdicted
                 :
                 Neither
                 by
                 Minors
                 having
                 Curators
                 ,
                 without
                 their
                 consent
                 .
                 Nor
                 can
                 they
                 who
                 have
                 not
                 the
                 Right
                 of
                 Property
                 lend
                 ,
                 except
                 by
                 Commission
                 ,
                 because
                 they
                 cannot
                 transmit
                 more
                 then
                 they
                 have
                 ;
                 mutuum
                 may
                 be
                 constitute
                 by
                 such
                 as
                 can
                 Contract
                 effectually
                 ,
                 having
                 all
                 the
                 former
                 requifites
                 of
                 the
                 lender
                 .
              
               
                 19.
                 
                 And
                 the
                 Civil
                 Law
                 had
                 this
                 exception
                 further
                 ,
                 
                   per
                   Senatus
                   .
                   Consultum
                   〈◊〉
                
                 ,
                 prohibiting
                 and
                 annulling
                 lending
                 to
                 sons
                 in
                 the
                 Family
                 ,
                 which
                 our
                 Custom
                 owneth
                 not
                 ,
                 and
                 looketh
                 to
                 Sons
                 at
                 most
                 ,
                 but
                 under
                 the
                 priviledge
                 of
                 Minors
                 ,
                 if
                 within
                 age
                 ;
                 and
                 if
                 they
                 contract
                 ,
                 without
                 their
                 Fathers
                 consent
                 ,
                 who
                 is
                 their
                 lawful
                 Administrator
                 ,
                 their
                 deed
                 is
                 anullable
                 ,
                 unless
                 it
                 be
                 of
                 small
                 Importance
                 wherein
                 they
                 use
                 to
                 Negotiat
                 .
              
               
                 Our
                 Custome
                 in
                 stead
                 of
                 the
                 
                   Senatus
                   .
                   Consultum
                   Velleyanium
                
                 ,
                 in
                 favours
                 of
                 Women
                 ,
                 whereby
                 they
                 could
                 not
                 interpose
                 as
                 Cautioners
                 ,
                 or
                 any
                 ways
                 be
                 Surety
                 for
                 others
                 ,
                 hath
                 indulged
                 the
                 favour
                 to
                 Wives
                 ,
                 that
                 while
                 they
                 are
                 Married
                 ,
                 they
                 cannot
                 effectually
                 obliege
                 themselves
                 ,
                 otherways
                 then
                 in
                 reference
                 to
                 their
                 Lands
                 ,
                 of
                 which
                 formerly
                 ,
                 
                   Title
                   Conjugal
                   Obligations
                
                 .
              
               
                 20.
                 
                 Because
                 of
                 the
                 matter
                 ,
                 things
                 cannot
                 fall
                 under
                 mutuum
                 ,
                 which
                 cannot
                 be
                 〈◊〉
                 ,
                 and
                 which
                 are
                 not
                 properly
                 Fungibles
                 (
                 as
                 Money
                 ,
                 Corn
                 ,
                 Wine
                 ,
                 Oyl
                 )
                 and
                 I
                 doubt
                 not
                 ,
                 but
                 Oxen
                 ,
                 Kine
                 ,
                 and
                 Sheep
                 ,
                 are
                 mutuable
                 ,
                 as
                 is
                 ordinary
                 in
                 Steelbow-Goods
                 ;
                 which
                 are
                 delivered
                 to
                 the
                 Tennant
                 with
                 the
                 Land
                 ,
                 for
                 the
                 like
                 number
                 and
                 kind
                 at
                 his
                 removal
                 .
              
               
                 21.
                 
                 As
                 to
                 the
                 specialities
                 of
                 
                   mutuum
                   ,
                   First
                
                 ,
                 It
                 is
                 not
                 Contracted
                 without
                 delivery
                 of
                 the
                 thing
                 lent
                 ,
                 and
                 it
                 hath
                 very
                 little
                 ,
                 either
                 by
                 the
                 Civil
                 Law
                 or
                 our
                 Customes
                 ,
                 as
                 a
                 nominat
                 Contract
                 ,
                 but
                 what
                 is
                 competent
                 by
                 the
                 Obligation
                 of
                 Restitution
                 ,
                 or
                 Recompence
                 ;
                 and
                 therefore
                 ,
                 
                   promutuum
                   per
                   indebitum
                
                 ,
                 where
                 there
                 is
                 no
                 Contract
                 ,
                 is
                 equiparat
                 to
                 mutuum
                 ,
                 for
                 the
                 like
                 ,
                 not
                 only
                 in
                 kind
                 ,
                 but
                 in
                 value
                 ,
                 must
                 be
                 repayed
                 ,
                 though
                 nothing
                 be
                 exprest
                 therefore
                 .
                 As
                 he
                 who
                 lent
                 so
                 much
                 Wine
                 ,
                 is
                 not
                 oblieged
                 to
                 accept
                 the
                 same
                 kind
                 of
                 Wine
                 ,
                 but
                 also
                 of
                 the
                 same
                 value
                 ,
                 as
                 if
                 he
                 lent
                 old
                 Wine
                 ,
                 he
                 is
                 not
                 oblieged
                 to
                 take
                 new
                 ,
                 which
                 is
                 accompted
                 worse
                 .
                 l.
                 3.
                 
                   ff
                   .
                   de
                   rebus
                   creditis
                
                 ,
                 and
                 this
                 
                 is
                 rather
                 by
                 that
                 equivalence
                 ,
                 due
                 in
                 Recompence
                 ,
                 then
                 by
                 any
                 tacite
                 Paction
                 ,
                 understood
                 to
                 be
                 implied
                 in
                 this
                 Contract
                 .
                 And
                 it
                 were
                 more
                 convenient
                 for
                 Commerce
                 ,
                 that
                 there
                 should
                 be
                 understood
                 a
                 contrary
                 Paction
                 ,
                 that
                 being
                 repayed
                 in
                 the
                 same
                 kind
                 ,
                 there
                 should
                 be
                 no
                 debate
                 of
                 the
                 equivalent
                 value
                 ,
                 which
                 leaves
                 a
                 perpetual
                 incertitude
                 in
                 all
                 such
                 Contracts
                 ,
                 raising
                 ever
                 a
                 quarrel
                 ,
                 that
                 the
                 repayment
                 is
                 not
                 as
                 good
                 as
                 the
                 thing
                 lent
                 ,
                 as
                 there
                 is
                 difference
                 of
                 the
                 goodness
                 of
                 Wines
                 in
                 the
                 same
                 Countrey
                 ,
                 yea
                 ,
                 the
                 same
                 field
                 ;
                 likewise
                 there
                 is
                 a
                 difference
                 in
                 kinds
                 of
                 Money
                 ,
                 Silver
                 or
                 Gold
                 ,
                 and
                 in
                 the
                 Intrinsick
                 and
                 the
                 Extrinsick
                 Value
                 ,
                 wherein
                 the
                 common
                 opinion
                 is
                 ,
                 that
                 not
                 only
                 the
                 Extrinsick
                 ,
                 but
                 Intrinsick
                 Value
                 is
                 to
                 be
                 respected
                 ,
                 that
                 the
                 same
                 weight
                 and
                 species
                 of
                 Money
                 must
                 be
                 repayed
                 .
                 But
                 none
                 make
                 difference
                 of
                 Gold
                 or
                 Silver
                 ,
                 not
                 allayed
                 ;
                 and
                 all
                 reject
                 Copper
                 or
                 Layed-Money
                 ,
                 our
                 Custome
                 was
                 to
                 have
                 repayment
                 in
                 the
                 same
                 Intrinsick
                 Value
                 ,
                 as
                 appears
                 ,
                 Par.
                 1451.
                 cap.
                 36.
                 
                 Par.
                 1457.
                 cap.
                 19.
                 
                 Par.
                 1555.
                 cap.
                 37.
                 
                 But
                 that
                 was
                 well
                 altered
                 by
                 a
                 posterior
                 Custome
                 ,
                 allowing
                 the
                 current
                 Coin
                 for
                 the
                 time
                 ,
                 by
                 the
                 Extrinsick
                 Value
                 to
                 be
                 sufficient
                 ,
                 in
                 all
                 Redemptions
                 ,
                 much
                 more
                 in
                 personal
                 Contracts
                 ,
                 which
                 is
                 most
                 convenient
                 ,
                 seing
                 Money
                 is
                 regarded
                 as
                 the
                 Token
                 of
                 Exchange
                 ,
                 and
                 as
                 a
                 Fungible
                 ,
                 not
                 as
                 a
                 body
                 ;
                 and
                 it
                 is
                 not
                 to
                 be
                 supposed
                 ,
                 that
                 if
                 the
                 lender
                 had
                 keeped
                 his
                 Money
                 from
                 the
                 present
                 borrower
                 ,
                 that
                 he
                 would
                 have
                 lost
                 the
                 profite
                 of
                 it
                 ,
                 to
                 keep
                 it
                 up
                 till
                 the
                 Extrinsick
                 Value
                 might
                 change
                 to
                 his
                 advantage
                 ;
                 or
                 that
                 the
                 borrower
                 was
                 to
                 keep
                 it
                 by
                 him
                 ,
                 but
                 to
                 make
                 present
                 use
                 of
                 it
                 ;
                 for
                 which
                 cause
                 we
                 notice
                 not
                 the
                 Intrinsick
                 Value
                 ,
                 even
                 as
                 it
                 was
                 at
                 the
                 Term
                 of
                 payment
                 .
              
               
                 22.
                 
                 The
                 Civil
                 Law
                 gives
                 so
                 little
                 to
                 mutuum
                 ,
                 by
                 the
                 Nature
                 of
                 the
                 Contract
                 ,
                 that
                 it
                 is
                 amongst
                 the
                 Contracts
                 
                   stricti
                   juris
                
                 ,
                 where
                 nothing
                 is
                 understood
                 but
                 what
                 is
                 expressed
                 ,
                 or
                 necessarly
                 consequent
                 therefrom
                 .
                 And
                 therefore
                 ,
                 there
                 is
                 no
                 Annual
                 or
                 Profite
                 ,
                 due
                 in
                 mutuo
                 ;
                 yea
                 ,
                 though
                 it
                 be
                 expressed
                 by
                 Paction
                 ,
                 it
                 will
                 not
                 suffice
                 by
                 the
                 Civil
                 Law
                 ,
                 unless
                 it
                 be
                 by
                 Stipulation
                 ;
                 we
                 allow
                 not
                 profite
                 ,
                 
                   in
                   mutuo
                
                 ,
                 unless
                 it
                 be
                 so
                 agreed
                 upon
                 ,
                 which
                 may
                 be
                 by
                 paction
                 ,
                 even
                 
                   ex
                   intervallo
                
                 ;
                 in
                 which
                 case
                 it
                 retains
                 the
                 name
                 of
                 mutuum
                 ,
                 though
                 it
                 be
                 rather
                 Locatione
                 of
                 the
                 use
                 of
                 the
                 Fungible
                 ,
                 for
                 the
                 Annual
                 ,
                 as
                 a
                 competent
                 hire
                 ,
                 and
                 so
                 we
                 shall
                 speak
                 to
                 Annualrents
                 ,
                 not
                 here
                 ,
                 but
                 in
                 Location
                 ;
                 yet
                 the
                 Law
                 did
                 allow
                 to
                 mutuum
                 ,
                 that
                 any
                 thing
                 might
                 be
                 transchanged
                 in
                 a
                 Fungible
                 ,
                 as
                 the
                 price
                 thereof
                 ,
                 and
                 that
                 Fungible
                 constitute
                 ,
                 
                   in
                   mutuum
                
                 ,
                 which
                 is
                 equivalent
                 ,
                 as
                 if
                 the
                 Fungible
                 had
                 been
                 really
                 delivered
                 ,
                 l.
                 11.
                 
                   ff
                   .
                   de
                   rebus
                   creditis
                
                 .
                 And
                 any
                 Contract
                 is
                 easily
                 changed
                 ,
                 
                   in
                   mutuum
                   per
                   fictionem
                   braevis
                   manus
                   ,
                
                 as
                 if
                 all
                 these
                 alterations
                 had
                 been
                 actually
                 made
                 .
                 But
                 if
                 it
                 were
                 but
                 acknowledged
                 ,
                 
                   per
                   Chyrographum
                
                 ,
                 that
                 Money
                 was
                 delivered
                 ,
                 the
                 exception
                 ,
                 
                   de
                   non
                   numerata
                   pecunia
                
                 ,
                 was
                 competent
                 .
                 With
                 us
                 the
                 transmission
                 from
                 any
                 other
                 cause
                 is
                 sufficient
                 ,
                 and
                 the
                 acknowledgement
                 of
                 the
                 receipt
                 of
                 Money
                 proves
                 ,
                 unless
                 the
                 contrair
                 be
                 proven
                 by
                 Write
                 or
                 Oath
                 .
              
               
                 The
                 ordinary
                 way
                 of
                 mutuum
                 amongst
                 Merchants
                 ,
                 is
                 by
                 Bills
                 of
                 Exchange
                 ,
                 or
                 Letters
                 of
                 Credite
                 ,
                 which
                 have
                 several
                 specialities
                 ,
                 which
                 arise
                 from
                 the
                 Nature
                 of
                 these
                 Acts
                 ,
                 and
                 from
                 Custome
                 ,
                 especially
                 these
                 common
                 Customes
                 of
                 Merchants
                 ,
                 observed
                 in
                 Cities
                 of
                 greatest
                 Trade
                 ,
                 in
                 the
                 Neighbouring
                 Nations
                 .
                 The
                 Nature
                 and
                 ordinary
                 Tenor
                 of
                 these
                 Bills
                 of
                 Exchange
                 is
                 ,
                 that
                 the
                 drawer
                 of
                 the
                 Bill
                 orders
                 such
                 a
                 Merchant
                 ,
                 or
                 his
                 correspondent
                 ,
                 to
                 pay
                 the
                 sum
                 contained
                 in
                 the
                 Bill
                 upon
                 sight
                 ,
                 or
                 at
                 such
                 certain
                 time
                 ,
                 or
                 at
                 useance
                 ,
                 and
                 that
                 for
                 value
                 received
                 ,
                 wherein
                 there
                 is
                 implied
                 a
                 Mandat
                 to
                 the
                 Correspondent
                 ,
                 and
                 an
                 obliegement
                 upon
                 the
                 Drawer
                 of
                 the
                 Bill
                 ,
                 to
                 make
                 
                 that
                 Mandat
                 effectual
                 ,
                 wherein
                 mutuum
                 is
                 implied
                 ,
                 if
                 the
                 value
                 received
                 by
                 him
                 be
                 numerate
                 Money
                 ,
                 or
                 of
                 any
                 other
                 Cause
                 ,
                 such
                 as
                 delivery
                 of
                 Ware
                 ;
                 there
                 is
                 in
                 it
                 ,
                 
                   fictio
                   braevis
                   manus
                
                 ,
                 as
                 if
                 the
                 Ware
                 were
                 sold
                 to
                 the
                 drawer
                 of
                 the
                 Bill
                 ,
                 and
                 the
                 sum
                 in
                 the
                 Bill
                 were
                 the
                 price
                 received
                 ,
                 and
                 delivered
                 again
                 in
                 Loan
                 ;
                 there
                 useth
                 two
                 or
                 three
                 Bills
                 to
                 be
                 drawn
                 for
                 the
                 same
                 sum
                 ,
                 which
                 do
                 bear
                 ,
                 to
                 be
                 the
                 
                   first
                   ,
                   second
                   ,
                   and
                   third
                   Bill
                   ,
                
                 and
                 the
                 payment
                 of
                 any
                 one
                 satisfies
                 all
                 :
                 the
                 fixed
                 form
                 by
                 Custome
                 ,
                 of
                 making
                 use
                 of
                 these
                 Bills
                 ,
                 is
                 by
                 presenting
                 them
                 to
                 him
                 upon
                 whom
                 they
                 are
                 drawn
                 ,
                 and
                 if
                 he
                 accept
                 the
                 Bill
                 ,
                 he
                 Writes
                 thereupon
                 ,
                 accepts
                 ,
                 which
                 if
                 it
                 be
                 simplie
                 ,
                 he
                 becomes
                 liable
                 in
                 the
                 Terms
                 ,
                 and
                 at
                 the
                 time
                 mentioned
                 in
                 the
                 Bill
                 :
                 But
                 sometimes
                 the
                 accepter
                 doth
                 qualifie
                 his
                 Acceptance
                 ,
                 which
                 the
                 Creditor
                 by
                 the
                 Bill
                 may
                 refuse
                 ;
                 and
                 require
                 either
                 simple
                 acceptance
                 ,
                 or
                 may
                 Protest
                 for
                 Non-acceptance
                 ;
                 but
                 if
                 he
                 suffer
                 the
                 Acceptance
                 to
                 be
                 qualified
                 ,
                 it
                 imports
                 his
                 consent
                 ,
                 and
                 he
                 cannot
                 Protest
                 for
                 Non-acceptance
                 ,
                 as
                 if
                 the
                 Acceptance
                 be
                 to
                 a
                 longer
                 day
                 ,
                 then
                 what
                 is
                 contained
                 in
                 the
                 Bill
                 :
                 Or
                 if
                 it
                 bear
                 Acceptance
                 ,
                 if
                 provisions
                 come
                 betwixt
                 and
                 the
                 day
                 ;
                 or
                 if
                 Ware
                 or
                 Bills
                 in
                 hand
                 do
                 raise
                 the
                 sum
                 .
                 At
                 or
                 after
                 the
                 day
                 ,
                 the
                 Bill
                 is
                 again
                 presented
                 ,
                 and
                 if
                 payment
                 be
                 not
                 then
                 made
                 ,
                 the
                 Creditor
                 in
                 the
                 Bill
                 Protests
                 for
                 not
                 payment
                 ,
                 and
                 both
                 these
                 Protestations
                 must
                 be
                 by
                 Instrument
                 of
                 a
                 Nottar
                 ,
                 either
                 for
                 Non-acceptance
                 ,
                 or
                 not
                 Payment
                 :
                 Which
                 Instruments
                 with
                 the
                 Bill
                 ,
                 make
                 sufficient
                 Probation
                 ,
                 both
                 against
                 the
                 Drawer
                 of
                 the
                 Bill
                 ,
                 and
                 against
                 him
                 upon
                 whom
                 it
                 was
                 Drawn
                 ;
                 and
                 neither
                 Witnesses
                 ,
                 nor
                 the
                 Oath
                 of
                 Party
                 will
                 be
                 sufficient
                 to
                 supplie
                 the
                 Protest
                 :
                 So
                 that
                 the
                 Instrument
                 or
                 Protest
                 ,
                 is
                 not
                 only
                 a
                 Proof
                 ,
                 but
                 a
                 Solemnity
                 requisite
                 .
                 These
                 Protests
                 may
                 be
                 taken
                 against
                 him
                 upon
                 whom
                 they
                 were
                 drawn
                 ,
                 either
                 personally
                 ,
                 or
                 at
                 his
                 Dwelling-house
                 ,
                 which
                 was
                 sustained
                 ,
                 though
                 before
                 presenting
                 of
                 the
                 Bill
                 ,
                 the
                 party
                 upon
                 whom
                 it
                 was
                 drawn
                 was
                 dead
                 ,
                 July
                 3.
                 1664.
                 
                 
                   Hugh
                   Kennedy
                   contra
                   George
                   Hutcheson
                
                 .
              
               
                 Upon
                 Bills
                 so
                 Protested
                 ,
                 the
                 Creditor
                 in
                 the
                 Bill
                 hath
                 Action
                 ,
                 both
                 against
                 him
                 upon
                 whom
                 the
                 Bill
                 was
                 drawn
                 ,
                 if
                 through
                 his
                 fault
                 ,
                 he
                 hath
                 either
                 refused
                 to
                 accept
                 ,
                 or
                 to
                 pay
                 ,
                 and
                 so
                 if
                 he
                 had
                 Provisions
                 in
                 his
                 hand
                 ,
                 he
                 will
                 be
                 decerned
                 to
                 pay
                 ;
                 and
                 if
                 without
                 Provisions
                 ,
                 he
                 accept
                 and
                 pay
                 ,
                 the
                 drawer
                 of
                 the
                 Bill
                 becomes
                 his
                 Debitor
                 ,
                 
                   ex
                   mutuo
                
                 ,
                 or
                 
                   ex
                   mandato
                
                 .
              
               
                 The
                 Creditor
                 in
                 the
                 Bill
                 may
                 also
                 return
                 upon
                 the
                 drawer
                 of
                 the
                 Bill
                 ,
                 who
                 will
                 be
                 Decerned
                 to
                 pay
                 the
                 sum
                 ,
                 with
                 the
                 damnage
                 the
                 Creditor
                 hath
                 sustained
                 through
                 its
                 being
                 Protested
                 ,
                 wherein
                 will
                 be
                 comprehended
                 the
                 Expenses
                 of
                 the
                 Pursuit
                 against
                 the
                 Correspondent
                 ,
                 and
                 the
                 profite
                 the
                 Creditor
                 in
                 the
                 Bill
                 might
                 have
                 made
                 ,
                 if
                 according
                 to
                 it
                 ,
                 he
                 had
                 received
                 his
                 Money
                 ,
                 which
                 will
                 differ
                 in
                 several
                 persons
                 and
                 cases
                 ;
                 as
                 if
                 the
                 Creditor
                 in
                 the
                 Bill
                 be
                 not
                 a
                 Merchant
                 ;
                 the
                 ordinary
                 damnage
                 will
                 be
                 the
                 Exchange
                 ,
                 that
                 is
                 the
                 rate
                 ordinarly
                 given
                 at
                 that
                 time
                 ,
                 for
                 answering
                 Money
                 from
                 the
                 place
                 ,
                 at
                 which
                 the
                 Bill
                 was
                 drawn
                 ,
                 to
                 the
                 place
                 to
                 which
                 it
                 was
                 direct
                 ;
                 but
                 if
                 the
                 Creditor
                 in
                 the
                 Bill
                 was
                 a
                 Merchant
                 ,
                 and
                 was
                 to
                 Trade
                 with
                 the
                 sum
                 in
                 the
                 place
                 ,
                 to
                 which
                 the
                 Bill
                 was
                 direct
                 ,
                 he
                 hath
                 also
                 no
                 more
                 but
                 Exchange
                 ;
                 but
                 if
                 he
                 was
                 to
                 Trade
                 in
                 any
                 other
                 place
                 ,
                 before
                 he
                 returned
                 to
                 the
                 place
                 where
                 the
                 Bill
                 was
                 drawn
                 ,
                 he
                 will
                 not
                 only
                 get
                 Exchange
                 ,
                 but
                 Re-exchange
                 ,
                 as
                 being
                 damnified
                 in
                 the
                 profite
                 of
                 his
                 Ware
                 that
                 he
                 was
                 to
                 buy
                 ,
                 at
                 the
                 place
                 to
                 which
                 he
                 was
                 bound
                 ,
                 from
                 that
                 place
                 to
                 which
                 the
                 Bill
                 was
                 direct
                 ,
                 for
                 the
                 Ware
                 he
                 was
                 to
                 buy
                 there
                 ,
                 and
                 for
                 the
                 loss
                 of
                 his
                 profite
                 of
                 the
                 Ware
                 he
                 was
                 to
                 buy
                 at
                 the
                 second
                 prot
                 :
                 but
                 though
                 there
                 might
                 be
                 further
                 progress
                 in
                 his
                 Traffick
                 ,
                 his
                 damnage
                 is
                 no
                 further
                 extended
                 ,
                 then
                 to
                 Exchange
                 and
                 Re-exchange
                 ;
                 and
                 in
                 all
                 ,
                 the
                 Oath
                 of
                 the
                 Creditor
                 in
                 the
                 Bill
                 ,
                 concerning
                 his
                 
                 design
                 with
                 the
                 Bill
                 ,
                 must
                 be
                 sufficient
                 Probation
                 ,
                 and
                 is
                 Taxable
                 .
                 As
                 all
                 Oaths
                 
                   in
                   litem
                
                 are
                 ,
                 when
                 they
                 appear
                 Exorbitant
                 ,
                 if
                 the
                 Bill
                 of
                 Exchange
                 be
                 unsatisfied
                 by
                 an
                 interveening
                 accident
                 ,
                 which
                 the
                 drawer
                 could
                 not
                 prevent
                 ,
                 the
                 damnage
                 will
                 be
                 modified
                 or
                 taken
                 off
                 ;
                 as
                 in
                 the
                 former
                 case
                 ,
                 the
                 Correspondent
                 upon
                 whom
                 the
                 Bill
                 was
                 drawn
                 ,
                 dying
                 before
                 the
                 day
                 of
                 payment
                 ,
                 the
                 Creditor
                 in
                 the
                 Bill
                 having
                 Protested
                 at
                 his
                 Dwelling-house
                 ,
                 and
                 not
                 insisting
                 against
                 his
                 Successors
                 ,
                 but
                 returning
                 against
                 the
                 drawer
                 ,
                 he
                 got
                 no
                 Exchange
                 or
                 Re-exchange
                 ;
                 yet
                 certainly
                 ,
                 the
                 drawer
                 of
                 the
                 Bill
                 being
                 hereby
                 oblieged
                 to
                 deliver
                 the
                 Money
                 ,
                 at
                 the
                 place
                 to
                 which
                 the
                 Bill
                 was
                 directed
                 ,
                 it
                 had
                 been
                 no
                 stretch
                 to
                 give
                 him
                 Exchange
                 .
              
               
                 But
                 if
                 the
                 Correspondent
                 upon
                 whom
                 the
                 Bill
                 is
                 drawn
                 ,
                 Break
                 ,
                 or
                 become
                 Insolvent
                 ,
                 full
                 damange
                 will
                 be
                 due
                 by
                 the
                 drawer
                 ,
                 whose
                 part
                 it
                 was
                 to
                 have
                 his
                 Money
                 in
                 secure
                 hands
                 ,
                 unless
                 the
                 Correspondents
                 Insolvency
                 ,
                 be
                 by
                 the
                 delay
                 ,
                 or
                 fault
                 of
                 the
                 Creditor
                 in
                 the
                 Bill
                 ;
                 for
                 though
                 there
                 be
                 no
                 determinate
                 time
                 at
                 which
                 he
                 is
                 oblieged
                 to
                 present
                 it
                 ,
                 yet
                 conveniency
                 and
                 ordinary
                 diligence
                 is
                 implyed
                 ;
                 but
                 if
                 the
                 delay
                 sall
                 by
                 an
                 accident
                 ,
                 though
                 the
                 Correspondent
                 break
                 before
                 the
                 Bill
                 be
                 presented
                 ,
                 or
                 payed
                 ,
                 the
                 drawer
                 of
                 the
                 Bill
                 will
                 be
                 lyable
                 for
                 the
                 value
                 received
                 ,
                 but
                 for
                 no
                 damnage
                 ,
                 July
                 1.
                 1676.
                 
                 Doctor
                 
                   Wallace
                   contra
                   Simson
                
                 .
              
               
                 These
                 Bills
                 of
                 Exchange
                 are
                 Probative
                 ,
                 though
                 they
                 neither
                 have
                 Witnesses
                 ,
                 nor
                 be
                 Holograph
                 ,
                 by
                 the
                 Custome
                 of
                 Merchants
                 ,
                 because
                 of
                 the
                 exuberant
                 trust
                 among
                 them
                 ,
                 and
                 because
                 they
                 do
                 not
                 ly
                 over
                 as
                 other
                 Securities
                 ,
                 but
                 come
                 quickly
                 to
                 be
                 questioned
                 ,
                 if
                 they
                 be
                 not
                 satisfied
                 .
                 Yea
                 ,
                 a
                 Bill
                 of
                 Exchange
                 by
                 a
                 Drover
                 ,
                 neither
                 having
                 subscription
                 of
                 his
                 Name
                 ,
                 nor
                 initial
                 Letters
                 thereof
                 ,
                 but
                 a
                 mark
                 ,
                 at
                 which
                 the
                 Writer
                 of
                 the
                 Bill
                 Wrote
                 ,
                 this
                 is
                 the
                 mark
                 of
                 the
                 drawer
                 of
                 the
                 Bill
                 ,
                 the
                 Writer
                 and
                 several
                 Witnesses
                 being
                 Examined
                 ,
                 
                   ex
                   officio
                
                 ,
                 and
                 deponing
                 ,
                 that
                 it
                 was
                 the
                 Drovers
                 Custome
                 to
                 mark
                 Bills
                 thus
                 ,
                 which
                 he
                 readily
                 payed
                 ,
                 though
                 of
                 greater
                 sums
                 then
                 this
                 ,
                 which
                 was
                 an
                 hundred
                 Pound
                 Sterling
                 ,
                 and
                 one
                 Witness
                 deponing
                 that
                 he
                 saw
                 him
                 set
                 to
                 the
                 mark
                 to
                 this
                 Bill
                 ,
                 the
                 Bill
                 was
                 sustained
                 .
              
               
                 Bills
                 of
                 Exchange
                 are
                 also
                 transmitted
                 without
                 any
                 formal
                 Assignation
                 ,
                 or
                 Intimation
                 ,
                 by
                 a
                 Note
                 upon
                 the
                 Bill
                 it self
                 ,
                 ordering
                 it
                 to
                 be
                 payed
                 to
                 such
                 another
                 .
              
               
                 Bills
                 or
                 Precepts
                 ,
                 not
                 being
                 amongst
                 Merchants
                 ,
                 or
                 
                   in
                   re
                   mercatoria
                
                 ,
                 import
                 only
                 warrandice
                 upon
                 the
                 drawer
                 ,
                 and
                 give
                 action
                 against
                 the
                 person
                 upon
                 whom
                 they
                 are
                 drawn
                 ,
                 but
                 neither
                 require
                 the
                 Solemnities
                 ,
                 nor
                 have
                 the
                 Priviledge
                 or
                 Effects
                 of
                 Bills
                 of
                 Exchange
                 ,
                 but
                 have
                 only
                 the
                 Effect
                 of
                 Assignations
                 from
                 the
                 drawer
                 upon
                 him
                 upon
                 whom
                 they
                 are
                 drawn
                 .
              
               
                 Letters
                 of
                 Credit
                 among
                 Merchants
                 ,
                 are
                 equiparate
                 to
                 Bills
                 of
                 Exchange
                 in
                 some
                 cases
                 ,
                 but
                 in
                 others
                 they
                 are
                 but
                 Cautionary
                 for
                 other
                 Merchants
                 ,
                 in
                 whose
                 favours
                 they
                 are
                 granted
                 ;
                 and
                 therefore
                 ,
                 a
                 Merchants
                 Letters
                 of
                 Credite
                 ,
                 to
                 honour
                 another
                 Merchants
                 Bills
                 ,
                 was
                 only
                 found
                 effectual
                 ,
                 as
                 to
                 such
                 Bills
                 as
                 were
                 accepted
                 and
                 payed
                 ;
                 and
                 whereof
                 repayment
                 was
                 not
                 made
                 ,
                 and
                 advertisement
                 given
                 to
                 the
                 Writer
                 of
                 the
                 Letters
                 ,
                 of
                 the
                 particular
                 Bills
                 not
                 payed
                 in
                 due
                 time
                 ,
                 before
                 the
                 other
                 Merchant
                 became
                 Insolvent
                 ,
                 January
                 17.
                 1581.
                 
                 
                   John
                   Ewing
                
                 Merchant
                 in
                 
                   London
                   ,
                   contra
                
                 Mr.
                 
                   Andrew
                   Burnet
                
                 .
              
               
                 This
                 is
                 also
                 singular
                 ,
                 
                   in
                   mutuo
                
                 ,
                 by
                 the
                 Law
                 ,
                 that
                 though
                 thereby
                 Contracts
                 
                 cannot
                 be
                 made
                 ,
                 
                   per
                   tertium
                
                 ;
                 yet
                 delivery
                 by
                 the
                 Lenders
                 Debitor
                 to
                 the
                 Borrower
                 ,
                 is
                 holden
                 sufficient
                 ,
                 l.
                 15.
                 
                   ff
                   .
                   de
                   rebus
                   Cred.
                
                 
              
               
                 23.
                 
                 The
                 other
                 kind
                 of
                 Loan
                 is
                 called
                 
                   Commodatum
                   quasi
                   commodo
                   datum
                
                 ,
                 and
                 it
                 is
                 a
                 Contract
                 whereby
                 the
                 use
                 of
                 any
                 thing
                 is
                 freely
                 given
                 to
                 be
                 restored
                 ,
                 the
                 same
                 without
                 Deterioration
                 ,
                 if
                 it
                 be
                 not
                 freely
                 lent
                 ,
                 but
                 for
                 a
                 hire
                 ,
                 it
                 is
                 Location
                 ;
                 if
                 the
                 like
                 be
                 restored
                 ,
                 it
                 is
                 mutuum
                 ;
                 but
                 if
                 it
                 be
                 lost
                 thorow
                 the
                 commodatars
                 fault
                 ,
                 or
                 otherways
                 deteriorat
                 ,
                 the
                 value
                 must
                 be
                 restored
                 ,
                 either
                 as
                 it
                 was
                 estimate
                 by
                 the
                 parties
                 before
                 hand
                 ,
                 which
                 changeth
                 not
                 its
                 Nature
                 ,
                 because
                 the
                 price
                 ,
                 though
                 estimate
                 ,
                 cannot
                 be
                 offered
                 but
                 in
                 case
                 of
                 loss
                 ,
                 or
                 
                   Deterioration
                   ,
                   sine
                   dole
                
                 ,
                 if
                 there
                 be
                 no
                 estimation
                 ,
                 then
                 the
                 estimation
                 is
                 to
                 be
                 according
                 to
                 the
                 rate
                 of
                 the
                 thing
                 lent
                 ,
                 at
                 the
                 time
                 and
                 place
                 appointed
                 in
                 the
                 Contract
                 ,
                 or
                 as
                 it
                 was
                 worth
                 the
                 time
                 of
                 the
                 Sentence
                 :
                 But
                 Restitution
                 must
                 be
                 made
                 without
                 Deterioration
                 ,
                 except
                 such
                 as
                 necessarily
                 follows
                 the
                 use
                 for
                 which
                 it
                 was
                 lent
                 :
                 as
                 Cloathes
                 lent
                 may
                 be
                 worn
                 ,
                 and
                 Cattel
                 lent
                 become
                 older
                 ;
                 or
                 if
                 a
                 Horse
                 be
                 lent
                 for
                 a
                 long
                 Journey
                 ,
                 and
                 therefore
                 become
                 leaner
                 ,
                 without
                 the
                 borrowers
                 fault
                 ,
                 he
                 is
                 not
                 oblieged
                 to
                 make
                 up
                 the
                 same
                 ,
                 
                   l.
                   fin
                   .
                   ff
                   .
                   Commodati
                
                 ;
                 but
                 all
                 other
                 Deteriorations
                 must
                 be
                 made
                 up
                 ,
                 it
                 must
                 be
                 lent
                 for
                 use
                 ,
                 that
                 it
                 may
                 differ
                 from
                 Depositation
                 ,
                 that
                 admits
                 of
                 no
                 use
                 ,
                 but
                 Custody
                 .
              
               
                 This
                 Contract
                 may
                 be
                 celebrate
                 amongst
                 all
                 that
                 have
                 the
                 common
                 requisites
                 of
                 Contracting
                 ;
                 yea
                 ,
                 if
                 the
                 lender
                 have
                 the
                 Possession
                 ,
                 he
                 may
                 lend
                 ,
                 though
                 he
                 have
                 no
                 property
                 ;
                 and
                 Servitudes
                 and
                 Habitation
                 may
                 be
                 lent
                 :
                 And
                 though
                 the
                 lender
                 have
                 neither
                 Right
                 nor
                 Possession
                 lawful
                 ,
                 the
                 Law
                 saith
                 ,
                 
                   l.
                   si
                   servus
                   ff
                   .
                   Commodati
                   ,
                
                 that
                 this
                 Contract
                 hath
                 Effect
                 ,
                 which
                 is
                 only
                 to
                 be
                 understood
                 that
                 the
                 Action
                 ,
                 Commodati
                 ,
                 is
                 competent
                 ,
                 but
                 not
                 as
                 to
                 all
                 Effects
                 ;
                 for
                 the
                 borrower
                 cannot
                 effectually
                 detain
                 the
                 thing
                 lent
                 to
                 his
                 day
                 ,
                 or
                 any
                 fruit
                 thereof
                 ,
                 seing
                 the
                 lender
                 had
                 no
                 Title
                 .
              
               
                 All
                 things
                 may
                 be
                 lent
                 that
                 can
                 have
                 an
                 use
                 without
                 Consumption
                 of
                 their
                 Substance
                 ,
                 and
                 so
                 Fungibles
                 cannot
                 be
                 accommodat
                 ,
                 unless
                 they
                 be
                 given
                 ,
                 
                   ad
                   pompam
                
                 ,
                 as
                 Money
                 lent
                 ,
                 to
                 seem
                 Rich
                 ,
                 or
                 to
                 make
                 a
                 simulate
                 offer
                 or
                 Consignation
                 .
              
               
                 24.
                 
                 As
                 to
                 the
                 diligence
                 due
                 by
                 the
                 borrower
                 ,
                 the
                 case
                 must
                 be
                 distinguished
                 ;
                 for
                 some
                 things
                 may
                 be
                 accommodate
                 only
                 for
                 the
                 behove
                 of
                 the
                 lender
                 ,
                 as
                 he
                 who
                 lends
                 Cloathes
                 ,
                 or
                 instruments
                 to
                 his
                 Servants
                 for
                 his
                 own
                 use
                 and
                 honour
                 ;
                 sometimes
                 to
                 both
                 the
                 lender
                 and
                 borrowers
                 use
                 ,
                 and
                 of
                 test
                 to
                 the
                 borrowers
                 use
                 alone
                 ;
                 in
                 all
                 cases
                 ,
                 the
                 borrower
                 is
                 holden
                 ,
                 
                   de
                   dolo
                
                 :
                 Yea
                 ,
                 no
                 paction
                 can
                 be
                 valid
                 in
                 the
                 contrary
                 ,
                 as
                 against
                 good
                 manners
                 ;
                 in
                 no
                 case
                 is
                 the
                 borrower
                 oblieged
                 for
                 any
                 Accident
                 ,
                 as
                 Death
                 ,
                 Naufrage
                 ,
                 Burning
                 ,
                 unless
                 he
                 hath
                 undertaken
                 that
                 hazard
                 ,
                 either
                 expresly
                 or
                 tacitely
                 ,
                 
                   in
                   commodato
                   estimato
                
                 ,
                 which
                 imports
                 that
                 if
                 the
                 thing
                 perish
                 ,
                 it
                 is
                 lost
                 to
                 the
                 borrower
                 ,
                 and
                 he
                 must
                 pay
                 the
                 price
                 ,
                 l.
                 5.
                 
                 §
                 .
                 3.
                 
                   ff
                   commodati
                
                 :
                 For
                 as
                 in
                 
                   dote
                   estimata
                
                 ,
                 so
                 in
                 
                   commodato
                   estimato
                
                 ,
                 it
                 is
                 in
                 the
                 Debitors
                 option
                 ,
                 whether
                 to
                 restore
                 the
                 thing
                 it self
                 intire
                 ,
                 or
                 the
                 price
                 to
                 which
                 it
                 is
                 estimate
                 ;
                 but
                 if
                 the
                 Estimation
                 be
                 only
                 in
                 the
                 case
                 of
                 the
                 deterioration
                 ,
                 or
                 loss
                 ,
                 it
                 doth
                 no
                 more
                 but
                 save
                 Questions
                 as
                 to
                 the
                 value
                 ,
                 and
                 is
                 not
                 
                   commodatum
                   estimatum
                
                 ,
                 as
                 was
                 found
                 ,
                 November
                 17.
                 1668.
                 betwixt
                 the
                 Town
                 of
                 Arbroth
                 and
                 Montrose
                 :
                 Or
                 that
                 the
                 borrower
                 hath
                 applyed
                 the
                 Loan
                 to
                 another
                 use
                 ,
                 then
                 it
                 was
                 lent
                 for
                 ;
                 in
                 which
                 case
                 it
                 perisheth
                 to
                 him
                 ;
                 yea
                 ,
                 he
                 committeth
                 Theft
                 in
                 that
                 misapplication
                 ,
                 l.
                 18.
                 
                   ff
                   .
                   commodati
                
                 :
                 But
                 in
                 the
                 first
                 case
                 ,
                 the
                 borrower
                 is
                 only
                 holden
                 for
                 the
                 grossest
                 faults
                 and
                 negligence
                 ;
                 in
                 the
                 second
                 ,
                 for
                 ordinar
                 faults
                 ,
                 
                   culpa
                   
                   levi
                
                 ;
                 in
                 the
                 last
                 for
                 the
                 lightest
                 fault
                 ,
                 and
                 is
                 oblieged
                 for
                 such
                 diligence
                 ,
                 as
                 the
                 most
                 prudent
                 use
                 in
                 their
                 affairs
                 ,
                 l.
                 5.
                 
                   ff
                   .
                   commodati
                
                 .
              
               
                 25.
                 
                 Precarium
                 is
                 a
                 kind
                 of
                 commodatum
                 ,
                 differing
                 in
                 this
                 ,
                 that
                 Commodatum
                 hath
                 a
                 determinat
                 time
                 ,
                 either
                 expresly
                 when
                 the
                 use
                 of
                 a
                 thing
                 is
                 given
                 to
                 such
                 a
                 day
                 ,
                 or
                 such
                 an
                 use
                 ,
                 which
                 importeth
                 a
                 time
                 ,
                 as
                 lending
                 a
                 Book
                 to
                 Copy
                 ,
                 must
                 infer
                 so
                 much
                 time
                 as
                 may
                 do
                 it
                 ,
                 lending
                 a
                 Horse
                 to
                 ride
                 a
                 Journey
                 ,
                 must
                 import
                 a
                 competent
                 time
                 .
                 But
                 precarium
                 is
                 expresly
                 lent
                 ,
                 to
                 be
                 recalled
                 at
                 the
                 lenders
                 pleasure
                 ,
                 and
                 if
                 nothing
                 be
                 exprest
                 ,
                 it
                 is
                 presumed
                 in
                 Law
                 ,
                 commodatum
                 ,
                 during
                 the
                 use
                 granted
                 ,
                 unless
                 there
                 be
                 no
                 special
                 use
                 exprest
                 ,
                 and
                 then
                 it
                 is
                 esteemed
                 precarium
                 ,
                 because
                 there
                 can
                 be
                 no
                 time
                 consequent
                 upon
                 general
                 use
                 .
              
               
                 26.
                 
                 Commodatum
                 is
                 ended
                 by
                 the
                 ending
                 of
                 the
                 special
                 use
                 ,
                 for
                 which
                 it
                 is
                 granted
                 ,
                 or
                 the
                 time
                 prefixed
                 ,
                 or
                 by
                 Revocation
                 if
                 it
                 be
                 precarius
                 ,
                 or
                 by
                 the
                 perishing
                 of
                 the
                 matter
                 lent
                 ,
                 but
                 precarium
                 is
                 not
                 finished
                 by
                 the
                 death
                 of
                 the
                 lender
                 ,
                 till
                 his
                 Heir
                 recall
                 it
                 :
                 But
                 it
                 is
                 finished
                 by
                 the
                 death
                 of
                 the
                 borrower
                 ,
                 unless
                 it
                 be
                 otherwise
                 agreed
                 .
              
               
                 27.
                 
                 From
                 Commodatum
                 arise
                 two
                 Actions
                 ,
                 the
                 direct
                 ,
                 whereby
                 the
                 Lender
                 may
                 call
                 for
                 the
                 thing
                 lent
                 ;
                 and
                 the
                 contrary
                 ,
                 whereby
                 the
                 borrower
                 may
                 call
                 for
                 his
                 expenses
                 ,
                 wared
                 out
                 necessarly
                 ,
                 or
                 profitably
                 on
                 the
                 thing
                 lent
                 ,
                 more
                 then
                 is
                 necessary
                 to
                 preserve
                 it
                 in
                 the
                 case
                 it
                 was
                 lent
                 ,
                 which
                 he
                 may
                 use
                 by
                 way
                 of
                 exception
                 ,
                 to
                 have
                 retention
                 till
                 these
                 be
                 satisfied
                 .
              
               
                 28.
                 
                 Commission
                 is
                 called
                 in
                 Law
                 ,
                 Mandatum
                 ,
                 either
                 because
                 it
                 useth
                 to
                 be
                 exprest
                 by
                 way
                 of
                 Command
                 ,
                 or
                 Precept
                 ,
                 though
                 this
                 be
                 special
                 in
                 a
                 Precept
                 ,
                 that
                 most
                 Mandats
                 are
                 free
                 ,
                 and
                 may
                 be
                 refused
                 ;
                 but
                 Precepts
                 may
                 not
                 ,
                 when
                 the
                 party
                 upon
                 whom
                 they
                 are
                 drawn
                 ,
                 hath
                 provision
                 from
                 the
                 drawer
                 :
                 Or
                 otherwise
                 ,
                 it
                 is
                 called
                 
                   mandatum
                   quasi
                   de
                   manu
                   datum
                
                 ,
                 because
                 it
                 is
                 given
                 out
                 of
                 the
                 hand
                 ,
                 or
                 the
                 management
                 of
                 the
                 Mandant
                 ,
                 into
                 the
                 trust
                 of
                 the
                 Mandatar
                 .
                 The
                 requisites
                 of
                 this
                 Contract
                 ,
                 must
                 be
                 ,
                 first
                 ,
                 a
                 Desire
                 ,
                 Warrand
                 ,
                 or
                 Order
                 ,
                 upon
                 the
                 part
                 of
                 the
                 Mandant
                 to
                 the
                 Mandatar
                 ,
                 to
                 do
                 some
                 Affair
                 ,
                 to
                 the
                 behove
                 of
                 the
                 Mandant
                 only
                 ,
                 or
                 of
                 the
                 Mandant
                 and
                 Mandatar
                 ,
                 as
                 to
                 mannage
                 that
                 which
                 they
                 have
                 in
                 common
                 ,
                 or
                 to
                 the
                 behove
                 of
                 a
                 third
                 party
                 only
                 ,
                 or
                 of
                 a
                 third
                 party
                 and
                 the
                 Mandatar
                 ,
                 or
                 of
                 the
                 three
                 jointly
                 ;
                 for
                 if
                 to
                 the
                 behove
                 of
                 the
                 Mandatar
                 only
                 ,
                 it
                 inferreth
                 no
                 obligation
                 ,
                 but
                 either
                 is
                 a
                 meer
                 Counsel
                 ,
                 in
                 whatsoever
                 terms
                 it
                 be
                 exprest
                 ;
                 as
                 if
                 Maevius
                 desire
                 or
                 command
                 Titius
                 ,
                 not
                 to
                 imploy
                 his
                 Money
                 upon
                 Annualrent
                 ,
                 but
                 to
                 buy
                 Land
                 therewith
                 ,
                 or
                 particularly
                 to
                 buy
                 such
                 Land
                 ,
                 there
                 ariseth
                 thence
                 no
                 Obligation
                 :
                 It
                 is
                 true
                 in
                 Crimes
                 ,
                 such
                 desires
                 may
                 infer
                 punishment
                 ;
                 but
                 no
                 Obligation
                 in
                 favours
                 of
                 the
                 party
                 desired
                 :
                 Or
                 when
                 a
                 Commission
                 is
                 granted
                 only
                 to
                 the
                 behove
                 of
                 the
                 Receiver
                 ,
                 it
                 transmitteth
                 a
                 Right
                 to
                 him
                 ,
                 and
                 no
                 Obligation
                 upon
                 him
                 .
                 So
                 personal
                 Rights
                 are
                 transmitted
                 by
                 Assignations
                 ,
                 which
                 are
                 Procuratories
                 ,
                 but
                 to
                 the
                 Procurators
                 own
                 behove
                 ;
                 such
                 are
                 also
                 Precepts
                 for
                 taking
                 Seasiue
                 or
                 Possession
                 .
              
               
                 29.
                 
                 As
                 to
                 the
                 Terms
                 in
                 which
                 Mandats
                 or
                 Commissions
                 are
                 expressed
                 ,
                 if
                 it
                 be
                 any
                 way
                 to
                 the
                 behove
                 of
                 the
                 Mandant
                 ,
                 there
                 is
                 no
                 difference
                 what
                 the
                 Expression
                 be
                 ,
                 unless
                 the
                 words
                 be
                 ,
                 Mendicatorie
                 ,
                 importing
                 the
                 desire
                 of
                 a
                 Donation
                 ;
                 but
                 if
                 it
                 be
                 only
                 to
                 the
                 behove
                 of
                 the
                 Mandatar
                 ,
                 or
                 of
                 a
                 third
                 Party
                 ,
                 or
                 both
                 ,
                 without
                 any
                 behove
                 of
                 the
                 Mandant
                 ,
                 then
                 it
                 must
                 be
                 considered
                 ,
                 whether
                 the
                 words
                 import
                 only
                 a
                 Counsel
                 ,
                 that
                 the
                 Mandatar
                 do
                 
                 such
                 a
                 thing
                 upon
                 his
                 own
                 accompt
                 ;
                 in
                 which
                 case
                 there
                 is
                 no
                 Contract
                 ,
                 nor
                 Obligation
                 ,
                 unless
                 it
                 appear
                 that
                 it
                 was
                 upon
                 the
                 Mandants
                 accompt
                 ,
                 or
                 a
                 third
                 parties
                 .
              
               
                 30.
                 
                 The
                 second
                 requisite
                 is
                 the
                 Consent
                 or
                 Acceptance
                 of
                 the
                 Mandatar
                 ,
                 which
                 compleateth
                 this
                 Contract
                 ,
                 which
                 is
                 perfected
                 by
                 sole
                 Consent
                 ,
                 and
                 may
                 be
                 either
                 by
                 word
                 or
                 deed
                 ,
                 from
                 whence
                 the
                 warrand
                 of
                 the
                 Mandant
                 ,
                 and
                 acceptance
                 of
                 the
                 Mandatar
                 may
                 be
                 inferred
                 ,
                 or
                 by
                 any
                 other
                 sign
                 ,
                 as
                 by
                 pointing
                 with
                 the
                 hand
                 ,
                 or
                 beckning
                 with
                 the
                 head
                 :
                 And
                 albeit
                 it
                 was
                 free
                 to
                 accept
                 or
                 consent
                 ,
                 yet
                 it
                 is
                 obligatory
                 and
                 necessary
                 to
                 perform
                 ,
                 unless
                 
                   re
                   integra
                
                 ,
                 the
                 Mandatar
                 renounce
                 ,
                 so
                 that
                 the
                 Mandator
                 be
                 not
                 hindered
                 in
                 obtaining
                 thereafter
                 another
                 Mandatar
                 .
              
               
                 31.
                 
                 The
                 third
                 requisite
                 in
                 a
                 Mandat
                 is
                 ,
                 that
                 it
                 be
                 in
                 relation
                 to
                 a
                 thing
                 lawful
                 to
                 be
                 done
                 ,
                 for
                 it
                 cannot
                 reach
                 to
                 what
                 is
                 already
                 done
                 ;
                 and
                 being
                 in
                 a
                 matter
                 unlawful
                 ,
                 albeit
                 it
                 be
                 accepted
                 ,
                 it
                 oblieges
                 not
                 the
                 accepter
                 to
                 perform
                 ;
                 and
                 if
                 it
                 be
                 performed
                 ,
                 it
                 oblieges
                 not
                 the
                 Mandant
                 to
                 make
                 up
                 the
                 Mandatars
                 damnage
                 :
                 But
                 in
                 this
                 as
                 in
                 other
                 things
                 unlawful
                 ,
                 albeit
                 both
                 parties
                 be
                 in
                 the
                 fault
                 ,
                 
                   Potior
                   est
                   conditio
                   possidentis
                
                 ,
                 he
                 who
                 is
                 actually
                 free
                 of
                 the
                 loss
                 ,
                 hath
                 the
                 advantage
                 .
              
               
                 32.
                 
                 The
                 last
                 requisite
                 in
                 Mandats
                 ,
                 is
                 that
                 the
                 acceptance
                 must
                 be
                 free
                 ,
                 not
                 only
                 in
                 so
                 far
                 as
                 the
                 Mandatar
                 may
                 freely
                 accept
                 or
                 refuse
                 ,
                 whereby
                 a
                 proper
                 and
                 voluntary
                 Mandat
                 differs
                 from
                 a
                 necessary
                 Command
                 or
                 Precept
                 ,
                 which
                 is
                 no
                 proper
                 Mandat
                 ,
                 because
                 it
                 is
                 not
                 inferred
                 by
                 consent
                 ,
                 but
                 also
                 in
                 so
                 far
                 as
                 acceptance
                 must
                 be
                 gratuitous
                 ;
                 otherwise
                 the
                 Contract
                 thence
                 arising
                 ,
                 is
                 not
                 Mandat
                 ,
                 but
                 Location
                 :
                 Yet
                 Honoraries
                 ,
                 or
                 Sallaries
                 ,
                 for
                 performing
                 of
                 things
                 ,
                 having
                 no
                 proper
                 Price
                 nor
                 Estimation
                 ,
                 alter
                 not
                 the
                 Nature
                 of
                 this
                 Contract
                 ,
                 as
                 the
                 Sallaries
                 or
                 Honoraries
                 of
                 Physicians
                 for
                 procuring
                 of
                 Health
                 ,
                 which
                 hath
                 no
                 Price
                 ;
                 or
                 of
                 Judges
                 or
                 Advocates
                 ,
                 for
                 giving
                 or
                 procuring
                 of
                 Justice
                 .
              
               
                 33.
                 
                 It
                 is
                 implyed
                 in
                 the
                 Nature
                 of
                 Mandats
                 ,
                 that
                 it
                 is
                 personal
                 ,
                 depending
                 upon
                 the
                 singular
                 choice
                 of
                 the
                 Mandant
                 ,
                 which
                 he
                 hath
                 made
                 of
                 the
                 Mandatars
                 Person
                 ;
                 and
                 therefore
                 it
                 is
                 neither
                 continued
                 in
                 the
                 Heir
                 of
                 the
                 Mandant
                 ,
                 or
                 of
                 the
                 Mandatar
                 ;
                 but
                 
                   morte
                   mandatoris
                   perimitur
                   mandatum
                
                 ,
                 which
                 holdeth
                 also
                 upon
                 the
                 death
                 of
                 the
                 Mandatar
                 ;
                 for
                 this
                 Contract
                 arising
                 from
                 a
                 singular
                 affection
                 or
                 friendship
                 betwixt
                 both
                 ,
                 the
                 removal
                 of
                 either
                 resolves
                 that
                 Tye
                 :
                 So
                 that
                 in
                 Delegation
                 ,
                 which
                 is
                 a
                 Mandat
                 by
                 the
                 Creditor
                 to
                 his
                 Debitor
                 ,
                 to
                 pay
                 the
                 Debt
                 to
                 the
                 Creditor
                 of
                 his
                 Creditor
                 ,
                 it
                 was
                 found
                 to
                 cease
                 by
                 the
                 Death
                 of
                 the
                 Creditor
                 Mandant
                 ;
                 and
                 that
                 a
                 Letter
                 written
                 by
                 him
                 to
                 his
                 Debitor
                 to
                 pay
                 his
                 Creditor
                 ,
                 was
                 no
                 Warrand
                 to
                 pay
                 ,
                 after
                 the
                 Debitor
                 knew
                 that
                 his
                 Creditor
                 the
                 Mandator
                 was
                 dead
                 ,
                 February
                 2.
                 1628.
                 
                 Executors
                 of
                 the
                 Laird
                 of
                 
                   Duffus
                   contra
                   Forrester
                
                 :
                 But
                 here
                 there
                 is
                 an
                 exception
                 ,
                 
                   fi
                   res
                   non
                   sit
                   integra
                
                 ,
                 if
                 the
                 matter
                 of
                 the
                 Mandat
                 be
                 not
                 intire
                 ,
                 but
                 that
                 the
                 Mandatar
                 hath
                 entered
                 upon
                 ,
                 and
                 performed
                 a
                 part
                 of
                 his
                 Commission
                 ;
                 for
                 in
                 that
                 case
                 it
                 continueth
                 after
                 the
                 death
                 of
                 either
                 party
                 ;
                 It
                 hath
                 also
                 the
                 exception
                 ,
                 
                   bonae
                   fidei
                
                 ,
                 if
                 the
                 Mandatar
                 perform
                 the
                 Mandat
                 ,
                 though
                 after
                 the
                 Mandators
                 death
                 ,
                 if
                 he
                 knew
                 not
                 that
                 he
                 was
                 dead
                 ,
                 albeit
                 the
                 matter
                 was
                 intire
                 at
                 the
                 time
                 of
                 his
                 death
                 .
              
               
                 In
                 General
                 or
                 Complex
                 Mandats
                 ,
                 the
                 performance
                 of
                 a
                 part
                 doth
                 not
                 continue
                 
                 all
                 the
                 several
                 members
                 of
                 different
                 natures
                 of
                 the
                 Mandat
                 ,
                 but
                 only
                 that
                 particular
                 whereof
                 a
                 part
                 is
                 done
                 .
              
               
                 34.
                 
                 Here
                 there
                 ariseth
                 a
                 question
                 ,
                 whether
                 a
                 Mandatar
                 may
                 intrust
                 another
                 person
                 ,
                 or
                 sub-commit
                 his
                 Mandat
                 ,
                 wherein
                 the
                 Civil
                 law
                 ,
                 and
                 most
                 of
                 the
                 Doctors
                 are
                 in
                 the
                 Affirmative
                 :
                 But
                 the
                 Nature
                 of
                 the
                 Contract
                 inferreth
                 the
                 Contrary
                 ,
                 which
                 ought
                 to
                 take
                 place
                 ,
                 unless
                 Law
                 or
                 Custome
                 were
                 opposite
                 ,
                 which
                 is
                 not
                 with
                 us
                 .
                 The
                 Reasons
                 for
                 the
                 Negative
                 are
                 pregnant
                 ;
                 First
                 ,
                 Because
                 the
                 singular
                 and
                 personal
                 fitness
                 of
                 the
                 Mandatar
                 is
                 chosen
                 by
                 the
                 Mandator
                 ,
                 and
                 so
                 cannot
                 without
                 his
                 consent
                 be
                 altered
                 .
                 Secondly
                 ,
                 It
                 is
                 a
                 common
                 Ground
                 ,
                 that
                 which
                 belongeth
                 not
                 to
                 Heirs
                 ,
                 much
                 less
                 to
                 Assignays
                 or
                 Substitutes
                 .
                 Thirdly
                 ,
                 It
                 is
                 a
                 common
                 Brockard
                 ,
                 
                   delegatus
                   non
                   potest
                   delegare
                
                 ,
                 especially
                 in
                 the
                 matters
                 of
                 Jurisdiction
                 ,
                 which
                 the
                 Doctors
                 acknowledge
                 ,
                 but
                 say
                 that
                 it
                 is
                 introduced
                 by
                 the
                 Law
                 ,
                 against
                 the
                 Nature
                 of
                 this
                 Contract
                 :
                 But
                 they
                 should
                 rather
                 say
                 ,
                 that
                 the
                 power
                 of
                 sub-committing
                 in
                 extrajudicials
                 ,
                 is
                 so
                 introduced
                 .
              
               
                 It
                 is
                 true
                 ,
                 the
                 Reasons
                 foresaid
                 fail
                 in
                 some
                 cases
                 ,
                 as
                 if
                 the
                 Mandat
                 be
                 of
                 a
                 Nature
                 so
                 Common
                 ,
                 that
                 there
                 is
                 no
                 distinction
                 of
                 the
                 fitness
                 of
                 persons
                 ;
                 as
                 Precepts
                 of
                 Seasine
                 ,
                 which
                 are
                 therefore
                 directed
                 blank
                 ,
                 that
                 any
                 persons
                 Name
                 indifferently
                 may
                 be
                 filled
                 up
                 :
                 Or
                 if
                 the
                 Mandat
                 be
                 so
                 general
                 ,
                 that
                 it
                 cannot
                 be
                 all
                 performed
                 by
                 one
                 .
              
               
                 35.
                 
                 It
                 is
                 also
                 consequent
                 from
                 the
                 Nature
                 of
                 this
                 Contract
                 ,
                 that
                 it
                 is
                 Ambulatory
                 ,
                 and
                 Revockable
                 at
                 the
                 pleasure
                 of
                 the
                 Mandator
                 ,
                 even
                 though
                 it
                 bear
                 a
                 definit
                 Term
                 ;
                 because
                 that
                 being
                 introduced
                 in
                 favours
                 of
                 the
                 Mandator
                 ,
                 it
                 cannot
                 hinder
                 him
                 ,
                 
                   cuique
                   licet
                   juri
                   pro
                   se
                   introducto
                   renunciare
                   ,
                
                 which
                 holdeth
                 not
                 ,
                 when
                 the
                 Mandat
                 is
                 partly
                 to
                 the
                 Mandators
                 own
                 behove
                 ;
                 for
                 then
                 the
                 interest
                 not
                 being
                 wholly
                 the
                 Mandatars
                 ,
                 he
                 cannot
                 alter
                 the
                 time
                 agreed
                 upon
                 without
                 consent
                 of
                 the
                 Mandatar
                 :
                 Yea
                 ,
                 if
                 the
                 Mandat
                 be
                 wholly
                 to
                 the
                 behove
                 of
                 the
                 Mandatar
                 ,
                 it
                 may
                 ,
                 and
                 frequently
                 is
                 Irrevockable
                 ,
                 and
                 containeth
                 a
                 Clause
                 ,
                 
                   de
                   rato
                
                 ,
                 as
                 is
                 ordinary
                 in
                 Assignations
                 ,
                 and
                 Procuratories
                 of
                 Resignation
                 ,
                 and
                 Precepts
                 of
                 Seasine
                 ,
                 bearing
                 them
                 to
                 be
                 
                   an
                   Irrevockable
                   Power
                   and
                   Warrand
                
                 .
              
               
                 36.
                 
                 The
                 Obligation
                 arising
                 from
                 Mandat
                 ,
                 is
                 chiefly
                 upon
                 the
                 part
                 of
                 the
                 Mandatar
                 ,
                 to
                 perform
                 his
                 undertaking
                 ,
                 wherein
                 he
                 is
                 oblieged
                 to
                 follow
                 the
                 Tenor
                 of
                 his
                 Commission
                 ,
                 
                   in
                   forma
                   specifica
                
                 ,
                 in
                 so
                 far
                 as
                 it
                 is
                 special
                 and
                 express
                 ,
                 wherein
                 if
                 he
                 transgresse
                 ,
                 some
                 of
                 the
                 ancient
                 Lawers
                 denyed
                 him
                 repetition
                 of
                 his
                 expences
                 ,
                 not
                 only
                 as
                 to
                 the
                 excrescence
                 above
                 his
                 Commission
                 ,
                 but
                 for
                 all
                 ,
                 as
                 having
                 received
                 Commission
                 to
                 buy
                 such
                 a
                 Field
                 ,
                 for
                 one
                 thousand
                 Crowns
                 ,
                 he
                 had
                 bought
                 it
                 for
                 one
                 thousand
                 two
                 hundred
                 ,
                 he
                 should
                 have
                 Repetition
                 of
                 nothing
                 :
                 But
                 Proculus
                 thought
                 that
                 he
                 should
                 have
                 Action
                 for
                 the
                 part
                 in
                 the
                 Commission
                 ;
                 which
                 ,
                 as
                 the
                 more
                 benign
                 opinion
                 ,
                 Justinian
                 followeth
                 ,
                 
                   l.
                   sed
                   proculus
                
                 ,
                 4.
                 
                   ff
                   .
                   mandati
                
                 ,
                 where
                 the
                 Mandat
                 is
                 not
                 special
                 ,
                 it
                 must
                 be
                 performed
                 ,
                 
                   secundum
                   arbitrium
                   boni
                   viri
                
                 .
              
               
                 37.
                 
                 As
                 to
                 the
                 Diligence
                 whereunto
                 Mandatars
                 are
                 oblieged
                 ,
                 the
                 Doctors
                 are
                 of
                 divers
                 opinions
                 ;
                 the
                 Law
                 inclineth
                 most
                 ,
                 that
                 Mandatars
                 are
                 oblieged
                 for
                 the
                 exactest
                 Diligence
                 ,
                 and
                 for
                 the
                 lightest
                 Fault
                 :
                 But
                 by
                 the
                 Nature
                 of
                 the
                 Contract
                 ,
                 Mandatars
                 ,
                 seing
                 their
                 undertakings
                 are
                 gratuitous
                 ,
                 they
                 ought
                 to
                 be
                 but
                 lyable
                 for
                 such
                 Diligence
                 as
                 they
                 use
                 in
                 their
                 own
                 Affairs
                 ;
                 and
                 the
                 Mandatar
                 ought
                 to
                 impute
                 it
                 to
                 himself
                 ,
                 that
                 he
                 made
                 not
                 choice
                 of
                 a
                 
                 more
                 diligent
                 person
                 ,
                 which
                 our
                 Custome
                 followeth
                 ,
                 Nicol.
                 Mandats
                 ,
                 
                   David
                   Crawford
                   contra
                   Katharine
                   Alexander
                
                 .
                 And
                 a
                 Commission
                 to
                 receive
                 Money
                 abroad
                 ,
                 was
                 found
                 to
                 infer
                 no
                 Diligence
                 ,
                 Earl
                 of
                 
                   Weims
                   contra
                
                 Sr.
                 
                   William
                   Thomson
                
                 .
                 The
                 like
                 of
                 a
                 Commission
                 to
                 a
                 buyer
                 ,
                 to
                 Infeft
                 the
                 seller
                 and
                 himself
                 ,
                 and
                 to
                 do
                 all
                 other
                 things
                 necessary
                 for
                 his
                 Security
                 ,
                 December
                 16.
                 1668.
                 
                 Sir
                 
                   Alexander
                   Frazer
                   contra
                   Alexander
                   Keith
                
                 .
              
               
                 The
                 Obligation
                 upon
                 the
                 part
                 of
                 the
                 Mandator
                 ,
                 is
                 to
                 Refound
                 to
                 the
                 Mandatar
                 his
                 damnage
                 and
                 expense
                 ,
                 and
                 to
                 keep
                 him
                 harmles
                 ;
                 but
                 this
                 extends
                 not
                 unto
                 casual
                 damnages
                 ,
                 as
                 if
                 the
                 Mandatar
                 were
                 spoiled
                 in
                 the
                 way
                 ,
                 or
                 suffered
                 Shipwrack
                 in
                 going
                 about
                 the
                 Execution
                 of
                 the
                 Mandat
                 ,
                 l.
                 26.
                 
                   inter
                   causas
                
                 ,
                 §
                 .
                 6.
                 
                   non
                   omnia
                   ,
                   ff
                   .
                   Mandati
                   ,
                
                 but
                 this
                 is
                 to
                 be
                 limited
                 ,
                 unless
                 the
                 Mandat
                 do
                 specially
                 require
                 Concomitant
                 hazard
                 ,
                 as
                 if
                 a
                 Mandatar
                 be
                 sent
                 through
                 a
                 place
                 where
                 there
                 are
                 Forces
                 of
                 Enemies
                 ,
                 Robbers
                 ,
                 or
                 Pyrats
                 ,
                 commonly
                 known
                 to
                 haunt
                 the
                 place
                 ,
                 by
                 which
                 he
                 must
                 pass
                 .
              
               
                 38.
                 
                 To
                 come
                 unto
                 the
                 special
                 kinds
                 of
                 Mandats
                 ,
                 they
                 are
                 either
                 express
                 ,
                 or
                 tacit
                 ,
                 to
                 one
                 Mandatar
                 ,
                 or
                 more
                 ,
                 generall
                 ,
                 or
                 special
                 ,
                 to
                 be
                 performed
                 in
                 the
                 name
                 of
                 the
                 Mandatar
                 ,
                 for
                 the
                 Mandators
                 behove
                 ,
                 or
                 in
                 the
                 name
                 of
                 the
                 Mandator
                 :
                 As
                 also
                 ,
                 amongst
                 Mandats
                 are
                 comprehended
                 the
                 Commissions
                 of
                 Institors
                 ,
                 and
                 Exercitors
                 ,
                 and
                 all
                 Precepts
                 ,
                 Procuratories
                 ,
                 Assignations
                 ,
                 and
                 Delegations
                 .
              
               
                 39.
                 
                 A
                 tacit
                 Mandat
                 ,
                 is
                 that
                 which
                 is
                 inferred
                 by
                 signs
                 ,
                 and
                 is
                 not
                 exprest
                 by
                 words
                 ,
                 as
                 he
                 who
                 is
                 present
                 and
                 suffereth
                 another
                 to
                 mannage
                 his
                 Affairs
                 without
                 contradiction
                 ,
                 gives
                 thereby
                 a
                 tacit
                 Mandat
                 ,
                 
                   l.
                   qui
                   patitur
                
                 ,
                 18.
                 
                   l.
                   qui
                   fide
                   alterius
                
                 ,
                 53.
                 
                   ff
                   .
                   mandati
                
                 ;
                 for
                 in
                 this
                 ,
                 
                   qui
                   tacet
                   consentire
                   videtur
                
                 .
                 So
                 he
                 who
                 whispereth
                 his
                 Servant
                 in
                 the
                 Ear
                 ,
                 if
                 he
                 immediatly
                 Kill
                 or
                 Wound
                 any
                 Person
                 present
                 ,
                 is
                 presumed
                 to
                 give
                 Command
                 to
                 the
                 Servant
                 so
                 to
                 do
                 ;
                 if
                 there
                 was
                 capital
                 Enimity
                 betwixt
                 him
                 and
                 that
                 person
                 before
                 .
                 In
                 like
                 manner
                 ,
                 the
                 giving
                 of
                 Evidents
                 or
                 Writes
                 ;
                 yea
                 ,
                 which
                 is
                 more
                 ,
                 the
                 having
                 of
                 these
                 ,
                 though
                 the
                 giving
                 appear
                 not
                 ,
                 it
                 is
                 presumed
                 to
                 Constitute
                 Procurators
                 ,
                 as
                 is
                 evident
                 in
                 the
                 having
                 a
                 Precept
                 of
                 Seasine
                 ,
                 which
                 is
                 sufficient
                 without
                 any
                 other
                 power
                 given
                 to
                 the
                 Bailzie
                 ,
                 or
                 Acturnay
                 .
                 And
                 Advocats
                 are
                 presumed
                 to
                 have
                 Warrands
                 from
                 Parties
                 for
                 whom
                 they
                 compear
                 ,
                 without
                 producing
                 any
                 Mandat
                 ;
                 not
                 only
                 upon
                 production
                 of
                 the
                 Parties
                 Evidents
                 ,
                 or
                 alledgeances
                 ,
                 special
                 in
                 Points
                 of
                 Fact
                 ;
                 which
                 if
                 wanting
                 ,
                 the
                 compearance
                 of
                 Procurators
                 in
                 inferiour
                 Courts
                 ,
                 is
                 held
                 as
                 without
                 Warrand
                 ,
                 and
                 the
                 Decreet
                 as
                 in
                 absence
                 ;
                 But
                 even
                 without
                 these
                 ,
                 if
                 Advocats
                 do
                 no
                 more
                 but
                 appear
                 ,
                 and
                 take
                 a
                 day
                 to
                 produce
                 Parties
                 to
                 give
                 their
                 Oathes
                 .
                 A
                 Wife
                 having
                 her
                 Husbands
                 Band
                 in
                 her
                 hand
                 ,
                 Impignorating
                 it
                 for
                 an
                 hundred
                 Pounds
                 ,
                 the
                 Impignoration
                 was
                 found
                 valide
                 against
                 the
                 Husband
                 ,
                 the
                 Wifes
                 Warrand
                 being
                 presumed
                 by
                 her
                 having
                 the
                 Bond
                 ,
                 February
                 4.
                 1665.
                 
                 
                   Paterson
                   contra
                   Pringle
                
                 .
                 And
                 the
                 Warrand
                 of
                 a
                 Servants
                 taking
                 off
                 Furniture
                 for
                 his
                 Master
                 ,
                 and
                 giving
                 Receipt
                 in
                 Name
                 of
                 his
                 Master
                 ,
                 and
                 for
                 his
                 use
                 ,
                 found
                 not
                 to
                 obliege
                 the
                 Servant
                 to
                 pay
                 ,
                 or
                 instruct
                 his
                 Warrand
                 ,
                 which
                 was
                 presumed
                 to
                 be
                 known
                 to
                 the
                 Merchant
                 ,
                 unless
                 the
                 Servant
                 had
                 otherways
                 imployed
                 the
                 Furnishing
                 ,
                 November
                 17.
                 1665.
                 
                 
                   Howison
                   contra
                   Cockburn
                
                 .
                 And
                 a
                 Warrand
                 was
                 inferred
                 ,
                 by
                 the
                 presence
                 of
                 him
                 who
                 had
                 Commission
                 to
                 do
                 ,
                 and
                 hindred
                 not
                 ,
                 February
                 23.
                 1667.
                 
                 Lord
                 
                   Rentoun
                   contra
                   Lambertoun
                
                 .
                 And
                 a
                 Warrand
                 of
                 a
                 Factor
                 or
                 Agent
                 ,
                 for
                 Charging
                 and
                 Denuncing
                 a
                 Daughter
                 ,
                 And
                 her
                 Husband
                 upon
                 a
                 Bond
                 granted
                 to
                 her
                 Mother
                 ,
                 was
                 presumed
                 from
                 having
                 the
                 Bond
                 ,
                 December
                 23.
                 1673.
                 
                 
                   Thomas
                   Dalmahoy
                   contra
                
                 Lord
                 Almond
                 .
              
               
               
                 40.
                 
                 Mandats
                 given
                 to
                 more
                 Persons
                 ,
                 may
                 be
                 either
                 to
                 each
                 ,
                 or
                 some
                 of
                 them
                 severally
                 ,
                 by
                 divers
                 Warrands
                 ,
                 or
                 to
                 more
                 by
                 the
                 same
                 Warrand
                 ,
                 whereupon
                 these
                 Questions
                 arise
                 ;
                 First
                 ,
                 When
                 there
                 are
                 many
                 Mandatars
                 joyntly
                 ,
                 Whether
                 they
                 must
                 all
                 necessarly
                 joyn
                 before
                 they
                 can
                 Act
                 ,
                 so
                 that
                 if
                 one
                 should
                 die
                 ,
                 the
                 Commission
                 is
                 void
                 ?
                 Or
                 whether
                 it
                 be
                 understood
                 to
                 the
                 Survivers
                 ,
                 Or
                 to
                 the
                 plurality
                 of
                 them
                 ?
                 Secondly
                 ,
                 Whether
                 Mandatars
                 be
                 all
                 lyable
                 ,
                 
                   in
                   solidum
                
                 ,
                 or
                 but
                 prorata
                 .
              
               
                 As
                 to
                 the
                 First
                 Question
                 ,
                 If
                 many
                 Mandatars
                 be
                 Constitute
                 severally
                 ,
                 or
                 with
                 a
                 quorum
                 ,
                 or
                 Plurality
                 exprest
                 ,
                 there
                 is
                 no
                 debate
                 ;
                 but
                 if
                 otherwise
                 ,
                 the
                 case
                 is
                 very
                 doubtful
                 ,
                 and
                 there
                 be
                 pregnant
                 Reasons
                 and
                 Testimonies
                 upon
                 both
                 parts
                 ,
                 but
                 this
                 seemeth
                 to
                 prevail
                 as
                 the
                 general
                 Rule
                 ,
                 that
                 Mandats
                 joyntly
                 given
                 ,
                 can
                 only
                 be
                 joyntly
                 execute
                 ;
              
               
                 First
                 ,
                 Because
                 by
                 the
                 Nature
                 of
                 this
                 Contract
                 ,
                 the
                 personal
                 and
                 singular
                 fitness
                 and
                 industry
                 of
                 Mandatars
                 is
                 chosen
                 ;
                 and
                 therefore
                 ,
                 this
                 being
                 a
                 special
                 trust
                 ,
                 when
                 it
                 is
                 given
                 to
                 many
                 ,
                 it
                 is
                 presumed
                 ,
                 that
                 the
                 Constituent
                 trusts
                 them
                 all
                 joyntly
                 ,
                 and
                 not
                 a
                 part
                 of
                 them
                 .
              
               
                 Secondly
                 ,
                 A
                 Mandat
                 given
                 to
                 ten
                 ,
                 cannot
                 be
                 regularly
                 understood
                 ,
                 given
                 to
                 any
                 lesser
                 number
                 ,
                 or
                 given
                 to
                 
                   Titius
                   ,
                   Seius
                
                 ,
                 and
                 Maevius
                 ,
                 that
                 it
                 is
                 given
                 to
                 any
                 two
                 of
                 them
                 :
                 It
                 may
                 be
                 objected
                 ,
                 that
                 where
                 there
                 are
                 many
                 Executors
                 or
                 Tutors
                 ,
                 without
                 mentioning
                 a
                 quorum
                 ,
                 the
                 death
                 of
                 one
                 makes
                 it
                 not
                 to
                 cease
                 ,
                 Hope
                 ,
                 Executors
                 ,
                 
                   Stuart
                   contra
                   Kirkwood
                
                 and
                 Moor
                 :
                 Or
                 the
                 death
                 or
                 non-acceptance
                 of
                 some
                 of
                 them
                 ,
                 
                   Ibid.
                   Ruthven
                   〈…〉
                   contra
                   George
                   Fauside
                   contra
                   Edmonstuon
                
                 ;
                 and
                 therefore
                 ,
                 this
                 being
                 the
                 most
                 important
                 Trust
                 ,
                 the
                 like
                 must
                 hold
                 in
                 all
                 other
                 cases
                 .
                 It
                 is
                 answered
                 ,
                 that
                 the
                 parity
                 holds
                 not
                 ;
                 for
                 the
                 deeds
                 of
                 Defuncts
                 in
                 their
                 latter
                 will
                 are
                 always
                 extended
                 ,
                 that
                 the
                 Act
                 may
                 stand
                 :
                 But
                 in
                 Contracts
                 it
                 is
                 contrary
                 ,
                 that
                 words
                 are
                 interpret
                 more
                 strictly
                 ;
                 and
                 in
                 this
                 case
                 the
                 difference
                 is
                 clear
                 ,
                 that
                 a
                 Mandator
                 ,
                 
                   inter
                   vivos
                
                 ,
                 giving
                 power
                 ,
                 it
                 is
                 strictly
                 to
                 be
                 Interpret
                 ;
                 because
                 the
                 Power
                 failing
                 ,
                 returns
                 from
                 the
                 Mandatars
                 to
                 the
                 Mandator
                 himself
                 :
                 But
                 a
                 Power
                 given
                 by
                 a
                 Defunct
                 in
                 Contemplation
                 of
                 death
                 ,
                 cannot
                 return
                 ;
                 and
                 therefore
                 the
                 Defunct
                 is
                 presumed
                 to
                 prefer
                 all
                 the
                 persons
                 nominate
                 ,
                 to
                 any
                 other
                 that
                 may
                 fall
                 by
                 course
                 of
                 Law.
                 
              
               
                 But
                 this
                 Rule
                 ,
                 as
                 it
                 is
                 founded
                 upon
                 the
                 singularity
                 of
                 the
                 Choice
                 ,
                 it
                 faileth
                 ,
                 and
                 must
                 be
                 limited
                 ,
                 where
                 that
                 ground
                 ceaseth
                 ,
                 and
                 is
                 preponderat
                 :
                 As
                 First
                 ,
                 If
                 the
                 deed
                 to
                 be
                 done
                 ,
                 be
                 common
                 and
                 ordinary
                 ;
                 there
                 ,
                 not
                 only
                 the
                 plurality
                 ,
                 but
                 any
                 of
                 the
                 Mandatars
                 will
                 suffice
                 ;
                 so
                 any
                 of
                 more
                 Curators
                 may
                 authorize
                 a
                 Minor.
                 
              
               
                 Secondly
                 ,
                 If
                 the
                 thing
                 to
                 be
                 done
                 ,
                 be
                 to
                 the
                 advantage
                 of
                 the
                 Constituent
                 ,
                 and
                 hath
                 not
                 a
                 considerable
                 hazard
                 or
                 power
                 to
                 infer
                 his
                 disadvantage
                 ;
                 as
                 if
                 a
                 Commission
                 being
                 begun
                 to
                 many
                 ,
                 of
                 things
                 which
                 admit
                 no
                 delay
                 ,
                 it
                 may
                 be
                 done
                 by
                 any
                 part
                 of
                 the
                 Mandatars
                 ,
                 and
                 they
                 will
                 have
                 
                   actionem
                   mandati
                
                 ,
                 and
                 not
                 only
                 
                   negotiorum
                   gestorum
                
                 .
                 So
                 Ambastadours
                 sent
                 to
                 Solemnize
                 a
                 Marriage
                 ,
                 or
                 receive
                 a
                 Crown
                 ,
                 though
                 some
                 of
                 them
                 should
                 die
                 ,
                 or
                 disassent
                 ,
                 unquestionably
                 the
                 plurality
                 might
                 proceed
                 .
                 But
                 it
                 wold
                 not
                 be
                 so
                 in
                 a
                 Treaty
                 for
                 Marriage
                 or
                 Peace
                 ;
                 much
                 less
                 for
                 surrendering
                 a
                 Kingdom
                 ,
                 City
                 ,
                 or
                 Fort
                 ;
                 and
                 therefore
                 ,
                 it
                 cannot
                 always
                 be
                 thought
                 that
                 a
                 plurality
                 is
                 understood
                 ,
                 though
                 not
                 exprest
                 .
              
               
               
                 Thirdly
                 ,
                 In
                 cases
                 necessary
                 ,
                 where
                 matters
                 may
                 not
                 be
                 delayed
                 ,
                 plurality
                 is
                 always
                 understood
                 ,
                 as
                 in
                 Commissions
                 for
                 Jurisdictions
                 ordinary
                 .
              
               
                 Fourthly
                 ,
                 Where
                 the
                 consuetude
                 of
                 the
                 place
                 ,
                 or
                 of
                 the
                 Mandator
                 himself
                 ,
                 useth
                 to
                 allow
                 a
                 plurality
                 ,
                 there
                 it
                 is
                 understood
                 ,
                 though
                 not
                 exprest
                 .
              
               
                 41.
                 
                 As
                 to
                 the
                 other
                 Question
                 ,
                 where
                 more
                 Mandatars
                 are
                 Constitute
                 severally
                 ,
                 they
                 are
                 no
                 doubt
                 lyable
                 ,
                 
                   in
                   solidum
                
                 ,
                 because
                 they
                 are
                 Constitute
                 ,
                 
                   in
                   solidum
                
                 :
                 But
                 when
                 they
                 are
                 Constitute
                 jointly
                 ,
                 or
                 added
                 ,
                 the
                 doubt
                 remaineth
                 ;
                 for
                 the
                 Affirmative
                 ,
                 There
                 is
                 First
                 ,
                 The
                 Authority
                 of
                 the
                 Civil
                 Law
                 ,
                 
                   l.
                   creditor
                   mandatorem
                   ,
                   §
                   .
                   duobus
                   ,
                   ff
                   .
                   mandati
                   .
                
              
               
                 42.
                 
                 Secondly
                 ,
                 Albeit
                 the
                 Obligation
                 of
                 Many
                 ,
                 for
                 payment
                 of
                 a
                 quantity
                 ,
                 make
                 them
                 lyable
                 but
                 prorata
                 ;
                 Yet
                 where
                 it
                 is
                 a
                 Fact
                 ,
                 they
                 are
                 lyable
                 ,
                 
                   in
                   solidum
                
                 .
                 And
                 so
                 Tutors
                 and
                 Curators
                 are
                 lyable
                 severally
                 ,
                 
                   in
                   solidum
                
                 :
                 But
                 Executors
                 are
                 not
                 ,
                 because
                 their
                 duty
                 is
                 to
                 pay
                 ,
                 
                   secundum
                   vires
                   lnventarij
                
                 ;
                 and
                 therefore
                 ,
                 
                   in
                   rigore
                   juris
                
                 ,
                 Mandatars
                 being
                 malversant
                 ,
                 or
                 grosly
                 negligent
                 ,
                 are
                 liable
                 ,
                 
                   in
                   solidum
                
                 ,
                 if
                 they
                 may
                 act
                 severally
                 ,
                 especially
                 in
                 Acts
                 indivisible
                 .
              
               
                 43.
                 
                 General
                 Mandats
                 do
                 occasion
                 the
                 most
                 debates
                 in
                 this
                 Contract
                 ;
                 for
                 there
                 is
                 much
                 more
                 clearness
                 where
                 the
                 Mandat
                 is
                 special
                 ,
                 which
                 useth
                 to
                 be
                 distinguished
                 in
                 determinate
                 ,
                 when
                 both
                 matter
                 and
                 manner
                 are
                 special
                 ,
                 and
                 indeterminat
                 ,
                 when
                 the
                 matter
                 is
                 special
                 ,
                 but
                 the
                 manner
                 is
                 not
                 specified
                 ;
                 in
                 the
                 former
                 the
                 precise
                 Tenor
                 of
                 the
                 Commission
                 must
                 be
                 followed
                 ;
                 and
                 yet
                 if
                 any
                 part
                 thereof
                 be
                 ,
                 or
                 become
                 unprofitable
                 ,
                 and
                 evidently
                 and
                 considerably
                 hurtful
                 ,
                 the
                 Mandatar
                 in
                 the
                 latter
                 case
                 may
                 safely
                 ,
                 and
                 in
                 the
                 former
                 case
                 ,
                 must
                 necessarly
                 do
                 what
                 is
                 best
                 ,
                 
                   secundum
                   arbitrium
                   boni
                   viri
                
                 ,
                 and
                 must
                 do
                 the
                 like
                 in
                 all
                 indeterminat
                 Mandats
                 :
                 But
                 the
                 great
                 Question
                 is
                 ,
                 how
                 far
                 general
                 Mandats
                 may
                 be
                 extended
                 ,
                 and
                 in
                 what
                 cases
                 they
                 are
                 not
                 effectual
                 :
                 But
                 there
                 is
                 necessarly
                 required
                 special
                 Mandats
                 ,
                 which
                 refer
                 to
                 the
                 pleasure
                 ,
                 choice
                 ,
                 or
                 opinion
                 of
                 the
                 Mandatar
                 ,
                 as
                 if
                 it
                 have
                 a
                 Clause
                 ,
                 
                   cum
                   libera
                   aut
                   plena
                   administratione
                
                 ,
                 or
                 the
                 like
                 :
                 Or
                 where
                 that
                 is
                 wanting
                 ,
                 the
                 Doctors
                 enumerate
                 multitudes
                 of
                 cases
                 ,
                 whereunto
                 general
                 Mandats
                 are
                 not
                 to
                 be
                 extended
                 ;
              
               
                 First
                 ,
                 In
                 the
                 Contracting
                 of
                 Marriage
                 no
                 general
                 Mandat
                 ,
                 albeit
                 ,
                 
                   cum
                   libera
                   &
                
                 .
                 is
                 sufficient
                 ,
                 because
                 the
                 affection
                 and
                 choice
                 of
                 the
                 person
                 is
                 singular
                 ,
                 and
                 incommunicable
                 .
                 And
                 albeit
                 Abrahams
                 Commission
                 for
                 
                   Eleazar
                   ,
                   to
                   take
                   a
                   Wife
                   for
                   his
                   Son
                   of
                   his
                   Kindred
                   ,
                
                 was
                 valide
                 ,
                 though
                 not
                 special
                 ,
                 as
                 to
                 the
                 person
                 ;
                 yet
                 the
                 case
                 was
                 singular
                 ,
                 there
                 being
                 so
                 few
                 Families
                 
                   that
                   worshipped
                   the
                   true
                   God
                
                 ,
                 to
                 choice
                 upon
                 .
                 But
                 recenter
                 Customes
                 require
                 it
                 to
                 be
                 special
                 ,
                 even
                 as
                 to
                 the
                 person
                 ,
                 as
                 well
                 as
                 to
                 the
                 Family
                 .
              
               
                 Secondly
                 ,
                 No
                 general
                 Mandat
                 ,
                 though
                 
                   cum
                   libera
                
                 ,
                 can
                 be
                 extended
                 to
                 any
                 thing
                 that
                 may
                 import
                 a
                 Fault
                 or
                 Crime
                 .
              
               
                 Thirdly
                 ,
                 No
                 general
                 Mandat
                 can
                 reach
                 to
                 Donations
                 ,
                 or
                 meer
                 Liberality
                 ,
                 and
                 yet
                 doth
                 not
                 hinder
                 gratifications
                 for
                 Services
                 done
                 ,
                 or
                 upon
                 the
                 expectation
                 that
                 the
                 receiver
                 may
                 probably
                 be
                 induced
                 thereby
                 ,
                 to
                 do
                 matters
                 of
                 importance
                 ,
                 as
                 the
                 Gifts
                 of
                 Ambassadours
                 ,
                 or
                 Generals
                 ,
                 are
                 not
                 only
                 valide
                 as
                 to
                 the
                 receivers
                 ,
                 but
                 as
                 to
                 the
                 Mandators
                 ,
                 if
                 there
                 was
                 probable
                 reason
                 .
              
               
                 Fourthly
                 ,
                 General
                 Mandats
                 extend
                 not
                 to
                 Alienation
                 of
                 Immoveables
                 ,
                 but
                 that
                 must
                 be
                 specially
                 exprest
                 .
              
               
               
                 Fifthly
                 ,
                 General
                 Mandats
                 extend
                 not
                 to
                 Submissions
                 or
                 Transactions
                 ,
                 nor
                 to
                 insist
                 in
                 any
                 Action
                 Criminal
                 or
                 Famous
                 ,
                 or
                 to
                 anull
                 that
                 which
                 is
                 specially
                 done
                 by
                 the
                 Constituent
                 ,
                 or
                 to
                 dispose
                 of
                 that
                 which
                 was
                 specially
                 reserved
                 before
                 ,
                 either
                 by
                 Law
                 or
                 deed
                 ,
                 as
                 regalia
                 ,
                 or
                 things
                 peculiarly
                 reserved
                 to
                 Princes
                 .
              
               
                 Sixthly
                 ,
                 A
                 special
                 Mandat
                 is
                 required
                 ,
                 to
                 enter
                 any
                 party
                 Heir
                 to
                 any
                 Predecessour
                 .
                 The
                 Civil
                 Law
                 numbered
                 ,
                 
                   additionem
                   haereditatis
                   inter
                   actus
                   legitimos
                
                 ,
                 and
                 so
                 excluded
                 even
                 a
                 special
                 Mandat
                 therein
                 :
                 But
                 our
                 Customes
                 allow
                 the
                 same
                 .
                 But
                 because
                 Heirs
                 are
                 lyable
                 ,
                 
                   in
                   solidum
                
                 ,
                 to
                 all
                 the
                 Predecessors
                 Debts
                 ;
                 therefore
                 a
                 special
                 Mandat
                 is
                 necessary
                 .
              
               
                 Seventhly
                 ,
                 Wherein
                 the
                 general
                 Mandats
                 ,
                 some
                 things
                 are
                 specially
                 exprest
                 ,
                 the
                 generality
                 is
                 not
                 extended
                 to
                 cases
                 of
                 greater
                 importance
                 ,
                 then
                 these
                 exprest
                 .
              
               
                 44.
                 
                 Amongst
                 Mandats
                 are
                 all
                 Offices
                 ,
                 which
                 do
                 ever
                 imply
                 a
                 condition
                 resolutive
                 upon
                 committing
                 Faults
                 ;
                 but
                 not
                 such
                 as
                 are
                 light
                 Faults
                 ,
                 or
                 of
                 negligence
                 ;
                 but
                 they
                 must
                 be
                 Atrocious
                 ,
                 at
                 least
                 of
                 knowledge
                 and
                 importance
                 ;
                 upon
                 this
                 ground
                 it
                 was
                 ,
                 that
                 the
                 Town
                 of
                 Edinburgh
                 having
                 deposed
                 their
                 Town
                 Clerk
                 from
                 his
                 Office
                 which
                 he
                 had
                 ,
                 
                   ad
                   vitam
                
                 ,
                 The
                 Sentence
                 was
                 sustained
                 ,
                 if
                 the
                 Fault
                 were
                 found
                 of
                 the
                 Clerks
                 knowledge
                 ,
                 and
                 of
                 importance
                 ,
                 and
                 that
                 it
                 was
                 not
                 enough
                 that
                 no
                 hurt
                 followed
                 ,
                 and
                 that
                 he
                 was
                 willing
                 to
                 make
                 it
                 up
                 ,
                 February
                 14.
                 1665.
                 
                 Town
                 of
                 
                   Edinburgh
                   contra
                
                 Sir
                 
                   William
                   Thomson
                
                 .
              
               
                 But
                 an
                 Office
                 of
                 a
                 Sheriff
                 Clerk
                 ,
                 was
                 not
                 found
                 extinct
                 by
                 his
                 being
                 at
                 the
                 Horn
                 for
                 a
                 Debt
                 ,
                 or
                 being
                 sometimes
                 out
                 of
                 the
                 Countrey
                 ,
                 having
                 power
                 of
                 Deputation
                 ,
                 February
                 6.
                 1666.
                 
                 Arch-Bishop
                 of
                 
                   Glasgow
                   contra
                
                 Commissar
                 Clerk
                 of
                 Dumsreis
                 .
                 The
                 Office
                 of
                 a
                 Commissar
                 doth
                 also
                 import
                 ,
                 as
                 a
                 necessary
                 condition
                 ,
                 that
                 the
                 Commissar
                 be
                 qualified
                 to
                 discharge
                 the
                 Office
                 in
                 his
                 own
                 person
                 ,
                 though
                 he
                 have
                 Deputs
                 ,
                 seing
                 he
                 must
                 answer
                 for
                 ,
                 and
                 over-rule
                 his
                 Deputs
                 ,
                 February
                 14.
                 1666.
                 
                 Arch.
                 Bishop
                 of
                 
                   Glasgow
                   contra
                
                 Commissar
                 of
                 Glasgow
                 .
                 Where
                 it
                 was
                 also
                 found
                 ,
                 that
                 by
                 the
                 Commissars
                 instructions
                 ,
                 they
                 must
                 reside
                 in
                 the
                 place
                 of
                 the
                 Commissariot
                 ,
                 under
                 the
                 pain
                 of
                 Deprivation
                 ,
                 notwithstanding
                 the
                 common
                 Custome
                 in
                 the
                 contrary
                 ,
                 which
                 only
                 excuseth
                 from
                 bygone
                 Faults
                 .
              
               
                 45.
                 
                 Trust
                 is
                 also
                 amongst
                 Mandats
                 or
                 Commissions
                 ,
                 though
                 it
                 may
                 be
                 referred
                 to
                 Depositation
                 ,
                 seing
                 the
                 Right
                 is
                 in
                 custody
                 of
                 the
                 person
                 intrusted
                 .
                 Mandatars
                 in
                 the
                 Law
                 could
                 not
                 obliege
                 the
                 Mandator
                 ,
                 or
                 directly
                 acquire
                 to
                 him
                 ;
                 but
                 they
                 could
                 only
                 obliege
                 themselves
                 ,
                 and
                 acquire
                 to
                 themselves
                 ,
                 and
                 thereafter
                 transmit
                 to
                 the
                 Mandators
                 ;
                 and
                 that
                 because
                 in
                 most
                 Contracts
                 ,
                 thereby
                 the
                 person
                 Contracter
                 behoved
                 immediatly
                 to
                 Act
                 ,
                 and
                 no
                 person
                 interposed
                 ,
                 which
                 our
                 Customes
                 regardeth
                 not
                 ;
                 and
                 therefore
                 Mandatars
                 may
                 act
                 in
                 their
                 own
                 names
                 :
                 In
                 which
                 case
                 ,
                 the
                 Right
                 ,
                 whether
                 real
                 or
                 personal
                 ,
                 standeth
                 in
                 their
                 person
                 ,
                 as
                 he
                 who
                 by
                 Commission
                 acquireth
                 Lands
                 ,
                 or
                 Goods
                 ,
                 in
                 his
                 own
                 name
                 ,
                 the
                 real
                 Right
                 thereof
                 is
                 in
                 his
                 Person
                 ,
                 and
                 there
                 lies
                 an
                 Obligation
                 upon
                 him
                 ,
                 if
                 he
                 was
                 Commissionat
                 to
                 transmit
                 them
                 to
                 his
                 Constituent
                 ;
                 but
                 he
                 may
                 also
                 Acquire
                 ,
                 Transact
                 ,
                 or
                 Contract
                 in
                 name
                 of
                 the
                 Constituent
                 :
                 In
                 which
                 case
                 ,
                 the
                 real
                 Rights
                 stands
                 immediatly
                 in
                 the
                 Person
                 of
                 the
                 Mandator
                 ,
                 and
                 the
                 Obligation
                 constitutes
                 him
                 Creditor
                 :
                 and
                 there
                 is
                 no
                 Obligation
                 betwixt
                 the
                 Mandatar
                 and
                 the
                 third
                 Party
                 .
                 Nor
                 is
                 the
                 Mandatar
                 oblieged
                 to
                 instruct
                 that
                 he
                 had
                 Commission
                 ,
                 but
                 that
                 is
                 upon
                 his
                 hazard
                 who
                 acted
                 with
                 him
                 ,
                 unless
                 the
                 contrary
                 be
                 proven
                 by
                 his
                 Oath
                 or
                 Write
                 ;
                 and
                 
                 therefore
                 a
                 Servant
                 ,
                 though
                 by
                 a
                 Ticket
                 ,
                 he
                 acknowledged
                 he
                 had
                 taken
                 off
                 such
                 Furniture
                 for
                 his
                 Masters
                 use
                 ,
                 was
                 not
                 found
                 oblieged
                 to
                 pay
                 or
                 to
                 instruct
                 his
                 Warrand
                 ,
                 especially
                 after
                 his
                 Masters
                 death
                 ;
                 but
                 the
                 Warrand
                 was
                 presumed
                 as
                 known
                 to
                 the
                 Merchand
                 ,
                 November
                 17.
                 1665.
                 
                 
                   Howison
                   contra
                   Cockburn
                
                 .
                 Trust
                 in
                 the
                 Right
                 of
                 Lands
                 ,
                 Sums
                 ,
                 or
                 Goods
                 ,
                 to
                 the
                 behove
                 of
                 another
                 ,
                 doth
                 frequently
                 occur
                 ;
                 and
                 because
                 Fraud
                 is
                 ordinarly
                 in
                 it
                 ,
                 it
                 is
                 not
                 only
                 probable
                 by
                 Write
                 or
                 Oath
                 of
                 the
                 Trustié
                 ,
                 but
                 Witnesses
                 are
                 examined
                 ,
                 
                   ex
                   officio
                
                 ,
                 to
                 find
                 out
                 the
                 Truth
                 ,
                 February
                 22.
                 1665.
                 
                 Viscount
                 of
                 
                   Kingstoun
                   conira
                
                 Collonel
                 
                   Fullertoun
                   .
                   February
                
                 6.
                 1669.
                 
                 
                   Rule
                   contra
                   Rule
                   .
                   February
                
                 24.
                 1669.
                 
                 Earl
                 of
                 
                   Annandale
                   contra
                   Young.
                   June
                
                 19.
                 1669.
                 
                 
                   Scot
                   contra
                   Langtoun
                
                 .
                 And
                 Trust
                 was
                 found
                 probable
                 by
                 presumptions
                 only
                 ,
                 January
                 12.
                 1666.
                 
                 Executors
                 of
                 
                   William
                   Stevinson
                   contra
                   James
                   Crawford
                   .
                   January
                
                 22.
                 1673.
                 
                 
                   Janet
                   Watson
                   contra
                
                 Mr.
                 
                   〈◊〉
                   Bruce
                
                 .
                 But
                 it
                 was
                 not
                 found
                 proven
                 by
                 a
                 Declaration
                 upon
                 Death-bed
                 ,
                 in
                 prejudice
                 of
                 the
                 Heir
                 ,
                 November
                 26.
                 1674.
                 
                 
                   William
                   〈◊〉
                   contra
                   Stirling
                
                 of
                 Airdoch
                 .
                 But
                 a
                 person
                 intrusted
                 in
                 a
                 Disposition
                 of
                 Lands
                 ,
                 having
                 componed
                 for
                 the
                 Intrusters
                 Debts
                 ,
                 was
                 found
                 to
                 have
                 no
                 Interest
                 to
                 burden
                 the
                 Intruster
                 ,
                 with
                 more
                 then
                 what
                 he
                 truely
                 payed
                 out
                 ,
                 November
                 15.
                 1667.
                 
                 
                   James
                   Maxwel
                   contra
                   Adam
                   Maxwel
                
                 .
                 Neither
                 was
                 a
                 person
                 intrusted
                 for
                 payment
                 of
                 the
                 Intrusters
                 Creditors
                 ,
                 found
                 to
                 have
                 power
                 to
                 prefer
                 them
                 to
                 the
                 more
                 timeous
                 Diligence
                 of
                 others
                 ,
                 by
                 Inhibition
                 ,
                 or
                 Apprizing
                 ,
                 though
                 only
                 done
                 against
                 the
                 Intruster
                 ,
                 July
                 24.
                 1669.
                 
                 
                   Crawford
                   contra
                   Anderson
                
                 .
                 And
                 a
                 person
                 receiving
                 Money
                 to
                 buy
                 Goods
                 for
                 another
                 ,
                 but
                 having
                 bought
                 and
                 received
                 them
                 in
                 his
                 own
                 name
                 ,
                 without
                 mention
                 of
                 the
                 Truster
                 ,
                 the
                 property
                 thereof
                 was
                 found
                 to
                 be
                 in
                 the
                 person
                 intrusted
                 ,
                 and
                 his
                 Creditors
                 Arresting
                 ,
                 were
                 preferred
                 ,
                 January
                 24.
                 
                 〈◊〉
                 .
                 
                   〈◊〉
                   contra
                   Robertson
                
                 and
                 Fleming
                 .
                 Yet
                 Trust
                 in
                 Sums
                 ,
                 or
                 Personal
                 Rights
                 ,
                 after
                 the
                 death
                 of
                 the
                 Person
                 intrusted
                 ,
                 was
                 found
                 not
                 necessary
                 to
                 be
                 Confirmed
                 ,
                 as
                 in
                 
                   bonis
                   〈◊〉
                
                 ,
                 of
                 the
                 Intrusted
                 Person
                 ;
                 but
                 that
                 the
                 Trust
                 might
                 be
                 proven
                 against
                 the
                 Debitor
                 ,
                 and
                 the
                 nearest
                 of
                 Kin
                 of
                 the
                 Person
                 Intrusted
                 ,
                 June
                 9.
                 1669.
                 
                 
                   William
                   Streit
                   contra
                   Home
                
                 of
                 Bruntfield
                 .
                 But
                 Trust
                 in
                 an
                 Infeftment
                 of
                 Annualrent
                 ,
                 found
                 not
                 to
                 make
                 the
                 Person
                 Intrusted
                 lyable
                 for
                 omission
                 ,
                 but
                 only
                 for
                 Intromission
                 ,
                 December
                 18.
                 1666.
                 
                 
                   Charles
                   Cass
                   contra
                
                 Mr.
                 
                   John
                   Wat.
                
                 The
                 like
                 in
                 an
                 Assignation
                 in
                 Trust
                 ,
                 which
                 was
                 not
                 found
                 to
                 infer
                 an
                 obliegment
                 to
                 do
                 Diligence
                 ,
                 if
                 the
                 Assignay
                 was
                 not
                 required
                 ,
                 either
                 to
                 do
                 diligence
                 ,
                 or
                 denude
                 :
                 But
                 he
                 having
                 transferred
                 without
                 Warrand
                 ,
                 was
                 found
                 lyable
                 for
                 the
                 sum
                 ,
                 albeit
                 he
                 offered
                 to
                 procure
                 a
                 Reposition
                 ,
                 July
                 18.
                 1672.
                 
                 
                   Janet
                   Watson
                   contra
                
                 Mr.
                 
                   Walter
                   Bruce
                
                 .
                 And
                 an
                 Assignay
                 in
                 Trust
                 ,
                 that
                 the
                 sum
                 might
                 be
                 included
                 in
                 his
                 Appryzing
                 ,
                 giving
                 Back-Bond
                 to
                 be
                 comptable
                 in
                 case
                 of
                 payment
                 ,
                 having
                 disponed
                 the
                 Appryzing
                 without
                 reservation
                 ,
                 was
                 found
                 lyable
                 for
                 so
                 much
                 of
                 the
                 sum
                 intrusted
                 ,
                 as
                 might
                 have
                 been
                 recovered
                 ,
                 January
                 5.
                 1575.
                 
                 Earl
                 of
                 
                   Northesk
                   contra
                
                 Laird
                 of
                 Pitarro
                 .
              
               
                 Trust
                 was
                 inferred
                 by
                 a
                 Grand-Fathers
                 delivering
                 of
                 a
                 Disposition
                 ,
                 conceived
                 in
                 favours
                 of
                 his
                 Grand-Child
                 ,
                 the
                 Disponer
                 at
                 the
                 delivery
                 ,
                 having
                 not
                 exprest
                 the
                 terms
                 of
                 the
                 Trust
                 ,
                 or
                 his
                 design
                 ,
                 and
                 having
                 recalled
                 and
                 received
                 back
                 the
                 Disposition
                 ,
                 and
                 Disponed
                 the
                 half
                 of
                 the
                 Lands
                 therein
                 ,
                 to
                 another
                 ;
                 it
                 was
                 thence
                 found
                 ,
                 that
                 the
                 Disposition
                 was
                 not
                 absolute
                 ,
                 and
                 irrevockable
                 ,
                 but
                 was
                 intrusted
                 to
                 that
                 third
                 Party
                 ,
                 to
                 be
                 recalled
                 if
                 the
                 Disponer
                 pleased
                 ;
                 or
                 otherways
                 to
                 be
                 delivered
                 to
                 the
                 Oye
                 ,
                 January
                 25.
                 1677.
                 
                 
                   Janet
                   Ker
                   contra
                   Niman
                   Ker.
                
                 When
                 Trust
                 is
                 referred
                 to
                 parties
                 Oath
                 ,
                 whether
                 such
                 a
                 Right
                 standing
                 in
                 their
                 person
                 ,
                 be
                 in
                 Trust
                 to
                 the
                 behove
                 of
                 another
                 ,
                 they
                 use
                 commonly
                 to
                 Depone
                 ,
                 that
                 it
                 is
                 to
                 their
                 own
                 behove
                 ,
                 which
                 being
                 found
                 dubious
                 and
                 fallacious
                 ,
                 what
                 the
                 meaning
                 of
                 such
                 words
                 were
                 ,
                 special
                 
                 Interrogators
                 are
                 allowed
                 to
                 expiscat
                 the
                 truth
                 :
                 And
                 parties
                 use
                 to
                 Reexamined
                 thereupon
                 ,
                 as
                 whether
                 the
                 Deponents
                 meaning
                 by
                 these
                 words
                 ,
                 that
                 the
                 Right
                 was
                 to
                 his
                 own
                 behove
                 ,
                 and
                 not
                 to
                 anothers
                 ,
                 was
                 only
                 that
                 he
                 gave
                 no
                 Promise
                 or
                 Back-Bond
                 ,
                 to
                 apply
                 the
                 Right
                 or
                 Benefite
                 thereof
                 ,
                 in
                 whole
                 or
                 in
                 part
                 to
                 another
                 :
                 Or
                 whether
                 the
                 true
                 meaning
                 of
                 the
                 design
                 was
                 ,
                 that
                 the
                 other
                 put
                 him
                 upon
                 acquiring
                 that
                 Right
                 ,
                 being
                 a
                 Gift
                 of
                 Non-entry
                 of
                 Lands
                 ,
                 bought
                 by
                 that
                 other
                 ,
                 so
                 that
                 the
                 whole
                 benefite
                 should
                 not
                 be
                 applyed
                 to
                 the
                 acquirer
                 himself
                 ;
                 for
                 it
                 was
                 not
                 presumable
                 ,
                 that
                 he
                 would
                 put
                 another
                 upon
                 taking
                 Gift
                 of
                 Non-entry
                 of
                 the
                 Lands
                 himself
                 had
                 bought
                 ,
                 to
                 be
                 made
                 use
                 of
                 to
                 the
                 full
                 extent
                 ,
                 which
                 being
                 so
                 acknowledged
                 ,
                 the
                 Gift
                 was
                 found
                 so
                 far
                 to
                 the
                 behove
                 of
                 the
                 buyer
                 ,
                 that
                 the
                 seller
                 by
                 the
                 warrandice
                 ,
                 should
                 pay
                 no
                 more
                 for
                 the
                 Non-entry
                 ,
                 then
                 the
                 acquirer
                 of
                 the
                 Non-entry
                 gave
                 truly
                 for
                 it
                 ,
                 seing
                 the
                 buyer
                 had
                 communed
                 with
                 the
                 Superior
                 ,
                 and
                 brought
                 the
                 Non-entry
                 to
                 the
                 same
                 rate
                 ,
                 and
                 then
                 put
                 his
                 Couzin-German
                 to
                 acquire
                 it
                 ,
                 February
                 2.
                 1681.
                 
                 Master
                 of
                 
                   Balmerino
                   contra
                
                 Laird
                 of
                 Pourie
                 .
                 Upon
                 the
                 same
                 ground
                 a
                 Donatar
                 of
                 a
                 Liferent
                 Escheat
                 being
                 examined
                 ,
                 whether
                 it
                 was
                 to
                 the
                 behove
                 of
                 his
                 Good-brother
                 ,
                 having
                 deponed
                 ,
                 that
                 it
                 was
                 to
                 his
                 own
                 behove
                 ,
                 he
                 dying
                 before
                 he
                 was
                 re-examined
                 ,
                 his
                 Oath
                 was
                 interpret
                 only
                 ,
                 that
                 he
                 had
                 given
                 no
                 Back-bond
                 or
                 Promise
                 in
                 favours
                 of
                 his
                 Good-brother
                 ;
                 and
                 therefore
                 pregnant
                 presumptions
                 of
                 the
                 Trust
                 were
                 inferred
                 ,
                 in
                 that
                 the
                 Brother
                 only
                 was
                 concerned
                 in
                 that
                 Liferent
                 ,
                 that
                 he
                 managed
                 ,
                 and
                 was
                 at
                 all
                 the
                 expenses
                 of
                 the
                 Process
                 ,
                 that
                 the
                 Donatars
                 Successors
                 never
                 owned
                 ,
                 nor
                 confirmed
                 the
                 Benefite
                 of
                 the
                 Gift
                 ,
                 February
                 11.
                 1679.
                 
                 Forbes
                 of
                 
                   Balvenie
                   contra
                
                 Laird
                 of
                 Boyn
                 .
              
               
                 46.
                 
                 The
                 Law
                 for
                 utility
                 of
                 Commerce
                 ,
                 did
                 against
                 the
                 common
                 Rules
                 foresaid
                 ,
                 constitute
                 an
                 Obligation
                 upon
                 Exercitors
                 ,
                 by
                 the
                 Deed
                 or
                 Contract
                 of
                 the
                 Masters
                 of
                 the
                 Ships
                 .
                 An
                 Exercitor
                 is
                 he
                 to
                 whom
                 the
                 profite
                 of
                 Vessels
                 or
                 Ships
                 ,
                 whether
                 upon
                 the
                 Sea
                 ,
                 Rivers
                 or
                 Lakes
                 belongeth
                 ,
                 whether
                 he
                 be
                 owner
                 of
                 the
                 Ship
                 ,
                 or
                 have
                 only
                 hired
                 the
                 same
                 ;
                 the
                 Master
                 of
                 the
                 Ship
                 is
                 he
                 that
                 hath
                 the
                 command
                 thereof
                 ,
                 who
                 therefore
                 may
                 Contract
                 and
                 borrow
                 Money
                 for
                 Reparation
                 of
                 the
                 Ship
                 ,
                 or
                 out-rigging
                 thereof
                 ;
                 or
                 for
                 the
                 intertainment
                 of
                 the
                 Mariners
                 ,
                 or
                 any
                 other
                 thing
                 for
                 the
                 use
                 of
                 the
                 Voyage
                 .
                 And
                 thereby
                 not
                 only
                 the
                 Master
                 Contracter
                 ,
                 but
                 the
                 Exercitor
                 who
                 constitute
                 him
                 is
                 lyable
                 :
                 Yea
                 ,
                 if
                 the
                 Master
                 substitute
                 another
                 Master
                 ,
                 his
                 ingagement
                 also
                 obliegeth
                 the
                 Exercitor
                 ;
                 so
                 that
                 whosoever
                 he
                 be
                 that
                 Contracts
                 with
                 him
                 ,
                 who
                 for
                 the
                 time
                 officiats
                 as
                 Master
                 ,
                 obliegeth
                 the
                 Exercitor
                 ,
                 in
                 what
                 was
                 borrowed
                 for
                 the
                 use
                 of
                 the
                 Ship
                 ,
                 Company
                 ,
                 or
                 Voyage
                 .
                 And
                 there
                 seems
                 no
                 necessity
                 of
                 showing
                 a
                 Commission
                 ,
                 but
                 the
                 exercing
                 of
                 the
                 Office
                 is
                 sufficient
                 ;
                 and
                 thereby
                 the
                 Ship
                 and
                 out-rigging
                 may
                 be
                 hypothecat
                 and
                 affected
                 :
                 Yea
                 ,
                 if
                 there
                 be
                 many
                 Exercitors
                 ,
                 they
                 are
                 all
                 lyable
                 ,
                 
                   in
                   solidum
                
                 ;
                 and
                 if
                 there
                 be
                 many
                 Masters
                 ,
                 the
                 Contract
                 of
                 one
                 of
                 them
                 obliegeth
                 the
                 Exercitors
                 ,
                 unless
                 it
                 be
                 expresly
                 provided
                 ,
                 they
                 cannot
                 Contract
                 but
                 jointly
                 ,
                 which
                 must
                 appear
                 by
                 their
                 Commission
                 :
                 Neither
                 needs
                 he
                 who
                 Contracts
                 with
                 the
                 Master
                 ,
                 instruct
                 that
                 the
                 Money
                 borrowed
                 ,
                 was
                 actually
                 imployed
                 for
                 the
                 use
                 of
                 the
                 Ship
                 ,
                 Company
                 ,
                 or
                 Voyage
                 ,
                 but
                 this
                 much
                 he
                 must
                 make
                 appear
                 ,
                 that
                 when
                 he
                 lent
                 the
                 Money
                 there
                 was
                 such
                 need
                 of
                 it
                 ,
                 albeit
                 he
                 be
                 not
                 oblieged
                 to
                 take
                 notice
                 whether
                 the
                 Master
                 misimployed
                 it
                 or
                 not
                 ,
                 because
                 the
                 Exercitor
                 should
                 have
                 looked
                 whom
                 he
                 trusted
                 .
                 If
                 the
                 Master
                 be
                 constitute
                 with
                 power
                 to
                 buy
                 Ware
                 ,
                 and
                 load
                 the
                 Ship
                 ,
                 the
                 prepositor
                 is
                 lyable
                 to
                 these
                 who
                 Contract
                 with
                 him
                 ,
                 upon
                 that
                 accompt
                 ;
                 but
                 this
                 is
                 not
                 presumed
                 upon
                 acting
                 as
                 Master
                 ,
                 unless
                 his
                 Commission
                 appear
                 ,
                 and
                 the
                 Masters
                 other
                 Contracts
                 obleige
                 not
                 the
                 Exercitors
                 ,
                 albeit
                 their
                 fault
                 do
                 ,
                 by
                 the
                 Edict
                 ,
                 
                   nautae
                   
                   caupones
                   stabularij
                
                 ,
                 all
                 which
                 is
                 clear
                 from
                 the
                 Title
                 
                   ff
                   .
                   de
                   exercitoria
                   actione
                   per
                   totum
                   ,
                
                 and
                 is
                 generally
                 in
                 vigour
                 .
              
               
                 47.
                 
                 After
                 the
                 similitude
                 of
                 the
                 Exercitory
                 Action
                 ,
                 the
                 Pretor
                 by
                 the
                 perpetual
                 Edict
                 ,
                 did
                 introduce
                 the
                 Institory
                 Action
                 ,
                 where
                 by
                 the
                 Contracts
                 of
                 Institors
                 in
                 relation
                 to
                 that
                 wherein
                 they
                 were
                 intrusted
                 ,
                 their
                 prepositors
                 are
                 oblieged
                 ,
                 as
                 Exercitors
                 are
                 as
                 to
                 
                   Maritime
                   maters
                
                 ;
                 so
                 Prepositors
                 are
                 correspondent
                 in
                 Trafficque
                 at
                 Land.
                 And
                 Institors
                 are
                 these
                 who
                 are
                 intrusted
                 in
                 such
                 Affairs
                 ,
                 corresponding
                 to
                 the
                 Masters
                 of
                 Ships
                 ;
                 such
                 Institorsare
                 these
                 who
                 are
                 intrusted
                 with
                 keeping
                 of
                 Shops
                 ,
                 buying
                 or
                 selling
                 of
                 Ware
                 keeping
                 of
                 Cash
                 for
                 Exchange
                 ,
                 such
                 as
                 are
                 sent
                 abroad
                 to
                 buy
                 Ware.
                 And
                 these
                 who
                 are
                 intrusted
                 with
                 the
                 labourage
                 of
                 any
                 Field
                 ,
                 or
                 any
                 other
                 like
                 business
                 .
                 And
                 it
                 is
                 alike
                 of
                 whatsoever
                 Sex
                 or
                 Age
                 they
                 be
                 ,
                 though
                 even
                 they
                 be
                 Pupils
                 who
                 cannot
                 obliege
                 themselves
                 ;
                 or
                 Minors
                 who
                 have
                 the
                 〈◊〉
                 〈◊〉
                 〈◊〉
                 ,
                 yet
                 both
                 do
                 effectually
                 obliege
                 their
                 Prepositors
                 :
                 And
                 it
                 there
                 〈◊〉
                 more
                 Prepositors
                 ,
                 they
                 are
                 lyable
                 ,
                 
                   in
                   solidum
                
                 .
                 But
                 such
                 Obligations
                 reach
                 no
                 further
                 ,
                 then
                 for
                 what
                 is
                 Contracted
                 for
                 the
                 use
                 of
                 the
                 Affair
                 wherein
                 they
                 are
                 intrusted
                 :
                 Neither
                 are
                 the
                 Prepositors
                 oblieged
                 ,
                 if
                 they
                 have
                 intimate
                 to
                 the
                 party
                 Contracter
                 ,
                 not
                 to
                 Contract
                 with
                 their
                 Institors
                 :
                 But
                 if
                 they
                 Contract
                 
                   bona
                   fide
                
                 ,
                 albeit
                 the
                 Institor
                 be
                 limit
                 ,
                 and
                 prohibit
                 to
                 Contract
                 ;
                 In
                 such
                 cases
                 ,
                 the
                 Creditors
                 Contracting
                 ,
                 
                   bona
                   fide
                
                 ,
                 with
                 them
                 ,
                 are
                 secure
                 .
                 All
                 which
                 appeareth
                 ,
                 Title
                 
                   de
                   instit
                   .
                   actione
                   ff
                   .
                   per
                   totum
                   .
                
              
               
                 48.
                 
                 Custody
                 is
                 called
                 in
                 the
                 Law
                 Depositum
                 ,
                 or
                 Commendatum
                 ,
                 to
                 which
                 we
                 have
                 no
                 suitable
                 Term
                 ;
                 but
                 this
                 Contract
                 is
                 most
                 fitly
                 exprest
                 by
                 the
                 duty
                 and
                 obligation
                 thereof
                 ,
                 which
                 is
                 to
                 keep
                 or
                 preserve
                 that
                 which
                 is
                 given
                 in
                 Custody
                 ,
                 and
                 it
                 is
                 here
                 subjoined
                 to
                 mandat
                 ,
                 because
                 indeed
                 it
                 is
                 a
                 kind
                 of
                 it
                 ,
                 for
                 the
                 Lawers
                 do
                 not
                 so
                 much
                 notice
                 the
                 accuracy
                 of
                 Logical
                 Divisions
                 ,
                 whereby
                 no
                 member
                 can
                 comprehend
                 another
                 ,
                 as
                 the
                 usual
                 Terms
                 known
                 in
                 Law
                 ;
                 and
                 therefore
                 ,
                 handle
                 
                   mandatum
                   ,
                   depositum
                   &
                   pignus
                
                 ,
                 severally
                 ,
                 though
                 all
                 of
                 them
                 be
                 truly
                 Mandats
                 ;
                 and
                 therefore
                 ,
                 also
                 Depositum
                 may
                 be
                 fitly
                 defined
                 ,
                 to
                 be
                 a
                 Mandat
                 or
                 Commission
                 ,
                 given
                 and
                 undertaken
                 ,
                 to
                 keep
                 and
                 preserve
                 something
                 belonging
                 to
                 the
                 mandator
                 ,
                 or
                 some
                 third
                 party
                 ;
                 and
                 therefore
                 ,
                 whatsoever
                 hath
                 been
                 before
                 said
                 of
                 Mandats
                 ,
                 must
                 be
                 here
                 understood
                 of
                 Custody
                 ,
                 and
                 needs
                 not
                 be
                 repeated
                 ,
                 except
                 what
                 is
                 speciall
                 in
                 Custody
                 .
              
               
                 49.
                 
                 The
                 Civil
                 Law
                 maketh
                 a
                 difference
                 in
                 the
                 diligence
                 of
                 Mandatars
                 and
                 Depositars
                 ,
                 that
                 these
                 are
                 lyable
                 only
                 for
                 Fraud
                 ,
                 where
                 of
                 alone
                 the
                 Pretors
                 Edict
                 makes
                 mention
                 ,
                 l.
                 1.
                 
                 §
                 1.
                 
                   ff
                   .
                   depositi
                   ,
                   l.
                
                 23.
                 
                   ff
                   de
                   regulis
                   juris
                   ,
                   l.
                
                 20.
                 
                   ff
                   .
                   depositi
                
                 ,
                 where
                 by
                 the
                 Depositar
                 ,
                 though
                 he
                 loss
                 the
                 thing
                 Depositate
                 ,
                 without
                 Fraud
                 is
                 free
                 ,
                 but
                 it
                 is
                 extended
                 to
                 
                   lata
                   culpa
                
                 ,
                 the
                 grossest
                 fault
                 
                   quae
                   dolo
                   aequiparatur
                   in
                   jure
                   ,
                   l.
                   quod
                   nerva
                   ,
                
                 32.
                 
                   ff
                   .
                   depositi
                
                 ,
                 where
                 the
                 diligence
                 opposite
                 to
                 grossest
                 faults
                 ,
                 is
                 excellently
                 described
                 ,
                 by
                 such
                 diligence
                 as
                 men
                 ordinarly
                 do
                 ,
                 or
                 the
                 Depositar
                 doth
                 in
                 his
                 own
                 Affairs
                 ;
                 But
                 Mandatars
                 are
                 lyable
                 for
                 the
                 lightest
                 fault
                 ;
                 yet
                 as
                 is
                 shown
                 before
                 ,
                 that
                 is
                 by
                 the
                 constitution
                 of
                 the
                 Civil
                 Law
                 ,
                 and
                 not
                 by
                 the
                 Nature
                 of
                 the
                 Mandat
                 ,
                 for
                 surely
                 the
                 reason
                 and
                 ground
                 of
                 the
                 diligence
                 of
                 both
                 is
                 alike
                 ,
                 as
                 being
                 gratuitous
                 ,
                 and
                 at
                 the
                 free
                 choice
                 of
                 the
                 Constituent
                 ,
                 who
                 therefore
                 should
                 demand
                 no
                 more
                 in
                 either
                 case
                 ,
                 but
                 such
                 diligence
                 as
                 the
                 person
                 intrusted
                 useth
                 ,
                 or
                 men
                 ordinarly
                 do
                 in
                 their
                 own
                 Affairs
                 ,
                 unless
                 it
                 be
                 otherways
                 agreed
                 ,
                 or
                 that
                 the
                 Depositar
                 hath
                 procured
                 the
                 Custody
                 when
                 others
                 offered
                 ,
                 l.
                 1.
                 
                 §
                 .
                 35.
                 
                   ff
                   .
                   depositi
                
                 ,
                 or
                 that
                 he
                 have
                 any
                 Honorary
                 or
                 Sallary
                 therefore
                 ,
                 which
                 may
                 be
                 consistent
                 here
                 ,
                 or
                 in
                 other
                 Mandats
                 ,
                 when
                 
                 in
                 the
                 meaning
                 of
                 the
                 Parties
                 ,
                 it
                 is
                 not
                 an
                 equivalent
                 satisfaction
                 to
                 the
                 benefite
                 received
                 ,
                 which
                 ordinarly
                 is
                 not
                 esteemable
                 ,
                 as
                 the
                 Sallaries
                 of
                 Medicines
                 for
                 the
                 preservation
                 of
                 Health
                 ,
                 or
                 Life
                 ,
                 and
                 curing
                 any
                 Member
                 ;
                 or
                 of
                 Judges
                 ,
                 or
                 Lawers
                 for
                 the
                 doing
                 or
                 procuring
                 of
                 Justice
                 ;
                 and
                 therefore
                 ,
                 is
                 called
                 a
                 Honorary
                 ,
                 and
                 the
                 Contract
                 is
                 esteemed
                 notwithstanding
                 free
                 ;
                 or
                 in
                 Depositations
                 ,
                 made
                 in
                 case
                 of
                 Naufrage
                 ,
                 Fire
                 ,
                 Tumult
                 ,
                 or
                 falling
                 of
                 Houses
                 ,
                 where
                 the
                 positive
                 Law
                 giveth
                 the
                 double
                 in
                 case
                 of
                 denyal
                 of
                 the
                 thing
                 Depositat
                 ,
                 in
                 commiseration
                 of
                 these
                 cases
                 for
                 the
                 publick
                 Good
                 ,
                 l.
                 1.
                 
                   ff
                   .
                   depositi
                
                 ;
                 but
                 these
                 cases
                 must
                 be
                 evident
                 ,
                 and
                 the
                 only
                 causes
                 of
                 the
                 Contract
                 ,
                 l.
                 1.
                 
                 §
                 .
                 3.
                 
                   ff
                   .
                   depositi
                
                 .
              
               
                 Hence
                 it
                 followeth
                 ,
                 that
                 Depositars
                 are
                 not
                 lyable
                 for
                 light
                 faults
                 ,
                 or
                 the
                 perishing
                 or
                 deterioration
                 of
                 the
                 thing
                 depositat
                 by
                 casuality
                 or
                 accident
                 ;
                 yet
                 it
                 may
                 be
                 questioned
                 ,
                 if
                 the
                 Depositar
                 delay
                 ,
                 and
                 not
                 redeliver
                 ,
                 whether
                 in
                 that
                 case
                 he
                 is
                 lyable
                 to
                 make
                 it
                 good
                 .
                 The
                 same
                 question
                 is
                 also
                 in
                 Mandats
                 ,
                 and
                 the
                 Law
                 is
                 for
                 the
                 affirmative
                 in
                 this
                 ,
                 and
                 all
                 other
                 cases
                 ,
                 unless
                 the
                 thing
                 after
                 the
                 delay
                 would
                 have
                 the
                 same
                 way
                 perished
                 ,
                 if
                 it
                 had
                 been
                 restored
                 ,
                 l.
                 5.
                 
                   ff
                   .
                   de
                   rebus
                   creditis
                   ,
                   l.
                
                 12.
                 
                 §
                 .
                 3.
                 
                   ff
                   .
                   depositi
                
                 ,
                 where
                 the
                 Depositars
                 peril
                 is
                 ,
                 
                   per
                   judicium
                   acceptum
                
                 ;
                 the
                 reason
                 whereof
                 ,
                 is
                 rendered
                 ,
                 because
                 if
                 the
                 thing
                 had
                 been
                 restored
                 ,
                 the
                 owner
                 might
                 have
                 sold
                 it
                 ,
                 and
                 so
                 though
                 it
                 had
                 perished
                 ,
                 he
                 had
                 been
                 no
                 loser
                 ,
                 yet
                 this
                 is
                 partly
                 penal
                 ,
                 and
                 the
                 Adequat
                 Ground
                 of
                 it
                 must
                 be
                 by
                 the
                 Obligation
                 of
                 Reparation
                 ,
                 of
                 the
                 damnage
                 sustained
                 by
                 that
                 Delinquence
                 ,
                 in
                 not
                 restoring
                 the
                 thing
                 Depositat
                 to
                 its
                 owner
                 when
                 required
                 ;
                 and
                 therefore
                 ,
                 it
                 is
                 to
                 be
                 measured
                 according
                 to
                 the
                 true
                 interest
                 ,
                 and
                 though
                 possibly
                 the
                 owner
                 might
                 have
                 sold
                 it
                 before
                 it
                 had
                 perished
                 ;
                 yet
                 unless
                 there
                 had
                 been
                 a
                 known
                 occasion
                 or
                 offer
                 to
                 have
                 bought
                 ,
                 or
                 purchased
                 it
                 ,
                 at
                 the
                 time
                 of
                 the
                 remaining
                 of
                 it
                 after
                 delay
                 ,
                 equity
                 would
                 not
                 conclude
                 the
                 making
                 up
                 of
                 what
                 had
                 so
                 perished
                 ,
                 in
                 this
                 we
                 are
                 not
                 bounded
                 with
                 any
                 positive
                 Law
                 or
                 Custome
                 ;
                 and
                 therefore
                 ,
                 Equity
                 in
                 it
                 with
                 us
                 may
                 take
                 place
                 ,
                 and
                 we
                 are
                 not
                 severe
                 in
                 diligence
                 of
                 Mandatars
                 ,
                 as
                 appears
                 from
                 the
                 former
                 Paragraph
                 ,
                 neither
                 yet
                 in
                 Custody
                 ;
                 and
                 therefore
                 ,
                 a
                 person
                 having
                 received
                 Money
                 in
                 keeping
                 ,
                 and
                 it
                 being
                 demanded
                 ,
                 he
                 did
                 declare
                 that
                 it
                 was
                 sent
                 with
                 his
                 own
                 to
                 Dundee
                 for
                 safety
                 ,
                 and
                 that
                 the
                 owner
                 might
                 have
                 it
                 there
                 for
                 sending
                 for
                 ;
                 and
                 thereafter
                 ,
                 Dundee
                 being
                 taken
                 and
                 plundered
                 ,
                 he
                 was
                 liberat
                 ,
                 giving
                 his
                 Oath
                 that
                 the
                 Money
                 he
                 got
                 in
                 keeping
                 was
                 lost
                 there
                 ,
                 July
                 19.
                 1662.
                 
                 
                   Fiddes
                   contra
                   Jack
                
                 .
                 And
                 a
                 Horse
                 being
                 put
                 in
                 the
                 Park
                 of
                 Halyroodbouse
                 for
                 Grassing
                 ,
                 though
                 he
                 was
                 lost
                 ;
                 the
                 Keeper
                 was
                 found
                 free
                 ,
                 because
                 there
                 was
                 a
                 Placat
                 on
                 the
                 entry
                 of
                 the
                 Park
                 ,
                 that
                 the
                 Horse
                 to
                 be
                 put
                 there
                 was
                 upon
                 their
                 Masters
                 peril
                 ,
                 though
                 this
                 Horse
                 was
                 delivered
                 to
                 a
                 Servant
                 ,
                 who
                 said
                 nothing
                 of
                 the
                 Placat
                 ,
                 November
                 16.
                 1667.
                 
                 Whitehead
                 of
                 
                   Park
                   contra
                   John
                   Straitoun
                
                 .
              
               
                 50.
                 
                 In
                 the
                 Civil
                 Law
                 there
                 is
                 a
                 Depositation
                 of
                 special
                 Nature
                 ,
                 Institute
                 by
                 the
                 Edict
                 ,
                 
                   Nautae
                   caupones
                   stabularij
                   ,
                   quod
                   cujusque
                   salvum
                   fore
                   reciperunt
                   nisi
                   restituant
                   in
                   eos
                   judicium
                   dabo
                   ,
                   l.
                
                 1.
                 
                   ff
                   .
                   eodem
                
                 .
              
               
                 By
                 this
                 Edict
                 ,
                 Positive
                 Law
                 for
                 utilities
                 sake
                 ,
                 hath
                 appointed
                 ,
                 that
                 the
                 Custody
                 of
                 the
                 Goods
                 of
                 the
                 Passengers
                 in
                 Ships
                 ,
                 or
                 Voyagers
                 in
                 Inns
                 ,
                 or
                 in
                 Stables
                 ,
                 shall
                 be
                 far
                 extended
                 beyond
                 the
                 Nature
                 of
                 Depositation
                 ,
                 which
                 obliegeth
                 only
                 for
                 Fraud
                 ,
                 or
                 Supine
                 Negligence
                 ,
                 them
                 who
                 have
                 expresly
                 Contracted
                 for
                 their
                 own
                 fact
                 :
                 But
                 this
                 Edict
                 ,
                 for
                 publick
                 utilities
                 sake
                 extendeth
                 it
                 ,
                 First
                 ,
                 To
                 the
                 Restitution
                 of
                 the
                 Goods
                 of
                 Passengers
                 ,
                 and
                 Voyagers
                 ,
                 and
                 Reparation
                 of
                 any
                 loss
                 or
                 injury
                 done
                 by
                 the
                 Mariners
                 ,
                 or
                 Servants
                 
                 of
                 the
                 Inn
                 or
                 Stable
                 ,
                 l.
                 1.
                 
                 §
                 .
                 8.
                 eodem
                 .
                 Whereas
                 by
                 the
                 Common
                 Law
                 ,
                 before
                 that
                 Edict
                 ,
                 in
                 this
                 and
                 other
                 such
                 cases
                 there
                 is
                 no
                 such
                 obliegement
                 ,
                 much
                 less
                 are
                 persons
                 now
                 oblieged
                 for
                 their
                 hired
                 Servants
                 Fact
                 or
                 Fault
                 ,
                 except
                 where
                 they
                 are
                 specially
                 intrusted
                 by
                 them
                 :
                 But
                 because
                 the
                 theft
                 and
                 loss
                 of
                 such
                 Goods
                 is
                 very
                 ordinary
                 in
                 Ships
                 ,
                 Inns
                 and
                 Stables
                 before
                 ,
                 this
                 Edict
                 was
                 introduced
                 for
                 the
                 security
                 of
                 Travellers
                 ,
                 l.
                 1.
                 
                 §
                 .
                 eodem
                 .
              
               
                 Secondly
                 ,
                 The
                 Edict
                 extends
                 this
                 obliegement
                 ,
                 even
                 to
                 the
                 damnage
                 sustained
                 by
                 other
                 Passengers
                 or
                 Voyagers
                 of
                 the
                 Ship
                 ,
                 Inn
                 or
                 Stable
                 ;
                 for
                 the
                 which
                 ,
                 the
                 Master
                 of
                 the
                 Ship
                 ,
                 Inn-keeper
                 ,
                 or
                 Keeper
                 of
                 the
                 Stable
                 ,
                 could
                 be
                 no
                 way
                 oblieged
                 ,
                 but
                 by
                 vertue
                 of
                 this
                 Edict
                 .
              
               
                 Thirdly
                 ,
                 They
                 were
                 made
                 liable
                 for
                 the
                 loss
                 or
                 theft
                 of
                 such
                 things
                 absolutely
                 ,
                 from
                 which
                 they
                 were
                 free
                 by
                 no
                 diligence
                 ,
                 but
                 were
                 not
                 liable
                 for
                 accident
                 or
                 force
                 .
              
               
                 By
                 Nautae
                 in
                 the
                 Edict
                 ,
                 are
                 understood
                 not
                 the
                 Mariners
                 ,
                 but
                 the
                 Exercitors
                 or
                 Owners
                 of
                 the
                 Ship
                 ,
                 to
                 whom
                 the
                 profit
                 belongs
                 ,
                 and
                 so
                 the
                 Master
                 of
                 the
                 Inn
                 or
                 Stable
                 ;
                 and
                 by
                 the
                 Statute
                 they
                 are
                 only
                 liable
                 for
                 that
                 ,
                 
                   quod
                   salvum
                   fore
                   reciperunt
                
                 ,
                 that
                 which
                 they
                 received
                 in
                 Custody
                 ,
                 either
                 by
                 themselves
                 ,
                 or
                 such
                 others
                 as
                 they
                 intrusted
                 ,
                 to
                 admit
                 Passengers
                 or
                 Voyagers
                 ,
                 their
                 Goods
                 and
                 Horses
                 ,
                 l.
                 1.
                 
                 §
                 .
                 2.
                 eodem
                 ,
                 whether
                 the
                 same
                 be
                 Ware
                 ,
                 Cloathes
                 ,
                 Cloag-bags
                 and
                 other
                 Furnishing
                 for
                 Passengers
                 or
                 Voyagers
                 ,
                 or
                 the
                 Furniture
                 of
                 Horses
                 in
                 Stables
                 ,
                 l.
                 1.
                 
                 §
                 .
                 6.
                 eodem
                 ,
                 or
                 whether
                 other
                 things
                 brought
                 in
                 ,
                 the
                 more
                 common
                 opinion
                 is
                 ,
                 albeit
                 the
                 things
                 brought
                 in
                 were
                 neither
                 known
                 or
                 shown
                 to
                 the
                 Master
                 of
                 the
                 Ship
                 ,
                 Inn
                 or
                 Stable
                 ,
                 they
                 are
                 liable
                 for
                 restitution
                 l.
                 1.
                 
                 §
                 .
                 8.
                 eodem
                 .
                 And
                 if
                 any
                 thing
                 be
                 wanting
                 ,
                 the
                 party
                 loser
                 hath
                 ,
                 
                   jur
                   amentum
                   in
                   litem
                
                 ,
                 and
                 is
                 not
                 oblieged
                 to
                 show
                 what
                 is
                 in
                 his
                 Clog-bag
                 ,
                 Pockets
                 ,
                 &c.
                 
                   Gloss.
                   ibid.
                
                 The
                 Reason
                 of
                 all
                 which
                 is
                 rendered
                 ,
                 l.
                 1.
                 ibidem
                 ,
                 because
                 it
                 is
                 in
                 the
                 Master
                 of
                 the
                 Ships
                 option
                 ,
                 to
                 receive
                 such
                 persons
                 or
                 not
                 ,
                 and
                 consequently
                 ,
                 if
                 he
                 doubt
                 of
                 their
                 Trust
                 ,
                 in
                 case
                 they
                 alledge
                 any
                 thing
                 wanting
                 ,
                 he
                 may
                 refuse
                 them
                 access
                 unless
                 they
                 show
                 what
                 they
                 have
                 ,
                 otherways
                 he
                 is
                 presumed
                 to
                 trust
                 their
                 Oath
                 ,
                 without
                 which
                 ,
                 this
                 Benefite
                 would
                 be
                 useless
                 :
                 They
                 are
                 also
                 not
                 only
                 liable
                 for
                 what
                 is
                 received
                 and
                 entered
                 in
                 the
                 Ship
                 or
                 Inn
                 ;
                 but
                 also
                 ,
                 if
                 it
                 be
                 expresly
                 received
                 for
                 that
                 end
                 else
                 where
                 ,
                 by
                 these
                 having
                 power
                 ,
                 and
                 if
                 it
                 be
                 lost
                 before
                 it
                 be
                 entered
                 in
                 the
                 Ship
                 ,
                 as
                 on
                 the
                 Shoar
                 ,
                 l.
                 3.
                 ibid.
                 Neither
                 are
                 these
                 persons
                 liberate
                 ,
                 by
                 bidding
                 each
                 man
                 look
                 to
                 his
                 own
                 Goods
                 ,
                 unless
                 the
                 Passengers
                 consent
                 ,
                 l.
                 7.
                 eodem
                 ,
                 but
                 their
                 silence
                 will
                 not
                 import
                 their
                 consent
                 ,
                 when
                 they
                 are
                 entered
                 ,
                 and
                 in
                 their
                 Passage
                 ;
                 yet
                 if
                 it
                 should
                 be
                 so
                 exprest
                 before
                 ,
                 or
                 at
                 their
                 entrie
                 ,
                 when
                 it
                 is
                 free
                 to
                 them
                 to
                 enter
                 or
                 not
                 ,
                 such
                 silence
                 would
                 sufficientlie
                 infer
                 consent
                 .
                 Neither
                 are
                 they
                 free
                 ,
                 though
                 the
                 Passenger
                 take
                 the
                 Key
                 of
                 the
                 Chamber
                 or
                 Chest
                 himself
                 ,
                 which
                 is
                 but
                 
                   propter
                   majorem
                   securitatem
                
                 ,
                 and
                 not
                 to
                 liberate
                 their
                 obleigment
                 ,
                 especially
                 seing
                 they
                 may
                 have
                 other
                 Keys
                 which
                 the
                 Passenger
                 cannot
                 know
                 .
              
               
                 This
                 excellent
                 Edict
                 being
                 but
                 Positive
                 ,
                 will
                 be
                 effectual
                 with
                 us
                 only
                 in
                 so
                 far
                 as
                 the
                 common
                 Customes
                 of
                 Nations
                 have
                 owned
                 it
                 ,
                 especially
                 in
                 maritime
                 matters
                 ,
                 betwixt
                 us
                 and
                 other
                 Nations
                 ,
                 or
                 in
                 so
                 far
                 as
                 our
                 own
                 Custome
                 hath
                 received
                 it
                 at
                 home
                 ;
                 but
                 the
                 evident
                 expediencie
                 of
                 it
                 cannot
                 but
                 make
                 it
                 acceptable
                 any
                 where
                 ,
                 where
                 the
                 least
                 respect
                 is
                 had
                 to
                 the
                 Civil
                 Law
                 ;
                 it
                 was
                 found
                 therefore
                 ,
                 that
                 the
                 Master
                 of
                 the
                 Ship
                 was
                 lyable
                 for
                 the
                 Goods
                 loaded
                 therein
                 ,
                 being
                 burned
                 by
                 the
                 fault
                 of
                 the
                 Mariners
                 ,
                 after
                 they
                 came
                 
                 to
                 the
                 Road
                 ,
                 and
                 he
                 desired
                 them
                 to
                 take
                 their
                 Goods
                 ashoar
                 ;
                 which
                 some
                 did
                 ,
                 yet
                 that
                 was
                 not
                 respected
                 ,
                 being
                 very
                 late
                 ,
                 and
                 not
                 convenient
                 time
                 for
                 all
                 to
                 disload
                 ,
                 as
                 was
                 lately
                 found
                 ,
                 
                   Bain
                   contra
                   Peter
                   Nairn
                
                 .
                 It
                 was
                 likeways
                 lately
                 found
                 ,
                 that
                 a
                 Passenger
                 losing
                 his
                 Money
                 out
                 of
                 his
                 Clog-bag
                 ,
                 the
                 Inn-keeper
                 ,
                 was
                 lyable
                 therefore
                 ,
                 and
                 the
                 Fact
                 being
                 proven
                 of
                 his
                 having
                 a
                 Clog-bag
                 at
                 his
                 entry
                 ,
                 he
                 had
                 his
                 Oath
                 
                   in
                   litem
                
                 ,
                 for
                 the
                 particulars
                 ,
                 
                   contra
                   Stuart
                
                 in
                 Whitehorn
                 .
              
               
                 A
                 Skipper
                 was
                 found
                 lyable
                 for
                 the
                 damnage
                 of
                 Ware
                 by
                 the
                 spouting
                 of
                 the
                 Pomp
                 ,
                 although
                 the
                 Ship
                 was
                 tight
                 at
                 the
                 lousing
                 ,
                 and
                 that
                 the
                 owner
                 of
                 the
                 Ware
                 was
                 on
                 Board
                 ,
                 and
                 had
                 put
                 the
                 Ware
                 near
                 the
                 Pomp
                 ,
                 that
                 it
                 might
                 not
                 be
                 found
                 easily
                 by
                 Capers
                 ,
                 seing
                 there
                 was
                 no
                 extraordinary
                 accident
                 by
                 stress
                 of
                 Weather
                 ,
                 November
                 7.
                 1677.
                 
                 
                   Thomas
                   Loury
                   contra
                   George
                   Angus
                
                 .
                 The
                 like
                 was
                 found
                 by
                 the
                 damnage
                 of
                 Ware
                 by
                 the
                 Sea
                 Water
                 ,
                 though
                 the
                 Ship
                 was
                 repaired
                 in
                 the
                 Port
                 ,
                 and
                 the
                 damnage
                 was
                 befallen
                 by
                 a
                 Leck
                 ,
                 struck
                 up
                 in
                 that
                 same
                 Road
                 ,
                 after
                 the
                 Reparation
                 ,
                 seing
                 there
                 was
                 no
                 extraordinary
                 stress
                 of
                 Weather
                 ,
                 or
                 other
                 accident
                 that
                 could
                 not
                 be
                 prevented
                 ,
                 July
                 24.
                 1680.
                 
                 
                   Colline
                   Lawmont
                   contra
                   Hendry
                   Boswel
                
                 .
              
               
                 Depositation
                 of
                 Writes
                 fall
                 most
                 frequently
                 in
                 question
                 ,
                 by
                 which
                 the
                 Depositar
                 is
                 trusted
                 with
                 the
                 keeping
                 of
                 the
                 Writes
                 ,
                 and
                 the
                 delivery
                 thereof
                 ,
                 according
                 to
                 the
                 terms
                 of
                 Depositation
                 ,
                 express
                 ,
                 or
                 presumed
                 ;
                 the
                 terms
                 presumed
                 are
                 ,
                 that
                 the
                 Depositar
                 should
                 give
                 back
                 the
                 Write
                 to
                 the
                 Deponent
                 ,
                 if
                 he
                 require
                 it
                 ,
                 and
                 if
                 not
                 ,
                 to
                 the
                 person
                 in
                 whose
                 favours
                 it
                 bears
                 to
                 be
                 granted
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 ,
                 
                   Ker
                   contra
                   Kers
                   ,
                   January
                
                 25.
                 1677.
                 in
                 the
                 case
                 of
                 a
                 Disposition
                 of
                 a
                 Tenement
                 ,
                 by
                 a
                 Grand-father
                 to
                 his
                 Oye
                 ,
                 meerly
                 gratuitous
                 ,
                 given
                 to
                 a
                 third
                 party
                 ,
                 without
                 expressing
                 any
                 Terms
                 of
                 Depositation
                 :
                 But
                 if
                 the
                 terms
                 be
                 exprest
                 ,
                 they
                 are
                 to
                 be
                 faithfully
                 observed
                 by
                 the
                 Depositar
                 ,
                 who
                 is
                 trusted
                 ,
                 and
                 which
                 are
                 always
                 probable
                 by
                 his
                 Oath
                 ,
                 if
                 they
                 be
                 not
                 in
                 Write
                 ,
                 signed
                 by
                 the
                 Deponent
                 ;
                 in
                 which
                 case
                 ,
                 the
                 Oath
                 of
                 the
                 Depositar
                 cannot
                 be
                 received
                 against
                 the
                 Deponents
                 Write
                 ,
                 or
                 even
                 besides
                 the
                 same
                 ;
                 and
                 therefore
                 ,
                 a
                 Depositars
                 Oath
                 was
                 not
                 found
                 receivable
                 ,
                 to
                 prove
                 that
                 the
                 Deponent
                 passed
                 from
                 the
                 Write
                 Depositat
                 ,
                 and
                 ordained
                 it
                 to
                 be
                 cancelled
                 ,
                 February
                 24.
                 1675.
                 
                 
                   Charles
                   Cowan
                   contra
                   James
                   Ramsay
                
                 .
                 But
                 the
                 Depositars
                 Oath
                 will
                 not
                 prove
                 that
                 the
                 Write
                 was
                 Depositat
                 ;
                 but
                 the
                 Oath
                 or
                 Write
                 of
                 the
                 granter
                 ,
                 because
                 delivery
                 ,
                 is
                 presumed
                 ,
                 unless
                 the
                 contrair
                 be
                 proven
                 by
                 the
                 Oath
                 ,
                 or
                 Write
                 of
                 him
                 in
                 whose
                 favour
                 the
                 Write
                 is
                 conceived
                 .
              
               
                 Under
                 Custody
                 is
                 contained
                 Sequestration
                 ,
                 whether
                 of
                 consent
                 ,
                 where
                 any
                 thing
                 Litigious
                 or
                 contraverse
                 is
                 intrusted
                 in
                 the
                 hand
                 of
                 a
                 third
                 party
                 ,
                 till
                 the
                 Rights
                 and
                 Poslessions
                 of
                 the
                 pretenders
                 be
                 cleared
                 ,
                 or
                 by
                 authority
                 of
                 a
                 Judge
                 ,
                 which
                 is
                 a
                 part
                 of
                 Judicial
                 Process
                 ,
                 of
                 which
                 hereafter
                 .
              
               
                 53.
                 
                 Consignation
                 is
                 also
                 a
                 kind
                 of
                 Custody
                 ,
                 whereby
                 the
                 Consigner
                 Depositats
                 in
                 the
                 Consignatars
                 hands
                 ,
                 the
                 sum
                 or
                 thing
                 which
                 is
                 refused
                 by
                 the
                 Creditor
                 ,
                 to
                 the
                 Creditors
                 behove
                 ,
                 therein
                 the
                 Consignatar
                 is
                 but
                 the
                 Interposed
                 person
                 ,
                 either
                 by
                 consent
                 ,
                 as
                 it
                 is
                 frequently
                 provided
                 by
                 Clauses
                 of
                 Consignation
                 ,
                 or
                 by
                 Law
                 ;
                 and
                 the
                 Contract
                 of
                 Custody
                 standeth
                 betwixt
                 the
                 Creditor
                 and
                 the
                 Consignatar
                 ,
                 by
                 which
                 he
                 is
                 oblieged
                 to
                 keep
                 ,
                 and
                 restore
                 to
                 the
                 Creditor
                 ,
                 and
                 thereby
                 the
                 Debitor
                 orderly
                 Consigning
                 is
                 liberat
                 ,
                 and
                 is
                 not
                 oblieged
                 to
                 uplift
                 Sums
                 Consigned
                 from
                 the
                 Consignatar
                 ,
                 and
                 make
                 them
                 forthcoming
                 to
                 the
                 Creditor
                 ,
                 unless
                 the
                 Consignation
                 be
                 simulat
                 ,
                 and
                 taken
                 up
                 again
                 by
                 the
                 
                 Consigner
                 ,
                 and
                 where
                 the
                 Law
                 condescends
                 on
                 consignatars
                 ,
                 the
                 Consigner
                 is
                 liberate
                 ,
                 and
                 not
                 lyable
                 for
                 the
                 Consignatars
                 sufficiency
                 ,
                 or
                 faithfulness
                 ,
                 as
                 where
                 Consignations
                 are
                 to
                 be
                 legally
                 in
                 the
                 hands
                 of
                 the
                 Clerk
                 of
                 the
                 Bills
                 ;
                 yet
                 if
                 the
                 Consignation
                 hath
                 not
                 been
                 orderly
                 ,
                 but
                 by
                 the
                 fault
                 of
                 the
                 Consigner
                 ,
                 if
                 the
                 publick
                 Consignatar
                 prove
                 Insolvent
                 ,
                 the
                 peril
                 is
                 the
                 Consigner
                 .
              
               
                 In
                 Conventional
                 Obligations
                 ,
                 where
                 the
                 choyce
                 of
                 the
                 Consignatar
                 is
                 in
                 the
                 Consigner
                 ,
                 the
                 Consignation
                 is
                 upon
                 the
                 peril
                 of
                 the
                 Consigner
                 ,
                 if
                 the
                 Consignatar
                 was
                 Insolvent
                 ,
                 which
                 uses
                 ordinarly
                 to
                 be
                 exprest
                 ,
                 but
                 if
                 it
                 were
                 not
                 ,
                 it
                 is
                 implyed
                 .
              
               
                 Trust
                 is
                 also
                 a
                 kind
                 of
                 Depositation
                 ,
                 whereby
                 the
                 thing
                 intrusted
                 is
                 in
                 the
                 custody
                 of
                 the
                 person
                 intrusted
                 ,
                 to
                 the
                 behove
                 of
                 the
                 intruster
                 ,
                 and
                 the
                 property
                 of
                 the
                 thing
                 intrusted
                 ,
                 be
                 it
                 Land
                 or
                 Moveables
                 ,
                 is
                 in
                 the
                 person
                 of
                 the
                 Intrusted
                 ,
                 else
                 it
                 is
                 not
                 proper
                 Trust
                 ;
                 so
                 if
                 it
                 be
                 transmitted
                 to
                 singular
                 Successors
                 ,
                 acquiring
                 
                   bona
                   fide
                
                 ,
                 they
                 are
                 secure
                 ,
                 and
                 the
                 Trusty
                 is
                 only
                 lyable
                 personally
                 upon
                 the
                 Trust
                 ;
                 but
                 such
                 Trusts
                 being
                 of
                 Importance
                 ,
                 albeit
                 Write
                 useth
                 not
                 to
                 be
                 adhibite
                 in
                 them
                 ,
                 they
                 are
                 not
                 ordinarly
                 proven
                 but
                 by
                 Write
                 ,
                 or
                 Oath
                 of
                 Party
                 ;
                 yet
                 Witnesses
                 were
                 used
                 ,
                 
                   ex
                   officio
                
                 ,
                 and
                 trust
                 of
                 an
                 Assignation
                 found
                 proven
                 thereby
                 ,
                 February
                 22.
                 1665.
                 
                 Viscount
                 of
                 
                   Kingstoun
                   contra
                
                 Collonel
                 Fullertoun
                 .
                 And
                 a
                 Bond
                 being
                 in
                 Trust
                 to
                 an
                 other
                 parties
                 behove
                 ,
                 was
                 found
                 proven
                 by
                 presumptions
                 ,
                 January
                 12.
                 1666.
                 
                 Executors
                 of
                 
                   William
                   Stevinson
                   contra
                   James
                   Crawford
                
                 .
              
               
                 54.
                 
                 This
                 is
                 singular
                 in
                 the
                 Law
                 of
                 Depositation
                 ,
                 that
                 there
                 is
                 no
                 exception
                 of
                 compensation
                 competent
                 against
                 it
                 ,
                 
                   l.
                   pen.
                   C.
                   depositi
                
                 ,
                 which
                 Donellus
                 and
                 most
                 Interpreters
                 account
                 to
                 be
                 introduced
                 only
                 by
                 Justinian
                 ,
                 and
                 was
                 not
                 so
                 before
                 ,
                 nor
                 by
                 the
                 Nature
                 of
                 this
                 Contract
                 ,
                 nor
                 by
                 Equity
                 :
                 But
                 the
                 contrary
                 appeareth
                 ,
                 because
                 the
                 very
                 intent
                 and
                 Nature
                 of
                 this
                 Contract
                 is
                 ,
                 that
                 the
                 thing
                 Depositate
                 must
                 be
                 keeped
                 and
                 restored
                 whensoever
                 demanded
                 ,
                 yea
                 ,
                 though
                 it
                 had
                 a
                 Term
                 ,
                 yet
                 unless
                 there
                 were
                 a
                 Sallery
                 ,
                 or
                 some
                 Interest
                 in
                 the
                 Keeper
                 ,
                 it
                 may
                 be
                 demanded
                 whensoever
                 ,
                 because
                 the
                 Term
                 is
                 in
                 favours
                 of
                 the
                 Deponent
                 ,
                 not
                 of
                 the
                 Depositar
                 ,
                 whom
                 it
                 bindeth
                 during
                 that
                 time
                 ,
                 and
                 so
                 it
                 may
                 be
                 renounced
                 whensoever
                 by
                 the
                 Deponer
                 ,
                 
                   cuique
                   licet
                   juri
                   pro
                   se
                   introducto
                   renunciare
                
                 ;
                 and
                 therefore
                 it
                 is
                 the
                 nature
                 of
                 this
                 Contract
                 ,
                 that
                 the
                 thing
                 Depositate
                 should
                 be
                 restored
                 upon
                 demand
                 ,
                 and
                 his
                 accepting
                 thereof
                 so
                 ,
                 is
                 a
                 tacit
                 quiting
                 of
                 any
                 objection
                 in
                 the
                 contrary
                 ,
                 but
                 the
                 convincing
                 reason
                 is
                 that
                 compensation
                 is
                 only
                 in
                 things
                 of
                 the
                 same
                 nature
                 and
                 liquid
                 .
                 But
                 in
                 Depositation
                 ,
                 the
                 Dominion
                 &
                 Possession
                 of
                 the
                 thing
                 remaineth
                 in
                 the
                 Deponent
                 ,
                 though
                 it
                 be
                 numerate
                 Money
                 Consigned
                 ,
                 and
                 to
                 medle
                 with
                 it
                 is
                 unwarrantable
                 ,
                 and
                 accounted
                 in
                 Law
                 theft
                 ,
                 as
                 being
                 
                   contrect
                   atio
                   rei
                   alienae
                
                 ;
                 and
                 therefore
                 ,
                 that
                 being
                 a
                 thing
                 cannot
                 be
                 compensed
                 with
                 mutuum
                 ,
                 where
                 the
                 property
                 and
                 dominion
                 is
                 in
                 the
                 borrower
                 ,
                 and
                 but
                 a
                 personal
                 Obligation
                 to
                 repay
                 ,
                 which
                 cannot
                 be
                 compensed
                 with
                 a
                 body
                 or
                 quantity
                 ,
                 the
                 property
                 whereof
                 is
                 not
                 alienat
                 .
                 The
                 like
                 therefore
                 holdeth
                 in
                 Money
                 found
                 ,
                 or
                 any
                 other
                 way
                 in
                 the
                 detainers
                 hands
                 ,
                 without
                 right
                 to
                 the
                 property
                 of
                 it
                 ;
                 yet
                 if
                 two
                 Depositars
                 were
                 in
                 question
                 of
                 that
                 same
                 kind
                 of
                 thing
                 ,
                 as
                 both
                 of
                 money
                 ,
                 the
                 Law
                 allows
                 compensation
                 in
                 that
                 case
                 .
              
               
                 55.
                 
                 The
                 question
                 is
                 also
                 moved
                 here
                 ,
                 whether
                 the
                 thing
                 Depositat
                 may
                 be
                 detained
                 for
                 the
                 necessary
                 and
                 profitable
                 expenses
                 wared
                 upon
                 it
                 ,
                 though
                 Law
                 and
                 most
                 Interpreters
                 fovour
                 the
                 Negative
                 ,
                 upon
                 the
                 same
                 ground
                 that
                 compensation
                 is
                 excluded
                 ;
                 but
                 the
                 Affirmative
                 is
                 preferred
                 ,
                 because
                 ,
                 as
                 the
                 
                 contrary
                 action
                 is
                 competent
                 for
                 the
                 Melioration
                 ,
                 so
                 much
                 more
                 the
                 exception
                 ,
                 being
                 a
                 part
                 of
                 the
                 same
                 Contract
                 ;
                 and
                 therefore
                 ,
                 the
                 Lord
                 Balmerino
                 having
                 ,
                 by
                 his
                 own
                 Missive
                 and
                 Back
                 bond
                 ,
                 acknowledged
                 that
                 the
                 Estate
                 of
                 Jedburgh
                 was
                 Disponed
                 to
                 him
                 in
                 trust
                 ,
                 to
                 the
                 behove
                 of
                 the
                 Earl
                 of
                 Somerseat
                 ,
                 all
                 the
                 expense
                 on
                 the
                 Land
                 ,
                 or
                 for
                 Somerseat
                 in
                 contemplation
                 of
                 the
                 trust
                 ,
                 was
                 found
                 competent
                 against
                 Bedford
                 ,
                 who
                 had
                 adjudged
                 Somerseat's
                 Right
                 .
              
               
                 And
                 in
                 all
                 cases
                 in
                 the
                 Law
                 where
                 Action
                 is
                 competent
                 ,
                 Exception
                 is
                 also
                 competent
                 ,
                 and
                 so
                 with
                 us
                 ,
                 if
                 instantly
                 verified
                 .
                 Amongst
                 the
                 Romans
                 ,
                 there
                 was
                 an
                 Edict
                 of
                 the
                 Pretors
                 ,
                 
                   in
                   deposito
                
                 ,
                 to
                 this
                 effect
                 ,
                 that
                 Depositars
                 should
                 be
                 oblieged
                 to
                 restore
                 or
                 make
                 up
                 the
                 single
                 value
                 :
                 But
                 in
                 things
                 Depositat
                 through
                 the
                 present
                 occasion
                 of
                 Tumult
                 ,
                 Fire
                 ,
                 falling
                 of
                 Houses
                 ,
                 or
                 Ship-wrack
                 (
                 in
                 the
                 case
                 of
                 not
                 due
                 Restitution
                 )
                 for
                 the
                 double
                 ,
                 l.
                 1.
                 
                   ff
                   .
                   depositi
                
                 ,
                 wherein
                 there
                 is
                 much
                 utility
                 to
                 secure
                 persons
                 ,
                 Depositating
                 of
                 necessity
                 in
                 these
                 deplorable
                 cases
                 ,
                 but
                 it
                 hath
                 not
                 been
                 allowed
                 by
                 our
                 Customs
                 as
                 yet
                 .
              
               
                 56.
                 
                 It
                 may
                 be
                 questioned
                 ,
                 if
                 any
                 thing
                 be
                 Depositate
                 to
                 more
                 Depositars
                 ,
                 whether
                 they
                 are
                 lyable
                 
                   in
                   solidum
                
                 ?
                 So
                 that
                 the
                 Deponent
                 may
                 crave
                 Restitution
                 ,
                 or
                 Reparation
                 from
                 every
                 one
                 for
                 the
                 whole
                 value
                 ,
                 or
                 for
                 his
                 share
                 only
                 :
                 The
                 Civil
                 Law
                 is
                 clear
                 for
                 the
                 Affirmative
                 ,
                 that
                 all
                 are
                 lyable
                 
                   in
                   solidum
                   ,
                   l.
                
                 1.
                 
                 §
                 .
                 43.
                 eodem
                 ,
                 and
                 upon
                 good
                 reason
                 ,
                 because
                 it
                 is
                 fidelity
                 in
                 preserving
                 one
                 Individual
                 thing
                 that
                 is
                 undertaken
                 ,
                 which
                 therefore
                 ,
                 
                   de
                   natura
                   rei
                
                 ,
                 must
                 obliege
                 every
                 person
                 to
                 the
                 whole
                 ,
                 seing
                 he
                 is
                 not
                 oblieged
                 to
                 restore
                 a
                 part
                 of
                 the
                 thing
                 Depositat
                 ,
                 but
                 the
                 thing
                 it self
                 ;
                 yet
                 if
                 the
                 Depositars
                 be
                 all
                 solvendo
                 ,
                 they
                 are
                 free
                 paying
                 their
                 part
                 ,
                 the
                 thing
                 depositat
                 being
                 Money
                 ,
                 l.
                 22.
                 
                   si
                   duo
                   haeredes
                   ,
                   ff
                   .
                   depositi
                
                 ;
                 but
                 in
                 this
                 case
                 ,
                 there
                 were
                 not
                 more
                 depositars
                 ,
                 but
                 more
                 Heirs
                 of
                 a
                 Depositar
                 .
              
               
                 And
                 in
                 this
                 Depositars
                 and
                 Con-tutors
                 differ
                 ,
                 that
                 the
                 diligence
                 of
                 these
                 ,
                 even
                 as
                 to
                 their
                 Con-tutors
                 ,
                 being
                 greater
                 then
                 of
                 the
                 other
                 ;
                 this
                 being
                 consequent
                 to
                 the
                 nature
                 of
                 Depositation
                 ,
                 will
                 no
                 doubt
                 be
                 followed
                 by
                 us
                 .
                 
                   In
                   deposito
                
                 ,
                 in
                 the
                 Law
                 ,
                 the
                 Deponent
                 hath
                 
                   beneficium
                   juramenti
                   in
                   litem
                
                 ,
                 or
                 to
                 prove
                 the
                 particulars
                 or
                 quantities
                 wanting
                 and
                 their
                 value
                 ,
                 
                   secundum
                   praetium
                   affectionis
                
                 ,
                 because
                 of
                 the
                 exuberance
                 of
                 Trust
                 in
                 this
                 Contract
                 ,
                 l.
                 1
                 ,
                 §
                 .
                 26.
                 
                   ff
                   .
                   depos
                
                 .
                 but
                 not
                 the
                 Depositar
                 in
                 the
                 contrary
                 action
                 ,
                 l.
                 5.
                 eodem
                 .
                 where
                 the
                 reason
                 is
                 added
                 ,
                 because
                 there
                 is
                 no
                 breach
                 of
                 Faith
                 nor
                 Trust
                 ,
                 but
                 Damnage
                 and
                 Reparation
                 in
                 question
                 :
                 The
                 Depositar
                 also
                 detaining
                 ,
                 being
                 condemned
                 becomes
                 infamous
                 ,
                 l.
                 1.
                 
                   ff
                   .
                   de
                   his
                   qui
                   infamia
                   notantur
                   .
                
                 Hence
                 it
                 is
                 from
                 this
                 Trust
                 ,
                 that
                 if
                 a
                 Chest
                 or
                 other
                 continent
                 sealed
                 be
                 Depositat
                 ,
                 action
                 is
                 competent
                 for
                 all
                 that
                 was
                 therein
                 shown
                 or
                 not
                 ,
                 l.
                 1.
                 
                 §
                 .
                 41.
                 eodem
                 ;
                 and
                 therefore
                 in
                 such
                 cases
                 ,
                 the
                 Deponents
                 Oath
                 
                   in
                   litem
                
                 ,
                 must
                 be
                 taken
                 ,
                 or
                 else
                 this
                 Interest
                 perisheth
                 ,
                 which
                 is
                 suitable
                 to
                 our
                 Custome
                 ,
                 before
                 mentoned
                 in
                 the
                 case
                 of
                 Inn-keepers
                 ,
                 and
                 there
                 is
                 good
                 reason
                 and
                 equity
                 ,
                 
                   pro
                   pretio
                   affectionis
                
                 ,
                 but
                 I
                 have
                 not
                 observed
                 it
                 questioned
                 or
                 decided
                 .
                 This
                 being
                 a
                 Contract
                 of
                 greatest
                 Trust
                 ,
                 Restitution
                 is
                 to
                 be
                 made
                 ,
                 
                   cum
                   omni
                   causa
                
                 ,
                 as
                 Fruits
                 ,
                 and
                 Birth
                 ,
                 and
                 Annualrent
                 ,
                 
                   post
                   moram
                   ,
                   l.
                
                 2.
                 
                 
                   C.
                   depositi
                
                 ,
                 but
                 Annualrent
                 with
                 us
                 is
                 not
                 due
                 ,
                 
                   sine
                   pacto
                
                 ,
                 but
                 may
                 be
                 made
                 good
                 by
                 modification
                 of
                 expense
                 by
                 the
                 Lords
                 .
              
               
                 There
                 is
                 a
                 frequent
                 case
                 of
                 Depositation
                 of
                 Writes
                 before
                 delivery
                 thereof
                 ,
                 which
                 therefore
                 suspende
                 their
                 effect
                 ,
                 until
                 the
                 Terms
                 of
                 the
                 Depositation
                 appear
                 ,
                 which
                 is
                 unquestionable
                 by
                 the
                 Oath
                 of
                 the
                 Party
                 receiver
                 of
                 the
                 Write
                 ,
                 both
                 that
                 the
                 Write
                 was
                 not
                 delivered
                 ,
                 but
                 depositat
                 ,
                 and
                 also
                 upon
                 what
                 terms
                 .
              
               
               
                 57.
                 
                 Pledge
                 either
                 signifies
                 the
                 thing
                 impignorat
                 ,
                 or
                 the
                 Contract
                 of
                 impignoration
                 ,
                 in
                 the
                 same
                 way
                 as
                 Pignus
                 in
                 the
                 Law
                 is
                 taken
                 ,
                 and
                 it
                 is
                 a
                 kind
                 of
                 Mandat
                 ,
                 whereby
                 the
                 Debitor
                 for
                 his
                 Creditors
                 security
                 ,
                 gives
                 him
                 the
                 pawn
                 ,
                 or
                 thing
                 impignorat
                 ,
                 to
                 detain
                 or
                 keep
                 it
                 for
                 his
                 own
                 security
                 ;
                 or
                 in
                 case
                 of
                 not
                 payment
                 of
                 the
                 Debt
                 ,
                 to
                 sell
                 the
                 Pledge
                 and
                 pay
                 himself
                 out
                 of
                 the
                 price
                 ,
                 and
                 restore
                 the
                 rest
                 ,
                 or
                 the
                 Pledge
                 it self
                 upon
                 payment
                 of
                 the
                 Debt
                 ;
                 all
                 which
                 is
                 of
                 the
                 nature
                 of
                 a
                 Mandat
                 ,
                 and
                 it
                 hath
                 not
                 only
                 Custody
                 in
                 it
                 ,
                 but
                 the
                 power
                 to
                 Dispone
                 in
                 the
                 case
                 of
                 not
                 payment
                 ;
                 but
                 if
                 the
                 profite
                 of
                 the
                 Pledge
                 be
                 alloted
                 for
                 the
                 profite
                 of
                 the
                 Debt
                 ,
                 which
                 is
                 called
                 
                   〈◊〉
                   〈◊〉
                   〈◊〉
                   〈◊〉
                   〈◊〉
                
                 ,
                 it
                 is
                 a
                 mixt
                 Contract
                 ,
                 having
                 in
                 it
                 a
                 Mandat
                 ,
                 and
                 the
                 exchange
                 of
                 the
                 Usufruct
                 ,
                 or
                 use
                 of
                 the
                 Pledge
                 for
                 the
                 use
                 of
                 the
                 Debt
                 .
              
               
                 58.
                 
                 This
                 Contract
                 hath
                 this
                 special
                 in
                 it
                 ,
                 that
                 it
                 is
                 not
                 meerly
                 to
                 the
                 behove
                 of
                 the
                 Constituent
                 ,
                 as
                 ordinarly
                 Mandats
                 are
                 ,
                 but
                 it
                 is
                 to
                 the
                 behove
                 of
                 the
                 Hypothecar
                 ,
                 for
                 his
                 security
                 ,
                 and
                 so
                 ends
                 not
                 with
                 the
                 death
                 of
                 either
                 party
                 ,
                 nor
                 is
                 Revockable
                 as
                 other
                 Mandats
                 but
                 passeth
                 to
                 Heirs
                 and
                 Assignays
                 ;
                 and
                 therefore
                 requireth
                 greater
                 diligence
                 then
                 Mandats
                 ,
                 viz.
                 such
                 diligence
                 as
                 prudent
                 men
                 use
                 in
                 their
                 Affairs
                 ,
                 but
                 obliegeth
                 not
                 for
                 the
                 lightest
                 fault
                 ,
                 l.
                 23.
                 
                   ff
                   .
                   de
                   reg
                   .
                   juris
                   .
                
              
               
                 This
                 is
                 also
                 singular
                 in
                 Wodsets
                 ,
                 or
                 Impignorations
                 ,
                 that
                 thereby
                 there
                 is
                 constitute
                 a
                 real
                 Right
                 in
                 the
                 Pledge
                 ,
                 which
                 no
                 Deed
                 nor
                 Alienation
                 of
                 the
                 Constituent
                 can
                 alter
                 or
                 infringe
                 ,
                 which
                 is
                 not
                 so
                 in
                 Mandats
                 ,
                 or
                 things
                 Depositat
                 ,
                 neither
                 in
                 Location
                 ,
                 whereby
                 there
                 is
                 only
                 a
                 Personal
                 Right
                 ,
                 and
                 if
                 the
                 property
                 of
                 the
                 thing
                 be
                 Alienat
                 from
                 the
                 Constituent
                 ,
                 the
                 Personal
                 Right
                 hath
                 no
                 effect
                 ,
                 as
                 to
                 the
                 thing
                 about
                 which
                 it
                 is
                 Constitute
                 ;
                 but
                 there
                 is
                 here
                 a
                 real
                 Right
                 ,
                 of
                 which
                 hereafter
                 among
                 other
                 real
                 Rights
                 .
              
               
                 59.
                 
                 We
                 shall
                 not
                 insist
                 in
                 the
                 manner
                 of
                 the
                 sale
                 of
                 Pledges
                 prescribed
                 by
                 the
                 Roman
                 Law
                 ,
                 and
                 the
                 Intimations
                 or
                 Denunciations
                 requisite
                 to
                 be
                 made
                 to
                 the
                 Debitor
                 ,
                 that
                 being
                 wholly
                 changed
                 by
                 our
                 Customes
                 ,
                 for
                 in
                 Wodsets
                 of
                 Lands
                 ,
                 the
                 Wodsetter
                 hath
                 a
                 Disposition
                 of
                 the
                 Property
                 ,
                 but
                 with
                 a
                 Reservation
                 or
                 Paction
                 ,
                 to
                 sell
                 back
                 again
                 to
                 the
                 Debitor
                 ,
                 upon
                 payment
                 of
                 the
                 Debt
                 ,
                 and
                 so
                 the
                 Wodsetter
                 cannot
                 by
                 vertue
                 of
                 the
                 Impignoration
                 ,
                 sell
                 the
                 Lands
                 and
                 pay
                 himself
                 ,
                 but
                 all
                 he
                 can
                 do
                 is
                 to
                 affect
                 the
                 Wodset
                 Lands
                 ,
                 by
                 legal
                 diligence
                 as
                 an
                 other
                 Creditor
                 ;
                 and
                 if
                 any
                 other
                 prevent
                 him
                 in
                 diligence
                 ,
                 they
                 acquire
                 the
                 Right
                 of
                 Reversion
                 ,
                 and
                 no
                 posterior
                 diligence
                 of
                 his
                 can
                 take
                 it
                 away
                 ,
                 or
                 capacitate
                 him
                 to
                 acquire
                 the
                 full
                 property
                 of
                 the
                 Pledge
                 ,
                 or
                 to
                 alienate
                 it
                 simply
                 to
                 another
                 .
                 The
                 like
                 is
                 in
                 the
                 Impignoration
                 of
                 Moveables
                 ,
                 which
                 cannot
                 be
                 thereby
                 sold
                 ,
                 but
                 the
                 Creditor
                 may
                 affect
                 them
                 by
                 his
                 Legal
                 Diligence
                 ,
                 by
                 Poynding
                 thereof
                 .
              
               
                 60.
                 
                 In
                 Impignoration
                 either
                 of
                 Heretable
                 or
                 Moveable
                 Rights
                 ,
                 the
                 Law
                 rejected
                 ,
                 
                   pactum
                   legis
                   commissoriae
                
                 ,
                 which
                 we
                 call
                 a
                 Clause
                 Irritant
                 ,
                 whereby
                 it
                 is
                 provided
                 ,
                 that
                 if
                 the
                 Debt
                 be
                 not
                 payed
                 at
                 such
                 a
                 time
                 ,
                 the
                 Reversion
                 shal
                 be
                 void
                 .
                 Our
                 Custome
                 doth
                 not
                 annull
                 such
                 Clauses
                 ;
                 but
                 by
                 Act
                 of
                 Sederunt
                 ,
                 November
                 27.
                 1592.
                 it
                 is
                 declared
                 ,
                 that
                 the
                 Lords
                 would
                 decide
                 in
                 all
                 Clauses
                 Irritant
                 ,
                 in
                 Infeftments
                 ,
                 Bonds
                 ,
                 and
                 Tacks
                 ,
                 according
                 to
                 the
                 express
                 words
                 and
                 meaning
                 thereof
                 precisely
                 ;
                 yet
                 the
                 Lords
                 allow
                 such
                 Clauses
                 to
                 be
                 purged
                 by
                 performance
                 ,
                 before
                 Sentence
                 ,
                 declaring
                 the
                 Clause
                 irritant
                 committed
                 .
              
               
               
                 In
                 which
                 Process
                 ,
                 though
                 it
                 be
                 committed
                 long
                 before
                 ,
                 yet
                 by
                 payment
                 at
                 the
                 Barr
                 ,
                 it
                 will
                 be
                 purged
                 ,
                 even
                 though
                 the
                 Party
                 after
                 the
                 irritancy
                 get
                 Possession
                 ,
                 Hope
                 ,
                 Clause
                 irritant
                 ,
                 
                   John
                   Edgar
                   contra
                   Gordoun
                
                 of
                 Earlestoun
                 :
                 Yea
                 ,
                 though
                 the
                 Wodsetter
                 had
                 obtained
                 a
                 Decreet
                 of
                 Removing
                 ,
                 two
                 years
                 after
                 the
                 failzie
                 ;
                 against
                 which
                 Reposition
                 was
                 granted
                 ,
                 paying
                 all
                 Damnage
                 and
                 Interest
                 ,
                 July
                 8.
                 1636.
                 
                 
                   Cleghorn
                   contra
                   Ferguson
                
                 :
                 And
                 albeit
                 the
                 Money
                 was
                 not
                 ready
                 to
                 purge
                 at
                 the
                 Bar
                 ,
                 so
                 that
                 the
                 Failzie
                 was
                 declared
                 ,
                 yet
                 it
                 was
                 superceeding
                 Extract
                 for
                 a
                 time
                 ,
                 that
                 it
                 may
                 be
                 purged
                 in
                 the
                 mean
                 time
                 ,
                 February
                 7.
                 1628.
                 
                 
                   Pringle
                   contra
                   Ker.
                
                 But
                 where
                 the
                 Requisition
                 was
                 on
                 nine
                 score
                 days
                 ,
                 there
                 was
                 no
                 time
                 granted
                 after
                 the
                 Decreet
                 to
                 purge
                 ,
                 July
                 19.
                 1625.
                 
                 
                   Nairn
                   contra
                   Naper
                
                 .
                 This
                 Clause
                 is
                 so
                 odious
                 ,
                 that
                 it
                 was
                 elided
                 by
                 the
                 Wodsetters
                 Possession
                 of
                 a
                 part
                 of
                 the
                 Lands
                 ,
                 and
                 thereby
                 getting
                 a
                 part
                 of
                 the
                 Annualrent
                 ,
                 March
                 18.
                 1629.
                 
                 
                   Barcley
                   contra
                   Stevinson
                
                 .
                 The
                 like
                 by
                 accepting
                 of
                 payment
                 of
                 Annualrent
                 after
                 Failzie
                 ,
                 Hope
                 ,
                 Clause
                 irritant
                 
                   Nasmith
                   contra
                   Kinloch
                
                 .
                 The
                 like
                 by
                 payment
                 of
                 Annualrent
                 ,
                 or
                 by
                 compensation
                 therewith
                 ,
                 
                   ibid.
                   Barns
                   contra
                   Barcley
                
                 .
                 The
                 reason
                 of
                 the
                 Law
                 and
                 our
                 Custome
                 is
                 ,
                 because
                 Impignoration
                 is
                 a
                 permutative
                 Contract
                 ,
                 wherein
                 equality
                 is
                 meant
                 and
                 required
                 ,
                 and
                 Clauses
                 irritant
                 are
                 redacted
                 to
                 equality
                 ,
                 respect
                 is
                 not
                 had
                 to
                 the
                 Terms
                 and
                 Expressions
                 of
                 the
                 Contract
                 ,
                 but
                 to
                 the
                 thing
                 truely
                 done
                 ;
                 and
                 therefore
                 ,
                 though
                 sale
                 of
                 Lands
                 with
                 Reversion
                 be
                 exprest
                 ,
                 yet
                 if
                 there
                 be
                 not
                 a
                 competent
                 equivalent
                 price
                 ,
                 and
                 that
                 it
                 be
                 not
                 a
                 real
                 and
                 proper
                 sale
                 ,
                 but
                 only
                 a
                 Wodset
                 ,
                 under
                 that
                 conception
                 ,
                 the
                 Clause
                 irritant
                 hath
                 no
                 further
                 effect
                 then
                 is
                 before
                 exprest
                 ;
                 but
                 if
                 it
                 be
                 a
                 true
                 sale
                 and
                 competent
                 price
                 ,
                 the
                 Clause
                 irritant
                 is
                 not
                 penal
                 ,
                 but
                 hath
                 its
                 full
                 effect
                 ;
                 but
                 otherwise
                 it
                 is
                 still
                 purgeable
                 till
                 declarator
                 ,
                 which
                 therefore
                 is
                 necessar
                 ,
                 even
                 though
                 the
                 Clause
                 irritant
                 bear
                 ,
                 that
                 the
                 Reversion
                 shall
                 be
                 null
                 without
                 declarator
                 ,
                 for
                 the
                 remeeding
                 of
                 the
                 exorbitancy
                 of
                 such
                 Clauses
                 irritant
                 .
              
               
                 61.
                 
                 Impignoration
                 is
                 either
                 express
                 by
                 the
                 explicit
                 consent
                 of
                 parties
                 ,
                 or
                 implicit
                 ,
                 which
                 is
                 introduced
                 by
                 Law
                 without
                 consent
                 of
                 parties
                 ;
                 of
                 such
                 tacite
                 hypothecations
                 ,
                 there
                 have
                 been
                 many
                 in
                 the
                 Civil
                 Law
                 ,
                 as
                 in
                 the
                 Ware
                 ,
                 for
                 the
                 price
                 ,
                 in
                 Houses
                 for
                 expenses
                 in
                 Preservation
                 or
                 Melioration
                 ,
                 or
                 for
                 Money
                 lent
                 for
                 that
                 use
                 ,
                 to
                 a
                 Wife
                 in
                 the
                 Goods
                 of
                 her
                 Husband
                 ,
                 for
                 her
                 Tocher
                 :
                 To
                 Pupils
                 and
                 Minors
                 in
                 the
                 Goods
                 of
                 their
                 Tutors
                 and
                 Curators
                 for
                 their
                 Duty
                 and
                 Administration
                 to
                 Pupils
                 in
                 the
                 Goods
                 of
                 their
                 Mother
                 being
                 their
                 Tutrix
                 ,
                 or
                 in
                 the
                 Goods
                 of
                 her
                 second
                 Husband
                 ,
                 if
                 she
                 did
                 not
                 make
                 an
                 accompt
                 ,
                 and
                 procure
                 a
                 new
                 Tutor
                 before
                 her
                 Marriage
                 :
                 to
                 Legators
                 in
                 the
                 Goods
                 of
                 Executors
                 :
                 To
                 the
                 Fisk
                 for
                 their
                 Tribute
                 ,
                 or
                 their
                 Contracts
                 :
                 to
                 Cities
                 in
                 the
                 Goods
                 of
                 their
                 Administrators
                 .
                 But
                 our
                 Custome
                 hath
                 taken
                 away
                 express
                 hypothecations
                 of
                 all
                 ,
                 or
                 a
                 part
                 of
                 the
                 Debitors
                 Goods
                 without
                 delivery
                 ,
                 and
                 in
                 the
                 tacite
                 legal
                 hypothecation
                 ,
                 hath
                 only
                 allowed
                 a
                 few
                 ,
                 allowing
                 ordinarly
                 parties
                 to
                 be
                 preferred
                 ,
                 according
                 to
                 the
                 priority
                 of
                 their
                 legal
                 diligence
                 ,
                 that
                 Commerce
                 may
                 be
                 the
                 more
                 sure
                 ,
                 and
                 every
                 one
                 may
                 more
                 easily
                 know
                 his
                 condition
                 with
                 whom
                 he
                 contracts
                 ;
                 and
                 therefore
                 ,
                 Goods
                 sold
                 were
                 not
                 found
                 under
                 any
                 hypothecation
                 for
                 the
                 price
                 ,
                 June
                 14.
                 1676.
                 
                 
                   Thomas
                   Cushney
                   contra
                   John
                   Crystie
                
                 .
              
               
                 Yet
                 with
                 us
                 there
                 remains
                 the
                 tacite
                 Hypothecation
                 of
                 the
                 Fruits
                 on
                 the
                 Ground
                 in
                 the
                 first
                 place
                 ,
                 and
                 they
                 not
                 satisfying
                 ,
                 the
                 Goods
                 on
                 the
                 Ground
                 ,
                 belonging
                 to
                 the
                 Possessour
                 ,
                 for
                 the
                 terms
                 or
                 the
                 years
                 when
                 the
                 Cropt
                 was
                 on
                 the
                 Ground
                 ,
                 but
                 not
                 for
                 prior
                 or
                 past
                 years
                 ;
                 and
                 therefore
                 ,
                 all
                 Masters
                 of
                 the
                 Ground
                 ,
                 or
                 their
                 Assigneys
                 ,
                 having
                 right
                 to
                 the
                 Mails
                 and
                 Duties
                 ,
                 have
                 interest
                 to
                 recover
                 the
                 rents
                 thereof
                 ,
                 from
                 all
                 intromettors
                 with
                 the
                 Fruits
                 ,
                 
                 Rents
                 or
                 profits
                 thereof
                 ,
                 though
                 upon
                 a
                 Title
                 ,
                 unless
                 their
                 Title
                 be
                 preferable
                 ,
                 or
                 at
                 least
                 have
                 the
                 benefite
                 of
                 a
                 Possessory
                 Judgement
                 :
                 This
                 was
                 extended
                 to
                 Intromettors
                 ,
                 though
                 they
                 bought
                 the
                 Corns
                 which
                 grew
                 on
                 the
                 Ground
                 ,
                 in
                 publick
                 Mercat
                 at
                 Zule
                 ,
                 albeit
                 the
                 Heretor
                 had
                 Poynded
                 a
                 part
                 of
                 the
                 Crop
                 ,
                 for
                 the
                 Rent
                 of
                 a
                 prior
                 year
                 ,
                 unless
                 at
                 the
                 Term
                 of
                 payment
                 ,
                 Candlemas
                 ,
                 there
                 were
                 sufficient
                 Fruits
                 on
                 the
                 Ground
                 to
                 satisfie
                 the
                 Rent
                 ,
                 March
                 29.
                 1639.
                 
                 Dam
                 
                   Mary
                   Hay
                   contra
                   Archibald
                   Elliot
                
                 .
              
               
                 Secondly
                 ,
                 It
                 is
                 extended
                 to
                 Intromettors
                 ,
                 with
                 the
                 Cropt
                 and
                 Goods
                 of
                 the
                 Ground
                 ,
                 though
                 they
                 lawfully
                 Poynded
                 the
                 same
                 from
                 the
                 Tennants
                 for
                 their
                 just
                 Debts
                 ,
                 
                   Nic.
                   in
                   quibus
                   causis
                   pignus
                   ,
                   &c.
                   
                
                 Earl
                 of
                 
                   Wintoun
                   contra
                   Barcley
                
                 ,
                 unless
                 they
                 left
                 as
                 much
                 upon
                 the
                 Ground
                 as
                 might
                 satisfie
                 the
                 rent
                 ,
                 besides
                 the
                 Houshold
                 Stuff
                 ,
                 July
                 25.
                 1623.
                 
                 February
                 3.
                 1624.
                 
                 
                   Hay
                   contra
                   Keith
                
                 .
                 The
                 like
                 wherein
                 the
                 present
                 Cropt
                 was
                 not
                 accompted
                 ,
                 but
                 left
                 for
                 the
                 subsequent
                 Rent
                 ,
                 of
                 which
                 the
                 Terms
                 were
                 not
                 come
                 ,
                 June
                 29.
                 1624.
                 
                 
                   Polwart
                   contra
                
              
               
                 Thirdly
                 ,
                 It
                 is
                 extended
                 ,
                 that
                 thereby
                 the
                 Master
                 of
                 the
                 Ground
                 may
                 summarly
                 stop
                 Poynding
                 ,
                 unless
                 sufficient
                 Goods
                 be
                 left
                 to
                 pay
                 the
                 Rent
                 ,
                 beside
                 the
                 plenishing
                 of
                 the
                 House
                 ,
                 February
                 3.
                 1624.
                 
                 Arrocks
                 Bairns
                 
                   contra
                   Keith
                
                 .
              
               
                 Fourthly
                 ,
                 This
                 is
                 extended
                 against
                 the
                 Donatar
                 of
                 the
                 Tennants
                 Escheat
                 ,
                 intrometting
                 thereby
                 ,
                 who
                 was
                 found
                 lyable
                 ,
                 though
                 no
                 Action
                 was
                 moved
                 by
                 the
                 Master
                 of
                 the
                 Ground
                 for
                 seven
                 years
                 ,
                 in
                 the
                 said
                 case
                 ,
                 
                   Hay
                   contra
                   Keith
                
                 .
              
               
                 The
                 like
                 is
                 sustained
                 as
                 to
                 the
                 Goods
                 of
                 the
                 Possessours
                 of
                 Houses
                 ,
                 
                   invecta
                   &
                   illata
                
                 ,
                 for
                 House-mailes
                 ,
                 for
                 all
                 intromettors
                 therewith
                 are
                 lyable
                 ,
                 and
                 the
                 Goods
                 may
                 be
                 stopped
                 from
                 Poynding
                 for
                 the
                 Possessours
                 Debt
                 ,
                 without
                 Deforcement
                 ,
                 being
                 
                   invecta
                   &
                   illata
                
                 :
                 But
                 this
                 extends
                 only
                 to
                 one
                 year
                 ,
                 or
                 two
                 Terms
                 Mail
                 ,
                 December
                 7.
                 1630.
                 
                 
                   Dick
                   contra
                   Lands
                
                 .
              
               
                 But
                 the
                 Hypothecation
                 of
                 the
                 Fruits
                 of
                 the
                 Ground
                 is
                 greater
                 ,
                 then
                 of
                 the
                 Tennants
                 other
                 Goods
                 ;
                 for
                 the
                 Fruits
                 are
                 lyable
                 according
                 to
                 the
                 value
                 thereof
                 for
                 the
                 rents
                 ,
                 though
                 there
                 remain
                 other
                 Goods
                 sufficient
                 to
                 pay
                 the
                 Rents
                 on
                 the
                 Ground
                 ,
                 seing
                 there
                 remained
                 not
                 sufficient
                 Fruits
                 to
                 pay
                 the
                 same
                 ,
                 
                   March
                   ult
                
                 .
                 1624.
                 
                 Lady
                 Down
                 and
                 her
                 
                   Spouse
                   contra
                
                 Laird
                 of
                 Down
                 .
                 This
                 Hypothecation
                 of
                 the
                 Fruits
                 for
                 the
                 Rent
                 ,
                 was
                 extended
                 to
                 a
                 Town
                 setting
                 their
                 Customes
                 ,
                 even
                 against
                 the
                 Sub-tacksman
                 ,
                 not
                 bound
                 to
                 the
                 Town
                 ,
                 who
                 were
                 preferred
                 to
                 the
                 Tacksmans
                 Creditors
                 in
                 a
                 double
                 Poynding
                 ,
                 January
                 31.
                 1665.
                 
                 Anderson
                 and
                 
                   Proven
                   contra
                
                 the
                 Town
                 of
                 Edinburgh
                 .
                 It
                 was
                 also
                 extended
                 to
                 the
                 seller
                 of
                 Fishing
                 against
                 the
                 Donatar
                 of
                 the
                 Tacks-mans
                 Escheat
                 ,
                 who
                 was
                 found
                 lyable
                 to
                 restore
                 ,
                 July
                 4.
                 1667.
                 
                 
                   Cuming
                   of
                   Alter
                   contra
                   Lumsdean
                
                 .
                 This
                 Hypothecation
                 was
                 found
                 to
                 give
                 the
                 Master
                 of
                 the
                 Ground
                 Right
                 ,
                 not
                 only
                 to
                 detain
                 ,
                 but
                 to
                 bring
                 back
                 the
                 Tennants
                 Goods
                 to
                 the
                 Ground
                 ,
                 
                   de
                   recenti
                   ,
                   December
                
                 11.
                 1672.
                 
                 
                   William
                   Crichtoun
                   contra
                
                 the
                 Earl
                 of
                 〈◊〉
                 ,
                 but
                 not
                 
                   ex
                   intervallo
                   ,
                   February
                
                 9.
                 1679.
                 
                 
                   Park
                   contra
                   Cockburn
                
                 of
                 Riselaw
                 :
                 But
                 this
                 Hypothecation
                 was
                 not
                 extended
                 to
                 an
                 Appryzer
                 without
                 diligence
                 or
                 Possession
                 ,
                 July
                 29.
                 1675.
                 
                 Lord
                 
                   Panmoor
                   contra
                   Collistoun
                
                 .
              
               
                 The
                 like
                 Hypothecation
                 is
                 competent
                 to
                 Teind-Masters
                 for
                 their
                 Teinds
                 ,
                 even
                 though
                 the
                 Heretor
                 get
                 a
                 Rent
                 for
                 the
                 whole
                 ,
                 or
                 Profite
                 of
                 the
                 Land
                 ,
                 Stock
                 and
                 Teind
                 joyntly
                 ,
                 he
                 is
                 thereby
                 lyable
                 as
                 Intromettor
                 ,
                 which
                 was
                 extended
                 to
                 Ministers
                 for
                 their
                 Benefices
                 or
                 Stipends
                 ,
                 whereby
                 they
                 may
                 have
                 access
                 to
                 any
                 Intrometter
                 with
                 the
                 Teinds
                 ,
                 out
                 of
                 which
                 the
                 Stipend
                 is
                 modified
                 ,
                 
                 not
                 only
                 for
                 the
                 Intrometters
                 proportion
                 of
                 his
                 Lands
                 ,
                 but
                 
                   in
                   solidum
                
                 ,
                 for
                 his
                 whole
                 Teind
                 ,
                 according
                 to
                 the
                 value
                 of
                 his
                 Intromission
                 ,
                 July
                 6.
                 1625.
                 
                 
                   Mortoun
                   contra
                   Scot
                
                 ,
                 which
                 held
                 ,
                 though
                 the
                 Intromettor
                 had
                 a
                 Wodset
                 of
                 Stock
                 and
                 Teind
                 ,
                 whereby
                 he
                 had
                 but
                 his
                 Annualrent
                 ,
                 March
                 21.
                 1633.
                 
                 Mr.
                 
                   Gilbert
                   Key
                   contra
                   Mr.
                   James
                   Gray
                
                 and
                 Carmichael
                 ,
                 and
                 this
                 was
                 found
                 not
                 only
                 in
                 Beneficed
                 Ministers
                 ,
                 but
                 in
                 Stipendiaries
                 ,
                 who
                 may
                 either
                 take
                 them
                 to
                 the
                 Tennents
                 or
                 their
                 Masters
                 Intrometting
                 ,
                 Spots
                 .
                 Kirkmen
                 ,
                 Mr.
                 
                   Andrew
                   Ker
                   contra
                   Gilchrist
                
                 .
                 There
                 is
                 with
                 us
                 no
                 Hypothecation
                 in
                 Lands
                 ,
                 for
                 the
                 Price
                 or
                 Money
                 borrowed
                 ,
                 expresly
                 to
                 buy
                 it
                 ,
                 
                   Nicol.
                   quae
                   in
                   fraudem
                   ,
                   Paterson
                   contra
                   Scarlet
                   .
                
                 And
                 the
                 preference
                 of
                 Relicts
                 for
                 Implement
                 of
                 their
                 Contracts
                 of
                 Marriage
                 ,
                 out
                 of
                 their
                 Husbands
                 Moveables
                 ,
                 in
                 their
                 hands
                 ,
                 to
                 other
                 Creditors
                 ,
                 is
                 not
                 a
                 Hypothecation
                 ,
                 but
                 a
                 priviledge
                 personal
                 .
              
               
                 63.
                 
                 Permutation
                 ,
                 or
                 Excambion
                 and
                 Sale
                 ,
                 are
                 so
                 congenerous
                 Contracts
                 ;
                 especially
                 in
                 our
                 Customes
                 ,
                 that
                 the
                 same
                 work
                 will
                 explain
                 both
                 ,
                 by
                 holding
                 out
                 in
                 what
                 they
                 do
                 agree
                 ,
                 and
                 in
                 what
                 they
                 differ
                 :
                 Permutation
                 or
                 Exchange
                 ,
                 is
                 a
                 Contract
                 whereby
                 one
                 thing
                 is
                 agreed
                 to
                 be
                 given
                 for
                 another
                 ,
                 which
                 ,
                 if
                 it
                 be
                 Money
                 ,
                 as
                 it
                 is
                 current
                 for
                 Goods
                 or
                 Ware
                 (
                 under
                 which
                 all
                 things
                 which
                 can
                 be
                 bought
                 ,
                 are
                 comprehended
                 )
                 then
                 its
                 sale
                 ,
                 or
                 emption
                 and
                 vendition
                 .
              
               
                 These
                 Contracts
                 agree
                 in
                 this
                 ,
                 that
                 both
                 are
                 perfected
                 according
                 to
                 Law
                 and
                 our
                 Custome
                 ,
                 by
                 sole
                 consent
                 :
                 Naked
                 pactions
                 being
                 now
                 efficatious
                 ,
                 and
                 though
                 neither
                 of
                 the
                 things
                 exchanged
                 be
                 delivered
                 ,
                 the
                 agreement
                 is
                 valid
                 ,
                 but
                 if
                 there
                 be
                 any
                 latent
                 vitiosity
                 ,
                 if
                 it
                 impede
                 the
                 use
                 of
                 the
                 thing
                 bought
                 ,
                 the
                 Romans
                 gave
                 
                   action
                   em
                   redhibitoriam
                
                 ,
                 to
                 restore
                 and
                 annual
                 the
                 bargain
                 ,
                 or
                 
                   quanti
                   minoris
                
                 ,
                 for
                 making
                 up
                 the
                 buyers
                 Interest
                 ;
                 but
                 if
                 the
                 seller
                 was
                 ignorant
                 of
                 the
                 vitiosity
                 ,
                 or
                 insufficiency
                 ,
                 he
                 is
                 not
                 lyable
                 to
                 make
                 it
                 good
                 ,
                 unless
                 he
                 affirm
                 it
                 to
                 be
                 free
                 of
                 that
                 ,
                 or
                 in
                 general
                 ,
                 of
                 any
                 other
                 faults
                 ,
                 but
                 if
                 he
                 knew
                 ,
                 he
                 is
                 lyable
                 ,
                 if
                 it
                 were
                 not
                 showen
                 to
                 the
                 buyer
                 ,
                 or
                 of
                 it self
                 evident
                 or
                 known
                 ;
                 in
                 which
                 case
                 ,
                 the
                 seller
                 is
                 only
                 oblieged
                 ,
                 if
                 he
                 expresly
                 paction
                 ,
                 our
                 Custome
                 alloweth
                 making
                 up
                 of
                 latent
                 insufficiency
                 ,
                 of
                 which
                 before
                 .
              
               
                 But
                 these
                 Contracts
                 differ
                 ,
                 First
                 ,
                 in
                 the
                 materials
                 ,
                 which
                 in
                 sale
                 must
                 be
                 Money
                 ,
                 as
                 such
                 ,
                 and
                 as
                 a
                 liquid
                 price
                 ,
                 else
                 if
                 it
                 be
                 respected
                 as
                 a
                 body
                 ,
                 or
                 indefinite
                 quantity
                 ,
                 as
                 uncoyned
                 or
                 uncurrent
                 Money
                 ,
                 or
                 if
                 it
                 be
                 bought
                 by
                 the
                 weight
                 ,
                 or
                 intrinsick
                 value
                 ;
                 or
                 if
                 Money
                 of
                 one
                 Countrey
                 be
                 exchanged
                 with
                 Money
                 of
                 another
                 Countrey
                 ,
                 having
                 no
                 common
                 Standard
                 ,
                 here
                 is
                 no
                 sale
                 but
                 exchange
                 :
                 Neither
                 is
                 exchange
                 of
                 Money
                 loan
                 ,
                 because
                 it
                 is
                 not
                 as
                 a
                 liquid
                 quantity
                 ,
                 as
                 when
                 so
                 much
                 English
                 Money
                 is
                 given
                 for
                 the
                 Floren
                 Crown
                 ,
                 or
                 Gilder
                 ,
                 and
                 the
                 remitting
                 thereof
                 .
                 The
                 price
                 must
                 be
                 also
                 certain
                 ,
                 or
                 which
                 may
                 be
                 assertained
                 ,
                 as
                 such
                 a
                 person
                 gave
                 ,
                 or
                 as
                 shall
                 be
                 had
                 from
                 others
                 by
                 the
                 seller
                 for
                 the
                 like
                 Goods
                 ,
                 or
                 as
                 such
                 a
                 person
                 shall
                 appoint
                 ,
                 which
                 if
                 exorbitant
                 ,
                 may
                 be
                 redacted
                 ,
                 
                   ad
                   arbitrium
                   boni
                   viri
                
                 ,
                 which
                 seems
                 to
                 consist
                 ,
                 though
                 the
                 arbitriment
                 be
                 made
                 the
                 buyers
                 .
              
               
                 Secondly
                 ,
                 Excambion
                 and
                 Sale
                 differ
                 mainly
                 in
                 this
                 ,
                 that
                 in
                 sale
                 ,
                 delivery
                 of
                 the
                 Goods
                 or
                 things
                 bought
                 ,
                 with
                 the
                 Obligation
                 of
                 Warrandice
                 in
                 case
                 of
                 eviction
                 ,
                 which
                 is
                 implyed
                 in
                 sale
                 ,
                 though
                 not
                 exprest
                 ,
                 is
                 the
                 implement
                 of
                 it
                 on
                 the
                 sellers
                 part
                 ,
                 even
                 though
                 the
                 buyer
                 know
                 ,
                 and
                 make
                 it
                 appear
                 that
                 it
                 were
                 not
                 the
                 sellers
                 ,
                 yet
                 he
                 could
                 demand
                 no
                 more
                 but
                 delivery
                 and
                 warrandice
                 ;
                 but
                 contrarways
                 ,
                 the
                 price
                 must
                 be
                 made
                 the
                 Sellers
                 ,
                 and
                 he
                 may
                 refuse
                 it
                 if
                 he
                 can
                 shew
                 anothers
                 Right
                 .
              
               
               
                 But
                 in
                 Excambion
                 ,
                 delivery
                 must
                 be
                 made
                 on
                 either
                 part
                 ,
                 and
                 the
                 thing
                 delivered
                 must
                 become
                 thereby
                 the
                 receivers
                 ,
                 else
                 ,
                 if
                 it
                 appear
                 to
                 be
                 anothers
                 ,
                 it
                 may
                 be
                 refused
                 before
                 delivery
                 ,
                 and
                 if
                 it
                 be
                 evicted
                 after
                 ,
                 the
                 Contract
                 becomes
                 void
                 ,
                 and
                 the
                 other
                 party
                 hath
                 regress
                 to
                 what
                 he
                 gave
                 in
                 Excambion
                 ,
                 which
                 followeth
                 even
                 singular
                 Successors
                 ,
                 though
                 it
                 be
                 not
                 so
                 expres
                 ,
                 and
                 though
                 the
                 singular
                 Successor
                 was
                 by
                 Appryzing
                 ,
                 &c.
                 prior
                 to
                 the
                 eviction
                 ,
                 November
                 21.
                 1623.
                 
                 Earl
                 of
                 
                   Montrose
                   contra
                
                 Sir
                 
                   John
                   Ker.
                
                 And
                 that
                 without
                 necessity
                 to
                 instruct
                 ,
                 that
                 he
                 who
                 craves
                 regress
                 had
                 right
                 when
                 he
                 changed
                 any
                 further
                 then
                 by
                 the
                 Narrative
                 of
                 the
                 Excambion
                 ,
                 which
                 was
                 of
                 an
                 old
                 date
                 ,
                 in
                 a
                 Charter
                 from
                 the
                 King
                 ,
                 bearing
                 ,
                 
                   These
                   Lands
                   to
                   have
                   been
                   Disponed
                   in
                   Excambion
                   ,
                   for
                   the
                   Defenders
                   Lands
                   ,
                   and
                   that
                   the
                   Excamber
                   and
                   his
                   Heirs
                   should
                   have
                   regress
                   ,
                   without
                   mention
                   of
                   Assignays
                   ,
                
                 albeit
                 the
                 Pursuer
                 was
                 Assignay
                 ,
                 July
                 14.
                 1629.
                 
                 Laird
                 of
                 
                   Wardess
                   contra
                
                 Laird
                 of
                 Balcomy
                 ;
                 where
                 it
                 was
                 also
                 found
                 ,
                 that
                 no
                 person
                 needed
                 to
                 be
                 cited
                 to
                 obtain
                 regress
                 ,
                 but
                 the
                 present
                 proprietar
                 of
                 the
                 Lands
                 Excambed
                 ,
                 and
                 the
                 Successor
                 of
                 the
                 Contracter
                 ,
                 and
                 no
                 intervenient
                 Authors
                 ,
                 July
                 2.
                 1629.
                 
                   inter
                   eosdem
                
                 .
              
               
                 64.
                 
                 Sale
                 may
                 consist
                 in
                 all
                 things
                 which
                 are
                 not
                 prohibite
                 ,
                 such
                 as
                 buying
                 of
                 Pleas
                 ,
                 by
                 Members
                 of
                 the
                 Colledge
                 of
                 Justice
                 ,
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 which
                 is
                 understood
                 of
                 all
                 persons
                 ,
                 having
                 imployment
                 about
                 the
                 Session
                 ,
                 as
                 Advocats
                 ,
                 Clerks
                 ,
                 Writers
                 ,
                 &c.
                 
                 Agents
                 and
                 their
                 Servants
                 ;
                 wherein
                 by
                 Pleas
                 ,
                 are
                 not
                 understood
                 things
                 wherein
                 there
                 may
                 be
                 contraversie
                 ,
                 but
                 wherein
                 there
                 is
                 Process
                 actually
                 depending
                 ,
                 and
                 called
                 and
                 not
                 decerned
                 ,
                 July
                 6.
                 1625.
                 
                 
                   Mowat
                   contra
                   Mcclane
                   .
                   July
                
                 30.
                 1635.
                 
                 Sir
                 
                   Robert
                   Richardson
                   centra
                   Cranstoun
                   Riddel
                
                 .
                 But
                 the
                 Prohibition
                 doth
                 not
                 annul
                 the
                 Right
                 or
                 hinder
                 Process
                 ,
                 but
                 is
                 a
                 Ground
                 whereupon
                 deprivation
                 may
                 follow
                 by
                 the
                 Act
                 ,
                 as
                 in
                 the
                 former
                 case
                 ,
                 June
                 5.
                 1611.
                 
                 
                   Adam
                   Cunninghame
                
                 Advocat
                 
                   contra
                   Maxwel
                
                 of
                 Drumcoltrane
                 .
              
               
                 Sale
                 being
                 perfected
                 and
                 the
                 thing
                 delivered
                 ,
                 the
                 property
                 thereof
                 becomes
                 the
                 buyers
                 ,
                 if
                 it
                 was
                 the
                 sellers
                 ,
                 and
                 there
                 is
                 no
                 dependence
                 of
                 it
                 ,
                 till
                 the
                 price
                 be
                 payed
                 or
                 secured
                 ,
                 as
                 was
                 in
                 the
                 Civil
                 Law
                 ,
                 neither
                 Hypothecation
                 of
                 it
                 for
                 the
                 price
                 ,
                 
                   Hope
                   de
                   empto
                   .
                   John
                   Parker
                   contra
                   Stevin
                   Law.
                   Nic.
                   quae
                   in
                   fraudem
                   creditorum
                   ,
                   Paterson
                   contra
                   Scarlet
                   .
                
              
               
                 In
                 fale
                 there
                 may
                 be
                 Earnest
                 interposed
                 ,
                 or
                 Reversion
                 granted
                 ,
                 or
                 the
                 Commissory
                 Paction
                 or
                 Clause
                 irritant
                 ,
                 adjected
                 ,
                 that
                 if
                 the
                 price
                 be
                 not
                 payed
                 ,
                 the
                 sale
                 shall
                 be
                 void
                 ,
                 or
                 the
                 same
                 may
                 be
                 conditionally
                 ,
                 if
                 the
                 price
                 be
                 payed
                 by
                 such
                 a
                 day
                 ,
                 or
                 if
                 any
                 other
                 offer
                 not
                 a
                 better
                 Price
                 in
                 such
                 a
                 time
                 ,
                 or
                 with
                 condition
                 not
                 to
                 sell
                 ,
                 without
                 consent
                 ,
                 of
                 which
                 in
                 order
                 .
              
               
                 65.
                 
                 As
                 to
                 the
                 First
                 ,
                 Though
                 giving
                 of
                 Earnest
                 be
                 very
                 ordinary
                 in
                 Bargains
                 of
                 sale
                 and
                 others
                 ,
                 yet
                 it
                 is
                 no
                 less
                 dubious
                 ,
                 what
                 the
                 Nature
                 and
                 Effect
                 thereof
                 is
                 ,
                 some
                 holding
                 it
                 to
                 be
                 ,
                 to
                 the
                 effect
                 the
                 Bargain
                 may
                 be
                 evident
                 and
                 certain
                 ;
                 for
                 though
                 sale
                 be
                 perfected
                 by
                 sole
                 consent
                 ,
                 yet
                 it
                 is
                 not
                 always
                 evident
                 to
                 the
                 parties
                 and
                 the
                 witnesses
                 ,
                 whether
                 it
                 be
                 a
                 Communing
                 or
                 a
                 Contract
                 ;
                 and
                 therefore
                 ,
                 to
                 make
                 it
                 sure
                 to
                 both
                 ,
                 Merchants
                 who
                 may
                 not
                 hazard
                 upon
                 dubious
                 Interpretations
                 ,
                 do
                 give
                 Earnest
                 as
                 an
                 evidence
                 of
                 the
                 Bargain
                 closed
                 and
                 perfected
                 :
                 But
                 others
                 think
                 ,
                 that
                 the
                 effect
                 and
                 intent
                 of
                 Earnest
                 ,
                 is
                 that
                 the
                 giver
                 of
                 the
                 Earnest
                 may
                 resile
                 from
                 the
                 Bargain
                 if
                 he
                 please
                 to
                 lose
                 his
                 Earnest
                 ,
                 and
                 the
                 taker
                 may
                 resile
                 ,
                 if
                 he
                 return
                 the
                 Earnest
                 with
                 as
                 much
                 more
                 .
                 The
                 Civil
                 Law
                 ,
                 l.
                 17.
                 
                 
                   C.
                   de
                   side
                   instrumentorum
                   &
                   instit
                   .
                   de
                   empt
                   .
                   vend
                   .
                   in
                   principio
                
                 ;
                 And
                 many
                 Interpreters
                 seem
                 to
                 favour
                 this
                 construction
                 :
                 
                 Yet
                 many
                 Texts
                 in
                 Law
                 adduced
                 by
                 
                   Wezenbecius
                   ,
                   Faber
                
                 and
                 others
                 ,
                 are
                 for
                 the
                 former
                 opinion
                 ,
                 and
                 they
                 do
                 Interpret
                 the
                 contrary
                 places
                 ,
                 not
                 to
                 be
                 of
                 sale
                 perfected
                 ,
                 but
                 of
                 an
                 antecedent
                 promise
                 or
                 paction
                 ,
                 to
                 buy
                 or
                 sell
                 :
                 It
                 hath
                 not
                 oft
                 occurred
                 (
                 so
                 far
                 as
                 I
                 have
                 observed
                 )
                 to
                 be
                 decided
                 with
                 us
                 ,
                 which
                 of
                 these
                 opinions
                 is
                 to
                 be
                 followed
                 with
                 us
                 ,
                 but
                 the
                 former
                 seems
                 to
                 be
                 preferable
                 ,
                 because
                 ordinarly
                 with
                 us
                 ,
                 Earnest
                 is
                 so
                 inconsiderable
                 that
                 it
                 cannot
                 be
                 thought
                 to
                 be
                 the
                 meaning
                 of
                 the
                 parties
                 to
                 leave
                 the
                 Bargain
                 Arbitrary
                 ,
                 upon
                 the
                 losing
                 or
                 doubling
                 thereof
                 ,
                 so
                 was
                 it
                 found
                 ,
                 February
                 24.
                 1628.
                 
                   contra
                   James
                   Riddel
                
                 .
                 To
                 this
                 also
                 suits
                 the
                 sense
                 ,
                 that
                 Earnest
                 is
                 taken
                 in
                 the
                 Scripture
                 ,
                 
                   for
                   Evidence
                   and
                   Assurance
                
                 ,
                 making
                 the
                 matter
                 Fixed
                 and
                 not
                 Arbitrary
                 ,
                 which
                 at
                 least
                 evinceth
                 that
                 the
                 Word
                 hath
                 been
                 anciently
                 taken
                 so
                 ,
                 whatever
                 hath
                 been
                 the
                 Custome
                 and
                 Constitution
                 of
                 the
                 Romans
                 .
              
               
                 66.
                 
                 Reversion
                 or
                 the
                 Paction
                 of
                 Redemption
                 ,
                 though
                 ordinarly
                 it
                 is
                 used
                 in
                 Wodsets
                 ,
                 which
                 albeit
                 they
                 be
                 under
                 the
                 form
                 of
                 sale
                 ,
                 yet
                 in
                 reality
                 they
                 are
                 not
                 such
                 ,
                 there
                 being
                 no
                 equivalent
                 price
                 ,
                 yet
                 may
                 it
                 be
                 where
                 there
                 is
                 a
                 true
                 sale
                 ,
                 and
                 this
                 paction
                 is
                 no
                 real
                 quality
                 or
                 condition
                 of
                 the
                 sale
                 ,
                 however
                 it
                 be
                 conceived
                 ,
                 but
                 only
                 a
                 personal
                 obliegement
                 on
                 the
                 buyer
                 ,
                 which
                 therefore
                 doth
                 not
                 affect
                 the
                 thing
                 bought
                 ,
                 nor
                 a
                 singular
                 Successor
                 ,
                 though
                 Reversion
                 of
                 Lands
                 and
                 Heretable
                 Rights
                 ,
                 be
                 made
                 as
                 real
                 and
                 effectual
                 against
                 singular
                 Successors
                 ,
                 when
                 it
                 is
                 ingrosled
                 in
                 the
                 Bargain
                 ,
                 or
                 duely
                 Registrate
                 ,
                 yet
                 that
                 is
                 not
                 by
                 the
                 nature
                 of
                 the
                 thing
                 ,
                 but
                 by
                 the
                 Statute
                 ,
                 and
                 takes
                 no
                 place
                 in
                 other
                 cases
                 ,
                 as
                 in
                 Reversion
                 of
                 Moveables
                 ,
                 which
                 are
                 sold
                 under
                 Reversion
                 ;
                 but
                 if
                 impignorat
                 ,
                 the
                 Reversion
                 is
                 a
                 part
                 of
                 the
                 Contract
                 ,
                 and
                 is
                 effectual
                 against
                 singular
                 Successors
                 .
              
               
                 As
                 to
                 the
                 other
                 Pactions
                 adjected
                 to
                 sale
                 ,
                 sometimes
                 they
                 are
                 so
                 conceived
                 and
                 meaned
                 ,
                 that
                 thereby
                 the
                 bargain
                 is
                 truely
                 conditional
                 and
                 pendent
                 ,
                 and
                 so
                 is
                 not
                 a
                 perfect
                 Bargain
                 ,
                 till
                 the
                 condition
                 be
                 existent
                 :
                 Neither
                 doth
                 the
                 property
                 of
                 the
                 thing
                 sold
                 pass
                 thereby
                 ,
                 though
                 Possession
                 follow
                 ,
                 till
                 it
                 be
                 performed
                 ,
                 as
                 if
                 the
                 Bargain
                 be
                 conditional
                 ,
                 only
                 upon
                 payment
                 of
                 the
                 price
                 at
                 such
                 a
                 time
                 ,
                 till
                 payment
                 the
                 property
                 passeth
                 not
                 unto
                 the
                 buyer
                 ;
                 but
                 there
                 are
                 many
                 other
                 adjections
                 which
                 are
                 exprest
                 under
                 the
                 name
                 of
                 Conditions
                 and
                 Provisions
                 ,
                 which
                 are
                 not
                 inherent
                 as
                 essential
                 in
                 the
                 Bargain
                 :
                 But
                 extrinsick
                 personal
                 Obliegements
                 ,
                 the
                 existence
                 where
                 of
                 doth
                 not
                 annual
                 the
                 sale
                 ,
                 or
                 suspend
                 or
                 annual
                 the
                 property
                 in
                 the
                 buyer
                 ,
                 at
                 least
                 in
                 his
                 singular
                 Successors
                 ,
                 as
                 hath
                 now
                 been
                 said
                 in
                 Reversions
                 ,
                 and
                 is
                 frequent
                 in
                 many
                 other
                 cases
                 .
              
               
                 67.
                 
                 In
                 Sale
                 there
                 uses
                 to
                 be
                 adhibit
                 a
                 Clause
                 irritant
                 ,
                 or
                 resolutive
                 Clause
                 ,
                 that
                 if
                 such
                 a
                 thing
                 or
                 Condition
                 were
                 ,
                 or
                 were
                 not
                 ,
                 in
                 that
                 case
                 the
                 Bargain
                 should
                 be
                 null
                 and
                 void
                 ,
                 as
                 if
                 it
                 had
                 never
                 been
                 made
                 and
                 granted
                 :
                 whence
                 ariseth
                 a
                 very
                 subtile
                 Debate
                 ,
                 whether
                 such
                 Clauses
                 ,
                 whatsoever
                 their
                 Tenor
                 be
                 ,
                 are
                 effectual
                 ,
                 and
                 follow
                 the
                 thing
                 to
                 singular
                 Successors
                 ,
                 and
                 do
                 render
                 the
                 Bargain
                 and
                 Property
                 acquired
                 ,
                 null
                 in
                 it self
                 ?
                 Or
                 whether
                 such
                 be
                 but
                 personal
                 Obligations
                 only
                 ?
                 Which
                 though
                 they
                 may
                 annul
                 the
                 Property
                 or
                 Bargain
                 ,
                 if
                 it
                 remain
                 in
                 the
                 hands
                 of
                 the
                 Contracter
                 ,
                 cannot
                 reach
                 it
                 ,
                 if
                 it
                 be
                 in
                 the
                 hands
                 of
                 a
                 third
                 party
                 ,
                 is
                 the
                 Question
                 :
                 for
                 clearing
                 whereof
                 ,
                 it
                 appeareth
                 ,
              
               
                 First
                 ,
                 That
                 if
                 such
                 Conditions
                 ,
                 or
                 resolutive
                 Clauses
                 do
                 stop
                 the
                 transmission
                 of
                 Property
                 ,
                 and
                 be
                 so
                 meaned
                 and
                 exprest
                 ,
                 then
                 as
                 is
                 said
                 before
                 ,
                 the
                 Bargain
                 is
                 pendent
                 ,
                 and
                 the
                 Property
                 not
                 transmitted
                 ,
                 even
                 as
                 to
                 singular
                 Successors
                 ,
                 and
                 the
                 seller
                 remains
                 the
                 Proprietar
                 :
                 But
                 if
                 by
                 the
                 Contract
                 and
                 
                 Clause
                 ,
                 the
                 buyer
                 become
                 once
                 the
                 Proprietar
                 ,
                 and
                 the
                 condition
                 is
                 adjected
                 ,
                 that
                 he
                 shall
                 cease
                 to
                 be
                 Proprietar
                 ,
                 in
                 such
                 a
                 case
                 ,
                 this
                 is
                 but
                 personal
                 ,
                 for
                 Property
                 or
                 Dominion
                 passes
                 not
                 by
                 conditions
                 or
                 provisions
                 ,
                 but
                 by
                 Tradition
                 ,
                 and
                 otherways
                 prescribed
                 in
                 Law
                 ;
                 so
                 that
                 these
                 conditions
                 ,
                 however
                 exprest
                 ,
                 are
                 only
                 the
                 foundation
                 ,
                 upon
                 which
                 the
                 Property
                 might
                 pass
                 from
                 the
                 buyer
                 ,
                 if
                 the
                 thing
                 bought
                 remain
                 his
                 ,
                 unless
                 by
                 Law
                 or
                 Statute
                 it
                 be
                 otherways
                 ordered
                 ,
                 as
                 in
                 Reversions
                 of
                 Lands
                 ,
                 Alienation
                 of
                 Fewdal
                 Rights
                 ,
                 which
                 become
                 void
                 ,
                 and
                 return
                 if
                 alienat
                 ,
                 and
                 not
                 payment
                 of
                 the
                 Few
                 Duty
                 ,
                 whereby
                 the
                 Few
                 Right
                 becomes
                 void
                 ,
                 but
                 all
                 by
                 Law
                 and
                 Custome
                 ,
                 and
                 not
                 by
                 privat
                 Paction
                 .
              
               
                 68.
                 
                 Secondly
                 ,
                 The
                 doubt
                 remains
                 ,
                 if
                 such
                 personal
                 Conditions
                 with
                 such
                 Clauses
                 resolutive
                 be
                 in
                 the
                 body
                 of
                 the
                 Bargain
                 ,
                 whether
                 it
                 be
                 effectual
                 against
                 singular
                 Successors
                 ,
                 who
                 cannot
                 but
                 know
                 their
                 Authors
                 Rights
                 ,
                 and
                 therefore
                 are
                 in
                 
                   dolo
                   &
                   mala
                   fide
                
                 ,
                 if
                 they
                 acquire
                 such
                 Rights
                 in
                 prejudice
                 of
                 the
                 conditions
                 thereof
                 ,
                 and
                 so
                 
                   ex
                   dolo
                
                 ,
                 at
                 least
                 such
                 Clauses
                 will
                 be
                 effectual
                 against
                 the
                 singular
                 Successors
                 ;
                 But
                 first
                 ,
                 this
                 hath
                 no
                 force
                 where
                 the
                 acquiry
                 is
                 not
                 voluntar
                 ,
                 but
                 necessar
                 for
                 satisfaction
                 of
                 Debt
                 by
                 Appryzing
                 ,
                 and
                 other
                 Legal
                 Diligence
                 ,
                 in
                 which
                 ordinarly
                 the
                 acquirer
                 doth
                 not
                 ,
                 neither
                 is
                 supposed
                 to
                 know
                 his
                 Authors
                 Right
                 .
              
               
                 Secondly
                 ,
                 If
                 the
                 Bargain
                 be
                 so
                 necessar
                 ,
                 that
                 the
                 Purchaser
                 be
                 a
                 Creditor
                 ,
                 and
                 hath
                 no
                 other
                 probable
                 way
                 of
                 payment
                 ,
                 in
                 which
                 ,
                 though
                 he
                 see
                 his
                 Authors
                 Right
                 bearing
                 such
                 Clauses
                 ,
                 yet
                 he
                 acteth
                 upon
                 necessity
                 ,
                 for
                 his
                 own
                 satisfaction
                 .
              
               
                 Thirdly
                 ,
                 These
                 who
                 acquire
                 such
                 Rights
                 without
                 necessity
                 ,
                 and
                 see
                 therein
                 such
                 conditions
                 in
                 themselves
                 personal
                 ,
                 though
                 having
                 resolutive
                 Clauses
                 ,
                 do
                 not
                 thereby
                 know
                 that
                 the
                 third
                 party
                 hath
                 the
                 Right
                 ,
                 
                   jus
                   in
                   re
                
                 ,
                 but
                 only
                 
                   jus
                   ad
                   rem
                
                 ;
                 and
                 therefore
                 ,
                 if
                 they
                 acquire
                 such
                 Rights
                 ,
                 the
                 property
                 is
                 thereby
                 transmitted
                 :
                 and
                 though
                 there
                 may
                 be
                 Fraud
                 in
                 the
                 acquirer
                 ,
                 which
                 raiseth
                 an
                 Obligation
                 of
                 Reparation
                 to
                 the
                 party
                 damnified
                 by
                 that
                 Delinquence
                 ;
                 yet
                 that
                 is
                 but
                 personal
                 ,
                 and
                 another
                 party
                 acquiring
                 ,
                 
                   bona
                   fide
                
                 ,
                 or
                 necessarly
                 ,
                 and
                 not
                 partaking
                 of
                 that
                 Fraud
                 ,
                 is
                 
                   in
                   tuto
                
                 :
                 but
                 certain
                 knowledge
                 ,
                 by
                 intimation
                 ,
                 citation
                 ,
                 or
                 the
                 like
                 ,
                 and
                 inducing
                 
                   malam
                   fidem
                
                 ,
                 whereby
                 any
                 prior
                 Disposition
                 ,
                 or
                 Assignation
                 made
                 to
                 another
                 party
                 ,
                 is
                 certainly
                 known
                 ,
                 or
                 at
                 least
                 interruption
                 made
                 in
                 acquiring
                 ,
                 
                   bona
                   fide
                
                 ,
                 by
                 Arrestment
                 or
                 Citation
                 of
                 the
                 acquirer
                 :
                 Such
                 Rights
                 acquired
                 ,
                 not
                 being
                 of
                 necessity
                 to
                 satisfy
                 prior
                 Ingagements
                 ,
                 are
                 Reduceable
                 ,
                 
                   ex
                   capite
                   fraudis
                
                 ,
                 and
                 the
                 acquirer
                 is
                 partaker
                 of
                 the
                 Fraud
                 of
                 his
                 Author
                 ,
                 who
                 thereby
                 becomes
                 a
                 granter
                 of
                 double
                 Rights
                 ,
                 but
                 this
                 will
                 not
                 hinder
                 Legal
                 Diligences
                 to
                 proceed
                 and
                 be
                 compleated
                 ,
                 and
                 become
                 effectual
                 ,
                 though
                 the
                 user
                 thereof
                 did
                 certainly
                 know
                 any
                 Inhoat
                 ,
                 or
                 incompleat
                 Right
                 of
                 another
                 ;
                 but
                 it
                 is
                 more
                 doubtful
                 ,
                 and
                 not
                 yet
                 clear
                 by
                 Custome
                 ,
                 whether
                 a
                 voluntar
                 Right
                 taken
                 for
                 satisfaction
                 of
                 a
                 prior
                 Debt
                 by
                 him
                 ,
                 who
                 certainly
                 knew
                 of
                 a
                 prior
                 Disposition
                 or
                 Assignation
                 ,
                 though
                 not
                 perfected
                 ,
                 would
                 be
                 reduced
                 as
                 Fraudulent
                 .
              
               
                 The
                 relating
                 of
                 a
                 Right
                 unto
                 another
                 Right
                 ,
                 without
                 any
                 invalidity
                 thereof
                 exprest
                 ,
                 was
                 found
                 to
                 infer
                 an
                 acknowledgement
                 of
                 it
                 ,
                 February
                 15.
                 1637.
                 
                 
                   Lawder
                   contra
                   Goodwise
                
                 of
                 Whitekirk
                 .
                 Of
                 late
                 the
                 like
                 conditions
                 have
                 become
                 very
                 ordinary
                 ,
                 that
                 thereby
                 property
                 may
                 become
                 inalienable
                 ,
                 and
                 as
                 a
                 perpetual
                 Usufruct
                 ;
                 yet
                 it
                 seems
                 such
                 are
                 neither
                 expedient
                 for
                 Commerce
                 ,
                 or
                 for
                 the
                 necessity
                 of
                 the
                 Proprietar
                 ,
                 nor
                 consistent
                 with
                 the
                 nature
                 of
                 Property
                 ,
                 whose
                 main
                 effect
                 is
                 Alienation
                 ,
                 or
                 disposal
                 of
                 the
                 Substance
                 of
                 the
                 thing
                 ,
                 as
                 Usufruct
                 
                 is
                 of
                 the
                 Fruits
                 ;
                 and
                 therefore
                 ,
                 it
                 were
                 safest
                 upon
                 such
                 Clauses
                 to
                 use
                 Inhibition
                 ,
                 yet
                 they
                 may
                 be
                 effectual
                 against
                 Lucrative
                 Alienations
                 or
                 Donations
                 ,
                 in
                 respect
                 that
                 by
                 these
                 Clauses
                 ,
                 at
                 least
                 the
                 parties
                 are
                 personal
                 Creditors
                 ,
                 and
                 so
                 Alienations
                 gratuitous
                 in
                 their
                 prejudice
                 ,
                 may
                 be
                 anulled
                 by
                 the
                 Statute
                 ,
                 1621.
                 c.
                 28.
                 
              
               
                 But
                 of
                 late
                 ,
                 it
                 hath
                 been
                 found
                 ,
                 that
                 the
                 Clause
                 irritant
                 being
                 in
                 a
                 Tailzie
                 ,
                 and
                 in
                 the
                 Seasine
                 of
                 both
                 the
                 first
                 Heir
                 ,
                 and
                 of
                 the
                 last
                 ,
                 that
                 it
                 did
                 annul
                 the
                 Creditors
                 Rights
                 and
                 Appryzings
                 ,
                 and
                 the
                 next
                 who
                 might
                 have
                 been
                 Heir
                 of
                 Tailzie
                 ,
                 had
                 access
                 to
                 the
                 Land
                 without
                 that
                 Heir
                 who
                 incurred
                 the
                 clause
                 irritant
                 his
                 Debt
                 ,
                 February
                 26.
                 1662.
                 
                 Lord
                 
                   〈◊〉
                   contra
                
                 Creditors
                 of
                 the
                 Earl
                 of
                 Annandale
                 .
              
               
                 69.
                 
                 Sale
                 being
                 compleat
                 ,
                 the
                 Question
                 is
                 ,
                 if
                 the
                 thing
                 should
                 perish
                 by
                 accident
                 before
                 delivery
                 ,
                 and
                 not
                 after
                 delay
                 ,
                 and
                 without
                 the
                 fault
                 of
                 theseller
                 ,
                 whether
                 the
                 hazard
                 be
                 the
                 sellers
                 or
                 the
                 buyers
                 ,
                 by
                 the
                 Civil
                 Law
                 ,
                 the
                 buyerhath
                 the
                 peril
                 ,
                 l.
                 34.
                 
                 §
                 .
                 6.
                 
                   ff
                   .
                   de
                   contrahenda
                   emptione
                   .
                   l.
                
                 14.
                 
                   ff
                   .
                   de
                   furtis
                   .
                   l.
                
                 1.
                 
                 
                   Cod.
                   de
                   periculo
                   &
                   commodo
                
                 ,
                 the
                 peril
                 is
                 not
                 the
                 sellers
                 ,
                 unless
                 expresly
                 he
                 take
                 the
                 hazard
                 ,
                 or
                 that
                 the
                 buyer
                 buy
                 ,
                 
                   per
                   aversionem
                   ,
                   l.
                
                 62.
                 
                 §
                 .
                 2.
                 l.
                 2.
                 
                 §
                 .
                 
                   de
                   contra
                   abenda
                   emptione
                
                 ,
                 all
                 which
                 putteth
                 both
                 the
                 peril
                 and
                 profites
                 of
                 the
                 thing
                 upon
                 the
                 buyer
                 ,
                 
                   ejus
                   est
                   periculum
                   ,
                   cujus
                   est
                   commodum
                
                 ;
                 and
                 it
                 is
                 far
                 more
                 clear
                 ,
                 that
                 the
                 Accessions
                 ,
                 Fruits
                 and
                 Profites
                 of
                 things
                 bought
                 ,
                 are
                 the
                 buyers
                 ,
                 even
                 before
                 delivery
                 ;
                 and
                 by
                 the
                 same
                 ground
                 ,
                 must
                 the
                 peril
                 be
                 his
                 also
                 :
                 But
                 on
                 the
                 other
                 part
                 ,
                 that
                 the
                 loss
                 is
                 the
                 sellers
                 ,
                 is
                 the
                 opinion
                 of
                 others
                 ,
                 because
                 the
                 seller
                 after
                 the
                 sale
                 is
                 debitor
                 for
                 the
                 delivery
                 ,
                 and
                 it
                 is
                 a
                 general
                 Rule
                 ,
                 that
                 the
                 Debitor
                 is
                 never
                 oblieged
                 for
                 the
                 hazard
                 of
                 accidents
                 ,
                 when
                 he
                 is
                 debitor
                 for
                 a
                 certain
                 body
                 ;
                 but
                 all
                 agree
                 ,
                 that
                 if
                 the
                 sale
                 were
                 of
                 a
                 Fungible
                 ,
                 as
                 Wine
                 ,
                 Oyl
                 ,
                 or
                 Grain
                 ,
                 not
                 considered
                 as
                 a
                 particular
                 body
                 ,
                 as
                 the
                 Wine
                 in
                 such
                 a
                 Seller
                 ,
                 or
                 the
                 Grain
                 in
                 such
                 a
                 House
                 ,
                 but
                 generally
                 so
                 much
                 Grain
                 or
                 Wine
                 as
                 a
                 meer
                 Fungible
                 ,
                 in
                 that
                 case
                 the
                 peril
                 would
                 be
                 the
                 sellers
                 ,
                 because
                 the
                 perishing
                 of
                 any
                 one
                 particular
                 could
                 not
                 be
                 the
                 buyers
                 ;
                 but
                 beside
                 Authority
                 ,
                 the
                 main
                 reason
                 on
                 the
                 contrair
                 is
                 ,
                 that
                 every
                 thing
                 perisheth
                 to
                 its
                 owner
                 ;
                 and
                 before
                 Tradition
                 ,
                 the
                 seller
                 is
                 Proprietar
                 of
                 the
                 thing
                 sold.
                 I
                 have
                 not
                 observed
                 it
                 debated
                 or
                 decided
                 with
                 us
                 ,
                 if
                 the
                 thing
                 sold
                 should
                 thereafter
                 perish
                 ,
                 that
                 yet
                 the
                 price
                 is
                 due
                 ;
                 and
                 if
                 by
                 common
                 custome
                 ,
                 the
                 seller
                 had
                 not
                 forborn
                 in
                 that
                 case
                 ,
                 doubtless
                 the
                 buyer
                 would
                 not
                 have
                 payed
                 willingly
                 ,
                 which
                 therefore
                 seems
                 to
                 be
                 our
                 Custome
                 ,
                 seing
                 none
                 have
                 obtained
                 the
                 price
                 ,
                 who
                 did
                 not
                 deliver
                 ,
                 or
                 offer
                 the
                 thing
                 sold
                 ,
                 which
                 is
                 also
                 the
                 opinion
                 of
                 
                   Cujac
                   .
                   ad
                   l.
                
                 33.
                 
                   ff
                   .
                   Locati
                
                 ,
                 yet
                 the
                 peril
                 of
                 a
                 Housesold
                 ,
                 and
                 thereafter
                 burnt
                 ,
                 found
                 to
                 be
                 the
                 buyers
                 ,
                 though
                 the
                 Disposition
                 bore
                 an
                 obliegement
                 to
                 put
                 the
                 buyer
                 in
                 Possession
                 ,
                 but
                 the
                 buyer
                 did
                 voluntarly
                 take
                 Possession
                 ,
                 and
                 re-builded
                 the
                 House
                 ,
                 and
                 was
                 Infeft
                 before
                 the
                 Burning
                 ,
                 December
                 13.
                 1667.
                 
                 
                   Hunter
                   contra
                   Wilsons
                
                 .
                 In
                 sale
                 ,
                 absolute
                 warrandice
                 is
                 implyed
                 ,
                 which
                 is
                 not
                 to
                 be
                 extended
                 to
                 moderate
                 servitudes
                 ,
                 as
                 was
                 Aquaeducts
                 and
                 City
                 servitudes
                 ,
                 l.
                 66.
                 
                   ff
                   .
                   de
                   contrahenda
                   emptione
                
                 .
              
               
                 70.
                 
                 Location
                 and
                 Conduction
                 is
                 a
                 Contract
                 whereby
                 hyre
                 is
                 given
                 for
                 the
                 fruits
                 ,
                 use
                 ,
                 or
                 work
                 of
                 persons
                 or
                 things
                 ;
                 this
                 Contract
                 keepeth
                 a
                 great
                 proportion
                 with
                 sale
                 ,
                 for
                 as
                 no
                 Sale
                 can
                 be
                 without
                 a
                 Price
                 ,
                 so
                 no
                 Location
                 without
                 a
                 Hire
                 ,
                 and
                 as
                 the
                 price
                 must
                 be
                 certain
                 ,
                 either
                 being
                 expresly
                 named
                 ,
                 or
                 indirectly
                 ,
                 being
                 the
                 price
                 that
                 such
                 another
                 gave
                 for
                 the
                 like
                 ,
                 or
                 that
                 such
                 a
                 person
                 should
                 think
                 reasonable
                 ,
                 both
                 which
                 become
                 certain
                 ,
                 if
                 the
                 price
                 given
                 by
                 that
                 other
                 party
                 appear
                 ,
                 or
                 if
                 that
                 third
                 person
                 modifie
                 the
                 price
                 otherways
                 ,
                 the
                 sale
                 is
                 void
                 and
                 pendent
                 ,
                 and
                 unperfect
                 ,
                 till
                 that
                 be
                 performed
                 :
                 So
                 in
                 Location
                 the
                 hire
                 must
                 be
                 the
                 same
                 way
                 assertained
                 ;
                 for
                 if
                 the
                 pryce
                 be
                 but
                 made
                 ,
                 
                   ex
                   post
                   facto
                
                 ,
                 it
                 is
                 no
                 proper
                 Location
                 ,
                 as
                 he
                 who
                 gives
                 his
                 Cloath
                 to
                 be
                 dyed
                 ,
                 and
                 
                 promiseth
                 to
                 agree
                 for
                 the
                 Cloath
                 ,
                 as
                 the
                 dye
                 shall
                 be
                 in
                 fineness
                 ,
                 this
                 is
                 no
                 Location
                 ,
                 but
                 an
                 innominat
                 Contract
                 .
              
               
                 But
                 it
                 is
                 contraverted
                 ,
                 whether
                 Sale
                 and
                 Location
                 do
                 also
                 agree
                 in
                 this
                 ,
                 that
                 as
                 the
                 price
                 must
                 be
                 in
                 current
                 Money
                 ,
                 so
                 also
                 the
                 hire
                 .
                 It
                 was
                 of
                 much
                 moment
                 in
                 the
                 Roman
                 Law
                 ,
                 because
                 Location
                 was
                 a
                 nominat
                 Contract
                 ,
                 perfected
                 by
                 sole
                 consent
                 ,
                 but
                 other
                 Contracts
                 innominate
                 were
                 but
                 naked
                 pactions
                 ,
                 till
                 the
                 thing
                 agreed
                 upon
                 was
                 interposed
                 ;
                 and
                 therefore
                 it
                 is
                 there
                 accuratly
                 debated
                 ,
                 some
                 holding
                 that
                 Money
                 only
                 can
                 make
                 the
                 hire
                 in
                 a
                 proper
                 Location
                 ,
                 and
                 some
                 that
                 any
                 other
                 Liquid
                 quantity
                 or
                 fungible
                 is
                 sufficient
                 ,
                 as
                 Oyl
                 ,
                 Grain
                 ,
                 &c.
                 
                 But
                 with
                 us
                 ,
                 all
                 agreements
                 being
                 effectual
                 by
                 sole
                 consent
                 ,
                 we
                 need
                 not
                 much
                 debate
                 ;
                 and
                 therefore
                 ,
                 seeing
                 all
                 the
                 effects
                 and
                 conditions
                 competent
                 ,
                 where
                 the
                 hire
                 is
                 Money
                 ,
                 are
                 also
                 competent
                 where
                 it
                 is
                 any
                 other
                 Fungible
                 ,
                 we
                 agree
                 with
                 that
                 opinion
                 ,
                 that
                 such
                 are
                 proper
                 Locations
                 .
              
               
                 Sale
                 and
                 Location
                 differ
                 mainly
                 in
                 this
                 ,
                 that
                 the
                 intent
                 and
                 effect
                 of
                 Sale
                 ,
                 is
                 to
                 alienate
                 the
                 Substance
                 of
                 the
                 thing
                 bought
                 ,
                 and
                 state
                 the
                 property
                 thereof
                 in
                 the
                 buyer
                 ;
                 but
                 in
                 Location
                 ,
                 the
                 ordinar
                 intent
                 thereof
                 is
                 ,
                 that
                 the
                 Substance
                 and
                 property
                 of
                 the
                 thing
                 is
                 not
                 alienat
                 ,
                 but
                 remains
                 in
                 the
                 setter
                 ,
                 and
                 the
                 taker
                 hath
                 only
                 the
                 fruits
                 and
                 work
                 thereof
                 ,
                 which
                 must
                 not
                 be
                 already
                 done
                 ,
                 and
                 extant
                 ,
                 but
                 that
                 which
                 is
                 to
                 be
                 done
                 ,
                 &
                 
                   in
                   spe
                
                 :
                 as
                 for
                 instance
                 ,
                 a
                 Bargain
                 for
                 the
                 Fruits
                 of
                 a
                 Field
                 ,
                 which
                 are
                 already
                 growing
                 ,
                 is
                 no
                 Location
                 ,
                 but
                 Sale
                 ,
                 and
                 so
                 of
                 use
                 or
                 work
                 ,
                 already
                 performed
                 ;
                 and
                 therefore
                 ,
                 in
                 the
                 nature
                 of
                 this
                 Contract
                 ,
                 there
                 is
                 a
                 hazard
                 and
                 uncertainty
                 in
                 the
                 conductor
                 of
                 the
                 quantity
                 ,
                 or
                 value
                 of
                 the
                 Fruits
                 ,
                 use
                 or
                 Work
                 ,
                 the
                 peril
                 and
                 profites
                 whereof
                 is
                 the
                 Conductors
                 .
              
               
                 71.
                 
                 But
                 here
                 ariseth
                 the
                 Question
                 ,
                 that
                 in
                 the
                 case
                 of
                 the
                 sterility
                 of
                 the
                 Ground
                 set
                 ,
                 or
                 the
                 absolute
                 ceasing
                 of
                 the
                 Use
                 ,
                 Fruit
                 or
                 Work
                 ,
                 whether
                 the
                 hire
                 be
                 due
                 in
                 that
                 case
                 ?
                 The
                 determination
                 thereof
                 will
                 clear
                 the
                 exception
                 of
                 the
                 former
                 Rule
                 ,
                 concerning
                 the
                 peril
                 and
                 quantity
                 of
                 the
                 Use
                 ,
                 Fruit
                 and
                 Work
                 locat
                 ;
                 and
                 therefore
                 ,
                 First
                 ,
                 Where
                 the
                 Use
                 ,
                 Fruit
                 and
                 Work
                 doth
                 altogether
                 cease
                 ,
                 without
                 the
                 fault
                 of
                 the
                 Conductor
                 ,
                 there
                 the
                 hire
                 must
                 also
                 cease
                 ,
                 because
                 the
                 one
                 is
                 given
                 as
                 the
                 cause
                 of
                 the
                 other
                 ,
                 and
                 the
                 peril
                 undertaken
                 ,
                 is
                 not
                 of
                 the
                 being
                 ,
                 but
                 of
                 the
                 quantity
                 and
                 value
                 thereof
                 ;
                 for
                 instance
                 ,
                 if
                 Land
                 taken
                 be
                 inundat
                 or
                 sanded
                 ,
                 and
                 so
                 have
                 no
                 Fruit
                 ,
                 it
                 is
                 the
                 common
                 opinion
                 of
                 all
                 ,
                 that
                 the
                 hire
                 or
                 cane
                 ceaseth
                 to
                 be
                 due
                 for
                 that
                 time
                 :
                 Or
                 if
                 a
                 Horse
                 sett
                 ,
                 or
                 a
                 Servant
                 hired
                 die
                 ,
                 the
                 hire
                 or
                 see
                 is
                 but
                 due
                 according
                 to
                 the
                 time
                 of
                 their
                 life
                 ;
                 but
                 if
                 they
                 be
                 sick
                 or
                 unprofitable
                 for
                 a
                 time
                 ,
                 yet
                 with
                 hope
                 of
                 recovery
                 and
                 profite
                 ,
                 in
                 that
                 case
                 there
                 is
                 no
                 abatement
                 .
              
               
                 Secondly
                 ,
                 Though
                 the
                 opinion
                 of
                 the
                 Learned
                 be
                 very
                 diverse
                 ,
                 in
                 the
                 matter
                 of
                 the
                 barrenness
                 of
                 the
                 Ground
                 ,
                 some
                 accompting
                 it
                 ,
                 if
                 the
                 half
                 of
                 the
                 ordinar
                 Increase
                 fail
                 ,
                 some
                 if
                 the
                 third
                 ,
                 and
                 some
                 leaving
                 it
                 to
                 the
                 common
                 estimate
                 of
                 the
                 place
                 ,
                 what
                 is
                 called
                 barrenness
                 or
                 the
                 arbitriment
                 of
                 the
                 Judge
                 ;
                 yet
                 I
                 think
                 it
                 more
                 rational
                 to
                 determine
                 that
                 case
                 with
                 the
                 rest
                 ,
                 upon
                 the
                 former
                 ground
                 ,
                 that
                 if
                 there
                 be
                 any
                 profite
                 of
                 the
                 Fruit
                 above
                 the
                 expenses
                 ,
                 or
                 work
                 ,
                 the
                 rent
                 or
                 hire
                 should
                 be
                 due
                 .
              
               
                 72.
                 
                 The
                 like
                 is
                 in
                 vastation
                 by
                 publick
                 Calamity
                 ,
                 which
                 hath
                 been
                 frequently
                 decided
                 upon
                 occasion
                 of
                 the
                 late
                 Vastations
                 ,
                 but
                 this
                 will
                 not
                 extend
                 to
                 private
                 accidents
                 besalling
                 the
                 Cropt
                 after
                 the
                 growing
                 or
                 reaping
                 ,
                 even
                 though
                 by
                 accident
                 it
                 should
                 be
                 destroyed
                 or
                 burnt
                 without
                 the
                 Takers
                 fault
                 ,
                 the
                 
                 hazard
                 is
                 his
                 own
                 ,
                 because
                 it
                 is
                 not
                 then
                 respected
                 as
                 the
                 Fruit
                 ,
                 but
                 as
                 a
                 Body
                 in
                 being
                 ,
                 whereof
                 he
                 hath
                 the
                 property
                 and
                 peril
                 :
                 But
                 in
                 publick
                 Calamities
                 by
                 War
                 ,
                 not
                 only
                 the
                 Cropt
                 is
                 taken
                 away
                 ,
                 but
                 the
                 Tennants
                 aredisinabled
                 ,
                 and
                 hindered
                 to
                 Labour
                 ,
                 and
                 therefore
                 must
                 have
                 abatement
                 ,
                 this
                 will
                 take
                 no
                 place
                 ,
                 if
                 the
                 abundance
                 of
                 another
                 year
                 compense
                 the
                 sterility
                 of
                 the
                 former
                 ,
                 l.
                 8.
                 
                 
                   Cod.
                   Locati
                
                 .
              
               
                 73.
                 
                 Seing
                 the
                 intent
                 and
                 effect
                 of
                 the
                 Location
                 ,
                 is
                 not
                 to
                 alienate
                 the
                 property
                 of
                 the
                 thing
                 Locat
                 ,
                 it
                 followeth
                 ,
                 that
                 this
                 Contract
                 is
                 meerly
                 personal
                 ,
                 and
                 thereby
                 there
                 is
                 no
                 real
                 Right
                 in
                 the
                 thing
                 ,
                 whose
                 Use
                 ,
                 Fruits
                 ,
                 or
                 Work
                 are
                 Locat
                 ;
                 so
                 that
                 if
                 the
                 property
                 of
                 these
                 things
                 be
                 alienate
                 from
                 the
                 Locator
                 ,
                 the
                 interest
                 of
                 the
                 Conductor
                 ceaseth
                 ,
                 and
                 a
                 singular
                 Successor
                 may
                 recover
                 it
                 from
                 the
                 Conductor
                 ,
                 notwithstanding
                 the
                 Location
                 ,
                 which
                 reacheth
                 it
                 only
                 by
                 the
                 personal
                 Contract
                 ,
                 as
                 it
                 did
                 belong
                 to
                 the
                 Setter
                 ,
                 and
                 so
                 it
                 would
                 be
                 in
                 our
                 Tacks
                 or
                 Rentals
                 ,
                 by
                 their
                 own
                 nature
                 ,
                 but
                 it
                 is
                 otherways
                 provided
                 by
                 a
                 special
                 Statute
                 ,
                 of
                 which
                 hereafter
                 .
                 We
                 shall
                 speak
                 nothing
                 here
                 of
                 Feu-Farms
                 ,
                 which
                 though
                 they
                 are
                 Locations
                 ,
                 yet
                 by
                 the
                 Law
                 they
                 become
                 real
                 ,
                 leaving
                 these
                 to
                 their
                 own
                 place
                 .
              
               
                 74.
                 
                 What
                 shal
                 be
                 said
                 of
                 that
                 Contract
                 ,
                 whereby
                 Money
                 or
                 any
                 Fungible
                 is
                 lent
                 for
                 the
                 like
                 in
                 kind
                 again
                 ,
                 with
                 such
                 a
                 hire
                 for
                 the
                 use
                 thereof
                 ?
                 These
                 are
                 called
                 Usurary
                 contracts
                 ,
                 and
                 they
                 cannot
                 be
                 comprehended
                 under
                 Loan
                 ,
                 because
                 they
                 are
                 not
                 Gratuitous
                 ,
                 or
                 under
                 Location
                 ,
                 because
                 the
                 property
                 and
                 substance
                 is
                 alienat
                 ,
                 Usurary
                 Contracts
                 come
                 nearest
                 to
                 Location
                 ;
                 but
                 to
                 repress
                 the
                 exorbitance
                 of
                 Usurers
                 ,
                 the
                 Civil
                 Law
                 rejected
                 Usurary
                 Contracts
                 ,
                 and
                 admitteth
                 only
                 of
                 the
                 profite
                 of
                 fungibles
                 .
                 In
                 some
                 cases
                 ,
                 the
                 Judicial
                 Law
                 also
                 rejecteth
                 them
                 ,
                 and
                 prohibiteth
                 Usury
                 to
                 be
                 used
                 among
                 the
                 Jews
                 ,
                 though
                 they
                 might
                 use
                 it
                 with
                 other
                 Nations
                 .
                 So
                 doth
                 the
                 Canon
                 Law
                 disapprove
                 it
                 ,
                 and
                 most
                 Nations
                 ,
                 where
                 that
                 Law
                 is
                 in
                 vigor
                 ;
                 yet
                 we
                 ,
                 and
                 generally
                 other
                 Protestant
                 Nations
                 do
                 allow
                 of
                 the
                 profite
                 and
                 hire
                 of
                 Money
                 ,
                 or
                 other
                 Fungibles
                 ,
                 being
                 within
                 the
                 proportion
                 allowed
                 in
                 Law
                 ,
                 which
                 sometimes
                 was
                 ten
                 for
                 each
                 hundred
                 in
                 the
                 year
                 ,
                 thereafter
                 eighth
                 ,
                 and
                 now
                 six
                 ;
                 and
                 therefore
                 Usurary-contracts
                 are
                 only
                 ,
                 wherein
                 there
                 is
                 unlawful
                 or
                 exorbitant
                 profites
                 beyond
                 the
                 Law.
                 So
                 did
                 the
                 Civil
                 Law
                 allow
                 ,
                 
                   usuras
                   centesimas
                   ,
                   viz.
                
                 one
                 of
                 an
                 hundred
                 Monethly
                 ;
                 and
                 their
                 
                   Usuras
                   besses
                   ,
                   semisses
                
                 and
                 Dodrantes
                 .
                 In
                 the
                 several
                 cases
                 allowed
                 in
                 Law
                 ,
                 we
                 have
                 only
                 one
                 measure
                 for
                 all
                 ;
                 the
                 
                   nauticum
                   foenus
                
                 ,
                 is
                 where
                 so
                 much
                 is
                 given
                 ,
                 not
                 only
                 for
                 the
                 profite
                 of
                 the
                 Money
                 ,
                 but
                 for
                 the
                 hazard
                 and
                 peril
                 of
                 the
                 Ware
                 bought
                 thereby
                 ,
                 or
                 of
                 other
                 Fungibles
                 ,
                 by
                 Sea
                 ,
                 and
                 so
                 it
                 is
                 a
                 mixed
                 Contract
                 ;
                 and
                 in
                 both
                 cases
                 Profite
                 and
                 Annualrent
                 is
                 lawful
                 ,
                 as
                 having
                 no
                 moral
                 countermand
                 ,
                 and
                 so
                 being
                 free
                 ,
                 is
                 not
                 only
                 subject
                 to
                 our
                 pactions
                 and
                 promises
                 ,
                 which
                 we
                 are
                 morally
                 oblieged
                 to
                 observe
                 ;
                 but
                 hath
                 also
                 in
                 it
                 permutative
                 Justice
                 ,
                 in
                 that
                 Money
                 ,
                 Wine
                 ,
                 Oyl
                 ,
                 Grain
                 or
                 the
                 like
                 ,
                 have
                 a
                 real
                 use
                 profitable
                 to
                 men
                 by
                 the
                 exchange
                 thereof
                 ,
                 and
                 increase
                 that
                 may
                 accrew
                 thereby
                 ,
                 and
                 for
                 which
                 proportionable
                 hire
                 may
                 be
                 lawfully
                 and
                 profitably
                 constitute
                 :
                 These
                 Usurary-contracts
                 therefore
                 are
                 to
                 be
                 reduced
                 ,
                 not
                 to
                 Loan
                 ,
                 but
                 to
                 Location
                 ,
                 though
                 by
                 accident
                 they
                 have
                 that
                 difference
                 from
                 the
                 rest
                 ,
                 that
                 the
                 property
                 is
                 alienate
                 ,
                 because
                 there
                 can
                 be
                 no
                 use
                 of
                 Money
                 or
                 Fungibles
                 otherways
                 .
              
               
                 The
                 penalty
                 of
                 exorbitant
                 Usury
                 with
                 us
                 was
                 ,
                 that
                 the
                 Debitor
                 for
                 such
                 Usury
                 ,
                 revealing
                 the
                 same
                 ,
                 should
                 be
                 freed
                 of
                 the
                 Contract
                 ,
                 and
                 if
                 he
                 did
                 not
                 ,
                 any
                 other
                 revealing
                 it
                 should
                 have
                 right
                 to
                 the
                 sum
                 given
                 out
                 upon
                 Usury
                 and
                 Profit
                 thereof
                 ,
                 Par.
                 1594.
                 cap.
                 221.
                 
                 But
                 afterwards
                 ,
                 all
                 taking
                 of
                 more
                 
                 Annualrent
                 then
                 ten
                 
                   per
                   centum
                
                 ,
                 directly
                 or
                 indirectly
                 ,
                 by
                 taking
                 of
                 Victual
                 within
                 the
                 ordinary
                 prices
                 ,
                 or
                 buying
                 Victuals
                 for
                 the
                 Annualrent
                 with
                 exorbitant
                 prices
                 in
                 case
                 of
                 not
                 delivery
                 ,
                 or
                 by
                 improper
                 Wodsetts
                 ,
                 having
                 greater
                 back-tack
                 Duties
                 then
                 effeiring
                 to
                 ten
                 
                   per
                   centum
                
                 ,
                 or
                 otherwayes
                 ,
                 do
                 confiscate
                 their
                 Moveables
                 and
                 the
                 Sums
                 so
                 given
                 out
                 ;
                 which
                 the
                 party
                 cannot
                 renounce
                 ,
                 but
                 the
                 Advocat
                 hath
                 interest
                 to
                 pursue
                 therefore
                 ,
                 without
                 the
                 parties
                 concurrence
                 ;
                 and
                 if
                 he
                 concur
                 ,
                 he
                 shall
                 have
                 restitution
                 of
                 what
                 more
                 Annual
                 he
                 payed
                 norten
                 
                   per
                   centum
                   ,
                   Parl.
                
                 1597.
                 cap.
                 247.
                 
                 But
                 the
                 Annual
                 was
                 retrenched
                 to
                 eight
                 
                   per
                   centum
                   ,
                   Parl.
                
                 1633.
                 cap.
                 21.
                 and
                 to
                 six
                 
                   per
                   centum
                   ,
                   Parl.
                
                 1649.
                 cap.
                 revived
                 ,
                 Parl.
                 1661.
                 cap.
                 49.
                 
                 But
                 whether
                 proper
                 Wodsetts
                 without
                 back-tack
                 ,
                 though
                 the
                 Rent
                 be
                 much
                 more
                 then
                 the
                 ordinary
                 Annualrent
                 ,
                 be
                 an
                 usurary
                 Contract
                 ,
                 and
                 falls
                 under
                 the
                 general
                 Clause
                 of
                 the
                 said
                 Act
                 ,
                 though
                 it
                 hath
                 sometimes
                 been
                 essayed
                 ,
                 yet
                 hath
                 not
                 been
                 decided
                 .
                 The
                 main
                 reason
                 that
                 the
                 parties
                 found
                 on
                 is
                 ,
                 on
                 the
                 one
                 part
                 ,
                 that
                 there
                 is
                 indirectly
                 more
                 then
                 the
                 ordinary
                 Annualrent
                 ,
                 and
                 so
                 falls
                 under
                 the
                 Act
                 ,
                 1597.
                 and
                 on
                 the
                 other
                 ,
                 that
                 improper
                 Wodsetts
                 are
                 there
                 exprest
                 ,
                 and
                 proper
                 Wodsetts
                 seem
                 
                   ex
                   proposito
                
                 omitted
                 ,
                 and
                 in
                 proper
                 Wodsetts
                 all
                 hazard
                 lyes
                 upon
                 the
                 Wodsetter
                 .
                 Of
                 setting
                 the
                 Land
                 of
                 dead
                 ,
                 poor
                 and
                 waste
                 ,
                 we
                 shall
                 leave
                 this
                 to
                 every
                 mans
                 private
                 judgement
                 ,
                 till
                 publick
                 judgement
                 cast
                 the
                 ballance
                 ;
                 but
                 all
                 proper
                 Wodsetts
                 before
                 1661.
                 are
                 restricted
                 to
                 the
                 Annualrent
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 1661.
                 cap.
                 62.
                 
                 If
                 upon
                 offer
                 of
                 security
                 ,
                 the
                 Wodsetter
                 will
                 not
                 quite
                 possession
                 ,
                 he
                 is
                 countable
                 from
                 the
                 offer
                 ,
                 as
                 hath
                 been
                 often
                 decided
                 since
                 that
                 Act.
                 
              
               
                 There
                 uses
                 also
                 ,
                 in
                 Wodsetts
                 and
                 Reversions
                 ,
                 to
                 be
                 included
                 ,
                 a
                 condition
                 to
                 set
                 the
                 Wodsett
                 Lands
                 for
                 such
                 time
                 ,
                 to
                 begin
                 after
                 redemption
                 ,
                 which
                 if
                 it
                 be
                 far
                 within
                 the
                 true
                 worth
                 ,
                 is
                 Usurary
                 ,
                 and
                 is
                 declared
                 so
                 ,
                 Parl.
                 1449.
                 cap.
                 19.
                 
                 
                   That
                   Lands
                   provided
                   to
                   be
                   set
                   for
                   Tacks
                   not
                   near
                   the
                   true
                   worth
                   ,
                   the
                   same
                   shall
                   not
                   be
                   keeped
                   :
                
                 yet
                 such
                 a
                 Tack
                 was
                 sustained
                 ,
                 seing
                 the
                 Wodsetter
                 had
                 not
                 his
                 full
                 Annualrent
                 ,
                 by
                 reason
                 of
                 a
                 Liferent
                 reserved
                 in
                 the
                 Wodsett
                 ,
                 and
                 the
                 Wodsetter
                 was
                 the
                 Constituents
                 Brother
                 ,
                 and
                 so
                 like
                 to
                 be
                 for
                 his
                 Portion
                 natural
                 ,
                 whereof
                 the
                 Tack
                 was
                 a
                 part
                 ,
                 June
                 21.
                 1662.
                 
                 Laird
                 of
                 
                   Polwart
                   contra
                   Home
                
                 ;
                 but
                 in
                 other
                 cases
                 ,
                 such
                 a
                 Tack
                 was
                 found
                 null
                 by
                 the
                 said
                 Act
                 ,
                 but
                 not
                 by
                 the
                 Act
                 betwixt
                 Debitor
                 and
                 Creditor
                 ,
                 February
                 15.
                 1666.
                 my
                 Lord
                 
                   Ley
                   contra
                   Porteous
                
                 .
              
               
                 75.
                 
                 This
                 much
                 for
                 Usury
                 of
                 Annualrent
                 by
                 Contract
                 or
                 Pactions
                 ,
                 it
                 is
                 also
                 due
                 of
                 the
                 Law
                 ,
                 and
                 by
                 the
                 obligation
                 of
                 recompense
                 and
                 reparation
                 ;
                 and
                 in
                 the
                 Civil
                 Law
                 ,
                 in
                 all
                 Contracts
                 
                   bonae
                   fidei
                
                 ,
                 it
                 is
                 due
                 
                   ex
                   mora
                
                 ,
                 by
                 the
                 delay
                 of
                 the
                 Debitor
                 ,
                 which
                 is
                 understood
                 after
                 he
                 be
                 required
                 for
                 the
                 same
                 ,
                 or
                 that
                 the
                 Term
                 is
                 past
                 ,
                 
                   nam
                   dies
                   interpellat
                   pro
                   homine
                
                 ,
                 and
                 in
                 other
                 Contracts
                 by
                 litiscontestation
                 :
                 but
                 our
                 custom
                 hath
                 little
                 use
                 of
                 that
                 distinction
                 ,
                 neither
                 followeth
                 it
                 that
                 rule
                 ;
                 but
                 where
                 Annualrent
                 is
                 not
                 agreed
                 ,
                 first
                 ,
                 ordinarly
                 it
                 is
                 not
                 due
                 till
                 Horning
                 be
                 used
                 against
                 the
                 Debitor
                 ,
                 and
                 that
                 by
                 a
                 special
                 Statute
                 ,
                 1621.
                 cap.
                 20.
                 
                 Yea
                 ,
                 though
                 the
                 Horning
                 was
                 not
                 registrat
                 ,
                 and
                 so
                 null
                 as
                 to
                 Escheat
                 ,
                 it
                 was
                 found
                 valid
                 as
                 to
                 the
                 Annualrent
                 ,
                 July
                 16.
                 1673.
                 
                 
                   Isabel
                   Ker
                   contra
                
                 Parochioners
                 of
                 Moramside
                 ;
                 but
                 it
                 was
                 found
                 not
                 competent
                 by
                 way
                 of
                 special
                 Charge
                 in
                 the
                 Suspension
                 of
                 the
                 principal
                 Debt
                 ,
                 but
                 ordinarly
                 by
                 ordinary
                 action
                 ,
                 July
                 2.
                 1629.
                 
                 Purveyance
                 contra
                 Laird
                 of
                 Craigie
                 ,
                 where
                 Dury
                 his
                 opinion
                 is
                 ,
                 That
                 if
                 the
                 Charger
                 had
                 raised
                 Horning
                 upon
                 the
                 Act
                 of
                 Parliament
                 ,
                 it
                 would
                 have
                 been
                 sustained
                 summarly
                 ,
                 and
                 is
                 now
                 ordinarly
                 sustained
                 summarly
                 by
                 a
                 special
                 Charge
                 ,
                 when
                 the
                 sum
                 is
                 charged
                 for
                 or
                 suspended
                 ;
                 but
                 it
                 being
                 once
                 due
                 ,
                 it
                 not
                 only
                 continueth
                 during
                 the
                 life
                 of
                 
                 the
                 person
                 denounced
                 ,
                 but
                 still
                 thereafter
                 till
                 payment
                 ,
                 July
                 4.
                 1642.
                 
                 
                   Huntley
                   contra
                
                 Heirs
                 of
                 Mr.
                 
                   John
                   Manson
                
                 .
                 2.
                 
                 Annualrent
                 provided
                 by
                 a
                 Bond
                 for
                 one
                 year
                 ,
                 though
                 it
                 express
                 not
                 for
                 all
                 years
                 thereafter
                 ,
                 yet
                 continueth
                 due
                 till
                 payment
                 ,
                 Decemb.
                 2.
                 1628.
                 
                 
                   Blair
                   contra
                   Ramsay
                
                 .
                 The
                 like
                 where
                 one
                 Term
                 was
                 only
                 in
                 the
                 Bond
                 ,
                 Spots
                 .
                 usury
                 ,
                 
                   Keith
                   contra
                   Bruce
                
                 ;
                 and
                 where
                 Annualrent
                 was
                 promised
                 for
                 a
                 time
                 by
                 a
                 Letter
                 ,
                 it
                 was
                 found
                 still
                 due
                 till
                 payment
                 ,
                 January
                 13.
                 1669.
                 
                 
                   George
                   Home
                   contra
                   Seaton
                
                 of
                 Menzies
                 .
                 3.
                 
                 It
                 is
                 due
                 by
                 use
                 of
                 payment
                 only
                 without
                 express
                 paction
                 ,
                 March
                 4.
                 1628.
                 
                 
                   Forrester
                   contra
                   Clerk.
                
                 4.
                 
                 Annualrent
                 is
                 ordained
                 to
                 be
                 due
                 to
                 Cautioners
                 by
                 their
                 Principals
                 ,
                 for
                 sums
                 payed
                 by
                 them
                 as
                 Cautioners
                 by
                 the
                 Clause
                 of
                 relief
                 ,
                 as
                 being
                 damange
                 and
                 interest
                 ,
                 though
                 the
                 Bond
                 bear
                 no
                 Annualrent
                 ,
                 by
                 Statute
                 of
                 Session
                 ,
                 Decemb.
                 21.
                 1620.
                 
                 Hope
                 usury
                 ,
                 
                   Torry
                   contra
                   Dowhill
                   ;
                   Dec.
                
                 4.
                 1629.
                 
                 
                   〈◊〉
                   contra
                   Johnstoun
                
                 ,
                 where
                 the
                 Clause
                 of
                 relief
                 bare
                 only
                 to
                 relieve
                 the
                 Cautioners
                 of
                 his
                 Caution
                 ,
                 and
                 not
                 of
                 all
                 damage
                 .
                 The
                 like
                 though
                 there
                 was
                 no
                 further
                 distress
                 against
                 the
                 Cautioner
                 ,
                 but
                 registration
                 ,
                 January
                 24.
                 1627.
                 
                 I.
                 
                   Wauchton
                   contra
                
                 L.
                 of
                 Innerweek
                 ;
                 and
                 this
                 was
                 extended
                 to
                 co-principals
                 ,
                 having
                 Clause
                 of
                 mutual
                 relief
                 of
                 cost
                 ,
                 skaith
                 ,
                 &c.
                 
                 Novemb.
                 15.
                 1627.
                 
                 Black
                 of
                 
                   Largo
                   contra
                   William
                   Dick.
                
                 5.
                 
                 Annualrent
                 is
                 due
                 without
                 paction
                 by
                 Tutors
                 and
                 Curators
                 to
                 their
                 Pupils
                 ,
                 of
                 which
                 formerly
                 ,
                 in
                 the
                 Obligations
                 betwixt
                 them
                 .
                 6.
                 
                 Annualrent
                 was
                 found
                 due
                 without
                 paction
                 ,
                 by
                 an
                 Heir-male
                 for
                 the
                 Portion
                 of
                 the
                 Heir-female
                 ,
                 though
                 not
                 required
                 for
                 many
                 years
                 ,
                 and
                 that
                 still
                 from
                 the
                 term
                 of
                 payment
                 ,
                 July
                 5.
                 1610.
                 
                 
                   Calhound
                   contra
                
                 L.
                 of
                 Luss.
                 The
                 like
                 by
                 a
                 husband
                 ,
                 who
                 was
                 oblieged
                 to
                 his
                 wife
                 for
                 the
                 Annualrent
                 of
                 the
                 Tocher
                 payable
                 by
                 the
                 Father
                 ,
                 though
                 the
                 Tocher
                 was
                 never
                 payed
                 ,
                 Hope
                 Husband
                 and
                 Wife
                 ,
                 
                   Baird
                   contra
                
                 Gordoun
                 ,
                 Spots
                 .
                 Usury
                 ,
                 Mr.
                 
                   John
                   Skeen
                
                 contra
                 Mr.
                 
                   John
                   Hart.
                
                 7.
                 
                 Annualrent
                 was
                 found
                 due
                 for
                 the
                 price
                 of
                 Lands
                 possest
                 by
                 the
                 buyer
                 ,
                 without
                 paction
                 ,
                 Hope
                 Usury
                 ,
                 Mr.
                 
                   James
                   Stirling
                   contra
                
                 Mr.
                 
                   David
                   Ogilvy
                   ;
                   February
                
                 17.
                 1624.
                 
                 Dury
                 of
                 that
                 ilk
                 ,
                 contra
                 Lord
                 Ramsay
                 ;
                 the
                 like
                 though
                 the
                 delay
                 of
                 payment
                 was
                 not
                 the
                 Debitors
                 sault
                 ,
                 November
                 14.
                 1628.
                 
                 
                   Cuming
                   contra
                   Cuming
                   ;
                   Spots
                
                 .
                 Usury
                 ,
                 
                   Home
                   contra
                
                 Laird
                 Rentoun
                 .
                 Annualrent
                 was
                 not
                 found
                 due
                 without
                 paction
                 ,
                 for
                 a
                 sum
                 lent
                 to
                 an
                 old
                 man
                 ,
                 on
                 condition
                 ,
                 that
                 if
                 he
                 died
                 without
                 Heirs
                 ,
                 the
                 Creditor
                 should
                 become
                 the
                 Debitors
                 Heir
                 ,
                 and
                 yet
                 he
                 having
                 Heirs
                 ,
                 Annualrent
                 was
                 not
                 found
                 due
                 ,
                 Decemb.
                 11.
                 1662.
                 
                 
                   George
                   Logie
                   contra
                   Logie
                
                 .
                 But
                 the
                 Lords
                 do
                 sometimes
                 allow
                 Annualrent
                 ,
                 or
                 an
                 equivalent
                 expense
                 among
                 Merchants
                 ;
                 and
                 they
                 did
                 so
                 in
                 a
                 Provision
                 by
                 a
                 Father
                 to
                 his
                 natural
                 Daughter
                 payable
                 at
                 her
                 Marriage
                 ,
                 which
                 was
                 found
                 so
                 favourable
                 not
                 to
                 hasten
                 her
                 to
                 marry
                 ,
                 that
                 Annualrent
                 was
                 allowed
                 her
                 ,
                 seing
                 the
                 condition
                 was
                 in
                 her
                 power
                 ,
                 June
                 25.
                 1664.
                 
                 
                   Margaret
                   Inglis
                
                 contra
                 
                   Thomas
                   Inglis
                
                 .
                 The
                 Romans
                 allowed
                 Annual
                 till
                 it
                 equalled
                 the
                 Principal
                 ,
                 but
                 no
                 further
                 ;
                 but
                 our
                 custom
                 hath
                 no
                 such
                 restriction
                 .
                 Yet
                 ,
                 we
                 restrict
                 the
                 English
                 double
                 Bonds
                 to
                 the
                 single
                 Sums
                 and
                 Annualrent
                 thereof
                 ,
                 but
                 no
                 further
                 then
                 till
                 it
                 be
                 equivalent
                 to
                 the
                 Principal
                 ,
                 seing
                 by
                 the
                 tenor
                 of
                 such
                 Bonds
                 ,
                 it
                 appears
                 the
                 meaning
                 of
                 the
                 Parties
                 ,
                 that
                 no
                 more
                 should
                 be
                 demanded
                 in
                 any
                 case
                 ,
                 January
                 2.
                 1679.
                 
                 Sir
                 
                   Alexander
                   Frazer
                
                 and
                 
                   Leyes
                   Burnet
                
                 ,
                 contra
                 Sir
                 
                   James
                   Hamiltoun
                
                 .
              
               
                 Annual
                 upon
                 Annual
                 is
                 condemned
                 of
                 all
                 ,
                 when
                 it
                 is
                 comprehended
                 in
                 the
                 first
                 paction
                 ;
                 but
                 it
                 is
                 ordinar
                 ,
                 by
                 posterior
                 Contracts
                 ,
                 to
                 accumulate
                 Annualrents
                 and
                 make
                 it
                 a
                 Principal
                 ,
                 and
                 so
                 both
                 that
                 which
                 was
                 first
                 Principal
                 ,
                 and
                 that
                 which
                 was
                 once
                 Annual
                 ,
                 bears
                 Annual
                 :
                 so
                 also
                 Annual
                 ,
                 by
                 vertue
                 of
                 the
                 Act
                 of
                 Parliament
                 ,
                 if
                 Decreet
                 follow
                 thereupon
                 and
                 Horning
                 ,
                 will
                 bear
                 Annual
                 ,
                 seing
                 there
                 is
                 no
                 limitation
                 ;
                 but
                 this
                 will
                 not
                 be
                 extended
                 to
                 Annuals
                 in
                 time
                 coming
                 after
                 the
                 Horning
                 :
                 and
                 last
                 ,
                 Annualrent
                 payed
                 by
                 a
                 Cautioner
                 ,
                 
                 by
                 the
                 said
                 Statute
                 of
                 Session
                 ,
                 will
                 bear
                 Annual
                 ,
                 because
                 to
                 him
                 it
                 is
                 a
                 Principals
                 .
                 Annualrent
                 was
                 also
                 found
                 due
                 without
                 paction
                 ,
                 for
                 money
                 expended
                 by
                 the
                 Custom
                 of
                 
                   Bourdeaux
                   ,
                   Decemb.
                
                 8.
                 1677.
                 
                 
                   Antonieta
                   Peron
                
                 contra
                 Morison
                 .
              
               
                 To
                 return
                 to
                 Location
                 ,
                 all
                 things
                 may
                 fall
                 under
                 the
                 same
                 ,
                 that
                 can
                 have
                 any
                 use
                 ,
                 fruit
                 or
                 work
                 ,
                 but
                 real
                 servitudes
                 cannot
                 be
                 set
                 severally
                 ,
                 but
                 only
                 as
                 accessories
                 to
                 the
                 thing
                 which
                 they
                 serve
                 .
                 Works
                 which
                 can
                 be
                 locat
                 ,
                 1.
                 must
                 be
                 lawful
                 .
                 2.
                 
                 They
                 must
                 be
                 performable
                 in
                 that
                 which
                 belongeth
                 to
                 the
                 conductor
                 ,
                 or
                 in
                 reference
                 to
                 his
                 person
                 ;
                 for
                 work
                 employed
                 upon
                 the
                 workers
                 own
                 matter
                 ,
                 it
                 is
                 no
                 Location
                 ;
                 as
                 if
                 a
                 Goldsmith
                 be
                 employed
                 to
                 work
                 such
                 a
                 piece
                 of
                 work
                 in
                 his
                 own
                 Mettal
                 ,
                 and
                 the
                 same
                 to
                 be
                 bought
                 as
                 it
                 is
                 so
                 wrought
                 ,
                 it
                 is
                 Sale
                 and
                 no
                 Location
                 ,
                 unless
                 there
                 be
                 two
                 distinct
                 Bargains
                 ,
                 one
                 for
                 the
                 Mettal
                 ,
                 which
                 is
                 Sale
                 ;
                 and
                 the
                 other
                 for
                 the
                 Workmanship
                 ,
                 which
                 is
                 Location
                 ;
                 So
                 he
                 that
                 bargains
                 for
                 the
                 benefit
                 of
                 what
                 fish
                 he
                 shall
                 take
                 for
                 such
                 a
                 time
                 in
                 his
                 own
                 water
                 ,
                 contracteth
                 Sale
                 ,
                 and
                 not
                 Location
                 ;
                 and
                 if
                 the
                 work
                 be
                 to
                 be
                 employed
                 on
                 that
                 which
                 concerns
                 a
                 third
                 party
                 ,
                 it
                 is
                 not
                 Location
                 ,
                 but
                 a
                 Mandar
                 .
              
               
                 76.
                 
                 From
                 this
                 Contract
                 ,
                 the
                 Conductors
                 Obligation
                 is
                 to
                 pay
                 the
                 hire
                 ,
                 and
                 after
                 the
                 end
                 of
                 Location
                 ,
                 to
                 restore
                 the
                 thing
                 locat
                 ,
                 making
                 up
                 all
                 damages
                 ,
                 in
                 which
                 the
                 Conductor
                 is
                 lyable
                 even
                 for
                 light
                 faults
                 ,
                 and
                 must
                 use
                 such
                 diligence
                 as
                 prudent
                 men
                 use
                 in
                 their
                 Affairs
                 ,
                 but
                 is
                 not
                 lyable
                 for
                 casual
                 or
                 accidental
                 perishing
                 of
                 the
                 thing
                 locat
                 .
                 Some
                 hold
                 him
                 lyable
                 for
                 the
                 most
                 exact
                 diligence
                 and
                 lightest
                 fault
                 ;
                 but
                 others
                 ,
                 with
                 better
                 reason
                 ,
                 are
                 for
                 the
                 contrary
                 ,
                 it
                 being
                 the
                 common
                 rule
                 in
                 diligence
                 ,
                 that
                 which
                 is
                 only
                 to
                 the
                 behove
                 of
                 the
                 keeper
                 ,
                 he
                 should
                 use
                 most
                 exact
                 diligence
                 ,
                 and
                 is
                 lyable
                 for
                 the
                 lightest
                 fault
                 ,
                 as
                 it
                 is
                 in
                 Loan
                 ,
                 and
                 these
                 who
                 have
                 the
                 custody
                 only
                 for
                 another
                 ,
                 are
                 lyable
                 but
                 for
                 the
                 grossest
                 fault
                 ,
                 which
                 is
                 equivalent
                 to
                 fraud
                 ,
                 and
                 for
                 such
                 diligence
                 as
                 is
                 commonly
                 accustomed
                 by
                 every
                 man
                 ;
                 but
                 these
                 who
                 have
                 the
                 custody
                 for
                 themselves
                 ,
                 and
                 partly
                 for
                 others
                 ,
                 are
                 in
                 the
                 middle
                 way
                 oblieged
                 for
                 such
                 diligence
                 as
                 themselves
                 or
                 prudent
                 men
                 use
                 in
                 their
                 Affairs
                 .
              
               
                 77.
                 
                 The
                 Obligation
                 on
                 the
                 part
                 of
                 the
                 Locator
                 ,
                 is
                 to
                 deliver
                 the
                 thing
                 locat
                 ,
                 and
                 to
                 continue
                 it
                 during
                 the
                 time
                 of
                 the
                 location
                 ,
                 and
                 to
                 refound
                 to
                 the
                 Conductor
                 his
                 necessary
                 expense
                 employed
                 upon
                 the
                 thing
                 hired
                 ,
                 unless
                 the
                 custom
                 of
                 the
                 place
                 be
                 otherwayes
                 ;
                 and
                 so
                 the
                 reparation
                 and
                 upholding
                 of
                 houses
                 set
                 in
                 
                   prediis
                   Urbanis
                
                 lyeth
                 upon
                 the
                 setter
                 ,
                 if
                 it
                 be
                 not
                 otherwayes
                 agreed
                 ;
                 but
                 in
                 Lands
                 ,
                 or
                 
                   prediis
                   Rusticis
                
                 ,
                 the
                 Tennent
                 is
                 oblieged
                 to
                 keep
                 the
                 Land
                 and
                 Houses
                 in
                 as
                 good
                 condition
                 as
                 he
                 got
                 them
                 ,
                 and
                 may
                 not
                 destroy
                 Mosses
                 ,
                 nor
                 rive
                 out
                 Meadows
                 ,
                 and
                 is
                 lyable
                 for
                 the
                 damage
                 ,
                 though
                 there
                 be
                 no
                 such
                 provision
                 in
                 his
                 Tack
                 ,
                 February
                 6.
                 1633.
                 
                 Laird
                 of
                 Haddo
                 contra
                 Johnstoun
                 ;
                 but
                 he
                 hath
                 no
                 reparation
                 for
                 any
                 building
                 or
                 policy
                 which
                 he
                 maketh
                 ,
                 which
                 is
                 accounted
                 as
                 being
                 frely
                 due
                 without
                 expectation
                 of
                 recompence
                 ,
                 if
                 it
                 be
                 not
                 otherwayes
                 agreed
                 ,
                 or
                 that
                 the
                 Rent
                 be
                 raised
                 thereby
                 .
              
               
                 78.
                 
                 Society
                 is
                 not
                 so
                 much
                 a
                 permutative
                 ,
                 as
                 a
                 commutative
                 Contract
                 ,
                 whereby
                 the
                 Contracters
                 communicat
                 each
                 to
                 other
                 some
                 Stock
                 ,
                 Work
                 ,
                 or
                 Profit
                 .
                 The
                 effect
                 of
                 Society
                 is
                 ,
                 that
                 thereby
                 something
                 which
                 before
                 was
                 proper
                 ,
                 becometh
                 ,
                 or
                 is
                 continued
                 to
                 be
                 common
                 to
                 the
                 co-partners
                 ,
                 and
                 it
                 is
                 either
                 a
                 Stock
                 ,
                 or
                 the
                 profit
                 of
                 a
                 Stock
                 ,
                 or
                 Work
                 ,
                 Labour
                 or
                 Industry
                 :
                 Yet
                 ,
                 this
                 communication
                 is
                 not
                 effectual
                 to
                 transfer
                 the
                 Property
                 in
                 part
                 ,
                 or
                 to
                 communicat
                 it
                 without
                 delivery
                 or
                 possession
                 ,
                 by
                 which
                 ,
                 Property
                 by
                 positive
                 Law
                 
                 is
                 conveyed
                 .
                 There
                 is
                 ofttimes
                 a
                 communion
                 without
                 Society
                 ,
                 because
                 it
                 is
                 of
                 accident
                 ,
                 as
                 Legators
                 ,
                 Heirs
                 or
                 Acquirers
                 of
                 the
                 same
                 thing
                 ,
                 
                   pro
                   indiviso
                
                 ,
                 but
                 if
                 there
                 be
                 interposed
                 a
                 Contract
                 thereupon
                 ,
                 to
                 continue
                 that
                 Communion
                 for
                 the
                 common
                 profite
                 of
                 the
                 Contracters
                 ,
                 it
                 becometh
                 a
                 proper
                 Society
                 .
              
               
                 79.
                 
                 The
                 matter
                 of
                 Society
                 are
                 things
                 ,
                 fruits
                 ,
                 work
                 or
                 industry
                 ,
                 and
                 that
                 variously
                 ;
                 for
                 sometimes
                 the
                 thing
                 or
                 stock
                 is
                 only
                 put
                 by
                 one
                 ,
                 and
                 the
                 work
                 and
                 industry
                 about
                 it
                 by
                 another
                 ,
                 as
                 where
                 a
                 stock
                 is
                 given
                 in
                 partnership
                 to
                 a
                 Merchant
                 to
                 Trade
                 with
                 ,
                 here
                 it
                 may
                 be
                 that
                 the
                 Merchants
                 skill
                 and
                 pains
                 is
                 ballanced
                 with
                 the
                 profite
                 of
                 the
                 stock
                 of
                 the
                 other
                 ,
                 who
                 doth
                 not
                 ,
                 nor
                 cannot
                 make
                 that
                 use
                 of
                 it
                 .
                 Or
                 Land
                 is
                 set
                 to
                 Husband-men
                 to
                 be
                 Laboured
                 ,
                 and
                 the
                 Increase
                 to
                 be
                 common
                 .
                 Sometimes
                 each
                 partner
                 bringeth
                 a
                 stock
                 to
                 the
                 Society
                 ,
                 and
                 their
                 work
                 or
                 pains
                 withal
                 ,
                 and
                 sometime
                 only
                 work
                 ,
                 and
                 the
                 profite
                 thereby
                 is
                 made
                 common
                 ;
                 and
                 sometimes
                 the
                 one
                 communicateth
                 the
                 stock
                 it self
                 ,
                 whereby
                 the
                 property
                 thereof
                 becometh
                 common
                 to
                 himself
                 and
                 other
                 partners
                 ,
                 and
                 the
                 profite
                 accrewing
                 thereby
                 ,
                 and
                 the
                 other
                 bringeth
                 in
                 a
                 stock
                 ,
                 but
                 doth
                 not
                 communicate
                 it self
                 ,
                 but
                 the
                 profite
                 thereof
                 ;
                 in
                 all
                 the
                 interest
                 and
                 shares
                 ,
                 may
                 either
                 be
                 equal
                 or
                 unequal
                 ,
                 but
                 without
                 work
                 and
                 industry
                 by
                 the
                 partners
                 or
                 others
                 ,
                 there
                 can
                 be
                 no
                 Society
                 ,
                 because
                 there
                 can
                 be
                 no
                 profite
                 or
                 hazard
                 ,
                 of
                 profite
                 or
                 loss
                 .
              
               
                 80.
                 
                 The
                 nature
                 of
                 this
                 Contract
                 is
                 ,
                 to
                 have
                 in
                 it
                 equality
                 of
                 profite
                 and
                 loss
                 ,
                 proportionable
                 to
                 the
                 value
                 and
                 worth
                 of
                 the
                 stock
                 and
                 work
                 ,
                 which
                 is
                 unalterable
                 and
                 undispensible
                 by
                 the
                 nature
                 of
                 this
                 Contract
                 ;
                 and
                 scarcely
                 can
                 any
                 paction
                 or
                 indirect
                 course
                 ,
                 be
                 effectual
                 in
                 the
                 contrair
                 ,
                 because
                 thereby
                 the
                 Contract
                 would
                 become
                 Usurary
                 and
                 void
                 ;
                 which
                 equality
                 ,
                 as
                 to
                 the
                 work
                 and
                 industry
                 is
                 illiquid
                 ,
                 and
                 the
                 value
                 thereof
                 is
                 esteemed
                 according
                 to
                 the
                 common
                 estimate
                 ;
                 but
                 where
                 there
                 is
                 a
                 special
                 value
                 set
                 upon
                 it
                 ,
                 by
                 the
                 private
                 consent
                 of
                 parties
                 ,
                 which
                 (
                 as
                 was
                 said
                 before
                 of
                 the
                 private
                 rate
                 of
                 parties
                 )
                 without
                 Fraud
                 it
                 is
                 sufficient
                 ;
                 so
                 sometimes
                 the
                 value
                 of
                 the
                 work
                 is
                 estimate
                 equal
                 to
                 the
                 stock
                 or
                 industry
                 of
                 the
                 other
                 partner
                 ,
                 and
                 sometime
                 the
                 half
                 ,
                 third
                 ,
                 or
                 other
                 proportion
                 of
                 it
                 :
                 But
                 where
                 the
                 matter
                 is
                 clear
                 ,
                 or
                 where
                 the
                 Society
                 consists
                 of
                 a
                 Stock
                 in
                 Money
                 ,
                 the
                 profite
                 must
                 necessarly
                 be
                 proportionable
                 thereto
                 ,
                 and
                 the
                 hazard
                 or
                 loss
                 accordingly
                 ;
                 but
                 if
                 it
                 be
                 agreed
                 ,
                 that
                 where
                 the
                 Stocks
                 are
                 equal
                 ,
                 the
                 one
                 should
                 have
                 one
                 third
                 ,
                 and
                 the
                 other
                 two
                 thirds
                 of
                 the
                 profite
                 or
                 loss
                 ,
                 or
                 that
                 one
                 should
                 bear
                 the
                 hazard
                 of
                 the
                 Stock
                 of
                 both
                 ,
                 and
                 the
                 profite
                 should
                 be
                 equal
                 ,
                 or
                 any
                 other
                 inequality
                 ,
                 it
                 is
                 clearly
                 Usurary
                 ,
                 unequal
                 and
                 unjust
                 ,
                 neither
                 doth
                 it
                 subsist
                 as
                 a
                 Donation
                 ,
                 unless
                 so
                 specially
                 exprest
                 and
                 really
                 meaned
                 ;
                 for
                 oftimes
                 to
                 make
                 inconsistent
                 Contracts
                 subsist
                 ,
                 it
                 is
                 agreed
                 ,
                 that
                 the
                 inequality
                 ,
                 if
                 any
                 be
                 ,
                 shall
                 be
                 a
                 Donation
                 ;
                 but
                 that
                 is
                 a
                 meer
                 colour
                 ,
                 and
                 doth
                 work
                 no
                 effect
                 ,
                 seing
                 the
                 intent
                 of
                 the
                 Contract
                 is
                 truely
                 to
                 communicate
                 like
                 for
                 like
                 ,
                 and
                 not
                 to
                 gift
                 ,
                 and
                 that
                 addition
                 is
                 but
                 simulate
                 or
                 fraudulent
                 :
                 Hence
                 Society
                 may
                 be
                 described
                 a
                 Contract
                 ,
                 for
                 communicating
                 the
                 profite
                 or
                 loss
                 of
                 that
                 which
                 is
                 brought
                 unto
                 the
                 Society
                 ,
                 proportionably
                 according
                 to
                 the
                 share
                 and
                 interest
                 of
                 each
                 partner
                 .
                 It
                 is
                 true
                 that
                 if
                 there
                 appear
                 no
                 inequality
                 in
                 the
                 Stock
                 and
                 industry
                 of
                 the
                 partners
                 ,
                 when
                 no
                 proportion
                 is
                 exprest
                 ,
                 equal
                 share
                 of
                 profite
                 and
                 loss
                 is
                 understood
                 ;
                 or
                 if
                 the
                 skill
                 or
                 industry
                 of
                 some
                 of
                 the
                 partners
                 be
                 of
                 great
                 importance
                 ,
                 the
                 Society
                 may
                 consist
                 in
                 these
                 terms
                 ,
                 that
                 these
                 persons
                 shall
                 have
                 no
                 share
                 of
                 the
                 loss
                 ,
                 and
                 shall
                 have
                 such
                 a
                 share
                 of
                 the
                 profite
                 according
                 to
                 the
                 Sentence
                 of
                 Sulpitius
                 ,
                 but
                 if
                 such
                 inequality
                 appear
                 not
                 ,
                 the
                 Sentence
                 of
                 Mucius
                 ,
                 rejecting
                 such
                 inequality
                 is
                 just
                 ,
                 and
                 there
                 is
                 no
                 contrariety
                 between
                 the
                 opinions
                 of
                 both
                 ,
                 §
                 .
                 2
                 
                   instit
                   .
                   de
                   societate
                
                 .
              
               
               
                 81.
                 
                 It
                 remains
                 to
                 consider
                 ,
                 what
                 are
                 the
                 effects
                 of
                 Society
                 while
                 it
                 is
                 ,
                 and
                 how
                 it
                 ceaseth
                 :
                 As
                 to
                 the
                 first
                 ,
                 the
                 disposal
                 and
                 management
                 of
                 all
                 the
                 affairs
                 of
                 Societies
                 is
                 in
                 the
                 whole
                 partners
                 ,
                 and
                 each
                 of
                 them
                 (
                 though
                 having
                 an
                 unequal
                 share
                 )
                 hath
                 an
                 equal
                 vote
                 ,
                 unless
                 it
                 be
                 otherways
                 agreed
                 ,
                 and
                 the
                 common
                 rule
                 is
                 ,
                 
                   potior
                   est
                   conditio
                   prohibentis
                
                 ,
                 so
                 that
                 every
                 one
                 hath
                 a
                 Negative
                 Vote
                 ,
                 in
                 Acts
                 that
                 are
                 not
                 necessary
                 for
                 the
                 design
                 of
                 the
                 Society
                 ,
                 unless
                 by
                 the
                 custom
                 ,
                 or
                 paction
                 ,
                 or
                 deed
                 of
                 the
                 parties
                 ,
                 it
                 be
                 otherways
                 ordered
                 ;
                 as
                 where
                 it
                 s
                 the
                 custom
                 of
                 the
                 place
                 ,
                 that
                 in
                 such
                 Societies
                 ,
                 there
                 should
                 be
                 a
                 plurality
                 ,
                 or
                 when
                 it
                 is
                 agreed
                 that
                 the
                 minor
                 part
                 should
                 give
                 place
                 to
                 ,
                 and
                 is
                 comprehended
                 in
                 the
                 Acts
                 of
                 the
                 major
                 part
                 ,
                 or
                 when
                 the
                 Society
                 hath
                 been
                 accustomed
                 to
                 act
                 in
                 such
                 a
                 way
                 ,
                 not
                 only
                 the
                 greater
                 part
                 ,
                 but
                 even
                 one
                 or
                 more
                 of
                 the
                 partners
                 may
                 continue
                 that
                 way
                 ,
                 which
                 is
                 still
                 held
                 to
                 be
                 the
                 mind
                 of
                 the
                 whole
                 ,
                 unless
                 the
                 contrary
                 be
                 exprest
                 ;
                 and
                 therefore
                 it
                 was
                 found
                 ,
                 where
                 one
                 of
                 more
                 partners
                 in
                 a
                 Ship
                 had
                 fraughted
                 her
                 to
                 a
                 dangerous
                 Voyage
                 ,
                 without
                 the
                 others
                 consent
                 ,
                 yet
                 was
                 not
                 found
                 lyable
                 for
                 her
                 value
                 ,
                 being
                 lost
                 by
                 accident
                 ,
                 where
                 no
                 just
                 objection
                 could
                 be
                 made
                 against
                 the
                 Skippers
                 skill
                 ,
                 July
                 22.
                 1673.
                 
                 
                   John
                   Sim
                   contra
                   William
                   Abernethy
                
                 .
                 So
                 letting
                 out
                 of
                 Lands
                 ,
                 or
                 setting
                 out
                 of
                 Houses
                 ,
                 employing
                 of
                 Moneys
                 in
                 a
                 Society
                 ,
                 may
                 be
                 continued
                 by
                 one
                 or
                 more
                 of
                 the
                 partners
                 ,
                 and
                 their
                 actings
                 with
                 extraneous
                 persons
                 ,
                 in
                 name
                 of
                 the
                 Society
                 ,
                 do
                 constitute
                 the
                 whole
                 Society
                 Debitor
                 or
                 Creditor
                 ,
                 or
                 doth
                 acquire
                 to
                 them
                 ,
                 or
                 dispone
                 from
                 them
                 .
                 It
                 is
                 also
                 consistent
                 with
                 the
                 nature
                 of
                 this
                 Contract
                 ,
                 to
                 give
                 a
                 Negative
                 Vote
                 to
                 one
                 or
                 more
                 of
                 the
                 Society
                 ,
                 whose
                 interest
                 in
                 the
                 Stock
                 ,
                 or
                 whose
                 skill
                 and
                 industry
                 is
                 esteemed
                 the
                 greatest
                 ;
                 but
                 the
                 simple
                 nature
                 of
                 Society
                 it self
                 is
                 ,
                 the
                 most
                 tender
                 ingadgement
                 ,
                 and
                 so
                 if
                 it
                 be
                 not
                 otherways
                 provided
                 ,
                 it
                 is
                 always
                 dissolveable
                 at
                 the
                 option
                 ,
                 and
                 the
                 choise
                 of
                 any
                 of
                 the
                 Society
                 ,
                 and
                 it
                 implys
                 that
                 the
                 management
                 is
                 in
                 the
                 whole
                 partners
                 equally
                 ,
                 and
                 that
                 every
                 one
                 hath
                 a
                 Negative
                 Vote
                 ;
                 and
                 therefore
                 ,
                 when
                 it
                 is
                 Contracted
                 to
                 a
                 time
                 ,
                 that
                 it
                 may
                 not
                 be
                 parted
                 from
                 ,
                 in
                 that
                 case
                 ,
                 the
                 interest
                 and
                 end
                 of
                 the
                 Society
                 is
                 changed
                 ,
                 and
                 if
                 the
                 minor
                 part
                 will
                 not
                 cede
                 to
                 the
                 Major
                 part
                 ,
                 or
                 to
                 Arbitriment
                 ,
                 it
                 must
                 be
                 decided
                 by
                 the
                 Judge
                 ordinar
                 ,
                 which
                 of
                 the
                 parts
                 is
                 most
                 conduceable
                 to
                 the
                 Society
                 ,
                 but
                 this
                 being
                 so
                 great
                 a
                 retardment
                 upon
                 the
                 management
                 of
                 the
                 affairs
                 of
                 the
                 Society
                 ,
                 it
                 looseth
                 the
                 fraternity
                 among
                 the
                 partners
                 ,
                 and
                 is
                 sure
                 to
                 lose
                 the
                 pleasure
                 and
                 readily
                 the
                 profite
                 of
                 all
                 :
                 Therefore
                 the
                 Romans
                 did
                 upon
                 good
                 grounds
                 annul
                 and
                 disown
                 all
                 pactions
                 ,
                 whereby
                 Society
                 did
                 continue
                 beyond
                 the
                 life
                 and
                 pleasure
                 of
                 any
                 of
                 the
                 partners
                 ,
                 except
                 in
                 few
                 cases
                 .
              
               
                 82.
                 
                 Society
                 is
                 finished
                 ;
                 First
                 ,
                 When
                 the
                 matter
                 whereupon
                 it
                 is
                 Contracted
                 is
                 extinct
                 .
              
               
                 Secondly
                 ,
                 By
                 the
                 death
                 or
                 incapacity
                 to
                 act
                 in
                 the
                 Society
                 of
                 any
                 of
                 the
                 partners
                 ;
                 for
                 it
                 being
                 one
                 individual
                 Contract
                 of
                 the
                 whole
                 ,
                 and
                 not
                 as
                 many
                 Contracts
                 as
                 partners
                 ,
                 it
                 is
                 like
                 a
                 sheaf
                 of
                 Arrows
                 bound
                 together
                 with
                 one
                 tye
                 ,
                 out
                 of
                 which
                 ,
                 if
                 one
                 be
                 pulled
                 ,
                 the
                 rest
                 will
                 fall
                 out
                 ,
                 and
                 the
                 personal
                 humor
                 of
                 the
                 partners
                 is
                 so
                 chosen
                 ,
                 that
                 it
                 is
                 not
                 supposed
                 to
                 be
                 communicate
                 to
                 their
                 Heirs
                 or
                 Assigneys
                 ,
                 unless
                 by
                 custom
                 or
                 paction
                 the
                 contrair
                 be
                 provided
                 ,
                 which
                 ,
                 no
                 doubt
                 is
                 consistent
                 with
                 ,
                 though
                 not
                 consequent
                 from
                 the
                 naure
                 of
                 Society
                 .
              
               
                 Thirdly
                 ,
                 It
                 is
                 most
                 consonant
                 to
                 the
                 nature
                 of
                 Society
                 to
                 be
                 dissolved
                 at
                 the
                 option
                 and
                 pleasure
                 of
                 any
                 of
                 the
                 partners
                 ,
                 it
                 being
                 very
                 contrair
                 thereto
                 ,
                 and
                 much
                 impeding
                 of
                 the
                 ends
                 of
                 it
                 ,
                 that
                 any
                 should
                 be
                 continued
                 a
                 partner
                 
                 against
                 his
                 own
                 will
                 ;
                 and
                 therefore
                 ordinarly
                 ,
                 not
                 only
                 the
                 express
                 renunciation
                 of
                 the
                 Society
                 ,
                 but
                 any
                 Contracting
                 or
                 Acting
                 separatly
                 in
                 the
                 matter
                 of
                 the
                 Society
                 dissolveth
                 it
                 ,
                 yet
                 
                   propter
                   bonam
                   fidem
                
                 ,
                 whatsoever
                 is
                 done
                 with
                 ,
                 or
                 by
                 the
                 Society
                 ,
                 before
                 the
                 dissolution
                 thereof
                 be
                 known
                 ,
                 is
                 valide
                 ;
                 but
                 this
                 dissolution
                 at
                 pleasure
                 may
                 be
                 altered
                 by
                 custom
                 ,
                 or
                 consent
                 of
                 parties
                 :
                 And
                 to
                 sum
                 up
                 all
                 ,
                 in
                 Society
                 proportionable
                 equality
                 is
                 essential
                 and
                 inseparable
                 ,
                 and
                 all
                 the
                 other
                 specialities
                 are
                 congruous
                 and
                 convenient
                 ,
                 and
                 therefore
                 understood
                 ,
                 if
                 by
                 custom
                 or
                 consent
                 it
                 be
                 not
                 otherways
                 ordered
                 .
              
               
                 83.
                 
                 The
                 same
                 question
                 is
                 incident
                 here
                 ,
                 that
                 before
                 hath
                 been
                 touched
                 concerning
                 Mandats
                 ,
                 when
                 one
                 or
                 more
                 of
                 the
                 parties
                 act
                 in
                 the
                 matter
                 of
                 the
                 Society
                 ,
                 whether
                 thereby
                 the
                 whole
                 Society
                 be
                 oblieged
                 by
                 the
                 obligations
                 of
                 these
                 ?
                 Whether
                 obligations
                 made
                 to
                 these
                 ,
                 constitute
                 the
                 Society
                 Creditor
                 ?
                 Or
                 whether
                 real
                 Rights
                 acquired
                 by
                 these
                 ,
                 are
                 
                   ipso
                   facto
                
                 ,
                 common
                 to
                 the
                 Society
                 ?
                 Or
                 if
                 there
                 be
                 but
                 an
                 obligation
                 upon
                 the
                 actors
                 ,
                 to
                 communicate
                 ,
                 the
                 property
                 always
                 remaining
                 in
                 the
                 actors
                 ,
                 till
                 they
                 effectually
                 communicate
                 ,
                 the
                 resolution
                 of
                 this
                 being
                 the
                 same
                 with
                 that
                 in
                 Mandats
                 ,
                 we
                 refer
                 it
                 thither
                 ,
                 and
                 say
                 only
                 this
                 in
                 general
                 ,
                 that
                 when
                 these
                 parties
                 only
                 act
                 in
                 name
                 of
                 the
                 Society
                 ,
                 and
                 by
                 its
                 warrand
                 express
                 ,
                 or
                 what
                 they
                 have
                 been
                 accustomed
                 to
                 do
                 ,
                 in
                 so
                 far
                 they
                 are
                 not
                 only
                 partners
                 ,
                 but
                 Mandatars
                 ,
                 and
                 it
                 hath
                 the
                 same
                 effect
                 ,
                 as
                 if
                 the
                 Society
                 had
                 acted
                 it self
                 ;
                 but
                 when
                 they
                 act
                 not
                 so
                 ,
                 there
                 doth
                 only
                 arise
                 an
                 obliegement
                 upon
                 the
                 partners
                 actors
                 to
                 communicate
                 ,
                 in
                 the
                 mean
                 time
                 the
                 property
                 remaineth
                 in
                 them
                 :
                 And
                 if
                 transmitted
                 to
                 others
                 before
                 this
                 communication
                 ,
                 the
                 Society
                 will
                 be
                 thereby
                 excluded
                 ,
                 but
                 the
                 actors
                 will
                 remain
                 oblieged
                 for
                 Reparation
                 of
                 the
                 Damnage
                 and
                 Interest
                 of
                 the
                 Society
                 ;
                 and
                 this
                 will
                 hold
                 ,
                 though
                 things
                 be
                 bought
                 or
                 acquired
                 by
                 the
                 common
                 Money
                 of
                 the
                 Society
                 :
                 But
                 all
                 the
                 natural
                 interest
                 ,
                 birth
                 ,
                 fruit
                 and
                 profite
                 of
                 the
                 Society
                 ,
                 is
                 of
                 it self
                 and
                 instantly
                 common
                 to
                 the
                 Society
                 .
              
               
                 84.
                 
                 Partners
                 are
                 lyable
                 each
                 to
                 other
                 ,
                 for
                 such
                 diligence
                 as
                 men
                 do
                 ordinarly
                 use
                 ,
                 or
                 the
                 Partners
                 themselves
                 use
                 in
                 their
                 own
                 affairs
                 ;
                 for
                 this
                 Contract
                 being
                 undergone
                 for
                 the
                 mutual
                 good
                 of
                 either
                 party
                 ,
                 the
                 diligence
                 keepeth
                 the
                 middle
                 way
                 betwixt
                 exact
                 diligence
                 and
                 supine
                 negligence
                 ,
                 but
                 none
                 of
                 them
                 are
                 lyable
                 for
                 what
                 is
                 lost
                 by
                 force
                 or
                 accident
                 ,
                 without
                 their
                 fault
                 .
              
               
                 Society
                 hath
                 as
                 many
                 divisions
                 ,
                 as
                 hath
                 the
                 various
                 and
                 multiform
                 matter
                 in
                 which
                 it
                 may
                 be
                 contracted
                 ;
                 but
                 that
                 which
                 is
                 most
                 noticed
                 in
                 Law
                 is
                 ,
                 that
                 some
                 Societies
                 are
                 common
                 and
                 general
                 ,
                 whereby
                 parties
                 communicate
                 all
                 their
                 goods
                 ,
                 rights
                 and
                 interests
                 ,
                 communicable
                 ;
                 others
                 are
                 particular
                 of
                 one
                 or
                 more
                 of
                 them
                 ;
                 upon
                 the
                 first
                 there
                 are
                 many
                 questions
                 arising
                 ,
                 as
                 how
                 far
                 the
                 partners
                 may
                 gift
                 ,
                 or
                 educat
                 and
                 provide
                 their
                 Children
                 ,
                 so
                 that
                 the
                 rest
                 are
                 oblieged
                 ,
                 or
                 understood
                 to
                 concur
                 :
                 But
                 such
                 Societies
                 being
                 altogether
                 unaccustomed
                 here
                 ,
                 it
                 shall
                 be
                 vain
                 to
                 debate
                 the
                 properties
                 of
                 them
                 .
              
               
                 85.
                 
                 These
                 be
                 the
                 several
                 kinds
                 of
                 Pactions
                 and
                 Contracts
                 ;
                 there
                 be
                 other
                 distinctions
                 of
                 them
                 ,
                 not
                 from
                 their
                 nature
                 ,
                 but
                 from
                 their
                 adjuncts
                 or
                 circumstancee
                 ,
                 of
                 which
                 this
                 is
                 the
                 chief
                 ,
                 that
                 Contracts
                 may
                 be
                 celebrate
                 ,
                 either
                 immediatly
                 or
                 mediatly
                 by
                 the
                 interposition
                 of
                 other
                 persons
                 ,
                 as
                 Mandatars
                 ,
                 or
                 Commissioners
                 ;
                 concerning
                 which
                 it
                 hath
                 been
                 showen
                 before
                 ,
                 that
                 as
                 there
                 is
                 a
                 Contract
                 betwixt
                 the
                 Mandant
                 and
                 Mandatar
                 ,
                 so
                 ofttimes
                 there
                 is
                 a
                 Contract
                 ingaged
                 betwixt
                 the
                 Mandant
                 and
                 a
                 third
                 party
                 ,
                 who
                 hath
                 acted
                 with
                 the
                 Mandatar
                 according
                 to
                 his
                 warrand
                 ;
                 in
                 which
                 case
                 ordinarly
                 there
                 is
                 no
                 Contract
                 
                 or
                 Obliegement
                 betwixt
                 the
                 Mandatar
                 and
                 the
                 third
                 party
                 ;
                 as
                 he
                 who
                 buyes
                 Land
                 in
                 name
                 ,
                 and
                 to
                 the
                 use
                 of
                 another
                 by
                 his
                 warrand
                 ,
                 the
                 Lands
                 are
                 acquired
                 to
                 him
                 who
                 gave
                 the
                 warrand
                 ,
                 and
                 he
                 is
                 oblieged
                 to
                 pay
                 the
                 price
                 to
                 the
                 seller
                 ,
                 but
                 not
                 his
                 Mandatar
                 ,
                 so
                 the
                 seller
                 is
                 oblieged
                 to
                 deliver
                 and
                 warrand
                 to
                 him
                 ,
                 and
                 not
                 to
                 the
                 Mandatar
                 .
              
               
                 To
                 all
                 manner
                 of
                 Promises
                 and
                 Contracts
                 ,
                 Caution
                 and
                 Oaths
                 may
                 be
                 accessory
                 ;
                 with
                 which
                 therefore
                 ,
                 it
                 shall
                 not
                 be
                 improper
                 to
                 sum
                 up
                 this
                 Title
                 .
                 Caution
                 or
                 Surety
                 is
                 the
                 Promise
                 or
                 Contracts
                 of
                 any
                 ,
                 not
                 for
                 himself
                 ,
                 but
                 for
                 another
                 ;
                 and
                 therefore
                 ,
                 this
                 being
                 a
                 gratuitous
                 ingagement
                 ,
                 having
                 no
                 equivalent
                 cause
                 onerous
                 ,
                 as
                 to
                 the
                 Cautioner
                 ,
                 it
                 required
                 a
                 stipulation
                 among
                 the
                 Romans
                 to
                 make
                 it
                 effectual
                 ,
                 though
                 it
                 was
                 sometime
                 by
                 Mandats
                 or
                 Constitution
                 ;
                 but
                 now
                 every
                 promise
                 and
                 paction
                 ,
                 according
                 to
                 the
                 Law
                 of
                 Nature
                 ,
                 being
                 effectual
                 ,
                 it
                 is
                 valid
                 without
                 Stipulation
                 .
              
               
                 86.
                 
                 Caution
                 is
                 interposed
                 any
                 way
                 ,
                 by
                 which
                 the
                 consent
                 is
                 truely
                 given
                 ,
                 and
                 it
                 may
                 be
                 either
                 by
                 Mandat
                 or
                 Commission
                 ,
                 when
                 the
                 Mandator
                 giveth
                 order
                 or
                 warrand
                 to
                 Contract
                 with
                 any
                 other
                 party
                 ,
                 to
                 that
                 parties
                 behove
                 ;
                 for
                 then
                 that
                 party
                 is
                 the
                 principal
                 Debitor
                 ,
                 and
                 the
                 Mandator
                 is
                 Cautioner
                 ,
                 or
                 it
                 may
                 be
                 by
                 taking
                 on
                 the
                 Debt
                 of
                 another
                 freely
                 .
                 This
                 Cautioner
                 in
                 the
                 Law
                 is
                 called
                 Expromissor
                 ,
                 but
                 is
                 more
                 improperly
                 a
                 Cautioner
                 ,
                 seing
                 himself
                 is
                 principal
                 ,
                 having
                 but
                 an
                 obligation
                 of
                 relief
                 as
                 Mandatar
                 ,
                 or
                 Negotiator
                 :
                 But
                 the
                 most
                 proper
                 and
                 ordinary
                 Cautioner
                 ,
                 is
                 he
                 who
                 is
                 oblieged
                 with
                 ,
                 and
                 for
                 the
                 Principal
                 Debitor
                 ,
                 and
                 is
                 called
                 ,
                 
                   ad
                   promissor
                
                 ,
                 or
                 
                   fide
                   jussor
                
                 ,
                 because
                 upon
                 his
                 Faith
                 or
                 Trust
                 the
                 Creditor
                 contracteth
                 .
                 These
                 Cautionary
                 Promises
                 or
                 Contracts
                 are
                 of
                 the
                 same
                 kind
                 or
                 nature
                 with
                 these
                 ,
                 of
                 which
                 we
                 have
                 now
                 spoken
                 ,
                 yet
                 have
                 they
                 something
                 peculiar
                 ,
                 which
                 we
                 shall
                 shortly
                 touch
                 ,
                 which
                 resolve
                 in
                 these
                 Questions
                 ;
                 First
                 ,
                 Whether
                 Cautioners
                 are
                 lyable
                 and
                 conveenable
                 simply
                 ,
                 or
                 in
                 so
                 far
                 as
                 the
                 principal
                 Debitor
                 is
                 not
                 solvendo
                 ,
                 or
                 after
                 discussing
                 of
                 him
                 .
                 Secondly
                 ,
                 Whether
                 Cautioners
                 are
                 lyable
                 ,
                 
                   in
                   solidum
                
                 ,
                 or
                 
                   pro
                   rata
                
                 .
              
               
                 87.
                 
                 As
                 to
                 the
                 first
                 ,
                 the
                 nature
                 and
                 intent
                 of
                 Surety
                 is
                 ,
                 that
                 the
                 Creditor
                 may
                 be
                 secure
                 of
                 his
                 Debt
                 ;
                 and
                 therefore
                 Cautioners
                 are
                 not
                 ordinarly
                 decerned
                 till
                 the
                 Creditor
                 assign
                 the
                 Debt
                 ,
                 and
                 all
                 security
                 they
                 have
                 for
                 it
                 from
                 the
                 Principal
                 ,
                 if
                 they
                 have
                 not
                 a
                 distinct
                 interest
                 to
                 retain
                 the
                 security
                 ,
                 January
                 10.
                 1665.
                 
                 
                   Lesly
                   contra
                   Gilbert
                   Hay
                   .
                   July
                
                 10.
                 1666.
                 
                 Dam
                 
                   Margaret
                   Hay
                   contra
                   Crawford
                
                 of
                 Kerse
                 .
              
               
                 88.
                 
                 Cautioners
                 cannot
                 be
                 pursued
                 till
                 the
                 principal
                 Debitor
                 be
                 discust
                 ,
                 unless
                 it
                 be
                 otherways
                 Contracted
                 or
                 provided
                 by
                 the
                 Custom
                 or
                 Law
                 of
                 the
                 place
                 :
                 It
                 was
                 cotrary
                 by
                 the
                 ancient
                 Roman
                 Law
                 ,
                 l.
                 
                   jure
                   nov
                   .
                   C.
                   de
                   fidei
                   juss
                   .
                
                 which
                 was
                 corrected
                 by
                 the
                 Authentick
                 Constitution
                 ,
                 Coll.
                 1.
                 
                 Tit.
                 4.
                 
                 With
                 us
                 Cautioners
                 are
                 frequently
                 bound
                 for
                 ,
                 and
                 with
                 the
                 Principal
                 ,
                 as
                 full
                 Debitors
                 ,
                 conjunctly
                 and
                 severally
                 ,
                 and
                 thereby
                 ,
                 
                   ex
                   pacto
                
                 ,
                 the
                 Question
                 ceaseth
                 :
                 But
                 otherways
                 the
                 Cautioner
                 is
                 understood
                 to
                 be
                 oblieged
                 for
                 the
                 Principal
                 Debitors
                 performance
                 ,
                 and
                 so
                 is
                 lyable
                 only
                 subsidiarie
                 after
                 the
                 Principal
                 is
                 discust
                 ,
                 and
                 specially
                 where
                 the
                 performance
                 is
                 a
                 Trust
                 or
                 Deed
                 ,
                 proper
                 to
                 the
                 Principal
                 Creditor
                 ;
                 thus
                 Cautioners
                 for
                 Executors
                 are
                 only
                 lyable
                 after
                 the
                 Executors
                 are
                 discust
                 ,
                 at
                 least
                 by
                 Horning
                 execute
                 ,
                 June
                 27.
                 1610.
                 
                 
                   John
                   Sorogy
                   contra
                
                 Constable
                 of
                 Dundee
                 .
              
               
               
                 The
                 like
                 ,
                 though
                 the
                 Executor
                 was
                 alledged
                 to
                 be
                 Bankrupt
                 ,
                 July
                 24.
                 1662.
                 
                 
                   Birsbane
                   contra
                   Monteith
                
                 .
                 But
                 a
                 Cautioner
                 for
                 an
                 Executor
                 was
                 discerned
                 with
                 him
                 ,
                 superceding
                 execution
                 against
                 the
                 Cautioner
                 ,
                 till
                 the
                 Executor
                 were
                 first
                 discust
                 ,
                 December
                 2.
                 1662.
                 
                 
                   Dowglas
                   contra
                
                 Lady
                 Ormistoun
                 .
                 And
                 Executors
                 were
                 not
                 holden
                 discust
                 by
                 Horning
                 ,
                 till
                 Poynding
                 were
                 essayed
                 ,
                 and
                 search
                 made
                 for
                 his
                 Moveables
                 ,
                 though
                 none
                 was
                 condescended
                 on
                 ,
                 February
                 12.
                 1623.
                 
                 
                   Arnot
                   contra
                   Patrick
                   Abernethy
                
                 .
                 The
                 like
                 ,
                 that
                 search
                 behoved
                 to
                 be
                 made
                 ,
                 both
                 for
                 Moveables
                 and
                 Lands
                 ,
                 and
                 they
                 Appryzed
                 ,
                 if
                 any
                 were
                 ;
                 and
                 that
                 Horning
                 and
                 Caption
                 sufficed
                 not
                 ,
                 Hope
                 Executors
                 ,
                 
                   Robert
                   Stuart
                   contra
                   Thomas
                   Fisher.
                
                 But
                 there
                 is
                 no
                 necessity
                 in
                 that
                 discussing
                 to
                 call
                 the
                 Cautioners
                 ,
                 December
                 5.
                 1623.
                 
                 
                   Ruchead
                   contra
                   Manderson
                
                 .
                 So
                 the
                 Diligence
                 for
                 discussing
                 must
                 be
                 according
                 to
                 the
                 Estate
                 of
                 the
                 Principal
                 Debitor
                 ;
                 if
                 he
                 have
                 Moveables
                 ,
                 these
                 must
                 be
                 Poynded
                 ;
                 if
                 Lands
                 ,
                 these
                 must
                 be
                 Appryzed
                 ;
                 if
                 Debts
                 ,
                 they
                 must
                 be
                 Arrested
                 and
                 made
                 forthcoming
                 .
              
               
                 89.
                 
                 Cautioners
                 for
                 Curators
                 are
                 not
                 lyable
                 till
                 they
                 be
                 discust
                 ;
                 yet
                 they
                 were
                 decerned
                 for
                 constituting
                 the
                 Debt
                 ,
                 with
                 this
                 quality
                 ,
                 that
                 before
                 execution
                 against
                 the
                 Cautioners
                 ,
                 the
                 Curators
                 should
                 be
                 discust
                 in
                 his
                 Person
                 ,
                 Goods
                 and
                 Lands
                 ,
                 November
                 20.
                 1627.
                 
                 
                   Jean
                   Rollock
                   contra
                   Corsbie
                
                 .
              
               
                 90.
                 
                 Cautioners
                 for
                 the
                 Factors
                 in
                 Camphire
                 to
                 the
                 Burrows
                 ,
                 found
                 not
                 〈◊〉
                 till
                 the
                 Factors
                 were
                 discust
                 ,
                 July
                 8.
                 1626.
                 
                 
                   Smith
                   contra
                
                 But
                 Cautioners
                 for
                 these
                 Factors
                 were
                 not
                 found
                 lyable
                 for
                 the
                 Goods
                 sent
                 to
                 a
                 Factor
                 ,
                 after
                 he
                 was
                 known
                 to
                 the
                 pursuer
                 to
                 be
                 Bankrupt
                 ,
                 March
                 4.
                 1630.
                 
                 
                   Richee
                   contra
                   Paterson
                
                 .
                 Cautioners
                 in
                 suspensions
                 are
                 only
                 lyable
                 after
                 discuscussing
                 the
                 suspenders
                 ,
                 and
                 because
                 by
                 the
                 Tenor
                 of
                 their
                 Act
                 or
                 Bond
                 ,
                 they
                 are
                 bound
                 to
                 pay
                 what
                 shall
                 be
                 decerned
                 against
                 the
                 suspender
                 ,
                 if
                 the
                 Decreet
                 suspended
                 be
                 turned
                 into
                 a
                 Lybel
                 ,
                 they
                 are
                 free
                 ;
                 or
                 if
                 the
                 reason
                 of
                 suspension
                 was
                 relevant
                 and
                 instructed
                 ,
                 though
                 it
                 were
                 elided
                 by
                 an
                 answer
                 emergent
                 after
                 the
                 suspension
                 ,
                 Spots
                 .
                 suspension
                 
                   John
                   Weir
                   contra
                   John
                   Bailie
                
                 .
                 And
                 because
                 of
                 the
                 tenor
                 of
                 the
                 Bond
                 ,
                 and
                 the
                 unfavourableness
                 of
                 the
                 matter
                 ,
                 it
                 was
                 so
                 strictly
                 interpret
                 ,
                 that
                 if
                 the
                 suspender
                 dyed
                 before
                 he
                 were
                 discust
                 ,
                 the
                 Cautioner
                 was
                 free
                 :
                 Yet
                 by
                 Act
                 of
                 Sederunt
                 ,
                 Anno
                 ,
                 1649
                 ,
                 all
                 Cautioners
                 were
                 declared
                 lyable
                 ,
                 though
                 the
                 suspender
                 dyed
                 ,
                 if
                 the
                 Charge
                 being
                 transferred
                 against
                 his
                 Heir
                 or
                 Executors
                 ,
                 if
                 the
                 Letters
                 were
                 found
                 orderly
                 proceeded
                 ,
                 which
                 is
                 in
                 use
                 whensoever
                 the
                 Creditor
                 insists
                 in
                 the
                 suspended
                 Decreet
                 ,
                 and
                 obtains
                 Sentence
                 ,
                 in
                 which
                 the
                 Cautioners
                 uses
                 to
                 be
                 called
                 .
                 A
                 Cautioner
                 in
                 a
                 suspension
                 of
                 a
                 real
                 Action
                 of
                 Poynding
                 the
                 ground
                 ,
                 was
                 not
                 found
                 lyable
                 to
                 pay
                 the
                 Annualrent
                 suspended
                 ,
                 but
                 to
                 warrand
                 it
                 ,
                 February
                 18.
                 1623.
                 
                 
                   Blackburn
                   contra
                   Drysdail
                
                 .
                 A
                 Cautioner
                 in
                 a
                 suspension
                 was
                 found
                 lyable
                 ,
                 though
                 his
                 Bond
                 of
                 Cautionry
                 contained
                 a
                 clause
                 of
                 Relief
                 ,
                 which
                 was
                 not
                 signed
                 by
                 the
                 suspender
                 ,
                 seing
                 the
                 Bond
                 did
                 not
                 obliege
                 the
                 Principal
                 and
                 the
                 Cautioner
                 to
                 perform
                 what
                 should
                 be
                 decerned
                 ,
                 but
                 only
                 the
                 Cautioner
                 to
                 perform
                 ,
                 and
                 the
                 Principal
                 to
                 relieve
                 him
                 ,
                 January
                 6.
                 1681.
                 
                 
                   George
                   Home
                   contra
                
                 Mr.
                 
                   Patrick
                   Home
                
                 .
                 In
                 which
                 case
                 ,
                 it
                 was
                 only
                 found
                 necessary
                 to
                 discuss
                 the
                 suspender
                 ,
                 and
                 not
                 the
                 Cautioner
                 ,
                 in
                 the
                 first
                 suspension
                 ,
                 Ibidem
                 .
              
               
                 91.
                 
                 Cautioners
                 for
                 loosing
                 of
                 Arrestments
                 ,
                 are
                 not
                 Cautioners
                 for
                 those
                 in
                 whose
                 hands
                 Arrestments
                 are
                 made
                 ,
                 but
                 for
                 the
                 Debitor
                 ,
                 whose
                 Goods
                 or
                 Money
                 are
                 Arrested
                 in
                 lieu
                 of
                 the
                 Arrestment
                 ,
                 and
                 yet
                 they
                 are
                 no
                 further
                 lyable
                 then
                 in
                 so
                 far
                 as
                 was
                 in
                 the
                 hand
                 of
                 the
                 person
                 against
                 whom
                 the
                 Arrestment
                 was
                 used
                 ,
                 who
                 therefore
                 must
                 be
                 pursued
                 before
                 or
                 with
                 the
                 Cautioner
                 ,
                 that
                 it
                 may
                 be
                 constitute
                 ,
                 June
                 21.
                 1626.
                 
                 Lord
                 
                   Balmerino
                   contra
                   Lochinvar
                
                 .
                 
                 And
                 it
                 may
                 be
                 constitute
                 against
                 the
                 Cautioners
                 by
                 the
                 Oath
                 of
                 these
                 in
                 whose
                 hands
                 Arrestment
                 was
                 made
                 ,
                 February
                 22.
                 1627.
                 
                   inter
                   eosdem
                
                 .
              
               
                 92.
                 
                 Cautioners
                 are
                 lyable
                 according
                 to
                 the
                 Oath
                 of
                 the
                 principal
                 Debitor
                 ,
                 which
                 is
                 a
                 sufficient
                 probation
                 against
                 them
                 ,
                 because
                 their
                 obligation
                 being
                 accessory
                 ,
                 is
                 lyable
                 to
                 the
                 same
                 Probation
                 with
                 the
                 Principal
                 ,
                 as
                 is
                 clear
                 from
                 the
                 case
                 last
                 instanced
                 ;
                 but
                 it
                 is
                 more
                 dubious
                 ,
                 whether
                 the
                 Cautioners
                 runs
                 all
                 other
                 hazard
                 with
                 the
                 Principal
                 Debitor
                 ,
                 wherein
                 ,
                 though
                 the
                 Cautioner
                 of
                 an
                 Executor
                 was
                 not
                 admitted
                 to
                 propone
                 exhausting
                 ,
                 being
                 proponed
                 by
                 the
                 Executor
                 himself
                 ,
                 and
                 he
                 failing
                 therein
                 ,
                 March
                 4.
                 1623.
                 
                 
                   Wood
                   contra
                
                 Executors
                 of
                 Ker.
                 Yet
                 it
                 was
                 found
                 ,
                 that
                 where
                 exhausting
                 was
                 omitted
                 by
                 the
                 Executor
                 ,
                 it
                 was
                 admitted
                 for
                 the
                 Cautioner
                 ,
                 being
                 instantly
                 verified
                 ,
                 July
                 9.
                 1623.
                 
                 
                   Arnot
                   contra
                
                 Executors
                 of
                 Home
                 and
                 Mastertoun
                 .
                 And
                 likewise
                 ,
                 though
                 the
                 Principal
                 intented
                 Reduction
                 ,
                 and
                 was
                 holden
                 as
                 confest
                 by
                 his
                 Oath
                 ,
                 
                   de
                   calumnia
                
                 ,
                 yet
                 that
                 was
                 found
                 not
                 to
                 prejudge
                 the
                 Cautioner
                 ,
                 or
                 to
                 exclude
                 him
                 from
                 insisting
                 ,
                 in
                 proving
                 that
                 same
                 point
                 ,
                 January
                 22.
                 1629.
                 
                 
                   Carberry
                   contra
                   Kello
                
                 .
                 Whence
                 we
                 may
                 conclude
                 ,
                 that
                 Collusion
                 or
                 wilful
                 Omission
                 ,
                 or
                 negligence
                 of
                 the
                 Principal
                 hindereth
                 not
                 the
                 Cautioner
                 ,
                 but
                 if
                 the
                 Principal
                 ,
                 proponing
                 any
                 reason
                 of
                 defence
                 ,
                 used
                 Probation
                 by
                 Witnesses
                 ,
                 which
                 was
                 not
                 found
                 to
                 prove
                 the
                 same
                 ,
                 it
                 would
                 not
                 be
                 again
                 admitted
                 to
                 be
                 proven
                 by
                 the
                 Cautioner
                 ,
                 with
                 these
                 or
                 other
                 Witnesses
                 ;
                 and
                 therefore
                 ,
                 a
                 Cautioner
                 was
                 not
                 secluded
                 to
                 prove
                 a
                 defence
                 ,
                 wherein
                 the
                 Principal
                 succumbed
                 ,
                 not
                 being
                 intimate
                 to
                 the
                 Cautioner
                 ,
                 December
                 11.
                 1673.
                 
                 Earl
                 of
                 
                   Kinghorn
                   contra
                
                 Earl
                 Wintoun
                 .
              
               
                 93.
                 
                 Cautioners
                 as
                 Law
                 will
                 are
                 liberat
                 ,
                 if
                 the
                 Cause
                 be
                 Advocat
                 upon
                 incompetency
                 .
                 The
                 like
                 of
                 Cautioners
                 
                   judicio
                   sisti
                   ,
                   March
                
                 1.
                 1626.
                 
                 
                 because
                 the
                 Caution
                 was
                 not
                 warrantably
                 taken
                 being
                 for
                 a
                 Debt
                 only
                 assigned
                 to
                 a
                 Burgess
                 by
                 a
                 stranger
                 ;
                 yet
                 it
                 will
                 take
                 place
                 in
                 other
                 cases
                 ,
                 where
                 the
                 Citation
                 was
                 competent
                 and
                 warrantable
                 if
                 the
                 inferiour
                 Judge
                 do
                 not
                 put
                 parties
                 so
                 Arrested
                 in
                 Ward
                 .
                 The
                 like
                 ,
                 
                   〈◊〉
                   .
                   de
                   saetisdando
                   ,
                   William
                   Stuart
                   contra
                   Archibald
                   Hutchison
                   .
                
                 For
                 though
                 Advocation
                 be
                 obtained
                 ,
                 the
                 Cautioner
                 as
                 Law
                 will
                 must
                 sist
                 the
                 Principal
                 ,
                 when
                 he
                 produces
                 the
                 Advocation
                 ,
                 who
                 must
                 then
                 remain
                 in
                 Ward
                 as
                 he
                 was
                 before
                 Caution
                 was
                 found
                 ,
                 till
                 the
                 Cause
                 be
                 〈◊〉
                 ,
                 as
                 was
                 found
                 ,
                 February
                 20.
                 1666.
                 
                   contra
                   Hugh
                   Mcculloch
                
                 .
                 The
                 like
                 found
                 ,
                 that
                 a
                 Cautioner
                 
                   judicio
                   sisti
                   &
                   judicatum
                   solvi
                
                 ,
                 was
                 Liberat
                 by
                 putting
                 the
                 party
                 in
                 Prison
                 ,
                 though
                 not
                 at
                 the
                 calling
                 of
                 the
                 Cause
                 ,
                 July
                 10.
                 1666.
                 
                 
                   Thomson
                   contra
                   〈◊〉
                
                 .
              
               
                 94.
                 
                 Cautioners
                 may
                 be
                 accessory
                 to
                 Obligations
                 ,
                 though
                 the
                 Principal
                 〈◊〉
                 be
                 not
                 lyable
                 by
                 any
                 Statute
                 or
                 Custome
                 ,
                 giving
                 him
                 a
                 special
                 priviledge
                 ,
                 as
                 Minors
                 ,
                 or
                 Wives
                 cled
                 with
                 Husbands
                 ,
                 November
                 28
                 ,
                 1623.
                 
                 
                   Shaw
                   contra
                   〈◊〉
                
                 .
                 But
                 where
                 the
                 Obligation
                 is
                 in
                 it self
                 null
                 ,
                 and
                 hath
                 not
                 so
                 much
                 as
                 a
                 natural
                 Obligation
                 ;
                 if
                 the
                 Principal
                 be
                 free
                 ,
                 the
                 Cautioner
                 is
                 also
                 free
                 ,
                 as
                 if
                 the
                 Principal
                 did
                 not
                 at
                 all
                 ,
                 or
                 did
                 not
                 validly
                 Subscribe
                 ,
                 
                   Hope
                   fide
                   jussor
                
                 .
                 The
                 like
                 may
                 be
                 said
                 of
                 Obligations
                 by
                 Pupils
                 ,
                 Fools
                 or
                 Furious
                 Persons
                 ,
                 whose
                 〈◊〉
                 are
                 free
                 with
                 themselves
                 .
                 But
                 a
                 Cautioner
                 was
                 found
                 lyable
                 for
                 the
                 whole
                 Sum
                 ,
                 though
                 the
                 Principal
                 Party
                 subscribed
                 but
                 by
                 one
                 Notar
                 ,
                 whereby
                 he
                 would
                 be
                 only
                 lyably
                 for
                 an
                 hundred
                 Pounds
                 ,
                 July
                 8.
                 1680.
                 
                 
                   Sophia
                   Johnstoun
                   contra
                
                 the
                 Laird
                 of
                 Romano
                 .
                 And
                 a
                 Cautioner
                 was
                 found
                 lyable
                 ,
                 though
                 the
                 Debitor
                 having
                 received
                 a
                 Disposition
                 of
                 Moveables
                 from
                 the
                 Principal
                 Creditor
                 in
                 security
                 of
                 his
                 Sum
                 ,
                 promised
                 not
                 to
                 trouble
                 his
                 Person
                 or
                 
                 Goods
                 ,
                 reserving
                 power
                 to
                 distress
                 the
                 Cautioner
                 ,
                 July
                 12.
                 1680.
                 
                 Leitch
                 of
                 Monsie
                 contra
                 Mr.
                 
                   Andrew
                   Hedderwick
                
                 .
              
               
                 As
                 to
                 the
                 other
                 question
                 ,
                 Whether
                 Cautioners
                 be
                 lyable
                 insolidum
                 ,
                 unless
                 they
                 be
                 expresly
                 bound
                 conjunctly
                 and
                 severally
                 ?
                 If
                 they
                 become
                 Cautioners
                 at
                 diverse
                 times
                 without
                 relation
                 one
                 to
                 the
                 other
                 ,
                 there
                 is
                 no
                 doubt
                 but
                 as
                 they
                 oblieged
                 themselves
                 ,
                 so
                 are
                 they
                 lyable
                 all
                 insolidum
                 ;
                 but
                 when
                 they
                 obliege
                 together
                 ,
                 or
                 with
                 relation
                 to
                 one
                 another
                 ,
                 the
                 nature
                 of
                 the
                 Deed
                 importeth
                 no
                 more
                 then
                 Surety
                 ;
                 so
                 that
                 each
                 is
                 lyable
                 for
                 what
                 is
                 wanting
                 by
                 the
                 Principal
                 ,
                 and
                 what
                 is
                 wanting
                 by
                 the
                 other
                 Cautioners
                 :
                 but
                 this
                 holds
                 even
                 when
                 parties
                 are
                 bound
                 ,
                 not
                 only
                 as
                 Cautioners
                 for
                 ,
                 but
                 as
                 Principals
                 with
                 the
                 Debitor
                 ,
                 for
                 then
                 they
                 are
                 lyable
                 only
                 
                   pro
                   rata
                
                 ,
                 unless
                 they
                 be
                 bound
                 conjunctly
                 and
                 severally
                 ,
                 or
                 when
                 the
                 matter
                 of
                 the
                 obligation
                 is
                 an
                 indivisible
                 Fact.
                 
              
               
                 Cautioners
                 ordinarily
                 have
                 no
                 Action
                 against
                 the
                 principal
                 Debitor
                 till
                 they
                 be
                 distrest
                 ,
                 unless
                 the
                 Clause
                 or
                 Band
                 of
                 relief
                 bear
                 ,
                 
                   to
                   free
                   ,
                   relieve
                   and
                   skaithless
                   keep
                   them
                
                 ;
                 yet
                 where
                 an
                 Executour
                 was
                 becoming
                 poor
                 ,
                 the
                 Cautioner
                 pursuing
                 him
                 to
                 relieve
                 him
                 or
                 find
                 Caution
                 ,
                 was
                 thought
                 by
                 the
                 Lords
                 to
                 have
                 interest
                 so
                 to
                 do
                 ,
                 January
                 19.
                 1627.
                 
                 
                   Adam
                   Thomson
                
                 contra
                 
                   Lewis
                   Moor.
                
                 
              
               
                 If
                 a
                 Cautioner
                 pay
                 ,
                 without
                 intimation
                 to
                 the
                 principal
                 Debitor
                 in
                 due
                 time
                 before
                 Litiscontestation
                 ,
                 it
                 is
                 on
                 his
                 peril
                 ,
                 and
                 the
                 Principal
                 is
                 not
                 oblieged
                 to
                 relieve
                 him
                 ,
                 if
                 he
                 had
                 a
                 competent
                 Defence
                 that
                 would
                 have
                 excluded
                 the
                 Debitor
                 ,
                 Decemb.
                 19.
                 1632.
                 
                 Maxwel
                 of
                 
                   Gribtoun
                   contra
                
                 Earl
                 of
                 Nithisdale
                 .
              
               
                 Cautioners
                 getting
                 Assignation
                 from
                 the
                 Creditor
                 ,
                 whether
                 they
                 insist
                 in
                 the
                 Creditors
                 name
                 ,
                 or
                 their
                 own
                 as
                 his
                 Assigneys
                 ,
                 are
                 oblieged
                 to
                 allow
                 their
                 own
                 part
                 ,
                 July
                 8.
                 1664.
                 
                 Nisbet
                 contra
                 Leslie
                 ;
                 in
                 this
                 cause
                 there
                 was
                 a
                 Clause
                 of
                 mutual
                 relief
                 amongst
                 the
                 Cautioners
                 .
                 Co-principals
                 bound
                 conjunctly
                 and
                 severally
                 ,
                 are
                 mutually
                 as
                 Cautioners
                 for
                 their
                 shares
                 ,
                 and
                 are
                 lyable
                 to
                 relieve
                 other
                 ,
                 though
                 there
                 were
                 no
                 express
                 clause
                 of
                 relief
                 ,
                 which
                 hold
                 also
                 in
                 cocautioners
                 ,
                 though
                 there
                 were
                 no
                 clause
                 of
                 mutual
                 relief
                 amongst
                 the
                 Cautioners
                 ,
                 June
                 19.
                 1662.
                 
                 
                   Wallace
                   contra
                   Forbes
                
                 .
                 Co-cautioners
                 were
                 found
                 lyable
                 for
                 relief
                 
                   ex
                   natura
                   rei
                
                 ,
                 without
                 an
                 express
                 clause
                 of
                 relief
                 ,
                 January
                 27.
                 1675.
                 
                 Monteeth
                 contra
                 Rodger
                 .
                 Cautioners
                 having
                 payed
                 ,
                 if
                 they
                 seek
                 their
                 relief
                 from
                 the
                 other
                 Cautioners
                 ,
                 any
                 ease
                 they
                 get
                 on
                 special
                 favour
                 to
                 themselves
                 ,
                 hinders
                 not
                 to
                 obtain
                 of
                 the
                 rest
                 their
                 full
                 proportion
                 ;
                 but
                 if
                 they
                 get
                 ease
                 by
                 transaction
                 ,
                 or
                 upon
                 account
                 of
                 question
                 of
                 the
                 debt
                 ,
                 they
                 can
                 ask
                 no
                 more
                 then
                 what
                 they
                 truly
                 gave
                 out
                 ,
                 allowing
                 their
                 own
                 share
                 ,
                 as
                 was
                 found
                 in
                 a
                 Charge
                 to
                 the
                 Cautioners
                 behove
                 against
                 the
                 Co-cautioner
                 ,
                 July
                 27.
                 1672.
                 
                 
                   Joseph
                   Brodie
                
                 contra
                 
                   Alexander
                   Keith
                   :
                   June
                
                 28.
                 1665.
                 
                 Monteith
                 contra
                 Anderson
                 .
                 A
                 Cautioner
                 in
                 a
                 Suspension
                 of
                 a
                 Bond
                 wherein
                 there
                 were
                 five
                 Cautioners
                 ,
                 being
                 distrest
                 ,
                 and
                 having
                 payed
                 and
                 obtained
                 Assignation
                 from
                 the
                 Creditor
                 ,
                 was
                 found
                 to
                 have
                 access
                 against
                 the
                 first
                 four
                 Cautioners
                 ,
                 allowing
                 only
                 his
                 own
                 fifth
                 part
                 ,
                 Febr.
                 23.
                 1671.
                 
                 Arnold
                 of
                 Barncaple
                 against
                 Gordoun
                 of
                 Holm
                 .
              
               
                 97.
                 
                 As
                 Caution
                 ,
                 so
                 Oaths
                 are
                 accessory
                 to
                 all
                 Promises
                 ,
                 Pactions
                 and
                 Contracts
                 ;
                 not
                 these
                 declaratory
                 Oaths
                 which
                 are
                 ordinary
                 in
                 the
                 discussing
                 of
                 Rights
                 ,
                 whereby
                 all
                 persons
                 are
                 bound
                 to
                 declare
                 the
                 truth
                 upon
                 oath
                 as
                 witnesses
                 ,
                 or
                 as
                 parties
                 against
                 themselves
                 in
                 civil
                 Causes
                 ;
                 but
                 promissory
                 Oaths
                 ,
                 whereby
                 they
                 promise
                 to
                 observe
                 or
                 fulfill
                 any
                 thing
                 active
                 ,
                 or
                 passive
                 never
                 to
                 quarrel
                 it
                 ;
                 concerning
                 which
                 Oaths
                 ,
                 there
                 is
                 no
                 small
                 matter
                 of
                 debate
                 among
                 Lawyers
                 ,
                 what
                 effect
                 they
                 have
                 :
                 all
                 do
                 agree
                 ,
                 that
                 in
                 so
                 far
                 as
                 any
                 promise
                 
                 can
                 be
                 effectual
                 ,
                 a
                 promissory
                 oath
                 is
                 valid
                 ,
                 and
                 hath
                 this
                 much
                 of
                 advantage
                 ,
                 that
                 the
                 Creditor
                 is
                 the
                 more
                 secure
                 ,
                 because
                 he
                 may
                 justly
                 expect
                 ,
                 the
                 Debitor
                 will
                 be
                 more
                 observant
                 of
                 his
                 oath
                 then
                 of
                 his
                 ordinary
                 paction
                 ,
                 seing
                 the
                 penalty
                 of
                 the
                 violation
                 of
                 an
                 oath
                 deserves
                 a
                 more
                 attrocious
                 judgement
                 than
                 any
                 other
                 ,
                 God
                 being
                 called
                 as
                 a
                 Witness
                 and
                 Judge
                 :
                 which
                 effect
                 it
                 hath
                 ,
                 though
                 adhibit
                 to
                 that
                 which
                 by
                 the
                 matter
                 hath
                 an
                 anterior
                 obligation
                 ;
                 as
                 obligations
                 betwixt
                 Husband
                 and
                 Wife
                 ,
                 Parents
                 and
                 Children
                 ,
                 in
                 these
                 things
                 in
                 which
                 they
                 are
                 mutually
                 oblieged
                 ,
                 or
                 where
                 there
                 hath
                 preceded
                 or
                 is
                 conjoined
                 an
                 obligator
                 Contract
                 ,
                 which
                 of
                 it self
                 is
                 binding
                 without
                 an
                 oath
                 .
                 2.
                 
                 All
                 do
                 also
                 agree
                 ,
                 that
                 Oaths
                 interposed
                 in
                 things
                 unlawful
                 ,
                 not
                 only
                 as
                 to
                 the
                 manner
                 ,
                 but
                 as
                 to
                 the
                 matter
                 ,
                 are
                 not
                 obligator
                 ;
                 so
                 no
                 man
                 justifieth
                 Herod
                 ,
                 for
                 taking
                 
                   John
                   Baptists
                
                 head
                 without
                 cause
                 ,
                 upon
                 pretence
                 of
                 his
                 oath
                 .
                 3.
                 
                 All
                 do
                 agree
                 ,
                 that
                 in
                 matters
                 free
                 ,
                 and
                 in
                 our
                 own
                 power
                 as
                 Contracts
                 are
                 obligator
                 ,
                 so
                 also
                 are
                 Oaths
                 .
              
               
                 The
                 question
                 then
                 remains
                 ,
                 Whether
                 in
                 acts
                 civiliter
                 inefficacious
                 ,
                 the
                 interposition
                 of
                 an
                 Oath
                 can
                 give
                 efficacy
                 ;
                 or
                 whether
                 that
                 which
                 is
                 done
                 
                   in
                   debito
                   modo
                
                 ,
                 becomes
                 valid
                 by
                 an
                 Oath
                 to
                 perform
                 it
                 ,
                 or
                 not
                 to
                 impunge
                 it
                 ,
                 and
                 if
                 that
                 efficacy
                 will
                 not
                 only
                 extend
                 to
                 the
                 swearer
                 ,
                 but
                 to
                 his
                 heirs
                 or
                 successors
                 .
                 Of
                 this
                 there
                 are
                 multitudes
                 of
                 cases
                 and
                 examples
                 debated
                 among
                 Civilians
                 ;
                 by
                 the
                 Civil
                 Law
                 ,
                 naked
                 Pactions
                 are
                 not
                 efficacious
                 to
                 ground
                 any
                 Action
                 upon
                 ;
                 quaeritur
                 ,
                 whether
                 if
                 the
                 Paction
                 be
                 with
                 an
                 Oath
                 ,
                 the
                 Creditor
                 may
                 not
                 effectually
                 pursue
                 thereupon
                 ?
                 By
                 Law
                 likewayes
                 ,
                 the
                 deeds
                 of
                 Minors
                 ,
                 having
                 Curators
                 not
                 consenting
                 ,
                 are
                 null
                 ;
                 but
                 if
                 the
                 Minor
                 swear
                 not
                 to
                 quarrel
                 them
                 
                   quid
                   juris
                
                 ,
                 Minors
                 laesed
                 have
                 by
                 Law
                 the
                 benefit
                 of
                 restitution
                 ,
                 but
                 if
                 they
                 do
                 the
                 deed
                 upon
                 oath
                 to
                 perform
                 it
                 ,
                 or
                 not
                 to
                 quarrel
                 it
                 ,
                 whether
                 if
                 they
                 pursue
                 to
                 reduce
                 it
                 ,
                 will
                 they
                 be
                 excluded
                 by
                 their
                 Oath
                 ;
                 or
                 if
                 a
                 Wife
                 be
                 oblieged
                 personally
                 for
                 debt
                 ,
                 and
                 swear
                 to
                 perform
                 it
                 ,
                 or
                 never
                 to
                 come
                 in
                 the
                 contrair
                 ,
                 Whether
                 yet
                 she
                 may
                 defend
                 her self
                 with
                 her
                 priviledge
                 ;
                 or
                 if
                 a
                 womans
                 Land
                 given
                 her
                 for
                 security
                 of
                 her
                 Tocher
                 
                   donatione
                   propter
                   nuptias
                
                 ,
                 be
                 sold
                 by
                 her
                 Husband
                 with
                 her
                 consent
                 ,
                 which
                 the
                 Law
                 declareth
                 null
                 ,
                 Whether
                 her
                 oath
                 interposed
                 will
                 validate
                 it
                 ,
                 or
                 if
                 
                   pactum
                   Legis
                   Commissoriae
                   in
                   pignoribus
                
                 ,
                 confirmed
                 with
                 an
                 oath
                 will
                 be
                 valid
                 ,
                 or
                 if
                 an
                 oath
                 for
                 performance
                 will
                 exclude
                 the
                 common
                 exceptions
                 of
                 fear
                 ,
                 force
                 or
                 fraud
                 :
                 And
                 innumerable
                 such
                 cases
                 ,
                 whereby
                 positive
                 Law
                 prohibiteth
                 any
                 act
                 to
                 be
                 done
                 ,
                 or
                 declareth
                 it
                 void
                 simply
                 ,
                 or
                 void
                 if
                 it
                 be
                 not
                 done
                 in
                 such
                 a
                 manner
                 ,
                 and
                 with
                 such
                 solemnities
                 .
              
               
                 For
                 clearing
                 of
                 these
                 and
                 the
                 like
                 cases
                 ,
                 we
                 are
                 chiefly
                 to
                 consider
                 ,
                 
                   quae
                   sunt
                   partes
                   Judicis
                
                 ,
                 or
                 what
                 is
                 the
                 Judge
                 his
                 duty
                 in
                 deciding
                 cases
                 wherein
                 oaths
                 are
                 interposed
                 ,
                 rather
                 than
                 what
                 concerns
                 the
                 parties
                 ,
                 and
                 the
                 obligations
                 upon
                 their
                 conscience
                 by
                 these
                 oaths
                 in
                 
                   foro
                   poli
                
                 ;
                 and
                 therefore
                 ,
                 we
                 shall
                 take
                 up
                 the
                 matter
                 distinctly
                 in
                 these
                 ensuing
                 points
                 .
              
               
                 First
                 ,
                 if
                 an
                 Action
                 be
                 pursued
                 upon
                 a
                 ground
                 ineffectual
                 in
                 Law
                 ,
                 albeit
                 the
                 Defender
                 hath
                 interposed
                 an
                 oath
                 never
                 to
                 come
                 in
                 the
                 contrair
                 ,
                 yet
                 that
                 which
                 would
                 not
                 be
                 sustained
                 by
                 the
                 Judge
                 ,
                 though
                 the
                 Defender
                 should
                 not
                 appear
                 or
                 object
                 ,
                 which
                 is
                 ineffectual
                 of
                 it self
                 ,
                 in
                 that
                 case
                 the
                 interposition
                 of
                 an
                 oath
                 hath
                 no
                 effect
                 :
                 as
                 if
                 by
                 the
                 Civil
                 Law
                 ,
                 an
                 Action
                 were
                 intented
                 upon
                 a
                 promise
                 or
                 a
                 naked
                 paction
                 ,
                 with
                 an
                 oath
                 interposed
                 ,
                 the
                 Action
                 would
                 not
                 be
                 sustained
                 ,
                 albeit
                 the
                 Defender
                 should
                 not
                 appear
                 ,
                 or
                 appearing
                 should
                 not
                 object
                 ,
                 that
                 it
                 were
                 a
                 naked
                 paction
                 .
                 Or
                 ,
                 if
                 a
                 Declarator
                 should
                 be
                 intented
                 ,
                 to
                 declare
                 
                   pactum
                   legis
                   commissoriae
                   in
                   pignoribus
                
                 to
                 be
                 valid
                 and
                 effectual
                 ,
                 though
                 it
                 were
                 lybelled
                 ,
                 that
                 the
                 other
                 party
                 did
                 swear
                 never
                 to
                 come
                 in
                 the
                 contrair
                 ,
                 yet
                 the
                 Judge
                 could
                 
                 not
                 sustain
                 such
                 an
                 Action
                 ,
                 nor
                 generally
                 can
                 sustain
                 any
                 Action
                 which
                 is
                 unjust
                 or
                 irrelevant
                 ,
                 albeit
                 it
                 should
                 not
                 be
                 opposed
                 ,
                 but
                 consented
                 to
                 simply
                 ,
                 or
                 with
                 an
                 oath
                 never
                 to
                 quarrel
                 it
                 ,
                 because
                 in
                 such
                 cases
                 ,
                 
                   pactis
                   privatorum
                   non
                   derogatur
                   juri
                   communi
                   .
                
                 The
                 consent
                 or
                 oath
                 of
                 no
                 party
                 can
                 make
                 that
                 just
                 which
                 is
                 unjust
                 ,
                 nor
                 can
                 make
                 that
                 sufficient
                 or
                 effectual
                 ,
                 that
                 is
                 deficient
                 in
                 its
                 essentials
                 ;
                 as
                 if
                 any
                 party
                 should
                 grant
                 a
                 Disposition
                 of
                 Lands
                 or
                 Annual-rents
                 ,
                 and
                 declare
                 ,
                 that
                 it
                 should
                 be
                 effectual
                 for
                 poinding
                 the
                 ground
                 without
                 Infeftment
                 ,
                 and
                 should
                 swear
                 never
                 to
                 come
                 in
                 the
                 contrair
                 thereof
                 ,
                 if
                 thereupon
                 the
                 obtainer
                 should
                 pursue
                 poinding
                 of
                 the
                 ground
                 ,
                 the
                 same
                 could
                 not
                 be
                 sustained
                 ,
                 because
                 these
                 Rights
                 are
                 defective
                 in
                 their
                 essentials
                 ,
                 wanting
                 Infeftment
                 ;
                 and
                 yet
                 in
                 these
                 cases
                 ,
                 if
                 the
                 party
                 should
                 object
                 ,
                 or
                 any
                 way
                 hinder
                 the
                 effect
                 of
                 their
                 oath
                 ,
                 they
                 contraveen
                 the
                 same
                 :
                 But
                 the
                 Judge
                 not
                 sustaining
                 the
                 same
                 ,
                 doth
                 no
                 wrong
                 ,
                 because
                 his
                 not
                 sustaining
                 proceeds
                 upon
                 a
                 defect
                 of
                 an
                 essential
                 requisite
                 ,
                 and
                 not
                 because
                 of
                 any
                 exception
                 or
                 objection
                 of
                 the
                 party
                 :
                 from
                 this
                 ground
                 it
                 is
                 ,
                 that
                 if
                 a
                 Wife
                 be
                 pursued
                 or
                 charged
                 upon
                 a
                 Bond
                 for
                 Debt
                 subscribed
                 by
                 her
                 ,
                 bearing
                 expresly
                 her
                 to
                 be
                 designed
                 a
                 Wife
                 ,
                 though
                 it
                 were
                 condescended
                 on
                 that
                 she
                 made
                 faith
                 never
                 to
                 come
                 in
                 the
                 contrair
                 ;
                 the
                 Lords
                 would
                 not
                 sustain
                 the
                 pursute
                 or
                 Charge
                 ,
                 because
                 by
                 the
                 very
                 Action
                 it self
                 it
                 appeareth
                 ,
                 that
                 the
                 Summonds
                 or
                 Charges
                 are
                 irrelevant
                 ,
                 and
                 contrair
                 to
                 Law
                 ,
                 which
                 declareth
                 a
                 Wifes
                 Bond
                 for
                 Debt
                 
                   ipso
                   jure
                
                 null
                 ;
                 and
                 therefore
                 ,
                 though
                 she
                 may
                 be
                 faulty
                 in
                 suspending
                 ,
                 or
                 hindering
                 the
                 performance
                 of
                 the
                 ingagement
                 of
                 her
                 oath
                 ,
                 the
                 Lords
                 do
                 justly
                 reject
                 such
                 an
                 irrelevant
                 Libel
                 or
                 Charge
                 ,
                 as
                 they
                 did
                 in
                 the
                 case
                 betwixt
                 and
                 
                   Catharine
                   Douglas
                   ,
                   Feb.
                
                 18.
                 1663.
                 where
                 her
                 Band
                 was
                 suspended
                 simpliciter
                 ,
                 as
                 being
                 expresly
                 granted
                 by
                 a
                 wife
                 ,
                 though
                 she
                 judicially
                 made
                 faith
                 never
                 to
                 come
                 in
                 the
                 contrair
                 :
                 or
                 if
                 the
                 husband
                 should
                 suspend
                 and
                 alledge
                 ,
                 that
                 such
                 an
                 Obligation
                 or
                 Oath
                 could
                 not
                 be
                 effectual
                 against
                 his
                 Goods
                 ,
                 or
                 the
                 person
                 of
                 his
                 Wife
                 in
                 his
                 prejudice
                 ,
                 there
                 could
                 be
                 neither
                 wrong
                 on
                 his
                 part
                 ,
                 nor
                 on
                 the
                 Judges
                 part
                 .
                 2.
                 
                 If
                 either
                 Action
                 or
                 Exception
                 be
                 founded
                 upon
                 that
                 which
                 is
                 not
                 defective
                 in
                 essentials
                 ,
                 but
                 in
                 circumstantials
                 ,
                 ordained
                 and
                 commanded
                 by
                 Law
                 ,
                 the
                 defect
                 thereof
                 may
                 be
                 supplied
                 by
                 the
                 other
                 parties
                 consent
                 ,
                 much
                 more
                 by
                 their
                 oath
                 ;
                 and
                 in
                 that
                 case
                 ,
                 
                   quae
                   fieri
                   non
                   debent
                   facta
                   valent
                   :
                
                 for
                 every
                 prohibition
                 of
                 Law
                 doth
                 not
                 anull
                 the
                 deed
                 done
                 contrair
                 thereto
                 ,
                 but
                 infers
                 the
                 penalty
                 of
                 Law
                 upon
                 the
                 doer
                 ,
                 as
                 Tacks
                 of
                 Teinds
                 are
                 prohibit
                 to
                 be
                 set
                 by
                 Prelates
                 for
                 longer
                 then
                 nineteen
                 years
                 ,
                 Parl.
                 1617.
                 cap.
                 4.
                 
                 Yet
                 it
                 was
                 found
                 ,
                 that
                 a
                 Tack
                 granted
                 for
                 a
                 longer
                 time
                 was
                 not
                 thereby
                 null
                 ,
                 Novemb.
                 9.
                 1624.
                 
                 Mr.
                 
                   Thomas
                   Hope
                   contra
                
                 the
                 Minister
                 of
                 Craighall
                 :
                 So
                 likewayes
                 ,
                 members
                 of
                 the
                 Colledge
                 of
                 Justice
                 are
                 prohibite
                 to
                 buy
                 Pleas
                 ;
                 yet
                 the
                 Right
                 acquired
                 thereto
                 was
                 not
                 found
                 null
                 ,
                 or
                 Process
                 refused
                 thereupon
                 ,
                 but
                 that
                 it
                 might
                 be
                 a
                 ground
                 of
                 deprivation
                 ,
                 June
                 5.
                 1611.
                 
                 
                   Adam
                   Cunningham
                
                 Advocat
                 
                   contra
                   Maxwel
                
                 of
                 Drumcoultroun
                 .
                 In
                 like
                 manner
                 ,
                 the
                 solemnities
                 of
                 Marriages
                 are
                 prescribed
                 in
                 Law
                 ,
                 and
                 all
                 prohibit
                 to
                 proceed
                 any
                 other
                 way
                 ;
                 so
                 they
                 are
                 appointed
                 to
                 be
                 publickly
                 solemnized
                 by
                 a
                 Minister
                 ,
                 and
                 the
                 consent
                 of
                 paretns
                 are
                 required
                 ;
                 yet
                 the
                 want
                 of
                 these
                 will
                 not
                 anull
                 the
                 Marriage
                 ,
                 because
                 it
                 is
                 a
                 divine
                 Obligation
                 which
                 cannot
                 receive
                 its
                 essentials
                 from
                 positive
                 Law
                 or
                 Statute
                 :
                 Whence
                 it
                 is
                 justly
                 said
                 ,
                 
                   Mult
                   a
                   impediunt
                   Matrimonium
                   contrahendum
                   que
                   non
                   dirimunt
                   Contractum
                   .
                
                 It
                 is
                 not
                 therefore
                 the
                 prohibition
                 of
                 Law
                 that
                 anulleth
                 an
                 Act
                 ,
                 but
                 the
                 Law
                 must
                 expresly
                 anull
                 it
                 ,
                 or
                 at
                 least
                 declare
                 such
                 points
                 as
                 the
                 essential
                 requisites
                 to
                 such
                 Deeds
                 or
                 Rights
                 :
                 some
                 Deeds
                 are
                 declared
                 null
                 
                   ipso
                   jure
                
                 ,
                 and
                 others
                 are
                 only
                 anullable
                 
                   ope
                   exceptionis
                
                 ,
                 or
                 by
                 way
                 of
                 restitution
                 ,
                 or
                 at
                 least
                 where
                 something
                 in
                 fact
                 must
                 be
                 alledged
                 and
                 proven
                 ;
                 which
                 doth
                 not
                 appear
                 by
                 the
                 Right
                 or
                 Deed
                 it self
                 ,
                 and
                 so
                 belongeth
                 not
                 to
                 the
                 Judge
                 to
                 advert
                 to
                 ,
                 but
                 must
                 be
                 proponed
                 by
                 the
                 party
                 :
                 in
                 these
                 an
                 oath
                 interposed
                 doth
                 debar
                 the
                 swearer
                 
                 from
                 proposing
                 or
                 making
                 use
                 of
                 such
                 exceptions
                 and
                 allegiances
                 ;
                 and
                 therefore
                 ,
                 neither
                 may
                 the
                 party
                 justly
                 propone
                 the
                 same
                 ,
                 nor
                 the
                 Judge
                 justly
                 sustain
                 the
                 same
                 ,
                 for
                 there
                 be
                 many
                 things
                 of
                 themselves
                 relevant
                 and
                 competent
                 in
                 Law
                 ,
                 which
                 yet
                 may
                 be
                 excluded
                 by
                 a
                 personal
                 objection
                 ,
                 against
                 the
                 proponer
                 ;
                 for
                 in
                 many
                 cases
                 ,
                 allegeances
                 competent
                 to
                 parties
                 may
                 be
                 renounced
                 ,
                 so
                 that
                 though
                 they
                 be
                 relevant
                 ,
                 that
                 personal
                 objection
                 will
                 exclude
                 the
                 proponer
                 ,
                 but
                 his
                 Oath
                 is
                 much
                 stronger
                 then
                 his
                 Renunciation
                 ;
                 and
                 therefore
                 ,
                 seing
                 such
                 points
                 are
                 not
                 
                   partes
                   judicis
                
                 ,
                 nor
                 consistent
                 in
                 any
                 intrinsick
                 nullity
                 or
                 defect
                 ,
                 though
                 the
                 Law
                 allow
                 or
                 prescribe
                 them
                 ,
                 yet
                 it
                 doth
                 not
                 mention
                 or
                 express
                 ,
                 that
                 though
                 the
                 party
                 in
                 whose
                 favours
                 they
                 are
                 introduced
                 renunce
                 them
                 simply
                 ,
                 or
                 with
                 an
                 Oath
                 ,
                 that
                 these
                 shall
                 be
                 admitted
                 ;
                 and
                 therefore
                 ,
                 they
                 are
                 justly
                 to
                 be
                 repelled
                 ,
                 being
                 
                   in
                   detrimentum
                   animae
                
                 ,
                 of
                 the
                 proponer
                 .
                 This
                 ground
                 solveth
                 most
                 of
                 the
                 cases
                 before
                 proponed
                 ;
                 for
                 if
                 a
                 Minor
                 pursue
                 Restitution
                 upon
                 Minority
                 and
                 Laesion
                 ,
                 his
                 Oath
                 to
                 perform
                 ,
                 or
                 not
                 to
                 quarrel
                 the
                 deed
                 in
                 question
                 ,
                 excludes
                 him
                 ,
                 both
                 by
                 the
                 Civil
                 Law
                 and
                 our
                 Custome
                 ,
                 by
                 the
                 authentick
                 
                   sacramenta
                   puberum
                   spontefacta
                   ,
                   super
                   contractibus
                   rerum
                   suarum
                   non
                   retractandis
                   ,
                   inviolabiliter
                   custodiantur
                   ,
                   C.
                   si
                   adversus
                   vend
                   .
                
                 It
                 was
                 so
                 decided
                 in
                 an
                 obliegement
                 by
                 a
                 Minor
                 ,
                 to
                 quite
                 twenty
                 Chalders
                 of
                 Victual
                 ,
                 provided
                 in
                 his
                 Contract
                 of
                 Marriage
                 ,
                 January
                 15.
                 1634.
                 
                 Sir
                 
                   Robert
                   Hepburn
                   contra
                
                 Sir
                 
                   John
                   Seatoun
                
                 ,
                 where
                 it
                 was
                 found
                 that
                 the
                 Oath
                 was
                 valide
                 ,
                 though
                 not
                 judicial
                 .
                 The
                 like
                 was
                 found
                 ,
                 that
                 a
                 Minor
                 having
                 given
                 a
                 Bond
                 for
                 his
                 fathers
                 Debt
                 ,
                 whom
                 he
                 represented
                 not
                 ,
                 and
                 being
                 sworn
                 not
                 to
                 come
                 in
                 the
                 contrair
                 ,
                 the
                 same
                 was
                 not
                 reduced
                 upon
                 Minority
                 and
                 Laesion
                 ,
                 February
                 10.
                 1672.
                 
                 Mr.
                 
                   George
                   Waugh
                   contra
                   Bailzie
                
                 of
                 Dunraget
                 .
                 Upon
                 this
                 same
                 ground
                 ,
                 a
                 Minor
                 having
                 Curators
                 not
                 consenting
                 ,
                 swearing
                 to
                 perform
                 his
                 Obligation
                 ,
                 or
                 never
                 to
                 come
                 in
                 the
                 contrair
                 ,
                 his
                 exception
                 of
                 its
                 being
                 null
                 ,
                 because
                 it
                 consists
                 in
                 Fact
                 ,
                 and
                 must
                 be
                 proven
                 that
                 he
                 was
                 Minor
                 ,
                 and
                 that
                 he
                 had
                 Curators
                 ,
                 may
                 justly
                 be
                 repelled
                 ,
                 and
                 he
                 excluded
                 from
                 proponing
                 thereof
                 ,
                 in
                 respect
                 of
                 his
                 Oath
                 ,
                 seing
                 it
                 is
                 not
                 the
                 part
                 of
                 the
                 Judge
                 to
                 know
                 or
                 advert
                 thereto
                 ;
                 but
                 his
                 Curators
                 who
                 have
                 not
                 sworn
                 may
                 ,
                 yea
                 ,
                 must
                 propone
                 that
                 nullity
                 ,
                 because
                 they
                 have
                 not
                 sworn
                 .
              
               
                 On
                 this
                 ground
                 likeways
                 ,
                 the
                 exception
                 or
                 reason
                 of
                 Reduction
                 upon
                 force
                 or
                 fear
                 is
                 excluded
                 ,
                 if
                 the
                 party
                 have
                 sworn
                 to
                 perform
                 ,
                 or
                 not
                 quarrel
                 the
                 deed
                 ,
                 which
                 is
                 the
                 sentence
                 of
                 the
                 Canon
                 Law
                 ,
                 not
                 only
                 as
                 to
                 Wifes
                 consent
                 ,
                 to
                 the
                 alienation
                 of
                 Lands
                 given
                 to
                 them
                 ,
                 
                   donatione
                   propter
                   nuptias
                
                 ,
                 which
                 is
                 both
                 null
                 ,
                 and
                 presumed
                 to
                 be
                 granted
                 upon
                 her
                 fear
                 or
                 reverence
                 of
                 her
                 Husband
                 ,
                 
                   C.
                   licet
                   mulieris
                   ,
                   l.
                
                 6.
                 
                   de
                   jure
                   jurando
                   C.
                   cum
                   continget
                   de
                   jure
                   jurando
                   ,
                
                 whereby
                 such
                 consents
                 and
                 oaths
                 ,
                 being
                 interposed
                 ,
                 are
                 declared
                 to
                 be
                 valide
                 ;
                 but
                 generally
                 ,
                 that
                 no
                 deed
                 having
                 an
                 oath
                 interposed
                 ,
                 can
                 be
                 recalled
                 upon
                 an
                 alledgeance
                 of
                 force
                 and
                 fear
                 ,
                 C.
                 3
                 ,
                 &
                 4.
                 
                   de
                   iis
                   quae
                   vim
                   metumve
                
                 ;
                 albeit
                 the
                 Pope
                 assumes
                 to
                 himself
                 liberty
                 
                   to
                   absolve
                   from
                   such
                   oaths
                   as
                   are
                   done
                   upon
                   fear
                   ,
                
                 yet
                 they
                 are
                 declared
                 of
                 themselves
                 to
                 be
                 valide
                 ,
                 which
                 our
                 Custome
                 followeth
                 ,
                 and
                 was
                 so
                 decided
                 ,
                 Parl.
                 1481.
                 cap.
                 83.
                 and
                 was
                 so
                 decided
                 by
                 the
                 Lords
                 ,
                 July
                 4.
                 1642.
                 
                 
                   Agnes
                   Grant
                   contra
                   Balvaird
                
                 ,
                 where
                 a
                 Wife
                 was
                 excluded
                 from
                 the
                 Reduction
                 of
                 the
                 alienation
                 of
                 her
                 Liferent
                 Lands
                 ,
                 
                   super
                   vi
                   &
                   metu
                
                 ,
                 because
                 she
                 had
                 judicially
                 ratified
                 the
                 same
                 ,
                 and
                 sworn
                 never
                 to
                 come
                 in
                 the
                 contrair
                 ;
                 neither
                 was
                 it
                 respected
                 ,
                 that
                 the
                 Oath
                 as
                 well
                 as
                 the
                 Disposition
                 was
                 by
                 force
                 and
                 fear
                 ,
                 this
                 is
                 the
                 great
                 foundation
                 of
                 all
                 publick
                 Transactions
                 betwixt
                 different
                 parties
                 and
                 Nations
                 ,
                 where
                 ofttimes
                 the
                 one
                 party
                 is
                 induced
                 through
                 fear
                 ,
                 to
                 that
                 which
                 otherways
                 they
                 would
                 not
                 yeeld
                 to
                 ;
                 and
                 yet
                 both
                 parties
                 acquiesce
                 in
                 the
                 Religion
                 of
                 an
                 Oath
                 interposed
                 :
                 So
                 the
                 Oath
                 of
                 Israel
                 to
                 the
                 King
                 of
                 Babylon
                 was
                 binding
                 upon
                 them
                 ,
                 though
                 thereby
                 the
                 people
                 
                 of
                 God
                 subjected
                 themselves
                 to
                 a
                 Heathen
                 King
                 ;
                 and
                 therefore
                 they
                 are
                 accused
                 by
                 Jeremiah
                 for
                 breach
                 thereof
                 ,
                 and
                 likewise
                 for
                 breaking
                 the
                 Oath
                 to
                 their
                 Servants
                 ,
                 whom
                 they
                 manumitted
                 upon
                 meer
                 necessity
                 ,
                 for
                 their
                 defence
                 .
              
               
                 From
                 this
                 reason
                 it
                 is
                 ,
                 that
                 the
                 exception
                 or
                 reason
                 of
                 Reduction
                 upon
                 deception
                 ,
                 Fraud
                 or
                 Circumvention
                 is
                 excluded
                 ,
                 if
                 an
                 Oath
                 be
                 interposed
                 ,
                 whereof
                 we
                 have
                 the
                 most
                 eminent
                 example
                 ,
                 of
                 the
                 Oath
                 of
                 the
                 People
                 of
                 Israel
                 to
                 the
                 Gibeonites
                 ,
                 who
                 purposely
                 deceived
                 and
                 circumveened
                 them
                 ,
                 feigning
                 themselves
                 to
                 be
                 a
                 people
                 far
                 off
                 ,
                 though
                 they
                 were
                 of
                 the
                 Hivites
                 ,
                 whom
                 Israel
                 was
                 commanded
                 utterly
                 to
                 destroy
                 ;
                 against
                 which
                 judicial
                 Precept
                 ,
                 they
                 being
                 induced
                 through
                 error
                 and
                 deceit
                 to
                 swear
                 ,
                 the
                 Oath
                 was
                 binding
                 on
                 them
                 and
                 their
                 posterity
                 ,
                 and
                 was
                 punished
                 upon
                 Saul
                 for
                 breach
                 thereof
                 .
                 From
                 this
                 instance
                 we
                 have
                 occasion
                 to
                 return
                 to
                 the
                 last
                 case
                 ,
                 whether
                 Oaths
                 be
                 only
                 personal
                 oblieging
                 the
                 swearer
                 ,
                 and
                 so
                 inherent
                 to
                 their
                 persons
                 that
                 they
                 bind
                 not
                 their
                 Heirs
                 ,
                 wherein
                 some
                 are
                 for
                 the
                 affirmative
                 ,
                 that
                 even
                 Heirs
                 are
                 oblieged
                 ,
                 as
                 being
                 
                   fictione
                   juris
                   eadem
                   persona
                   cum
                   defuncto
                   ,
                
                 which
                 is
                 also
                 fortified
                 by
                 the
                 punishment
                 in
                 the
                 Successors
                 of
                 Israel
                 ,
                 in
                 the
                 days
                 of
                 Saul
                 ;
                 but
                 I
                 rather
                 incline
                 to
                 the
                 Negative
                 ,
                 that
                 Heirs
                 are
                 not
                 oblieged
                 ,
                 but
                 only
                 the
                 persons
                 who
                 swear
                 ,
                 which
                 is
                 the
                 more
                 common
                 opinion
                 of
                 Lawers
                 ,
                 Civilians
                 ,
                 and
                 Canonist's
                 ;
                 nor
                 doth
                 the
                 instance
                 infer
                 the
                 contrary
                 ,
                 because
                 Oaths
                 by
                 Societies
                 and
                 Incorporations
                 ,
                 continue
                 not
                 as
                 to
                 their
                 Heirs
                 ,
                 but
                 because
                 the
                 Society
                 dieth
                 not
                 ,
                 and
                 is
                 ever
                 the
                 same
                 ,
                 especially
                 in
                 Contracts
                 betwixt
                 Nations
                 ,
                 where
                 the
                 parties
                 intend
                 not
                 to
                 obliege
                 particular
                 persons
                 ,
                 then
                 living
                 ,
                 but
                 the
                 Nation
                 ;
                 neither
                 doth
                 the
                 fiction
                 of
                 Law
                 operate
                 in
                 this
                 case
                 ;
                 for
                 no
                 position
                 or
                 fiction
                 of
                 Law
                 can
                 either
                 extend
                 or
                 abriege
                 the
                 obligation
                 of
                 an
                 Oath
                 ,
                 which
                 is
                 
                   alterius
                   &
                   superioris
                   juris
                
                 .
              
               
                 There
                 remains
                 yet
                 this
                 Objection
                 ,
                 that
                 if
                 Oaths
                 be
                 so
                 effectual
                 ,
                 great
                 inconveniencies
                 will
                 follow
                 ,
                 a
                 door
                 being
                 opened
                 to
                 Force
                 and
                 Fraud
                 ,
                 for
                 the
                 same
                 facility
                 that
                 parties
                 are
                 induced
                 to
                 act
                 ,
                 they
                 will
                 be
                 induced
                 to
                 confirm
                 it
                 by
                 an
                 Oath
                 .
                 It
                 is
                 answered
                 ,
                 
                   in
                   commodum
                   non
                   solvit
                   argumentum
                
                 ;
                 which
                 therefore
                 was
                 not
                 regarded
                 in
                 the
                 case
                 of
                 
                   Agnes
                   Grant
                   contra
                   Balvaird
                
                 ,
                 but
                 there
                 may
                 be
                 a
                 remeid
                 by
                 severe
                 punishment
                 upon
                 parties
                 ,
                 who
                 shall
                 induce
                 others
                 to
                 swear
                 to
                 their
                 own
                 hurt
                 ,
                 which
                 the
                 Prince
                 may
                 inflict
                 ,
                 and
                 repair
                 the
                 damnage
                 of
                 the
                 laesed
                 ;
                 it
                 is
                 true
                 ,
                 if
                 the
                 fear
                 be
                 such
                 as
                 stupifieth
                 ,
                 and
                 takes
                 away
                 the
                 act
                 of
                 reason
                 ,
                 there
                 is
                 nothing
                 done
                 ,
                 because
                 there
                 can
                 no
                 Contract
                 in
                 its
                 substantials
                 consist
                 without
                 the
                 knowledge
                 and
                 reason
                 of
                 the
                 party
                 ;
                 or
                 if
                 the
                 deceit
                 be
                 
                   in
                   substantialibus
                
                 ,
                 as
                 if
                 a
                 man
                 should
                 by
                 mistake
                 Marry
                 one
                 woman
                 for
                 another
                 ,
                 there
                 is
                 nothing
                 done
                 ,
                 but
                 when
                 an
                 act
                 of
                 reason
                 is
                 exercised
                 :
                 But
                 upon
                 motives
                 by
                 fear
                 ,
                 error
                 ,
                 or
                 mistake
                 ,
                 the
                 deed
                 is
                 in
                 it self
                 valid
                 ,
                 but
                 annullable
                 by
                 the
                 Fear
                 or
                 Fraud
                 ,
                 which
                 are
                 excluded
                 by
                 the
                 Oath
                 ,
                 against
                 which
                 they
                 cannot
                 be
                 alledged
                 by
                 the
                 party
                 who
                 hath
                 sworn
                 ,
                 but
                 may
                 be
                 proponed
                 by
                 his
                 Heirs
                 ,
                 Executors
                 ,
                 or
                 Cautioners
                 ,
                 or
                 any
                 other
                 having
                 interest
                 .
              
               
                 Having
                 now
                 spoken
                 of
                 the
                 several
                 kinds
                 of
                 Obligations
                 ,
                 before
                 we
                 go
                 over
                 to
                 real
                 Rights
                 ,
                 it
                 is
                 fit
                 to
                 touch
                 the
                 common
                 considerations
                 that
                 fall
                 into
                 all
                 or
                 most
                 Obligations
                 ,
                 as
                 to
                 the
                 implement
                 or
                 performance
                 thereof
                 ,
                 viz.
                 delay
                 ,
                 interest
                 ,
                 profite
                 ,
                 time
                 ,
                 place
                 ,
                 and
                 manner
                 of
                 performance
                 .
              
               
                 98.
                 
                 Delay
                 or
                 mora
                 ,
                 is
                 not
                 that
                 time
                 ,
                 which
                 by
                 the
                 adjection
                 of
                 a
                 day
                 or
                 condition
                 ,
                 or
                 by
                 Law
                 is
                 allowed
                 to
                 perform
                 ,
                 but
                 that
                 time
                 which
                 runs
                 after
                 lawful
                 delay
                 is
                 past
                 ,
                 and
                 is
                 the
                 Debitors
                 fault
                 ,
                 in
                 not
                 performing
                 his
                 Obligation
                 ,
                 
                 so
                 that
                 it
                 seldom
                 makes
                 any
                 part
                 of
                 the
                 Contract
                 ,
                 whereupon
                 the
                 Obligation
                 ariseth
                 ,
                 except
                 penalties
                 be
                 adjected
                 in
                 case
                 of
                 delay
                 ,
                 or
                 an
                 estimation
                 made
                 of
                 the
                 interest
                 .
              
               
                 Delay
                 is
                 incurred
                 in
                 pure
                 Obligation
                 by
                 interpellation
                 or
                 requisition
                 ,
                 for
                 when
                 no
                 term
                 is
                 prefixed
                 ,
                 the
                 option
                 of
                 the
                 Debitor
                 is
                 the
                 time
                 of
                 performance
                 ,
                 and
                 though
                 requisition
                 be
                 most
                 clear
                 and
                 secure
                 by
                 Instrument
                 of
                 a
                 Nottar
                 ;
                 and
                 therefore
                 ,
                 verbal
                 requisition
                 by
                 a
                 Merchant
                 to
                 a
                 Skipper
                 ,
                 to
                 loose
                 after
                 the
                 Ship
                 was
                 loadened
                 ,
                 was
                 not
                 found
                 sufficient
                 without
                 an
                 Instrument
                 ,
                 where
                 the
                 Charter
                 party
                 had
                 no
                 definite
                 term
                 ,
                 but
                 to
                 do
                 diligence
                 to
                 transport
                 the
                 Fraught
                 ,
                 February
                 14.
                 1678.
                 
                 
                   David
                   Calderwood
                   contra
                   James
                   Angus
                
                 :
                 Yet
                 in
                 some
                 cases
                 that
                 is
                 not
                 necessar
                 ,
                 but
                 being
                 only
                 emission
                 of
                 words
                 ,
                 it
                 will
                 only
                 be
                 probable
                 by
                 the
                 Debitors
                 Oath
                 or
                 Write
                 .
                 In
                 Obligations
                 to
                 a
                 day
                 ,
                 delay
                 is
                 incurred
                 by
                 the
                 passing
                 of
                 the
                 term
                 ,
                 
                   nam
                   dies
                   interpellat
                   pro
                   homine
                
                 .
                 In
                 Obligations
                 Conditional
                 ,
                 delay
                 connot
                 be
                 till
                 the
                 condition
                 be
                 purified
                 ,
                 and
                 even
                 then
                 ,
                 either
                 requisition
                 or
                 a
                 term
                 is
                 requisite
                 ,
                 for
                 it
                 is
                 frequent
                 in
                 Obligations
                 Conditional
                 to
                 add
                 a
                 term
                 also
                 ,
                 so
                 that
                 the
                 existence
                 of
                 the
                 condition
                 makes
                 the
                 Conditional
                 Obligation
                 to
                 become
                 pure
                 ,
                 and
                 so
                 requisition
                 is
                 to
                 be
                 used
                 before
                 delay
                 ,
                 if
                 no
                 term
                 be
                 exprest
                 ;
                 but
                 if
                 there
                 be
                 no
                 party
                 who
                 can
                 require
                 or
                 be
                 required
                 ,
                 delay
                 is
                 incurred
                 ,
                 if
                 performance
                 be
                 not
                 made
                 so
                 soon
                 as
                 it
                 can
                 be
                 ,
                 as
                 is
                 in
                 the
                 case
                 of
                 the
                 Restitution
                 of
                 things
                 found
                 ,
                 or
                 come
                 in
                 the
                 hands
                 of
                 others
                 without
                 Contract
                 ,
                 which
                 is
                 seldom
                 known
                 to
                 the
                 owner
                 .
                 So
                 also
                 in
                 Obligations
                 due
                 to
                 Pupils
                 ,
                 delay
                 is
                 incurred
                 without
                 requisition
                 ,
                 l.
                 1.
                 
                 §
                 .
                 
                   ult
                   .
                   de
                   ujuris
                
                 .
                 And
                 in
                 Obligations
                 by
                 Delinquence
                 ,
                 delay
                 is
                 without
                 requisition
                 ,
                 and
                 runneth
                 from
                 the
                 first
                 time
                 performance
                 can
                 be
                 made
                 .
              
               
                 Till
                 delay
                 ,
                 legal
                 execution
                 is
                 not
                 competent
                 ordinarly
                 ,
                 because
                 none
                 should
                 be
                 pursued
                 till
                 he
                 have
                 failed
                 :
                 Yet
                 in
                 some
                 cases
                 the
                 Debitor
                 may
                 be
                 pursued
                 before
                 the
                 term
                 ,
                 to
                 pay
                 at
                 the
                 Term
                 ,
                 as
                 
                   si
                   vergat
                   adinopiam
                
                 :
                 Yea
                 ,
                 in
                 removing
                 it
                 seems
                 very
                 expedient
                 ,
                 to
                 pursue
                 the
                 party
                 warned
                 ,
                 even
                 before
                 the
                 Term
                 ,
                 to
                 remove
                 at
                 the
                 Term
                 ,
                 otherways
                 the
                 Lands
                 cannot
                 be
                 safely
                 set
                 ,
                 the
                 Tennent
                 not
                 knowing
                 if
                 others
                 will
                 remove
                 willingly
                 ,
                 and
                 may
                 not
                 be
                 uncertain
                 in
                 that
                 point
                 ,
                 which
                 is
                 a
                 publick
                 Interest
                 ,
                 for
                 setting
                 Land
                 ,
                 and
                 preventing
                 wast
                 ;
                 but
                 upon
                 all
                 Obligations
                 which
                 are
                 truely
                 contracted
                 ,
                 the
                 legal
                 diligences
                 of
                 Arrestment
                 or
                 Inhibition
                 may
                 be
                 used
                 even
                 before
                 requisition
                 ,
                 or
                 the
                 term
                 of
                 performance
                 .
              
               
                 The
                 ordinar
                 effect
                 of
                 delay
                 is
                 ,
                 that
                 when
                 the
                 Obligation
                 is
                 to
                 give
                 or
                 deliver
                 any
                 thing
                 ,
                 if
                 it
                 perish
                 ,
                 even
                 without
                 the
                 Debitors
                 fault
                 ,
                 it
                 perisheth
                 to
                 the
                 Debitor
                 ,
                 and
                 must
                 be
                 made
                 good
                 to
                 the
                 Creditor
                 ,
                 unless
                 it
                 appear
                 that
                 it
                 would
                 have
                 so
                 perished
                 with
                 the
                 Creditor
                 ,
                 which
                 seldom
                 can
                 be
                 made
                 appear
                 ,
                 because
                 it
                 is
                 ordinarly
                 presumed
                 ,
                 that
                 if
                 the
                 thing
                 had
                 been
                 delivered
                 ,
                 the
                 Creditor
                 would
                 have
                 disposed
                 of
                 it
                 ,
                 and
                 so
                 been
                 free
                 of
                 the
                 hazard
                 ,
                 especially
                 if
                 it
                 be
                 a
                 thing
                 for
                 sale
                 ,
                 not
                 for
                 keeping
                 ,
                 and
                 if
                 an
                 occasion
                 was
                 offered
                 ,
                 to
                 have
                 disposed
                 thereof
                 .
              
               
                 99.
                 
                 The
                 next
                 effect
                 of
                 delay
                 ,
                 is
                 the
                 interest
                 or
                 damnage
                 of
                 the
                 Creditor
                 ;
                 for
                 if
                 the
                 Obligation
                 be
                 performed
                 within
                 the
                 due
                 time
                 ,
                 and
                 in
                 due
                 manner
                 ,
                 there
                 is
                 no
                 interest
                 ;
                 if
                 not
                 ,
                 after
                 the
                 delay
                 incurred
                 by
                 requisition
                 or
                 term
                 ,
                 it
                 is
                 in
                 the
                 Creditors
                 option
                 to
                 pursue
                 for
                 performance
                 or
                 for
                 damnage
                 and
                 interest
                 .
                 But
                 in
                 some
                 cases
                 delay
                 may
                 be
                 purged
                 ,
                 which
                 is
                 much
                 
                   in
                   arbitrio
                   judicis
                
                 ,
                 and
                 is
                 always
                 granted
                 in
                 things
                 penal
                 ,
                 where
                 the
                 penalty
                 is
                 great
                 and
                 exceeds
                 the
                 true
                 interest
                 ,
                 as
                 in
                 non-payment
                 of
                 Few
                 Duties
                 ,
                 which
                 infers
                 loss
                 of
                 the
                 Few
                 .
                 And
                 
                 
                 
                 in
                 Clauses
                 irritant
                 ,
                 in
                 Wodsets
                 .
                 When
                 delay
                 is
                 purged
                 ,
                 the
                 hazard
                 returns
                 upon
                 the
                 Creditor
                 ,
                 and
                 the
                 Debitor
                 is
                 free
                 ,
                 if
                 the
                 thing
                 to
                 be
                 delivered
                 perish
                 ;
                 but
                 if
                 the
                 Creditor
                 do
                 again
                 !
                 equire
                 ,
                 after
                 the
                 former
                 delay
                 is
                 purged
                 ;
                 delay
                 is
                 again
                 incurred
                 by
                 that
                 new
                 requisition
                 .
              
               
                 This
                 is
                 a
                 general
                 rule
                 ,
                 
                   〈◊〉
                   factiimprestabilis
                   subit
                   damnum
                   &
                   interesse
                   ,
                
                 yet
                 in
                 some
                 cases
                 if
                 the
                 delay
                 be
                 wilful
                 or
                 fraudulent
                 ,
                 that
                 the
                 thing
                 might
                 become
                 imprestable
                 ,
                 all
                 personal
                 execution
                 by
                 escheat
                 ,
                 and
                 Caption
                 will
                 proceed
                 .
              
               
                 Interest
                 may
                 either
                 be
                 competent
                 for
                 the
                 whole
                 Obligation
                 ,
                 as
                 when
                 it
                 is
                 imprestable
                 ,
                 or
                 when
                 any
                 part
                 or
                 qualification
                 is
                 unperformed
                 ,
                 or
                 the
                 value
                 thereof
                 .
              
               
                 Interest
                 doth
                 both
                 comprehend
                 
                   damnum
                   emergens
                   &
                   lucrum
                   cessans
                
                 .
                 The
                 first
                 is
                 commonly
                 competent
                 ,
                 the
                 last
                 but
                 in
                 some
                 cases
                 ,
                 and
                 that
                 ordinarly
                 for
                 such
                 gain
                 as
                 the
                 Creditors
                 used
                 to
                 make
                 ;
                 and
                 so
                 the
                 delay
                 of
                 Bills
                 of
                 Exchange
                 ,
                 gives
                 Exchange
                 and
                 Re-exchange
                 ,
                 as
                 the
                 Creditors
                 condition
                 requires
                 ,
                 but
                 would
                 give
                 neither
                 ,
                 when
                 not
                 drawn
                 for
                 the
                 use
                 of
                 a
                 Merchant
                 ,
                 or
                 him
                 that
                 behoved
                 to
                 obtain
                 the
                 sum
                 for
                 a
                 Merchant
                 ,
                 for
                 present
                 use
                 .
                 In
                 Ejections
                 ,
                 Spuilzies
                 ,
                 and
                 other
                 attrocious
                 Delinquences
                 ,
                 the
                 greatest
                 profits
                 that
                 might
                 have
                 been
                 made
                 ,
                 are
                 allowed
                 as
                 the
                 Creditors
                 interest
                 .
                 In
                 Obligations
                 which
                 are
                 not
                 
                   in
                   dando
                
                 ,
                 but
                 
                   in
                   faciendo
                
                 ,
                 the
                 common
                 opinion
                 of
                 the
                 Doctors
                 is
                 ,
                 that
                 there
                 can
                 be
                 no
                 pursuit
                 for
                 performance
                 ,
                 but
                 only
                 for
                 interest
                 ;
                 for
                 before
                 the
                 delay
                 there
                 is
                 no
                 pursuite
                 ,
                 and
                 after
                 ,
                 the
                 Debitor
                 cannot
                 pursue
                 for
                 performance
                 but
                 for
                 interest
                 ,
                 l.
                 13.
                 
                   in
                   fine
                   ff
                   .
                   de
                   re
                   judicata
                
                 ;
                 but
                 it
                 seems
                 more
                 suitable
                 to
                 equity
                 ,
                 that
                 it
                 should
                 be
                 in
                 the
                 Debitors
                 option
                 ,
                 even
                 after
                 the
                 delay
                 ,
                 either
                 to
                 sute
                 for
                 performance
                 or
                 interest
                 ,
                 as
                 he
                 pleaseth
                 ,
                 if
                 both
                 be
                 prestable
                 .
              
               
                 In
                 Obligations
                 
                   in
                   dando
                
                 ,
                 where
                 there
                 is
                 delay
                 incurred
                 ,
                 it
                 will
                 not
                 be
                 purged
                 by
                 offering
                 performance
                 ,
                 especially
                 ,
                 if
                 the
                 thing
                 have
                 a
                 certain
                 definite
                 season
                 of
                 its
                 use
                 ,
                 as
                 Grain
                 of
                 such
                 a
                 year
                 ,
                 if
                 it
                 be
                 not
                 delivered
                 ,
                 
                   debito
                   tempore
                
                 ,
                 the
                 delay
                 will
                 not
                 be
                 purged
                 by
                 offering
                 it
                 after
                 ,
                 but
                 the
                 price
                 comes
                 in
                 place
                 of
                 it
                 .
              
               
                 In
                 Interests
                 ,
                 the
                 value
                 thereof
                 may
                 either
                 be
                 that
                 which
                 is
                 agreed
                 by
                 parties
                 ,
                 which
                 ,
                 if
                 high
                 and
                 penal
                 ,
                 may
                 be
                 modified
                 ,
                 or
                 ordinarly
                 the
                 common
                 rate
                 ,
                 and
                 sometimes
                 
                   pretium
                   affectionis
                
                 ,
                 in
                 these
                 cases
                 where
                 the
                 Creditor
                 hath
                 
                   juramentum
                   in
                   litem
                
                 ,
                 the
                 value
                 was
                 estimate
                 by
                 the
                 Romans
                 ,
                 in
                 
                   bonae
                   fidei
                   〈◊〉
                
                 ,
                 as
                 at
                 the
                 time
                 of
                 Sentence
                 ,
                 
                   in
                   stricti
                   juris
                
                 ,
                 as
                 it
                 was
                 worth
                 the
                 time
                 of
                 Litiscontestation
                 ,
                 this
                 distinction
                 is
                 not
                 now
                 of
                 much
                 use
                 with
                 us
                 ;
                 and
                 therefore
                 ,
                 it
                 is
                 rather
                 in
                 the
                 arbitriment
                 of
                 the
                 Judge
                 ,
                 to
                 ponder
                 all
                 Circumstances
                 ,
                 and
                 accordingly
                 modifie
                 the
                 value
                 ,
                 either
                 as
                 at
                 the
                 time
                 of
                 delay
                 ,
                 at
                 Citation
                 ,
                 Litiscontestation
                 ,
                 or
                 Sentence
                 .
              
               
                 100.
                 
                 Profits
                 which
                 comprehends
                 Fruits
                 ,
                 is
                 a
                 part
                 of
                 the
                 Creditors
                 interest
                 in
                 sale
                 ,
                 for
                 by
                 the
                 special
                 nature
                 of
                 that
                 Contract
                 all
                 Accessions
                 and
                 Fruits
                 belong
                 to
                 the
                 buyer
                 ,
                 from
                 the
                 time
                 of
                 the
                 sale
                 ,
                 and
                 so
                 it
                 it
                 a
                 part
                 of
                 that
                 Contract
                 ;
                 but
                 in
                 other
                 Contracts
                 it
                 is
                 only
                 due
                 ,
                 
                   post
                   moram
                
                 ,
                 and
                 is
                 no
                 part
                 of
                 the
                 Contract
                 .
                 The
                 Sentence
                 of
                 the
                 Roman
                 Law
                 is
                 in
                 this
                 ,
                 as
                 in
                 the
                 estimation
                 for
                 
                   in
                   actionibus
                   bonae
                   fidei
                
                 ,
                 and
                 Arbitrary
                 ,
                 Fruits
                 and
                 Profits
                 become
                 due
                 from
                 delay
                 ,
                 which
                 also
                 take
                 place
                 in
                 Legacies
                 ;
                 but
                 in
                 these
                 which
                 are
                 
                   fructi
                   juris
                
                 ,
                 if
                 the
                 Obligation
                 be
                 to
                 deliver
                 that
                 which
                 was
                 the
                 Creditors
                 before
                 ,
                 the
                 Fruits
                 and
                 Profit
                 follow
                 the
                 property
                 ,
                 and
                 are
                 due
                 from
                 delay
                 ;
                 but
                 where
                 the
                 property
                 
                 was
                 not
                 the
                 Creditors
                 ,
                 the
                 Fruits
                 are
                 not
                 due
                 till
                 
                   Litiscontestation
                   ,
                   l.
                
                 3.
                 &
                 l.
                 34.
                 &
                 l.
                 38.
                 
                   ff
                   .
                   de
                   usuris
                
                 .
              
               
                 101.
                 
                 The
                 time
                 of
                 performing
                 Obligations
                 ,
                 is
                 at
                 ,
                 or
                 before
                 the
                 Term
                 ,
                 in
                 Obligation
                 to
                 a
                 day
                 so
                 soon
                 as
                 requisition
                 is
                 made
                 ,
                 which
                 cannot
                 be
                 understood
                 in
                 that
                 instant
                 ,
                 if
                 the
                 thing
                 require
                 more
                 time
                 to
                 perform
                 it
                 ;
                 but
                 such
                 time
                 is
                 allowed
                 ,
                 that
                 by
                 ordinar
                 diligence
                 it
                 may
                 be
                 performed
                 so
                 ,
                 that
                 delay
                 is
                 not
                 understood
                 till
                 that
                 be
                 past
                 ,
                 as
                 when
                 a
                 party
                 is
                 oblieged
                 to
                 do
                 a
                 work
                 ,
                 he
                 must
                 have
                 so
                 much
                 time
                 as
                 the
                 work
                 requires
                 ;
                 or
                 if
                 Money
                 be
                 required
                 ,
                 if
                 the
                 Debitor
                 offer
                 within
                 twenty
                 four
                 hours
                 ,
                 it
                 would
                 not
                 infer
                 delay
                 ,
                 for
                 it
                 is
                 not
                 his
                 part
                 to
                 carry
                 a
                 sum
                 of
                 Money
                 about
                 him
                 ,
                 nor
                 to
                 have
                 it
                 ready
                 each
                 instant
                 ,
                 and
                 pasiing
                 an
                 instant
                 ,
                 the
                 strickest
                 time
                 Law
                 respecteth
                 ,
                 is
                 an
                 artificial
                 day
                 or
                 twenty
                 four
                 hours
                 ,
                 if
                 the
                 Debitor
                 offer
                 before
                 the
                 day
                 the
                 Creditor
                 cannot
                 refuse
                 it
                 ,
                 seing
                 the
                 day
                 is
                 in
                 favour
                 of
                 the
                 Debitor
                 ,
                 and
                 so
                 may
                 be
                 renounced
                 by
                 him
                 ,
                 if
                 a
                 Term
                 be
                 exprest
                 there
                 needs
                 no
                 requisition
                 ,
                 
                   nam
                   dies
                   interpellat
                   pro
                   homine
                
                 .
              
               
                 102.
                 
                 The
                 place
                 for
                 performing
                 Obligations
                 ,
                 if
                 it
                 be
                 exprest
                 ,
                 is
                 to
                 be
                 observed
                 ,
                 and
                 another
                 place
                 cannot
                 be
                 obtruded
                 ,
                 though
                 it
                 may
                 seem
                 as
                 convenient
                 for
                 the
                 Creditor
                 ,
                 unless
                 there
                 be
                 not
                 safe
                 access
                 to
                 that
                 place
                 ,
                 in
                 which
                 case
                 ,
                 the
                 Debitor
                 may
                 offer
                 ,
                 and
                 the
                 Creditor
                 may
                 pursue
                 as
                 if
                 no
                 place
                 were
                 named
                 ;
                 in
                 which
                 case
                 he
                 hath
                 the
                 choise
                 to
                 pursue
                 either
                 in
                 the
                 place
                 of
                 the
                 Contract
                 ,
                 if
                 he
                 find
                 the
                 Debitor
                 there
                 ,
                 or
                 where
                 ever
                 the
                 Debitor
                 is
                 conveenable
                 ,
                 and
                 even
                 where
                 the
                 place
                 is
                 exprest
                 ,
                 the
                 Creditor
                 may
                 else
                 where
                 pursue
                 for
                 performance
                 ,
                 if
                 he
                 allow
                 the
                 Debitors
                 damnage
                 ,
                 in
                 not
                 paying
                 at
                 the
                 place
                 appointed
                 ;
                 but
                 if
                 the
                 thing
                 to
                 be
                 performed
                 be
                 delivery
                 of
                 a
                 certain
                 species
                 or
                 body
                 ,
                 which
                 cannot
                 follow
                 a
                 man
                 as
                 a
                 Horse
                 or
                 a
                 Dog
                 ,
                 but
                 an
                 inanimat
                 body
                 ,
                 as
                 a
                 Coatch
                 ,
                 Coffer
                 ,
                 Cabin
                 ,
                 or
                 the
                 like
                 ,
                 if
                 no
                 place
                 be
                 exprest
                 ,
                 the
                 place
                 where
                 it
                 is
                 must
                 be
                 understood
                 ,
                 but
                 if
                 it
                 be
                 a
                 quantity
                 ,
                 simply
                 the
                 place
                 of
                 Contract
                 ,
                 or
                 where
                 the
                 Debitor
                 resides
                 ,
                 is
                 understood
                 ,
                 for
                 the
                 Debitor
                 is
                 not
                 presumed
                 to
                 follow
                 the
                 Creditors
                 Residence
                 ,
                 if
                 Custom
                 or
                 Paction
                 be
                 not
                 contrair
                 .
              
               
                 103.
                 
                 As
                 to
                 the
                 manner
                 of
                 performing
                 Obligations
                 ,
                 the
                 main
                 Question
                 is
                 ,
                 when
                 there
                 are
                 
                   correi
                   credendi
                
                 ,
                 or
                 debendi
                 ,
                 whither
                 performance
                 must
                 be
                 by
                 all
                 ,
                 
                   in
                   solidum
                
                 ,
                 or
                 but
                 
                   pro
                   rata
                
                 ?
                 For
                 eviting
                 the
                 question
                 ,
                 Debitors
                 use
                 to
                 be
                 bound
                 conjunctly
                 and
                 severally
                 ,
                 but
                 when
                 that
                 is
                 omitted
                 ,
                 the
                 Debitors
                 are
                 understood
                 to
                 be
                 but
                 bound
                 conjunctly
                 ,
                 &
                 
                   pro
                   rata
                
                 ,
                 for
                 
                   in
                   dubiis
                   potior
                   est
                   conditio
                   debitoris
                   ,
                
                 if
                 the
                 Debitors
                 were
                 bound
                 by
                 several
                 Obligations
                 ,
                 not
                 relating
                 to
                 others
                 as
                 becoming
                 parts
                 of
                 the
                 same
                 Obligation
                 ,
                 all
                 are
                 bound
                 severally
                 and
                 
                   in
                   solidum
                
                 ;
                 but
                 when
                 they
                 are
                 bound
                 together
                 in
                 one
                 Bond
                 ,
                 and
                 so
                 
                   correi
                   debendi
                
                 :
                 By
                 the
                 ancient
                 Roman
                 Law
                 ,
                 they
                 were
                 all
                 lyable
                 ,
                 
                   in
                   solidum
                
                 ,
                 which
                 was
                 altered
                 by
                 Justinians
                 novel
                 constitution
                 ,
                 giving
                 the
                 benefit
                 of
                 division
                 ,
                 
                   pro
                   rata
                
                 ,
                 as
                 to
                 these
                 who
                 are
                 solvent
                 and
                 not
                 far
                 absent
                 ,
                 which
                 as
                 more
                 equitable
                 and
                 favourable
                 is
                 followed
                 ,
                 unless
                 the
                 matter
                 of
                 the
                 Obligation
                 be
                 indivisible
                 ,
                 as
                 the
                 delivery
                 of
                 a
                 Man
                 ,
                 a
                 Horse
                 ,
                 or
                 any
                 thing
                 which
                 the
                 Law
                 considers
                 not
                 as
                 quantity
                 or
                 genus
                 ,
                 but
                 as
                 corpus
                 ;
                 for
                 ofttimes
                 that
                 cannot
                 be
                 devided
                 without
                 destruction
                 of
                 the
                 thing
                 ,
                 and
                 always
                 it
                 s
                 the
                 Creditors
                 interest
                 that
                 it
                 should
                 not
                 be
                 devided
                 .
              
               
                 Secondly
                 .
                 Obligations
                 
                   in
                   suciendo
                
                 ,
                 are
                 ordinarly
                 indivisible
                 ,
                 
                   l.
                   stipul
                   .
                   ff
                   .
                   de
                   verborum
                   oblig
                   .
                
                 as
                 was
                 lately
                 found
                 in
                 an
                 Obligation
                 by
                 two
                 owners
                 of
                 a
                 Ship
                 ,
                 to
                 carry
                 Corns
                 from
                 one
                 Port
                 to
                 another
                 ,
                 both
                 were
                 found
                 lyable
                 
                   in
                   solidum
                
                 ;
                 
                 or
                 if
                 the
                 Obligation
                 be
                 ,
                 
                   in
                   non
                   faciendo
                
                 ,
                 that
                 such
                 a
                 thing
                 shall
                 not
                 be
                 done
                 ,
                 but
                 that
                 they
                 shall
                 hinder
                 ,
                 each
                 is
                 oblieged
                 
                   in
                   solidum
                   ,
                   June
                
                 14.
                 1672.
                 
                 Sutherland
                 and
                 
                   Grant
                   contra
                   Flut.
                
                 This
                 also
                 concerns
                 the
                 manner
                 of
                 performance
                 ,
                 that
                 in
                 alternatives
                 ,
                 
                   electio
                   est
                   debitoris
                
                 ,
                 whose
                 part
                 is
                 more
                 favourable
                 ,
                 but
                 the
                 adjection
                 of
                 a
                 penalty
                 or
                 estimation
                 makes
                 not
                 the
                 Obligation
                 alternative
                 :
                 But
                 if
                 any
                 of
                 the
                 Members
                 of
                 the
                 alternative
                 ,
                 become
                 not
                 intire
                 the
                 Debitor
                 connot
                 offer
                 that
                 Member
                 ,
                 January
                 18.
                 1675.
                 
                 Collector
                 of
                 the
                 King
                 and
                 Lords
                 Taxation
                 
                   contra
                   Inglis
                
                 of
                 Straitoun
                 .
              
               
                 The
                 manner
                 also
                 of
                 performance
                 admitts
                 not
                 that
                 the
                 Debitor
                 may
                 perform
                 by
                 parts
                 that
                 which
                 he
                 is
                 oblieged
                 to
                 by
                 on
                 Obligation
                 ,
                 if
                 it
                 be
                 not
                 that
                 which
                 cannot
                 be
                 performed
                 all
                 at
                 once
                 ,
                 as
                 the
                 performance
                 of
                 some
                 Acts
                 ,
                 requiring
                 divers
                 seasons
                 ,
                 but
                 otherways
                 it
                 must
                 be
                 done
                 without
                 intermission
                 ,
                 for
                 neither
                 can
                 Money
                 or
                 Grain
                 be
                 delivered
                 at
                 one
                 instant
                 ;
                 but
                 that
                 is
                 understood
                 to
                 be
                 performed
                 together
                 ,
                 which
                 is
                 without
                 intermission
                 ;
                 yet
                 the
                 Civil
                 Law
                 favours
                 the
                 Debitor
                 so
                 far
                 ,
                 that
                 the
                 Creditor
                 cannot
                 refuse
                 to
                 accept
                 a
                 part
                 of
                 the
                 Money
                 due
                 .
              
            
             
               
               
                 TITLE
                 XI
                 .
                 Liberation
                 from
                 Obligations
                 .
              
               
                 
                   1.
                   
                   Obligations
                   cease
                   by
                   contrary
                   consent
                   ,
                   by
                   Discharge
                   ,
                   Declaration
                   ,
                   Renunciation
                   ,
                   or
                   
                     per
                     pactum
                     de
                     non
                     pentendo
                  
                   .
                
                 
                   2.
                   
                   Three
                   subsequent
                   Discharges
                   Liberat
                   from
                   preceedings
                   .
                
                 
                   3.
                   
                   Payment
                   made
                   ,
                   
                     bona
                     fide
                  
                   .
                
                 
                   4.
                   
                   Consignation
                   ;
                
                 
                   5.
                   
                   Acceptilation
                   ;
                
                 
                   6.
                   
                   Compensation
                   ;
                
                 
                   7.
                   
                   Retention
                   ;
                
                 
                   8.
                   
                   Innovation
                   ;
                
                 
                   9.
                   
                   Confusion
                   .
                
              
               
                 HAVING
                 thus
                 run
                 thorow
                 the
                 constitution
                 and
                 effects
                 of
                 
                   Conventional
                   Obligations
                
                 ,
                 It
                 is
                 requisite
                 in
                 the
                 next
                 place
                 ,
                 to
                 consider
                 their
                 destitution
                 and
                 how
                 they
                 cease
                 ,
                 which
                 we
                 have
                 exprest
                 in
                 the
                 general
                 term
                 of
                 Liberation
                 ,
                 comprehending
                 not
                 only
                 payment
                 ,
                 but
                 all
                 the
                 ways
                 by
                 which
                 Obligations
                 ,
                 or
                 Bonds
                 are
                 dissolved
                 or
                 loosed
                 ,
                 and
                 Debitors
                 Liberat
                 ;
                 We
                 are
                 not
                 here
                 to
                 speak
                 of
                 the
                 Objections
                 competent
                 against
                 Obligations
                 from
                 their
                 nullities
                 ,
                 for
                 such
                 were
                 never
                 truly
                 Obligations
                 ;
                 neither
                 of
                 the
                 common
                 exceptions
                 against
                 them
                 ,
                 and
                 other
                 Rights
                 ,
                 as
                 Prescription
                 ,
                 Litiscontestation
                 ,
                 
                   res
                   judicata
                
                 ,
                 Circumvention
                 ,
                 Extortion
                 ,
                 &c.
                 of
                 which
                 in
                 their
                 proper
                 places
                 :
                 But
                 only
                 of
                 the
                 proper
                 ways
                 of
                 taking
                 away
                 Obligations
                 ;
                 and
                 these
                 are
                 either
                 by
                 contrair
                 consent
                 ,
                 or
                 by
                 performance
                 ,
                 or
                 the
                 equivalent
                 thereof
                 .
              
               
                 1.
                 
                 First
                 ,
                 As
                 consent
                 constituteth
                 ,
                 so
                 contrary
                 consent
                 destituteth
                 any
                 Obligation
                 ,
                 whether
                 it
                 be
                 by
                 Declaration
                 ,
                 Renunciation
                 ,
                 Discharge
                 .
                 or
                 
                   per
                   pactum
                   de
                   non
                   petendo
                
                 ,
                 which
                 may
                 be
                 extended
                 ,
                 not
                 only
                 to
                 Conventional
                 ,
                 but
                 
                 to
                 Natural
                 Obligations
                 ,
                 as
                 to
                 any
                 duty
                 omitted
                 or
                 transgressed
                 ,
                 which
                 is
                 past
                 ,
                 though
                 not
                 to
                 the
                 discharge
                 of
                 the
                 Obligation
                 it self
                 ,
                 as
                 to
                 the
                 future
                 ,
                 for
                 love
                 to
                 God
                 or
                 our
                 Neighbour
                 ,
                 and
                 most
                 of
                 the
                 Duties
                 betwixt
                 Husbands
                 and
                 Wives
                 ,
                 Parents
                 and
                 Children
                 ,
                 cannot
                 be
                 Discharged
                 as
                 to
                 the
                 future
                 ;
                 neither
                 can
                 future
                 Fraud
                 or
                 Force
                 be
                 effectually
                 Discharged
                 ,
                 for
                 such
                 ,
                 
                   cadunt
                   in
                   turpem
                   causam
                
                 ;
                 If
                 the
                 Write
                 be
                 special
                 and
                 express
                 ,
                 there
                 can
                 be
                 no
                 question
                 when
                 it
                 concerns
                 a
                 personal
                 Right
                 ,
                 and
                 is
                 given
                 by
                 the
                 party
                 having
                 power
                 to
                 Discharge
                 ;
                 and
                 therefore
                 ,
                 a
                 Discharge
                 of
                 a
                 clause
                 in
                 a
                 Bond
                 ,
                 constituting
                 an
                 Annualrent
                 ,
                 whereupon
                 Infeftment
                 followed
                 ,
                 for
                 a
                 sum
                 lent
                 by
                 a
                 Father
                 ,
                 and
                 taken
                 to
                 his
                 Son
                 in
                 Fee
                 ,
                 and
                 bearing
                 ,
                 with
                 power
                 to
                 the
                 Father
                 during
                 his
                 life
                 to
                 Dispone
                 ,
                 was
                 found
                 valid
                 ,
                 and
                 that
                 it
                 required
                 not
                 Registration
                 ,
                 as
                 a
                 Discharge
                 of
                 Reversion
                 ,
                 January
                 6.
                 1681.
                 
                 
                   Mary
                   Bruce
                   contra
                   Patrick
                   Hepburn
                
                 .
                 But
                 a
                 Discharge
                 of
                 an
                 Annuity
                 ,
                 belonging
                 to
                 an
                 office
                 by
                 infeftment
                 ,
                 containing
                 a
                 renunciation
                 of
                 that
                 annuity
                 ,
                 was
                 not
                 found
                 Relevant
                 against
                 an
                 Appryzer
                 ,
                 December
                 9.
                 1679.
                 
                 Lord
                 
                   Hattoun
                   contra
                
                 the
                 Town
                 of
                 Dundee
                 .
                 Neither
                 did
                 a
                 Discharge
                 of
                 a
                 sum
                 ,
                 payable
                 to
                 a
                 man
                 and
                 his
                 Wife
                 ,
                 and
                 the
                 Bairns
                 of
                 the
                 Marriage
                 ,
                 subscribed
                 only
                 by
                 the
                 Husband
                 ,
                 exclude
                 the
                 Wife
                 from
                 her
                 Liferent
                 Right
                 to
                 that
                 sum
                 ,
                 January
                 22.
                 1680.
                 
                 
                   Isobel
                   Caddel
                   contra
                   John
                   Raith
                
                 .
                 Neither
                 was
                 a
                 Discharge
                 to
                 a
                 Cautioner
                 ,
                 upon
                 payment
                 found
                 competent
                 to
                 the
                 principal
                 Debitor
                 ,
                 unless
                 the
                 Cautioner
                 concur
                 ,
                 for
                 the
                 Principal
                 may
                 be
                 distressed
                 by
                 the
                 Cautioner
                 ,
                 using
                 the
                 name
                 of
                 the
                 Creditor
                 as
                 his
                 Cedent
                 ,
                 July
                 13.
                 1675.
                 
                 
                   Margaret
                   Scrimzour
                   contra
                
                 the
                 Earl
                 of
                 Southesk
                 .
                 A
                 Discharge
                 to
                 one
                 or
                 more
                 Debitors
                 ,
                 Viz.
                 Con-tutors
                 found
                 not
                 to
                 liberat
                 the
                 rest
                 ,
                 except
                 in
                 so
                 far
                 as
                 satisfaction
                 was
                 made
                 ;
                 or
                 as
                 the
                 other
                 Con-tutors
                 would
                 be
                 excluded
                 from
                 relief
                 by
                 the
                 party
                 Discharged
                 ,
                 December
                 19.
                 1669.
                 
                 
                   Seatoun
                   contra
                   Seatoun
                
                 .
                 But
                 payment
                 made
                 by
                 one
                 party
                 ,
                 whose
                 Lands
                 were
                 affected
                 by
                 Inhibition
                 ,
                 did
                 Liberat
                 the
                 rest
                 ,
                 
                   pro
                   tanto
                
                 ,
                 though
                 it
                 bore
                 not
                 in
                 satisfaction
                 ,
                 but
                 to
                 restrict
                 the
                 Inhibition
                 ,
                 January
                 5.
                 1675.
                 
                 
                   Ballantine
                   contra
                   Edgar
                
                 .
                 But
                 Discharges
                 by
                 Masters
                 to
                 Tennents
                 for
                 Rent
                 ,
                 by
                 their
                 Subscription
                 ,
                 without
                 Witnesses
                 ,
                 and
                 not
                 being
                 holograph
                 ,
                 are
                 sustained
                 ,
                 in
                 regard
                 of
                 the
                 custom
                 so
                 to
                 Discharge
                 ,
                 November
                 7.
                 1674.
                 
                 
                   John
                   Boyd
                   contra
                   Story
                
                 .
                 And
                 by
                 the
                 same
                 custom
                 ,
                 receipts
                 and
                 discharges
                 of
                 Merchants
                 and
                 Factors
                 ,
                 
                   in
                   re
                   mercatoria
                
                 ,
                 are
                 sufficient
                 by
                 the
                 parties
                 subscription
                 ,
                 albeit
                 neither
                 holograph
                 ,
                 nor
                 with
                 Witches
                 .
              
               
                 But
                 the
                 main
                 Question
                 is
                 ,
                 how
                 far
                 general
                 Discharges
                 are
                 to
                 be
                 extended
                 ,
                 which
                 are
                 of
                 two
                 sorts
                 ;
                 One
                 where
                 there
                 are
                 particulars
                 Discharged
                 with
                 a
                 general
                 Clause
                 ,
                 and
                 then
                 the
                 general
                 is
                 not
                 extended
                 to
                 matters
                 of
                 greater
                 importance
                 then
                 the
                 greatest
                 of
                 the
                 particulars
                 ,
                 February
                 24.
                 1636.
                 
                 
                   Lawson
                   contra
                   Ark
                   Inglas
                
                 .
                 The
                 other
                 is
                 ,
                 where
                 the
                 Discharge
                 is
                 only
                 general
                 without
                 particulars
                 ,
                 which
                 useth
                 not
                 to
                 be
                 extended
                 to
                 Clauses
                 of
                 Warandice
                 ,
                 Clauses
                 of
                 Relief
                 ,
                 or
                 obliegements
                 to
                 Infeft
                 ,
                 or
                 to
                 purchase
                 real
                 Rights
                 ;
                 and
                 therefore
                 ,
                 a
                 Discharge
                 of
                 all
                 Debts
                 ,
                 Sums
                 of
                 Money
                 ,
                 Bonds
                 ,
                 Obligations
                 ,
                 Clags
                 ,
                 Claims
                 ,
                 for
                 whatsoever
                 cause
                 ,
                 was
                 found
                 not
                 to
                 Discharge
                 a
                 Contract
                 for
                 purchasing
                 an
                 Appryzing
                 of
                 Lands
                 ,
                 and
                 Disponing
                 the
                 same
                 November
                 19.
                 1680.
                 
                 
                   Beatrix
                   Dalgarn
                   contra
                
                 the
                 Laird
                 of
                 Tolquhon
                 .
                 Neither
                 was
                 a
                 Discharge
                 wholly
                 general
                 ,
                 extended
                 to
                 an
                 Obligation
                 by
                 the
                 party
                 Discharged
                 as
                 Cautioner
                 ,
                 unless
                 it
                 were
                 proven
                 that
                 the
                 Discharge
                 was
                 granted
                 upon
                 satisfaction
                 of
                 that
                 Debt
                 ,
                 Hope
                 ,
                 Bonds
                 ,
                 
                   Ogilbie
                   contra
                   Napier
                
                 .
                 But
                 it
                 was
                 extended
                 to
                 Contravention
                 ,
                 though
                 there
                 was
                 a
                 Decreet
                 after
                 the
                 Discharge
                 ,
                 Hope
                 Contravention
                 ,
                 Laird
                 of
                 
                   Aitoun
                   contra
                
                 his
                 Brother
                 .
                 Yea
                 ,
                 a
                 general
                 Discharge
                 in
                 a
                 Decreet
                 Arbitral
                 ,
                 was
                 found
                 to
                 Liberat
                 the
                 submitters
                 Cautioner
                 ,
                 Hope
                 ,
                 Bonds
                 ,
                 Lady
                 Balmastiner
                 and
                 her
                 Son
                 
                   contra
                   Alexander
                   〈◊〉
                
                 .
                 Neither
                 was
                 a
                 general
                 Discharge
                 ,
                 found
                 to
                 extend
                 to
                 a
                 sum
                 assigned
                 by
                 the
                 Discharger
                 before
                 the
                 Discharge
                 ,
                 albeit
                 the
                 Assignation
                 was
                 not
                 intimat
                 ,
                 seing
                 the
                 Discharger
                 was
                 not
                 
                 presumed
                 to
                 know
                 the
                 want
                 of
                 the
                 Intimation
                 ,
                 unless
                 it
                 were
                 proven
                 that
                 the
                 sum
                 was
                 particularly
                 commoned
                 upon
                 ,
                 or
                 satisfied
                 at
                 obtaining
                 the
                 general
                 Discharge
                 ,
                 February
                 3.
                 1671.
                 
                 Blair
                 of
                 
                   Bagillo
                   contra
                   Blair
                
                 of
                 Denhead
                 .
                 Neither
                 was
                 a
                 general
                 Discharge
                 extended
                 to
                 sums
                 ,
                 whereuto
                 the
                 Discharger
                 succeeded
                 after
                 the
                 Discharge
                 ,
                 February
                 14.
                 1633.
                 
                 
                   Halyburtoun
                   contra
                   Huntar
                
                 .
              
               
                 2.
                 
                 Three
                 subsequent
                 Discharges
                 ,
                 do
                 presume
                 that
                 all
                 preceedings
                 are
                 past
                 from
                 ;
                 As
                 first
                 ,
                 The
                 Discharges
                 of
                 three
                 immediat
                 subsequent
                 years
                 Rent
                 ,
                 June
                 21.
                 1610.
                 
                 
                   Nowison
                   contra
                   Hamiltoun
                
                 .
                 This
                 was
                 sustained
                 ,
                 though
                 the
                 Discharges
                 were
                 only
                 granted
                 by
                 a
                 Chamberlain
                 ,
                 Hope
                 ,
                 Clause
                 irritant
                 ,
                 Laird
                 of
                 
                   Wedderburn
                   contra
                   John
                   Nisbit
                
                 ,
                 this
                 was
                 sustained
                 to
                 purge
                 a
                 Clause
                 irritant
                 ;
                 yea
                 ,
                 though
                 some
                 of
                 the
                 Discharges
                 were
                 granted
                 by
                 the
                 Father
                 ,
                 and
                 the
                 rest
                 by
                 the
                 Son
                 as
                 Heir
                 ,
                 February
                 17.
                 1631.
                 
                 
                   Williamson
                   contra
                
                 the
                 Laird
                 of
                 Bagillo
                 ,
                 which
                 was
                 extended
                 to
                 by
                 gones
                 ,
                 though
                 a
                 Bond
                 was
                 granted
                 for
                 them
                 ,
                 the
                 Bond
                 bearing
                 expresly
                 for
                 a
                 Term
                 ,
                 and
                 having
                 lain
                 over
                 very
                 long
                 ,
                 and
                 all
                 subsequent
                 Terms
                 payed
                 ,
                 March
                 18.
                 1634.
                 
                 
                   Dowglas
                   contra
                   Bothwel
                
                 .
                 But
                 Discharges
                 of
                 three
                 subsequent
                 years
                 ,
                 granted
                 by
                 Merchants
                 ,
                 who
                 had
                 bought
                 Ferms
                 ,
                 did
                 not
                 Liberat
                 from
                 former
                 years
                 ,
                 March
                 26.
                 1626.
                 
                 Minister
                 of
                 
                   Corstorphen
                   contra
                
                 Neither
                 where
                 the
                 Discharges
                 were
                 not
                 in
                 Write
                 ,
                 February
                 19.
                 1631.
                 
                 
                   Moristoun
                   contra
                
                 Tennents
                 of
                 Eastnisbit
                 .
                 Neither
                 where
                 the
                 payment
                 of
                 three
                 Terms
                 ,
                 was
                 acknowledged
                 by
                 the
                 parties
                 oath
                 ,
                 which
                 bore
                 not
                 three
                 Terms
                 immediatly
                 subsequent
                 ,
                 March
                 26.
                 1622.
                 
                 
                   Kennedy
                   contra
                   Dalrymple
                
                 of
                 Stair
                 .
                 Nor
                 where
                 there
                 were
                 two
                 years
                 Discharges
                 and
                 Receipts
                 ,
                 making
                 up
                 the
                 third
                 ,
                 March
                 28.
                 1631.
                 
                 Laird
                 of
                 
                   〈◊〉
                   contra
                   Wood
                
                 ;
                 and
                 therefore
                 ,
                 Receipts
                 ,
                 though
                 being
                 joyned
                 ,
                 they
                 would
                 make
                 up
                 more
                 then
                 three
                 years
                 ;
                 inferr
                 not
                 this
                 presumption
                 ,
                 that
                 all
                 preceeding
                 years
                 are
                 payed
                 ,
                 yea
                 ,
                 one
                 Discharge
                 for
                 three
                 consequent
                 Terms
                 or
                 years
                 ,
                 would
                 not
                 infer
                 the
                 same
                 ;
                 for
                 the
                 presumption
                 is
                 mainly
                 inferred
                 from
                 the
                 reiteration
                 of
                 the
                 Discharges
                 without
                 reservation
                 ,
                 which
                 no
                 prudent
                 man
                 is
                 presumed
                 to
                 do
                 ;
                 the
                 presumption
                 is
                 also
                 introduced
                 in
                 favours
                 of
                 Debitors
                 ,
                 that
                 they
                 be
                 not
                 oblieged
                 to
                 preserve
                 fourty
                 years
                 Discharges
                 ;
                 and
                 therefore
                 ,
                 if
                 the
                 payment
                 be
                 Annual
                 ,
                 there
                 must
                 be
                 three
                 Discharges
                 ,
                 of
                 three
                 years
                 immediatly
                 following
                 one
                 another
                 ,
                 as
                 in
                 the
                 payment
                 of
                 Ferms
                 ;
                 but
                 if
                 the
                 payment
                 be
                 Termly
                 ,
                 as
                 in
                 Annualrents
                 ,
                 or
                 Silver
                 Rents
                 ,
                 the
                 ground
                 of
                 the
                 presumption
                 holds
                 by
                 three
                 several
                 Discharges
                 ,
                 of
                 three
                 immediate
                 subsequent
                 Terms
                 ,
                 Hope
                 ,
                 Bonds
                 ,
                 
                   David
                   Weyms
                   contra
                
                 the
                 Lady
                 St.
                 Colmb
                 .
                 But
                 as
                 to
                 the
                 Discharges
                 of
                 Factors
                 or
                 Chamberlains
                 ,
                 three
                 subsequent
                 Discharges
                 are
                 sufficient
                 against
                 the
                 Chamberlain
                 ,
                 during
                 his
                 Commission
                 ,
                 and
                 against
                 his
                 Constituent
                 ,
                 who
                 gave
                 him
                 power
                 to
                 Discharge
                 ,
                 during
                 that
                 Commission
                 :
                 But
                 the
                 presumptions
                 from
                 Discharges
                 of
                 the
                 Chamberlains
                 will
                 not
                 always
                 hold
                 ,
                 as
                 if
                 the
                 former
                 Chamberlain
                 Discharge
                 two
                 Terms
                 ,
                 and
                 the
                 later
                 one
                 ;
                 much
                 more
                 ,
                 if
                 the
                 former
                 Discharge
                 one
                 Term
                 ,
                 and
                 the
                 later
                 two
                 ;
                 But
                 if
                 there
                 be
                 three
                 consequent
                 Discharges
                 from
                 two
                 immediat
                 Chamberlains
                 ,
                 though
                 they
                 will
                 not
                 infer
                 
                   presumptionem
                   juris
                
                 ,
                 which
                 the
                 Law
                 hath
                 acknowledged
                 ;
                 yet
                 they
                 may
                 infer
                 
                   presumptionem
                   judicis
                
                 :
                 But
                 the
                 strongest
                 of
                 these
                 presumptions
                 admits
                 of
                 contrary
                 Probation
                 by
                 the
                 Debitor
                 ,
                 that
                 he
                 knows
                 there
                 are
                 preceeding
                 Rents
                 ,
                 which
                 his
                 Write
                 will
                 not
                 prove
                 ,
                 though
                 he
                 should
                 acknowledge
                 in
                 Write
                 ,
                 so
                 much
                 resting
                 at
                 such
                 a
                 time
                 ;
                 for
                 three
                 subsequent
                 Discharges
                 thereafter
                 ,
                 will
                 presume
                 that
                 rest
                 payed
                 ,
                 though
                 still
                 his
                 oath
                 may
                 prove
                 it
                 is
                 not
                 payed
                 ;
                 so
                 that
                 the
                 strongest
                 of
                 these
                 presumptions
                 ,
                 though
                 they
                 be
                 
                   presumptiones
                   juris
                
                 ,
                 yet
                 they
                 are
                 not
                 
                   presumptiones
                   juris
                   &
                   de
                   jure
                
                 ,
                 which
                 admit
                 of
                 no
                 contrary
                 Probation
                 .
              
               
                 The
                 more
                 proper
                 way
                 of
                 dissolving
                 Obligations
                 is
                 by
                 performance
                 ,
                 by
                 which
                 
                 they
                 attain
                 their
                 effect
                 ,
                 and
                 that
                 is
                 either
                 by
                 payment
                 ,
                 or
                 consignation
                 ;
                 the
                 more
                 Improper
                 ways
                 are
                 Acceptilation
                 ,
                 Compensation
                 ,
                 Innovation
                 ,
                 Confusion
                 ;
                 of
                 which
                 in
                 order
                 .
              
               
                 3.
                 
                 Payment
                 is
                 the
                 most
                 proper
                 lousing
                 of
                 Obligations
                 ,
                 and
                 therefore
                 retaineth
                 the
                 common
                 name
                 of
                 Solution
                 ;
              
               
                 And
                 therefore
                 ,
                 in
                 many
                 cases
                 payment
                 made
                 ,
                 
                   bona
                   fide
                
                 ,
                 dissolveth
                 the
                 Obligation
                 ,
                 though
                 he
                 to
                 whom
                 it
                 was
                 made
                 ,
                 had
                 no
                 right
                 for
                 the
                 time
                 .
                 So
                 payment
                 made
                 to
                 a
                 Procurator
                 ,
                 was
                 thought
                 sufficient
                 ,
                 albeit
                 the
                 Procuratory
                 were
                 thereafter
                 improven
                 ,
                 seing
                 there
                 was
                 no
                 visible
                 ground
                 of
                 suspition
                 of
                 the
                 falshood
                 of
                 it
                 ,
                 February
                 15.
                 1661.
                 
                 Elphingstoun
                 of
                 
                   Selms
                   contra
                
                 Lord
                 Rollo
                 ,
                 and
                 Laird
                 of
                 Niddery
                 .
                 And
                 payment
                 made
                 by
                 Hererors
                 to
                 their
                 Ministers
                 ,
                 who
                 were
                 suffered
                 to
                 continue
                 to
                 Preach
                 ,
                 was
                 sustained
                 ,
                 though
                 they
                 had
                 not
                 obtained
                 Presentation
                 ,
                 or
                 Collation
                 ,
                 conform
                 to
                 the
                 Act
                 of
                 Parliament
                 ,
                 1661.
                 seing
                 no
                 Process
                 Civil
                 or
                 Ecclesiastical
                 ,
                 was
                 intented
                 against
                 them
                 ,
                 nor
                 the
                 Heretors
                 before
                 payment
                 ,
                 February
                 10.
                 1666.
                 
                 Collector
                 of
                 the
                 vacand
                 Stipends
                 contra
                 Heretors
                 of
                 Maybole
                 and
                 Girvan
                 .
                 And
                 payment
                 made
                 to
                 a
                 Minister
                 ,
                 though
                 he
                 was
                 deposed
                 ,
                 having
                 continued
                 to
                 Preach
                 after
                 the
                 Term
                 ,
                 before
                 intimation
                 of
                 the
                 deposition
                 ,
                 was
                 sustained
                 ,
                 but
                 not
                 for
                 Terms
                 after
                 the
                 intimation
                 ,
                 February
                 10.
                 1679.
                 
                 Colledge
                 of
                 
                   Aberdene
                   contra
                
                 Earl
                 of
                 Aboyn
                 .
                 So
                 also
                 payment
                 made
                 by
                 a
                 debitor
                 to
                 his
                 creditor
                 ,
                 
                   bona
                   fide
                
                 ,
                 was
                 found
                 sufficient
                 to
                 Liberat
                 ,
                 against
                 an
                 Appryzer
                 ,
                 who
                 had
                 appryzed
                 the
                 Right
                 of
                 that
                 sum
                 ,
                 before
                 payment
                 made
                 ,
                 albeit
                 the
                 Appryzing
                 ,
                 as
                 a
                 Judicial
                 Assignation
                 ,
                 was
                 sound
                 to
                 need
                 no
                 intimation
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 
                   Thomson
                   contra
                   Elizabeth
                   Dowglas
                
                 Lady
                 Longsormacus
                 .
                 And
                 payment
                 made
                 ,
                 
                   bona
                   fide
                
                 ,
                 to
                 a
                 Donatar
                 ,
                 was
                 found
                 relevant
                 against
                 a
                 prior
                 Donatar
                 ,
                 Hope
                 ,
                 Horning
                 ,
                 
                   James
                   Wright
                   contra
                   Thomas
                   Wright
                
                 .
                 And
                 most
                 ordinarly
                 payment
                 made
                 ,
                 
                   bona
                   fide
                
                 ,
                 by
                 Tennents
                 to
                 their
                 old
                 Master
                 ,
                 is
                 found
                 relevant
                 against
                 singular
                 Successors
                 ,
                 though
                 publickly
                 Infeft
                 ,
                 using
                 no
                 diligence
                 to
                 put
                 the
                 Tennents
                 
                   in
                   mala
                   fide
                   ,
                   Spots
                
                 .
                 Appryzing
                 ,
                 Lord
                 
                   Lowdoun
                   contra
                
                 the
                 Tennents
                 of
                 Jedburgh
                 .
                 And
                 payment
                 by
                 Tennents
                 to
                 their
                 Master
                 ,
                 was
                 sustained
                 against
                 the
                 Donatar
                 of
                 his
                 Escheat
                 ,
                 not
                 having
                 obtained
                 Declarator
                 ,
                 February
                 10.
                 1610.
                 
                 
                   Blackburn
                   contra
                   Wilson
                
                 .
                 Neither
                 will
                 Citations
                 against
                 Tennents
                 ,
                 or
                 Arrestments
                 upon
                 the
                 Titles
                 of
                 singular
                 Successors
                 ,
                 put
                 them
                 in
                 
                   mala
                   fide
                
                 ,
                 to
                 pay
                 to
                 their
                 Master
                 ,
                 till
                 the
                 Titles
                 of
                 the
                 singular
                 Successors
                 be
                 judicially
                 produced
                 against
                 the
                 Tennents
                 compearing
                 ,
                 because
                 Tennents
                 are
                 not
                 oblieged
                 ,
                 as
                 purchasers
                 to
                 search
                 Registers
                 to
                 find
                 their
                 Masters
                 Rights
                 ,
                 or
                 the
                 Rights
                 of
                 singular
                 Successors
                 ;
                 yea
                 ,
                 the
                 Arrestments
                 of
                 their
                 Masters
                 Rents
                 not
                 insisted
                 upon
                 ,
                 and
                 their
                 Masters
                 Debts
                 instructed
                 before
                 the
                 Term
                 ,
                 seem
                 not
                 to
                 infer
                 double
                 payment
                 ,
                 against
                 the
                 Tennents
                 ,
                 paying
                 after
                 their
                 Terms
                 are
                 past
                 :
                 But
                 payment
                 made
                 before
                 the
                 hand
                 doth
                 not
                 liberat
                 ,
                 against
                 Donatars
                 Arresting
                 and
                 doing
                 diligence
                 after
                 payment
                 before
                 the
                 Term
                 ,
                 
                   February
                   last
                
                 1628.
                 
                 Laird
                 of
                 
                   Lauchop
                   contra
                
                 Tennents
                 of
                 
                   Cleghorn
                   .
                   February
                
                 5.
                 1667.
                 
                 Lady
                 
                   Traquair
                   contra
                   Marion
                   Houatson
                
                 .
                 But
                 it
                 will
                 not
                 be
                 accompted
                 payment
                 before
                 the
                 hand
                 ,
                 if
                 by
                 the
                 condition
                 of
                 the
                 Tack
                 ,
                 the
                 first
                 Terms
                 payment
                 be
                 made
                 at
                 the
                 entry
                 ,
                 and
                 the
                 Tennents
                 to
                 be
                 free
                 at
                 the
                 ish
                 ,
                 January
                 7.
                 1662.
                 
                 Earl
                 of
                 
                   Lauderdail
                   contra
                
                 Tennents
                 of
                 Swintoun
                 .
                 Neither
                 will
                 a
                 Discharge
                 freely
                 granted
                 ,
                 without
                 true
                 and
                 real
                 payment
                 ,
                 besufficient
                 ,
                 though
                 it
                 bear
                 payment
                 ,
                 to
                 obtain
                 the
                 priviledge
                 of
                 payment
                 ,
                 
                   bona
                   fide
                
                 ,
                 as
                 was
                 found
                 in
                 the
                 foresaid
                 case
                 ,
                 
                   Thomson
                   contra
                   Dowglas
                
                 .
                 Payment
                 made
                 by
                 Tennents
                 ,
                 
                   bona
                   fide
                
                 ,
                 to
                 their
                 Master
                 of
                 Stock
                 and
                 Teind
                 promiscue
                 ,
                 as
                 they
                 had
                 been
                 accustomed
                 ,
                 found
                 to
                 Liberat
                 from
                 their
                 Teind
                 Master
                 ,
                 who
                 had
                 Inhibite
                 and
                 intimate
                 the
                 same
                 to
                 the
                 Tennents
                 ,
                 seing
                 the
                 proportion
                 of
                 the
                 Duty
                 they
                 payed
                 for
                 Teind
                 was
                 not
                 known
                 ,
                 December
                 13.
                 1627.
                 
                 
                   Arbuthnet
                   contra
                
                 Tennents
                 .
                 March
                 21.
                 1628.
                 
                 
                 Mr.
                 
                   Patrick
                   Murray
                   contra
                
                 Tennents
                 of
                 
                   Inchassray
                   Abbay
                
                 .
                 Yea
                 ,
                 payment
                 made
                 of
                 a
                 part
                 of
                 the
                 price
                 of
                 Lands
                 to
                 the
                 Disponers
                 Bairns
                 ,
                 to
                 whom
                 it
                 was
                 destinat
                 ,
                 was
                 found
                 relevant
                 ,
                 albeit
                 after
                 a
                 Reduction
                 ,
                 depending
                 of
                 that
                 Disposition
                 ,
                 seing
                 there
                 was
                 no
                 reason
                 filled
                 up
                 against
                 the
                 Bairns
                 interest
                 ,
                 nor
                 they
                 cited
                 ,
                 July
                 19.
                 1662.
                 
                 
                   Peter
                   contra
                
                 Mr.
                 
                   William
                   Wallace
                
                 .
                 Payment
                 of
                 a
                 Tocher
                 ,
                 Contracted
                 by
                 a
                 Wife
                 ,
                 inferred
                 by
                 presumption
                 ,
                 that
                 the
                 lived
                 twenty
                 two
                 years
                 ,
                 and
                 that
                 the
                 Husband
                 acknowledged
                 in
                 his
                 Testament
                 that
                 she
                 had
                 payed
                 the
                 Tocher
                 ,
                 February
                 16.
                 1671.
                 
                 
                   Marrion
                   Dods
                   contra
                   Laurence
                   Scot.
                
                 Payment
                 is
                 always
                 presumed
                 by
                 retiring
                 of
                 the
                 principal
                 Bonds
                 ,
                 
                   Chyrographum
                   apud
                   debitorem
                   repertum
                   presumitur
                   solutum
                
                 ;
                 and
                 therefore
                 ,
                 Missives
                 or
                 Narratives
                 in
                 other
                 Writes
                 ,
                 will
                 not
                 instruct
                 ,
                 where
                 the
                 principal
                 Write
                 it self
                 is
                 not
                 produced
                 ;
                 and
                 therefore
                 is
                 held
                 as
                 retired
                 ,
                 albeit
                 these
                 are
                 adminicles
                 to
                 prove
                 the
                 Tenor
                 ,
                 if
                 the
                 
                   casus
                   amissionis
                
                 ,
                 be
                 so
                 far
                 instructed
                 ,
                 as
                 to
                 take
                 off
                 the
                 presumption
                 ,
                 that
                 the
                 Write
                 is
                 retired
                 .
                 Payment
                 made
                 indefinitly
                 by
                 a
                 Debitor
                 for
                 several
                 sums
                 ,
                 is
                 generally
                 ascribed
                 to
                 any
                 of
                 these
                 sums
                 ,
                 that
                 the
                 Debitor
                 pleaseth
                 to
                 apply
                 ,
                 because
                 the
                 case
                 of
                 the
                 Debitor
                 is
                 favourable
                 ,
                 and
                 the
                 Creditor
                 granting
                 a
                 receipt
                 indefinitly
                 ,
                 it
                 is
                 interpret
                 against
                 him
                 ,
                 the
                 matter
                 remaining
                 intire
                 as
                 it
                 was
                 the
                 time
                 of
                 the
                 receipt
                 ;
                 But
                 where
                 the
                 Debitor
                 became
                 Bankrupt
                 after
                 the
                 indefinit
                 receipt
                 ,
                 the
                 famine
                 was
                 not
                 found
                 applicable
                 to
                 a
                 sum
                 having
                 Caution
                 ,
                 there
                 being
                 another
                 sum
                 which
                 had
                 no
                 Caution
                 ,
                 which
                 would
                 be
                 lost
                 by
                 that
                 application
                 ,
                 February
                 2.
                 1680.
                 
                 
                   Samuel
                   Moncref
                   contra
                   Donald
                   Cameron
                
                 .
                 But
                 where
                 the
                 Debitor
                 makes
                 no
                 application
                 ,
                 but
                 his
                 Creditor
                 or
                 singular
                 Successor
                 do
                 count
                 for
                 the
                 application
                 ,
                 
                   presumitur
                   in
                   duriorem
                   sortem
                
                 ,
                 as
                 if
                 for
                 one
                 debt
                 there
                 be
                 a
                 Band
                 bearing
                 Annualrent
                 ,
                 and
                 another
                 Debt
                 bearing
                 no
                 Annualrent
                 ,
                 the
                 indefinit
                 receipt
                 is
                 to
                 be
                 imputed
                 to
                 the
                 Bond
                 bearing
                 annualrent
                 ,
                 or
                 where
                 the
                 one
                 security
                 hath
                 a
                 greater
                 penalty
                 ,
                 legal
                 or
                 conventional
                 ,
                 in
                 case
                 of
                 not
                 payment
                 ,
                 as
                 Apprysing
                 ,
                 or
                 Adjudication
                 ,
                 whereof
                 the
                 legal
                 is
                 near
                 to
                 expire
                 .
              
               
                 4.
                 
                 Consignation
                 in
                 case
                 of
                 the
                 absence
                 ,
                 lurking
                 ,
                 or
                 refusal
                 of
                 the
                 Creditor
                 ,
                 is
                 equivalent
                 to
                 payment
                 ,
                 and
                 where
                 it
                 is
                 not
                 otherways
                 agreed
                 (
                 with
                 us
                 )
                 it
                 is
                 ordinarly
                 done
                 in
                 the
                 hands
                 of
                 the
                 Clerk
                 of
                 the
                 Bills
                 ,
                 by
                 way
                 of
                 Suspension
                 ,
                 and
                 it
                 stops
                 the
                 running
                 of
                 Annuals
                 ,
                 and
                 all
                 other
                 inconveniencies
                 upon
                 the
                 Debitor
                 ,
                 and
                 the
                 Consigner
                 is
                 free
                 ,
                 though
                 that
                 which
                 is
                 Consigned
                 be
                 lost
                 by
                 the
                 keepers
                 being
                 Bankrupt
                 ;
                 or
                 otherways
                 ,
                 if
                 it
                 was
                 the
                 Creditors
                 fault
                 who
                 charged
                 for
                 more
                 then
                 was
                 due
                 ,
                 as
                 if
                 he
                 charged
                 for
                 the
                 whole
                 penalty
                 ,
                 which
                 ought
                 to
                 be
                 modified
                 ,
                 and
                 there
                 is
                 no
                 necessity
                 in
                 that
                 case
                 ,
                 to
                 offer
                 what
                 is
                 due
                 ;
                 but
                 if
                 the
                 fault
                 be
                 the
                 Consigners
                 ,
                 if
                 the
                 Money
                 be
                 lost
                 ,
                 it
                 is
                 lost
                 to
                 him
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 the
                 Earl
                 of
                 Galloway
                 and
                 〈◊〉
                 of
                 Kilkerran
                 .
                 It
                 was
                 also
                 found
                 ,
                 that
                 a
                 sum
                 Comsigned
                 in
                 the
                 hands
                 of
                 the
                 Clerk
                 of
                 the
                 Bills
                 ,
                 upon
                 obtaining
                 Suspension
                 ,
                 the
                 Consigner
                 having
                 first
                 offered
                 by
                 Instrument
                 the
                 principal
                 sum
                 and
                 Annualrent
                 ,
                 and
                 so
                 much
                 of
                 the
                 penalty
                 as
                 the
                 Charger
                 would
                 Depone
                 he
                 had
                 truly
                 debursed
                 upon
                 Oath
                 ,
                 the
                 Instrument
                 being
                 also
                 instructed
                 by
                 the
                 Oath
                 of
                 the
                 Witnesses
                 insert
                 ,
                 the
                 Consigner
                 was
                 declared
                 free
                 ,
                 though
                 the
                 then
                 Clerk
                 of
                 the
                 Bills
                 was
                 become
                 
                   insolvent
                   ,
                   July
                
                 28.
                 1665.
                 
                 
                   Bessie
                   Scot
                   contra
                   Somervail
                
                 .
                 So
                 that
                 in
                 Consignation
                 of
                 Sums
                 ,
                 for
                 which
                 there
                 is
                 a
                 Charge
                 of
                 Horning
                 ,
                 if
                 the
                 Charge
                 be
                 for
                 more
                 then
                 what
                 is
                 due
                 ,
                 Consignation
                 may
                 be
                 warrantably
                 made
                 ,
                 without
                 offer
                 of
                 what
                 is
                 due
                 ;
                 but
                 other
                 waye
                 ,
                 the
                 offer
                 of
                 what
                 is
                 due
                 should
                 proceed
                 ,
                 else
                 the
                 peril
                 is
                 the
                 Consigners
                 ,
                 if
                 the
                 sum
                 Consigned
                 be
                 lost
                 ;
                 but
                 if
                 when
                 the
                 Consignation
                 is
                 
                   authore
                   pretore
                
                 ,
                 either
                 by
                 deliverance
                 of
                 the
                 Lords
                 ,
                 or
                 by
                 the
                 ordinar
                 passing
                 Bills
                 of
                 Suspension
                 upon
                 Consignation
                 ,
                 it
                 stops
                 the
                 course
                 of
                 Annuals
                 ;
                 because
                 there
                 is
                 always
                 a
                 several
                 reason
                 of
                 Suspension
                 ,
                 which
                 ought
                 to
                 be
                 relevant
                 ,
                 though
                 Consignation
                 
                 would
                 make
                 it
                 pass
                 without
                 instruction
                 ;
                 for
                 then
                 ,
                 Consignation
                 is
                 only
                 for
                 the
                 Creditors
                 security
                 in
                 place
                 of
                 Caution
                 ,
                 and
                 seing
                 the
                 Creditor
                 may
                 quickly
                 discuss
                 the
                 Suspension
                 ,
                 and
                 will
                 be
                 heard
                 to
                 answer
                 summarly
                 upon
                 the
                 Bill
                 ,
                 albeit
                 at
                 discussing
                 the
                 reason
                 be
                 not
                 found
                 relevant
                 ,
                 or
                 not
                 instructed
                 .
                 Annuals
                 is
                 not
                 decerned
                 after
                 the
                 Consignation
                 ,
                 being
                 
                   modica
                   mora
                
                 ,
                 yet
                 if
                 the
                 sum
                 were
                 lost
                 ,
                 the
                 peril
                 would
                 be
                 the
                 Consigners
                 ,
                 not
                 having
                 first
                 offered
                 all
                 that
                 was
                 due
                 ,
                 by
                 Instrument
                 ;
                 and
                 though
                 the
                 Creditor
                 be
                 uncertain
                 ,
                 lurking
                 ,
                 or
                 out
                 of
                 the
                 Countrey
                 ,
                 the
                 Lords
                 upon
                 supplication
                 will
                 grant
                 Letters
                 of
                 Requisition
                 and
                 offer
                 ,
                 to
                 be
                 execute
                 at
                 the
                 Cross
                 of
                 Edinburgh
                 ,
                 and
                 Peer
                 of
                 Leith
                 ,
                 where
                 all
                 men
                 are
                 presumed
                 to
                 have
                 Procurators
                 to
                 answer
                 for
                 them
                 ,
                 
                   tanquam
                   in
                   communipatria
                
                 :
                 But
                 if
                 an
                 offer
                 be
                 made
                 of
                 all
                 that
                 is
                 due
                 ,
                 and
                 not
                 accepted
                 ,
                 it
                 is
                 a
                 relevant
                 reason
                 of
                 Suspension
                 ,
                 upon
                 production
                 of
                 the
                 Instrument
                 ,
                 and
                 Consigning
                 the
                 Principal
                 and
                 Annual
                 ,
                 though
                 no
                 part
                 of
                 the
                 expenses
                 be
                 Consigned
                 ,
                 till
                 they
                 be
                 modified
                 ,
                 if
                 the
                 Consigners
                 reason
                 be
                 found
                 relevant
                 ,
                 and
                 instructed
                 ,
                 the
                 Charge
                 will
                 be
                 suspended
                 simpliciter
                 ,
                 and
                 the
                 Decreet
                 will
                 contain
                 warrand
                 to
                 the
                 Clerk
                 of
                 the
                 Bills
                 ,
                 to
                 deliver
                 up
                 the
                 Consigned
                 sums
                 to
                 the
                 Suspender
                 ,
                 who
                 must
                 bear
                 the
                 expenses
                 of
                 Consignation
                 ;
                 but
                 if
                 the
                 Suspender
                 be
                 
                   in
                   mora
                   aut
                   culpa
                
                 ,
                 as
                 if
                 he
                 do
                 not
                 Consign
                 the
                 expenses
                 modified
                 by
                 the
                 Lords
                 ,
                 whereby
                 the
                 Charger
                 will
                 be
                 put
                 to
                 a
                 new
                 Charge
                 ,
                 he
                 must
                 bear
                 the
                 expenses
                 of
                 Consignation
                 ;
                 yet
                 a
                 Sheriff
                 having
                 Charged
                 an
                 Heritor
                 for
                 the
                 Kings
                 Taxation
                 ,
                 albeit
                 at
                 discussing
                 ,
                 it
                 was
                 found
                 he
                 had
                 Charged
                 for
                 more
                 then
                 was
                 due
                 ,
                 the
                 expenses
                 of
                 the
                 Consignation
                 was
                 laid
                 upon
                 the
                 Heretor
                 ,
                 seing
                 he
                 did
                 not
                 offer
                 what
                 was
                 due
                 ,
                 for
                 in
                 that
                 case
                 the
                 Sheriff
                 might
                 proceed
                 by
                 general
                 Letters
                 ,
                 as
                 he
                 was
                 informed
                 ,
                 and
                 was
                 not
                 in
                 the
                 case
                 of
                 a
                 Creditor
                 ,
                 charging
                 for
                 his
                 own
                 Debt
                 ,
                 which
                 he
                 could
                 not
                 but
                 distinctly
                 know
                 :
                 but
                 if
                 an
                 Assignay
                 or
                 singular
                 Successor
                 Charge
                 for
                 more
                 then
                 is
                 due
                 ,
                 the
                 hazard
                 will
                 not
                 be
                 his
                 ,
                 who
                 may
                 be
                 ignorant
                 of
                 his
                 Cedents
                 Discharges
                 ;
                 and
                 therefore
                 ,
                 the
                 Suspender
                 ought
                 to
                 produce
                 to
                 him
                 the
                 Discharge
                 ,
                 and
                 offer
                 to
                 him
                 what
                 is
                 due
                 ,
                 which
                 if
                 he
                 omit
                 ,
                 the
                 hazard
                 will
                 be
                 his
                 :
                 As
                 to
                 the
                 Obliegements
                 upon
                 the
                 Consignatar
                 ,
                 these
                 shall
                 more
                 properly
                 come
                 in
                 with
                 Redemption
                 of
                 Wodsetts
                 ,
                 where
                 Consignations
                 are
                 most
                 frequent
                 .
              
               
                 5.
                 
                 Acceptilation
                 is
                 the
                 solution
                 of
                 an
                 Obligation
                 by
                 acceptance
                 of
                 that
                 which
                 is
                 not
                 the
                 direct
                 performance
                 of
                 the
                 Obligation
                 ,
                 in
                 satisfaction
                 thereof
                 ,
                 either
                 really
                 ,
                 or
                 imaginarly
                 ,
                 by
                 acknowledgement
                 thereof
                 ,
                 as
                 if
                 it
                 were
                 truely
                 performed
                 .
              
               
                 The
                 Romans
                 did
                 only
                 allow
                 Acceptilation
                 as
                 a
                 Liberation
                 from
                 Stipulations
                 ,
                 and
                 therefore
                 ,
                 before
                 any
                 other
                 Obligation
                 could
                 be
                 dissolved
                 by
                 Acceptilation
                 ,
                 it
                 behoved
                 to
                 be
                 innovat
                 ,
                 by
                 a
                 Stipulation
                 ingaging
                 for
                 the
                 same
                 matter
                 and
                 the
                 Acceptilation
                 it self
                 could
                 only
                 be
                 by
                 Stipulation
                 ,
                 by
                 the
                 Interrogation
                 of
                 the
                 Debitor
                 ,
                 
                   quod
                   ex
                   tali
                   stipulatione
                   debeo
                   acceptum
                   fers
                   .
                
                 To
                 which
                 the
                 Creditor
                 answered
                 ,
                 
                   acceptum
                   fero
                
                 ,
                 whence
                 it
                 had
                 the
                 name
                 of
                 Acceptilatio
                 ,
                 expressing
                 an
                 acknowledgement
                 of
                 the
                 receiving
                 and
                 accepting
                 of
                 the
                 performance
                 of
                 the
                 Obligation
                 ,
                 and
                 of
                 present
                 bearing
                 and
                 having
                 the
                 same
                 ,
                 which
                 was
                 valid
                 and
                 effectual
                 ,
                 though
                 the
                 Creditor
                 ,
                 neither
                 then
                 nor
                 before
                 had
                 received
                 any
                 performance
                 of
                 the
                 Obligation
                 ,
                 and
                 needed
                 no
                 other
                 Probation
                 ;
                 nor
                 doth
                 it
                 admit
                 of
                 a
                 contrary
                 Probation
                 ,
                 that
                 nothing
                 was
                 truely
                 received
                 ,
                 in
                 respect
                 that
                 the
                 sole
                 will
                 of
                 the
                 Creditor
                 may
                 evacuat
                 the
                 Obligation
                 ,
                 by
                 Discharge
                 or
                 Renunciation
                 ;
                 and
                 therefore
                 ,
                 Acceptilation
                 without
                 any
                 performance
                 is
                 sufficient
                 ,
                 and
                 is
                 the
                 more
                 solemn
                 and
                 secure
                 way
                 of
                 Exoneration
                 .
              
               
                 For
                 where
                 there
                 are
                 many
                 Co-debitors
                 ,
                 the
                 Discharging
                 one
                 Liberats
                 not
                 the
                 
                 rest
                 ,
                 if
                 they
                 be
                 Co-principles
                 ,
                 unless
                 the
                 Discharge
                 be
                 impersonally
                 conceived
                 ,
                 that
                 the
                 thing
                 oblieged
                 shall
                 not
                 be
                 demanded
                 ;
                 or
                 that
                 the
                 Renunciation
                 or
                 Discharge
                 be
                 granted
                 to
                 the
                 principal
                 Debitor
                 ,
                 for
                 thereby
                 the
                 Obligations
                 of
                 the
                 Cautioners
                 being
                 accessory
                 ,
                 are
                 understood
                 also
                 to
                 be
                 Renunced
                 :
                 But
                 Acceptilation
                 extinguisheth
                 the
                 Obligation
                 as
                 to
                 all
                 the
                 Debitors
                 ;
                 because
                 it
                 importeth
                 an
                 acknowledgement
                 of
                 performance
                 .
              
               
                 Acceptilation
                 with
                 us
                 may
                 be
                 of
                 any
                 Obligation
                 ,
                 and
                 requireth
                 no
                 Stipulation
                 ,
                 but
                 as
                 the
                 acknowledgement
                 of
                 payment
                 Liberats
                 all
                 the
                 Debitors
                 ;
                 so
                 the
                 acknowledgement
                 of
                 any
                 satisfaction
                 ,
                 which
                 importeth
                 payment
                 ,
                 or
                 any
                 thing
                 accepted
                 as
                 equivalent
                 ,
                 hath
                 the
                 same
                 effect
                 ;
                 and
                 therefore
                 ,
                 we
                 use
                 more
                 the
                 Term
                 of
                 Satisfaction
                 ,
                 then
                 Acceptilation
                 ;
                 which
                 Satisfaction
                 ,
                 if
                 it
                 be
                 upon
                 grounds
                 equivalent
                 to
                 payment
                 ,
                 or
                 direct
                 performance
                 ,
                 it
                 is
                 equiparat
                 thereto
                 in
                 all
                 points
                 ,
                 and
                 hath
                 the
                 priviledge
                 of
                 payment
                 made
                 ,
                 
                   bona
                   fide
                
                 ,
                 to
                 Liberat
                 ,
                 though
                 the
                 Obligation
                 be
                 not
                 performed
                 ,
                 to
                 the
                 party
                 having
                 the
                 present
                 ,
                 and
                 better
                 Right
                 ;
                 but
                 otherways
                 ,
                 neither
                 the
                 acknowledgement
                 of
                 payment
                 ,
                 or
                 of
                 satisfaction
                 ,
                 or
                 any
                 Discharge
                 ,
                 hath
                 the
                 priviledge
                 of
                 payment
                 made
                 ,
                 
                   bona
                   fide
                
                 ,
                 which
                 is
                 mainly
                 founded
                 upon
                 this
                 ground
                 ,
                 that
                 
                   bena
                   fides
                   non
                   patitur
                   ut
                   idem
                   bis
                   exigatur
                   .
                
              
               
                 6.
                 
                 Compensation
                 is
                 a
                 kind
                 of
                 Liberation
                 ,
                 as
                 being
                 equivalent
                 to
                 payment
                 ,
                 for
                 thereby
                 two
                 liquid
                 Obligations
                 do
                 extinguish
                 each
                 other
                 ,
                 
                   ipso
                   jure
                
                 ,
                 and
                 not
                 only
                 
                   ope
                   exceptionis
                
                 ;
                 for
                 albeit
                 Compensation
                 cannot
                 operat
                 if
                 it
                 be
                 not
                 proponed
                 ,
                 as
                 neither
                 can
                 payment
                 ;
                 yet
                 both
                 
                   perimunt
                   obligationem
                   ipso
                   jure
                
                 ,
                 and
                 therefore
                 are
                 not
                 Arbitrary
                 ,
                 to
                 either
                 party
                 to
                 propone
                 or
                 not
                 propone
                 as
                 they
                 please
                 ;
                 but
                 any
                 third
                 party
                 having
                 interest
                 may
                 propone
                 the
                 same
                 ,
                 which
                 they
                 cannot
                 hinder
                 ;
                 for
                 instance
                 ,
                 if
                 a
                 Cautioner
                 be
                 distrest
                 ,
                 he
                 can
                 propone
                 payment
                 ,
                 or
                 compensation
                 ,
                 upon
                 the
                 like
                 liquid
                 Debt
                 ,
                 due
                 to
                 the
                 principal
                 Debitor
                 ,
                 which
                 he
                 cannot
                 hinder
                 ;
                 and
                 therefore
                 ,
                 a
                 liquid
                 clear
                 Debt
                 ,
                 though
                 bearing
                 no
                 Annualrent
                 ,
                 compenseth
                 another
                 Debt
                 bearing
                 Annualrent
                 ,
                 not
                 only
                 from
                 the
                 time
                 Compensation
                 is
                 proponed
                 ,
                 but
                 from
                 the
                 time
                 that
                 both
                 Debts
                 came
                 to
                 be
                 due
                 ;
                 from
                 which
                 time
                 ,
                 it
                 stops
                 the
                 course
                 of
                 Annualrent
                 ,
                 as
                 is
                 clear
                 by
                 many
                 Laws
                 in
                 the
                 
                   digeste
                   &
                   C.
                   de
                   compensationibus
                
                 ,
                 which
                 is
                 constantly
                 followed
                 by
                 our
                 Custome
                 ,
                 wherein
                 positive
                 Law
                 for
                 utilities
                 sake
                 ,
                 hath
                 influence
                 ,
                 to
                 shun
                 the
                 multiplication
                 of
                 Pleas
                 ;
                 for
                 otherways
                 ,
                 if
                 compensation
                 were
                 rejected
                 ,
                 the
                 Creditor
                 would
                 proceed
                 to
                 execution
                 ,
                 and
                 the
                 Debitor
                 would
                 be
                 put
                 to
                 a
                 new
                 Action
                 ,
                 which
                 is
                 very
                 inconvenient
                 ;
                 and
                 therefore
                 ,
                 when
                 a
                 Debitor
                 forbeareth
                 to
                 insist
                 for
                 a
                 liquid
                 Debt
                 ,
                 after
                 the
                 term
                 is
                 past
                 ,
                 it
                 is
                 presumed
                 to
                 be
                 on
                 that
                 accompt
                 ,
                 that
                 the
                 Creditor
                 oweth
                 him
                 the
                 like
                 ,
                 or
                 a
                 greater
                 sum
                 ,
                 &
                 
                   frustra
                   petit
                   quod
                   mox
                   est
                   restituturus
                
                 ;
                 but
                 otherways
                 compensation
                 is
                 neither
                 payment
                 formally
                 nor
                 materially
                 ,
                 for
                 when
                 a
                 Creditor
                 borroweth
                 from
                 his
                 Debitor
                 a
                 sum
                 ,
                 and
                 expresly
                 obliegeth
                 him
                 to
                 pay
                 the
                 same
                 ,
                 it
                 is
                 so
                 far
                 from
                 being
                 done
                 for
                 payment
                 of
                 a
                 sum
                 ,
                 formerly
                 due
                 to
                 the
                 Debitor
                 ,
                 that
                 there
                 is
                 an
                 express
                 obliegement
                 to
                 pay
                 the
                 same
                 in
                 numerat
                 Money
                 ,
                 at
                 a
                 day
                 ;
                 and
                 yet
                 if
                 that
                 posterior
                 Debt
                 be
                 insisted
                 on
                 ,
                 it
                 may
                 be
                 compensed
                 with
                 the
                 prior
                 .
              
               
                 If
                 compensation
                 be
                 renunced
                 it
                 will
                 be
                 excluded
                 by
                 that
                 personal
                 objection
                 ,
                 which
                 will
                 take
                 no
                 place
                 against
                 other
                 parties
                 interest
                 ;
                 for
                 thereupon
                 Compensation
                 would
                 be
                 admitted
                 for
                 a
                 Cautioner
                 ,
                 for
                 a
                 Debt
                 due
                 to
                 the
                 principal
                 ,
                 though
                 the
                 principal
                 should
                 renounce
                 Compensation
                 ;
                 or
                 if
                 the
                 Compensation
                 be
                 indirectly
                 renounced
                 ,
                 by
                 giving
                 a
                 Bond
                 blank
                 in
                 the
                 Creditors
                 name
                 ,
                 which
                 is
                 understood
                 ,
                 as
                 done
                 of
                 intention
                 ,
                 that
                 the
                 Bond
                 may
                 pass
                 to
                 singular
                 
                 Successors
                 without
                 a
                 formal
                 Assignation
                 or
                 Intimation
                 ,
                 but
                 by
                 filling
                 the
                 parties
                 name
                 who
                 gets
                 the
                 Bond
                 ,
                 who
                 charging
                 thereupon
                 will
                 not
                 be
                 compensed
                 by
                 any
                 Debt
                 of
                 the
                 party
                 ,
                 to
                 whom
                 it
                 was
                 first
                 granted
                 ,
                 
                   Nic.
                   hic
                   .
                   November
                
                 14.
                 1621.
                 
                 
                   Findlayson
                   contra
                   Gardine
                   .
                   February
                
                 27.
                 1668.
                 
                 
                   Henderson
                   contra
                   Birny
                
                 .
                 And
                 on
                 the
                 same
                 ground
                 ,
                 a
                 Bond
                 of
                 Corroboration
                 ,
                 bearing
                 a
                 general
                 exclusion
                 of
                 Suspension
                 ,
                 was
                 found
                 to
                 exclude
                 Compensation
                 ,
                 though
                 the
                 Bond
                 was
                 granted
                 under
                 Caption
                 ,
                 without
                 any
                 Transaction
                 or
                 abatement
                 ,
                 June
                 28.
                 1672.
                 
                 
                   Robert
                   Murray
                   cantra
                   Spadie
                
                 of
                 Assintully
                 .
              
               
                 Compensation
                 is
                 described
                 by
                 
                   Modestinus
                   debiti
                   &
                   crediti
                   contributie
                   ,
                   l.
                
                 1
                 
                   ff
                   .
                   de
                   compensationibus
                
                 ;
                 which
                 description
                 is
                 neither
                 clear
                 nor
                 full
                 :
                 It
                 is
                 not
                 clear
                 whether
                 the
                 Contribution
                 be
                 by
                 concourse
                 of
                 two
                 Debts
                 ,
                 or
                 by
                 proponing
                 of
                 the
                 Compensation
                 :
                 Neither
                 is
                 it
                 full
                 by
                 expressing
                 what
                 kind
                 of
                 Debts
                 are
                 compensible
                 ,
                 for
                 they
                 must
                 be
                 commensurable
                 ,
                 and
                 liquid
                 ,
                 being
                 considered
                 as
                 Fungibles
                 ,
                 indecernable
                 in
                 the
                 value
                 ,
                 or
                 in
                 the
                 Individuals
                 ,
                 as
                 Money
                 ,
                 Wine
                 ,
                 Oyl
                 ,
                 Grain
                 ,
                 &c.
                 
                 Or
                 if
                 both
                 Obligations
                 be
                 in
                 general
                 ,
                 as
                 if
                 either
                 party
                 be
                 oblieged
                 to
                 deliver
                 a
                 House
                 ,
                 a
                 Sword
                 ,
                 &c.
                 for
                 then
                 no
                 speciality
                 being
                 exprest
                 ,
                 the
                 Obligations
                 are
                 commensurat
                 ,
                 and
                 so
                 compensible
                 .
                 But
                 Obligations
                 of
                 a
                 particular
                 body
                 ,
                 are
                 not
                 compensible
                 by
                 Money
                 ;
                 and
                 therefore
                 ,
                 Money
                 depositate
                 being
                 demanded
                 ,
                 cannot
                 be
                 compensed
                 by
                 a
                 Debt
                 due
                 to
                 the
                 Depositar
                 ,
                 because
                 the
                 Money
                 depositat
                 was
                 not
                 delivered
                 as
                 a
                 Fungible
                 to
                 be
                 restored
                 in
                 the
                 same
                 kind
                 ,
                 but
                 in
                 the
                 same
                 individual
                 ;
                 and
                 likewise
                 ,
                 acceptance
                 of
                 Depositation
                 imports
                 so
                 much
                 trust
                 ,
                 for
                 ready
                 delivery
                 ,
                 that
                 Compensation
                 is
                 understood
                 to
                 be
                 renounced
                 ,
                 
                   l.
                   pen.
                   C.
                   depositi
                
                 .
              
               
                 Upon
                 the
                 same
                 ground
                 Compensation
                 is
                 not
                 relevant
                 upon
                 sums
                 secured
                 by
                 an
                 Heritable
                 Infeftment
                 ,
                 whereby
                 Lands
                 or
                 Annualrents
                 are
                 Disponed
                 for
                 these
                 sums
                 ;
                 for
                 though
                 Impignoration
                 be
                 intended
                 ,
                 yet
                 the
                 Contract
                 being
                 in
                 the
                 form
                 of
                 vendition
                 with
                 a
                 reversion
                 ,
                 the
                 sum
                 lent
                 becomes
                 the
                 Debitors
                 ,
                 as
                 the
                 price
                 of
                 the
                 Land
                 or
                 Annualrent
                 ,
                 and
                 is
                 no
                 more
                 the
                 Creditors
                 ,
                 unless
                 there
                 be
                 a
                 clause
                 of
                 Requisition
                 ,
                 that
                 he
                 may
                 return
                 to
                 his
                 Money
                 ,
                 or
                 pass
                 from
                 his
                 Infeftment
                 ,
                 or
                 a
                 clause
                 to
                 repay
                 upon
                 a
                 simple
                 Charge
                 ;
                 and
                 therefore
                 ,
                 till
                 the
                 Requisition
                 or
                 Charge
                 ,
                 there
                 can
                 be
                 no
                 compensation
                 ,
                 except
                 upon
                 the
                 bygon
                 Annualrents
                 ,
                 due
                 by
                 the
                 Infeftment
                 ,
                 which
                 remains
                 still
                 moveable
                 and
                 compensible
                 ,
                 January
                 2.
                 1667.
                 
                 
                   Oliphant
                   contra
                   Hamiltoun
                
                 .
                 But
                 Compensation
                 was
                 sustained
                 upon
                 liquid
                 sums
                 ,
                 though
                 Appryzing
                 was
                 led
                 thereupon
                 ,
                 unless
                 it
                 were
                 cled
                 with
                 Possession
                 and
                 expyred
                 ,
                 June
                 18.
                 1675.
                 
                 
                   Leys
                   Burnet
                   contra
                   Forbes
                
                 of
                 Blacktoun
                 .
                 The
                 like
                 was
                 found
                 as
                 to
                 a
                 sum
                 Appryzed
                 for
                 ,
                 but
                 not
                 upon
                 a
                 Wodsett
                 ,
                 requiring
                 Requisition
                 ,
                 unless
                 Requisition
                 were
                 made
                 ,
                 November
                 12.
                 1675.
                 
                 Home
                 of
                 
                   Plandergast
                   contra
                   Home
                
                 of
                 Linthil
                 .
              
               
                 But
                 by
                 a
                 liquid
                 Debt
                 ,
                 is
                 not
                 understood
                 a
                 Debt
                 ,
                 for
                 which
                 there
                 is
                 a
                 decreet
                 ,
                 or
                 
                   quae
                   habet
                   paratam
                   executionem
                
                 ,
                 for
                 Restitution
                 ;
                 but
                 it
                 is
                 sufficient
                 that
                 the
                 Debt
                 it self
                 is
                 liquid
                 of
                 the
                 same
                 kind
                 with
                 the
                 Charge
                 ;
                 And
                 therefore
                 ,
                 Compensation
                 is
                 competent
                 against
                 sums
                 due
                 by
                 Registrat
                 Bonds
                 ,
                 upon
                 sums
                 due
                 by
                 Bonds
                 ,
                 though
                 not
                 Registrat
                 ,
                 yea
                 ,
                 though
                 not
                 Registrable
                 .
              
               
                 Compensation
                 is
                 also
                 competent
                 upon
                 Debts
                 which
                 are
                 not
                 liquid
                 so
                 soon
                 as
                 they
                 become
                 liquid
                 ,
                 either
                 by
                 a
                 liquidation
                 of
                 consent
                 ,
                 or
                 by
                 a
                 Decreet
                 ,
                 which
                 was
                 sustained
                 ,
                 though
                 the
                 Decreet
                 was
                 after
                 the
                 Charge
                 ,
                 December
                 23.
                 1635.
                 
                 
                   Keith
                   contra
                   Glenkindie
                
                 .
                 Yea
                 ,
                 a
                 Decreet
                 of
                 liquidation
                 against
                 a
                 Principal
                 ,
                 was
                 found
                 sufficient
                 to
                 infer
                 Compensation
                 against
                 the
                 Cautioner
                 ,
                 or
                 his
                 
                 Assigney
                 ,
                 though
                 not
                 called
                 to
                 the
                 Decreet
                 ,
                 it
                 being
                 without
                 collusion
                 ,
                 June
                 24.
                 1665.
                 
                 
                   Irwing
                   contra
                   Strachen
                
                 .
                 And
                 Compensation
                 was
                 sustained
                 against
                 an
                 Assigney
                 ,
                 upon
                 a
                 debt
                 due
                 by
                 the
                 Cedent
                 ,
                 though
                 liquidat
                 after
                 the
                 Assignation
                 ,
                 in
                 respect
                 the
                 Assignation
                 was
                 gratuitous
                 ,
                 January
                 18.
                 1676.
                 
                 
                   Corbet
                   contra
                   Ramsay
                
                 :
                 But
                 the
                 Compensation
                 ought
                 not
                 further
                 to
                 be
                 drawn
                 back
                 then
                 the
                 liquidation
                 ;
                 and
                 so
                 Ferms
                 being
                 liquidat
                 will
                 stop
                 the
                 course
                 of
                 Annualrent
                 ,
                 from
                 the
                 time
                 of
                 the
                 liquidation
                 ,
                 but
                 not
                 from
                 the
                 time
                 the
                 Ferms
                 were
                 due
                 ,
                 unless
                 it
                 were
                 Money
                 Rent
                 ;
                 but
                 Ferms
                 or
                 Services
                 only
                 from
                 the
                 liquidation
                 ,
                 December
                 4.
                 1675.
                 
                 
                   Walstoun
                   contra
                   Robert
                   Cunninghame
                
                 .
              
               
                 Compensation
                 is
                 relevant
                 ,
                 not
                 only
                 upon
                 a
                 Debt
                 of
                 the
                 Creditors
                 own
                 ,
                 but
                 if
                 he
                 be
                 Creditor
                 by
                 Assignation
                 ,
                 the
                 Debt
                 is
                 compensible
                 by
                 a
                 liquid
                 Debt
                 ,
                 due
                 by
                 the
                 Cedent
                 ,
                 before
                 he
                 was
                 denuded
                 by
                 Assignation
                 ,
                 and
                 Intimation
                 ,
                 because
                 the
                 Compensation
                 was
                 effectual
                 ,
                 
                   ipso
                   jure
                
                 ,
                 from
                 the
                 concourse
                 of
                 the
                 two
                 liquid
                 Debts
                 ,
                 
                   inter
                   easdem
                   partes
                   ,
                   February
                
                 14.
                 1633.
                 
                 
                   Keith
                   contra
                   Heriot
                   .
                   March
                
                 16.
                 1639.
                 
                 
                   Coupland
                   contra
                   Forsyth
                
                 .
              
               
                 Compensation
                 is
                 also
                 relevant
                 upon
                 a
                 Debt
                 Assigned
                 to
                 the
                 Compenser
                 ,
                 by
                 our
                 common
                 Consuetude
                 ,
                 albeit
                 the
                 Debitor
                 pursued
                 or
                 charged
                 ,
                 do
                 seek
                 out
                 and
                 acquire
                 a
                 Debt
                 of
                 the
                 Chargers
                 ,
                 even
                 after
                 the
                 Charge
                 ,
                 which
                 is
                 a
                 further
                 Benefit
                 introduced
                 by
                 Custom
                 ,
                 though
                 it
                 hath
                 this
                 inconveniency
                 ,
                 that
                 a
                 Creditor
                 can
                 hardly
                 recover
                 any
                 Debt
                 ,
                 if
                 he
                 be
                 due
                 Debt
                 to
                 others
                 himself
                 ;
                 but
                 if
                 an
                 Assigney
                 Charge
                 for
                 a
                 Debt
                 ,
                 the
                 Debitor
                 will
                 not
                 have
                 Compensation
                 upon
                 a
                 Debt
                 of
                 the
                 Cedents
                 ,
                 Assigned
                 to
                 him
                 after
                 the
                 Intimation
                 of
                 the
                 Chargers
                 Assignation
                 ,
                 for
                 these
                 two
                 Debts
                 never
                 concurred
                 ,
                 
                   inter
                   easdem
                   partes
                
                 ,
                 for
                 though
                 the
                 Debitor
                 may
                 always
                 compense
                 the
                 Assigney
                 upon
                 the
                 Cedents
                 Debt
                 before
                 the
                 Assignation
                 ,
                 if
                 it
                 was
                 originally
                 due
                 to
                 the
                 Debitor
                 himself
                 ,
                 but
                 after
                 the
                 Cedent
                 is
                 denuded
                 by
                 Intimation
                 ,
                 the
                 Debitor
                 cannot
                 acquire
                 a
                 Debt
                 of
                 the
                 Cedents
                 due
                 to
                 another
                 ,
                 therewith
                 to
                 exclude
                 the
                 Assigney
                 ,
                 unless
                 the
                 Debitor
                 Compenser
                 was
                 Creditor
                 to
                 the
                 Cedent
                 ,
                 
                   ab
                   initio
                
                 ,
                 or
                 became
                 Creditor
                 to
                 him
                 by
                 an
                 Assignation
                 to
                 the
                 Creditors
                 Debt
                 ,
                 Intimat
                 to
                 him
                 before
                 he
                 was
                 denuded
                 in
                 favours
                 of
                 an
                 other
                 Assigney
                 ,
                 otherwise
                 the
                 Debts
                 do
                 never
                 concur
                 betwixt
                 the
                 same
                 Debitor
                 and
                 Creditor
                 ,
                 January
                 22.
                 1663.
                 
                 
                   James
                   Wallace
                   contra
                   Edger
                   .
                   July
                
                 4.
                 1676.
                 
                 
                   John
                   〈◊〉
                   contra
                   Alexander
                   Brownlie
                
                 .
                 But
                 Heirs
                 and
                 Executors
                 are
                 accompted
                 ,
                 
                   eadem
                   persona
                   cum
                   defuncto
                
                 ;
                 and
                 therefore
                 ,
                 Compensation
                 may
                 be
                 both
                 upon
                 ,
                 and
                 against
                 their
                 Debts
                 :
                 So
                 Compensation
                 was
                 admitted
                 against
                 an
                 Heir
                 or
                 Executor
                 ,
                 upon
                 Debt
                 due
                 by
                 the
                 Defunct
                 ,
                 to
                 the
                 Defenders
                 Father
                 whom
                 he
                 represented
                 ,
                 
                   Spots
                   .
                   hic
                   ,
                   Cassmire
                   Pyet
                   contra
                   Russetter
                   .
                
                 And
                 Compensation
                 was
                 admitted
                 against
                 an
                 Executor
                 upon
                 a
                 Legacy
                 left
                 to
                 the
                 Defender
                 ,
                 though
                 there
                 was
                 no
                 sentence
                 thereupon
                 ,
                 Spots
                 .
                 Executors
                 ,
                 
                   Williamson
                   contra
                   Tweedies
                
                 .
                 It
                 was
                 also
                 admitted
                 for
                 an
                 Executor
                 ,
                 upon
                 a
                 Debt
                 due
                 by
                 the
                 pursuer
                 to
                 the
                 Defunct
                 ,
                 though
                 the
                 Executor
                 had
                 not
                 Confirmed
                 that
                 Debt
                 ,
                 but
                 he
                 behoved
                 to
                 cik
                 the
                 same
                 ,
                 December
                 7.
                 1609.
                 
                 
                   Aikman
                   contra
                
                 Lady
                 Brughtoun
                 .
              
               
                 But
                 Compensation
                 is
                 not
                 competent
                 to
                 a
                 Creditor
                 of
                 a
                 Defunct
                 ,
                 taking
                 Assignation
                 to
                 one
                 of
                 the
                 Defuncts
                 Debts
                 after
                 his
                 death
                 ,
                 which
                 is
                 upon
                 accompt
                 of
                 the
                 Priviledge
                 of
                 the
                 Creditors
                 ,
                 who
                 have
                 access
                 to
                 the
                 Defuncts
                 Estate
                 according
                 to
                 their
                 diligence
                 ;
                 And
                 therefore
                 ,
                 the
                 Executor
                 cannot
                 prefer
                 one
                 to
                 another
                 ;
                 much
                 less
                 can
                 a
                 debitor
                 of
                 the
                 Defunct
                 ,
                 by
                 taking
                 Assignation
                 to
                 the
                 Defunct
                 Debts
                 ,
                 prefer
                 that
                 Creditor
                 to
                 the
                 rest
                 of
                 the
                 Creditors
                 of
                 the
                 Defunct
                 ,
                 
                 February
                 8.
                 1662.
                 
                 
                   Thomas
                   Crawford
                   contra
                
                 the
                 Earl
                 of
                 
                   Murray
                   .
                   February
                
                 14.
                 1662.
                 
                 Children
                 of
                 
                   Mouswall
                   contra
                   Loury
                
                 of
                 Maxwelstoun
                 .
              
               
                 Compensation
                 was
                 found
                 competent
                 against
                 a
                 Donatar
                 upon
                 a
                 debt
                 of
                 the
                 Rebels
                 before
                 the
                 Rebellion
                 ,
                 for
                 which
                 the
                 Compenser
                 was
                 Cautioner
                 ,
                 though
                 he
                 payed
                 after
                 ,
                 February
                 3.
                 1635.
                 
                 
                   Innes
                   contra
                   Lesly
                   .
                   January
                
                 23.
                 1669.
                 
                 Mr.
                 
                   James
                   Drummond
                   contra
                   Stirling
                
                 of
                 Airdoch
                 .
              
               
                 Compensation
                 is
                 competent
                 against
                 Factors
                 ,
                 Procurators
                 ,
                 or
                 Commissioners
                 ,
                 upon
                 their
                 Constituents
                 liquid
                 debt
                 ,
                 but
                 not
                 upon
                 their
                 own
                 debt
                 ,
                 for
                 they
                 are
                 not
                 Creditors
                 as
                 to
                 their
                 Constituents
                 sums
                 :
                 Yea
                 ,
                 a
                 Factor
                 being
                 charged
                 by
                 his
                 Constituent
                 for
                 his
                 Intromission
                 with
                 his
                 Rents
                 ,
                 was
                 not
                 admitted
                 to
                 compense
                 the
                 same
                 with
                 a
                 debt
                 due
                 by
                 his
                 Constituent
                 ,
                 whereunto
                 the
                 Factor
                 took
                 Assignation
                 .
                 Neither
                 was
                 the
                 Chamberlain
                 accompted
                 a
                 debitor
                 to
                 his
                 Constituent
                 ,
                 as
                 by
                 a
                 liquid
                 debt
                 ,
                 but
                 that
                 his
                 Constituents
                 Rents
                 were
                 in
                 the
                 Property
                 of
                 his
                 Master
                 ,
                 and
                 in
                 the
                 Factors
                 custody
                 as
                 a
                 Servant
                 ,
                 November
                 9.
                 1672.
                 
                 
                   Pearson
                   contra
                
                 Sir
                 
                   Robert
                   Murray
                
                 ,
                 alias
                 Crightoun
                 .
              
               
                 Compensation
                 takes
                 no
                 place
                 in
                 the
                 Provinces
                 of
                 France
                 ,
                 which
                 acknowledge
                 not
                 the
                 Roman
                 Law
                 ,
                 but
                 a
                 〈◊〉
                 Law
                 ,
                 without
                 a
                 priviledge
                 from
                 the
                 King
                 ,
                 as
                 is
                 observed
                 by
                 
                   Gregorius
                   ,
                   Tholesanus
                
                 ,
                 upon
                 Compensation
                 .
                 And
                 it
                 seems
                 not
                 to
                 have
                 been
                 competent
                 by
                 the
                 Law
                 of
                 Scotland
                 ,
                 before
                 the
                 〈◊〉
                 of
                 Parl.
                 1592.
                 cap.
                 141.
                 
                 Whereby
                 it
                 is
                 Statute
                 ,
                 
                   That
                   any
                   debt
                
                 ,
                 de
                 liquido
                 in
                 liquidum
                 ,
                 
                   verified
                   by
                   Write
                   ,
                   or
                   oath
                   of
                   party
                   ,
                   before
                   giving
                   of
                   Decreet
                   ,
                   be
                   admitted
                   by
                   all
                   Judges
                   within
                   the
                   Realm
                   ,
                   by
                   way
                   of
                   Exception
                   ,
                   but
                   not
                   after
                   the
                   giving
                   thereof
                   ,
                   in
                   the
                   Suspension
                   ,
                   or
                   in
                   the
                   Reduction
                   of
                   the
                   same
                   Decreet
                   :
                
                 So
                 that
                 if
                 the
                 charge
                 or
                 pursuit
                 be
                 instantly
                 verified
                 by
                 Write
                 ,
                 the
                 defender
                 will
                 not
                 get
                 a
                 Term
                 to
                 prove
                 Compensation
                 ;
                 but
                 if
                 a
                 Term
                 be
                 assigned
                 to
                 the
                 pursuer
                 ,
                 the
                 same
                 would
                 be
                 assigned
                 to
                 the
                 defender
                 ,
                 to
                 instruct
                 any
                 debt
                 wherewith
                 he
                 would
                 compense
                 by
                 Write
                 ,
                 or
                 Oath
                 ,
                 yea
                 ,
                 by
                 Witnesses
                 ,
                 if
                 the
                 Probation
                 be
                 closed
                 as
                 soon
                 as
                 the
                 pursuers
                 Probation
                 ;
                 for
                 the
                 Statute
                 bears
                 ,
                 
                   Compensation
                   to
                   be
                   in
                   liquid
                   debts
                   instantly
                   verified
                   before
                   the
                   Decreet
                   ,
                
                 although
                 it
                 mention
                 not
                 Probation
                 by
                 Witnesses
                 ,
                 it
                 doth
                 not
                 exclude
                 the
                 same
                 ;
                 but
                 it
                 excludes
                 Compensation
                 after
                 the
                 Decreet
                 ,
                 either
                 by
                 Suspension
                 ,
                 or
                 Reduction
                 ,
                 which
                 seems
                 to
                 import
                 more
                 then
                 the
                 rejection
                 of
                 Compensation
                 ,
                 because
                 it
                 was
                 competent
                 and
                 omitted
                 ,
                 which
                 hath
                 been
                 always
                 a
                 common
                 objection
                 against
                 any
                 reason
                 of
                 Suspension
                 ,
                 or
                 Reduction
                 ;
                 but
                 that
                 Compensation
                 should
                 not
                 be
                 admitted
                 after
                 Decreet
                 ,
                 though
                 the
                 Decreet
                 were
                 in
                 absence
                 ,
                 unless
                 it
                 were
                 Reduced
                 upon
                 Improbation
                 of
                 the
                 Executions
                 ,
                 or
                 other
                 nullity
                 ,
                 or
                 by
                 purging
                 the
                 contumacy
                 in
                 not
                 compearing
                 and
                 that
                 taking
                 Assignation
                 to
                 debts
                 of
                 the
                 Cedents
                 after
                 Decreet
                 ,
                 should
                 not
                 found
                 a
                 Compensation
                 ,
                 as
                 being
                 against
                 the
                 letter
                 of
                 the
                 Statute
                 ;
                 for
                 though
                 it
                 seem
                 an
                 emergent
                 reason
                 ,
                 which
                 would
                 be
                 sufficient
                 against
                 competent
                 and
                 omitted
                 ,
                 yet
                 not
                 against
                 the
                 speciality
                 of
                 this
                 Statute
                 ,
                 excluding
                 all
                 Compensation
                 after
                 Decreet
                 ;
                 but
                 this
                 Statute
                 is
                 to
                 be
                 understood
                 only
                 of
                 Decreets
                 proceeding
                 upon
                 Citation
                 ,
                 and
                 not
                 Decreets
                 of
                 Registration
                 ,
                 which
                 are
                 summar
                 ,
                 and
                 of
                 consent
                 ,
                 by
                 the
                 clause
                 of
                 Registration
                 ;
                 and
                 therefore
                 ,
                 Compensation
                 was
                 not
                 sustained
                 against
                 a
                 Sheriffs
                 Decreetsthough
                 in
                 absence
                 ,
                 July
                 25.
                 1676.
                 
                 
                   William
                   Wright
                   contra
                   John
                   Shiel
                
                 .
              
               
                 It
                 remains
                 to
                 consider
                 in
                 what
                 case
                 Compensation
                 may
                 be
                 elided
                 ,
                 by
                 Recompensation
                 which
                 but
                 seldom
                 occurs
                 ,
                 and
                 I
                 have
                 observed
                 no
                 decision
                 upon
                 it
                 ;
                 it
                 can
                 only
                 occur
                 when
                 the
                 charger
                 or
                 pursuer
                 hath
                 more
                 liquid
                 debts
                 due
                 to
                 him
                 by
                 the
                 defender
                 ,
                 and
                 insists
                 not
                 for
                 them
                 all
                 ;
                 for
                 in
                 that
                 case
                 ,
                 if
                 the
                 defender
                 
                 propone
                 Compensation
                 ,
                 the
                 pursuer
                 may
                 propone
                 Recompensation
                 ,
                 upon
                 the
                 other
                 liquid
                 debts
                 ,
                 whereupon
                 he
                 pursued
                 not
                 ;
                 and
                 if
                 both
                 the
                 pursuers
                 debts
                 be
                 anterior
                 to
                 the
                 defenders
                 ,
                 there
                 appears
                 no
                 recompensation
                 ,
                 because
                 the
                 defender
                 may
                 impute
                 his
                 debt
                 to
                 either
                 of
                 the
                 pursuers
                 debt
                 he
                 pleaseth
                 ,
                 as
                 he
                 might
                 in
                 indefinit
                 payments
                 ;
                 but
                 if
                 the
                 defenders
                 debt
                 be
                 anterior
                 to
                 both
                 the
                 pursuers
                 debts
                 ,
                 or
                 in
                 the
                 middle
                 betwixt
                 them
                 ,
                 in
                 that
                 case
                 ,
                 Recompensation
                 seems
                 not
                 to
                 take
                 place
                 ;
                 because
                 Compensation
                 being
                 competent
                 ,
                 
                   ipso
                   jure
                
                 ,
                 so
                 soon
                 as
                 ever
                 two
                 liquid
                 debts
                 concur
                 ,
                 
                   inter
                   easdem
                   personas
                
                 ,
                 both
                 debts
                 are
                 thereby
                 in
                 so
                 far
                 mutually
                 extinct
                 ,
                 and
                 so
                 there
                 is
                 no
                 place
                 for
                 Recompensation
                 by
                 a
                 debt
                 posterior
                 to
                 that
                 concourse
                 ,
                 so
                 that
                 if
                 the
                 defenders
                 debt
                 be
                 anterior
                 to
                 both
                 the
                 pursuers
                 debts
                 ,
                 The
                 first
                 of
                 them
                 by
                 its
                 concourse
                 ,
                 did
                 extinguish
                 the
                 defenders
                 debt
                 ;
                 and
                 therefore
                 ,
                 if
                 he
                 pursue
                 for
                 the
                 first
                 debt
                 ,
                 Compensation
                 is
                 proper
                 to
                 the
                 defender
                 upon
                 his
                 debt
                 ,
                 anterior
                 to
                 both
                 the
                 pursuers
                 debts
                 ,
                 and
                 cannot
                 be
                 excluded
                 by
                 the
                 pursuers
                 posterior
                 debt
                 ,
                 by
                 way
                 of
                 Recompensation
                 ,
                 for
                 then
                 the
                 debts
                 from
                 their
                 first
                 concourse
                 ,
                 should
                 not
                 compence
                 
                   ipso
                   jure
                
                 ,
                 which
                 holds
                 also
                 when
                 the
                 defenders
                 debt
                 is
                 after
                 the
                 pursuers
                 first
                 debt
                 ,
                 and
                 before
                 his
                 second
                 ,
                 for
                 the
                 pursuers
                 prior
                 debt
                 ,
                 and
                 the
                 defenders
                 debt
                 first
                 concurring
                 extinguisheth
                 each
                 other
                 ,
                 and
                 the
                 pursuers
                 posterior
                 debt
                 cannot
                 hinder
                 the
                 same
                 ,
                 and
                 so
                 cannot
                 found
                 Recompensation
                 :
                 But
                 if
                 the
                 pursuit
                 or
                 charge
                 be
                 on
                 the
                 second
                 debt
                 ,
                 if
                 compensation
                 be
                 proponed
                 on
                 the
                 defenders
                 midle
                 debt
                 ,
                 there
                 is
                 place
                 for
                 recompensation
                 on
                 the
                 pursuers
                 first
                 debt
                 .
              
               
                 7.
                 
                 Retention
                 is
                 not
                 an
                 absolute
                 extinction
                 of
                 the
                 Obligation
                 of
                 repayment
                 ,
                 or
                 restitution
                 ,
                 but
                 rather
                 a
                 Suspension
                 thereof
                 ,
                 till
                 satisfaction
                 be
                 made
                 to
                 the
                 retainer
                 ;
                 and
                 therefore
                 ,
                 it
                 is
                 rather
                 a
                 dilatory
                 then
                 a
                 peremptory
                 exception
                 ,
                 though
                 sometimes
                 ,
                 when
                 that
                 which
                 is
                 due
                 to
                 the
                 retainer
                 ,
                 is
                 equivalent
                 to
                 the
                 value
                 of
                 what
                 is
                 demanded
                 ,
                 if
                 either
                 become
                 liquidat
                 it
                 may
                 turn
                 into
                 a
                 Compensation
                 ,
                 such
                 is
                 the
                 right
                 of
                 Mandatars
                 ,
                 Impledgers
                 and
                 the
                 like
                 ,
                 who
                 have
                 interest
                 to
                 tetain
                 the
                 things
                 possest
                 by
                 them
                 ,
                 until
                 the
                 necessary
                 and
                 profitable
                 expenses
                 wared
                 out
                 by
                 them
                 thereupon
                 be
                 satisfied
                 .
              
               
                 8.
                 
                 Innovation
                 is
                 the
                 turning
                 of
                 one
                 Obligation
                 unto
                 another
                 ,
                 if
                 it
                 be
                 a
                 third
                 person
                 becoming
                 debitor
                 for
                 relief
                 of
                 the
                 former
                 debitor
                 ,
                 it
                 is
                 called
                 Delegation
                 .
                 Innovation
                 is
                 not
                 presumed
                 by
                 granting
                 of
                 a
                 new
                 Obligation
                 ,
                 either
                 by
                 the
                 debitor
                 or
                 another
                 ;
                 But
                 it
                 is
                 rather
                 held
                 to
                 be
                 as
                 Caution
                 ,
                 or
                 Corroboration
                 of
                 the
                 former
                 Obligation
                 ,
                 consistent
                 therewith
                 ;
                 and
                 in
                 the
                 Civil
                 Law
                 it
                 is
                 never
                 esteemed
                 Innovation
                 ,
                 unless
                 it
                 be
                 so
                 exprest
                 ,
                 
                   l.
                   ult
                   .
                   de
                   novationibus
                
                 :
                 But
                 with
                 us
                 ,
                 though
                 it
                 be
                 not
                 named
                 ,
                 yet
                 if
                 it
                 appear
                 to
                 have
                 been
                 the
                 meaning
                 of
                 the
                 parties
                 ,
                 not
                 to
                 Corroborat
                 ,
                 but
                 to
                 take
                 away
                 the
                 former
                 Obligation
                 ,
                 it
                 is
                 a
                 valid
                 Innovation
                 :
                 So
                 it
                 is
                 ordinarly
                 inferred
                 ,
                 when
                 a
                 posterior
                 Security
                 bears
                 ,
                 
                   in
                   satisfaction
                   of
                   the
                   former
                   Obligation
                   ,
                
                 though
                 it
                 did
                 not
                 renounce
                 or
                 discharge
                 it
                 ,
                 nor
                 expresly
                 innovate
                 it
                 ,
                 December
                 6.
                 1632.
                 
                 
                   Chisholm
                   contra
                   Gordoun
                
                 .
                 The
                 like
                 where
                 the
                 posterior
                 Bond
                 bears
                 ,
                 
                   in
                   full
                   satisfaction
                   of
                   the
                   sum
                   ,
                   for
                   which
                   the
                   former
                   was
                   granted
                   ,
                
                 though
                 it
                 made
                 no
                 mention
                 of
                 the
                 former
                 security
                 ,
                 July
                 23.
                 1633.
                 
                 Mr.
                 
                   John
                   Lawson
                   contra
                   Scot
                
                 of
                 Whitslade
                 .
              
               
                 9.
                 
                 Confusion
                 of
                 Obligations
                 is
                 ,
                 when
                 the
                 Creditor
                 and
                 Debitor
                 become
                 one
                 person
                 ,
                 as
                 when
                 the
                 one
                 succeedeth
                 as
                 Heir
                 to
                 the
                 other
                 ,
                 or
                 becomes
                 singular
                 Successor
                 in
                 the
                 debt
                 ,
                 for
                 therby
                 the
                 Obligation
                 is
                 ineffectual
                 ,
                 seing
                 none
                 can
                 be
                 Creditor
                 or
                 Debitor
                 to
                 himself
                 ,
                 which
                 was
                 extended
                 so
                 far
                 ,
                 that
                 an
                 Heir
                 Portioner
                 being
                 Debitor
                 ,
                 by
                 meddling
                 with
                 the
                 Defuncts
                 means
                 ,
                 and
                 thereafter
                 her
                 Husband
                 taking
                 Assignation
                 to
                 a
                 debt
                 ,
                 and
                 pursuing
                 another
                 ,
                 representing
                 
                 the
                 Defunct
                 thereupon
                 ,
                 the
                 exception
                 of
                 Confusion
                 was
                 found
                 relevant
                 ,
                 because
                 he
                 was
                 Creditor
                 as
                 Assigney
                 ,
                 and
                 Debitor
                 as
                 the
                 intromettors
                 Husband
                 ,
                 Spots
                 .
                 Assignation
                 ,
                 
                   John
                   Moor
                   contra
                   Richard
                   Calder
                
                 .
                 Thus
                 vitious
                 Intromission
                 is
                 ordinarly
                 sustained
                 by
                 exception
                 ,
                 to
                 elide
                 any
                 debt
                 due
                 to
                 the
                 Intrometter
                 ,
                 
                   proprio
                   nomine
                
                 ,
                 or
                 as
                 Assigney
                 ,
                 Hope
                 ,
                 vitious
                 Intromission
                 .
              
               
                 But
                 where
                 an
                 appear
                 and
                 Heir
                 gave
                 a
                 Bond
                 ,
                 and
                 thereupon
                 Adjudication
                 was
                 used
                 of
                 his
                 Predecessors
                 Estate
                 ,
                 his
                 taking
                 Assignation
                 to
                 that
                 Adjudication
                 ,
                 was
                 not
                 found
                 to
                 extinguish
                 the
                 debt
                 by
                 Confusion
                 ,
                 though
                 Rights
                 so
                 taken
                 will
                 not
                 free
                 the
                 Assigney
                 of
                 behaving
                 as
                 Heir
                 ,
                 if
                 he
                 intromet
                 ;
                 whereupon
                 there
                 was
                 an
                 Act
                 of
                 Sederunt
                 made
                 ,
                 as
                 to
                 all
                 cases
                 thereafter
                 ,
                 in
                 the
                 case
                 of
                 the
                 Creditors
                 of
                 the
                 Earl
                 of
                 
                   Nithisdale
                   ,
                   January
                
                 22.
                 1662.
                 
                 But
                 if
                 by
                 different
                 Successions
                 ,
                 the
                 Debitor
                 and
                 Creditor
                 should
                 become
                 distinct
                 ,
                 the
                 Obligations
                 would
                 revive
                 ,
                 as
                 in
                 many
                 cases
                 may
                 occur
                 ,
                 and
                 so
                 Confusion
                 is
                 not
                 an
                 absolute
                 extinction
                 ,
                 but
                 rather
                 a
                 Suspension
                 .
              
               
                 Confusion
                 doth
                 not
                 always
                 take
                 place
                 ,
                 where
                 the
                 same
                 person
                 who
                 is
                 debitor
                 succeeds
                 to
                 ,
                 or
                 takes
                 Assignation
                 ,
                 as
                 is
                 evident
                 in
                 Cautioners
                 taking
                 Assignation
                 to
                 Bonds
                 ,
                 wherein
                 they
                 are
                 debitors
                 as
                 Cautioners
                 ;
                 yet
                 may
                 pursue
                 the
                 principal
                 ,
                 or
                 Co-cautioners
                 as
                 Assigney
                 ,
                 and
                 will
                 not
                 be
                 excluded
                 upon
                 alledgeance
                 of
                 Confusion
                 ,
                 which
                 is
                 only
                 relevant
                 when
                 that
                 debitor
                 who
                 hath
                 no
                 relief
                 ,
                 becomes
                 also
                 Creditor
                 by
                 Succession
                 or
                 Assignation
                 .
                 And
                 so
                 an
                 Executor
                 taking
                 Assignation
                 to
                 an
                 Heretable
                 debt
                 ,
                 may
                 thereupon
                 pursue
                 the
                 Heir
                 for
                 relief
                 :
                 Or
                 any
                 Heir
                 male
                 ,
                 of
                 Tailzie
                 or
                 provision
                 ,
                 taking
                 Assignation
                 to
                 his
                 Predecessors
                 debt
                 ,
                 may
                 as
                 Assigney
                 ,
                 have
                 recourse
                 against
                 the
                 Heir
                 of
                 line
                 ,
                 of
                 Conquest
                 ,
                 or
                 Executor
                 .
                 Yea
                 ,
                 if
                 any
                 person
                 take
                 Assignation
                 to
                 a
                 debt
                 due
                 by
                 his
                 Predecessor
                 to
                 whom
                 he
                 is
                 Heir
                 male
                 ,
                 though
                 during
                 his
                 life
                 the
                 Assignation
                 can
                 have
                 no
                 effect
                 ;
                 yet
                 after
                 his
                 death
                 ,
                 his
                 Heir
                 male
                 will
                 succeed
                 to
                 him
                 in
                 that
                 Assignation
                 ,
                 and
                 may
                 thereupon
                 pursue
                 his
                 Heir
                 of
                 line
                 ,
                 or
                 Executor
                 for
                 payment
                 ,
                 for
                 the
                 taking
                 of
                 an
                 Assignation
                 and
                 not
                 a
                 Discharge
                 ,
                 did
                 clear
                 the
                 mind
                 of
                 the
                 Defunct
                 ,
                 that
                 the
                 debt
                 and
                 Credit
                 would
                 divide
                 after
                 his
                 death
                 ,
                 and
                 that
                 his
                 Heir
                 male
                 would
                 succeed
                 to
                 him
                 
                   in
                   credito
                
                 ,
                 and
                 his
                 Heir
                 of
                 line
                 
                   in
                   debito
                
                 .
              
            
             
               
               
                 TITLE
                 XII
                 .
                 Rights
                 real
                 ,
                 where
                 ,
                 of
                 Community
                 ,
                 Possession
                 ,
                 Property
                 ,
                 Servitudes
                 ,
                 and
                 Pledges
                 .
              
               
                 
                   1.
                   
                   The
                   original
                   Dominion
                   of
                   Man
                   over
                   the
                   Creatures
                   .
                
                 
                   2.
                   
                   What
                   Rights
                   are
                   Heretable
                   ,
                   and
                   what
                   moveable
                   .
                
                 
                   3.
                   
                   Moveable
                   and
                   Heretable
                   Bonds
                   .
                
                 
                   4.
                   
                   How
                   Heretable
                   Obligations
                   become
                   Moveable
                   ,
                   and
                   return
                   to
                   be
                   Heretable
                   .
                
                 
                   5.
                   
                   The
                   original
                   Community
                   of
                   Mankind
                   over
                   this
                   inferior
                   World
                   ,
                   and
                   all
                   therein
                   .
                
                 
                   6.
                   
                   What
                   remains
                   yet
                   common
                   to
                   Mankind
                   .
                
                 
                   7.
                   
                   Grass
                   and
                   Fruits
                   on
                   high
                   ways
                   ,
                   are
                   publick
                   not
                   common
                   .
                
                 
                   8.
                   
                   In
                   Possession
                   what
                   is
                   facti
                   ,
                   what
                   is
                   juris
                   .
                
                 
                   9.
                   
                   Possession
                   described
                   .
                
                 
                   10.
                   
                   Possession
                   natural
                   and
                   civil
                   .
                
                 
                   11.
                   
                   Possession
                   of
                   moveables
                   .
                
                 
                   12.
                   
                   Possession
                   of
                   the
                   Ground
                   .
                
                 
                   13.
                   
                   Possession
                   by
                   limits
                   and
                   bounds
                   .
                
                 
                   14.
                   
                   Possession
                   by
                   occupation
                   ,
                   and
                   by
                   lifting
                   the
                   Profits
                   .
                
                 
                   15.
                   
                   Symbolical
                   Possession
                   .
                
                 
                   16.
                   
                   Possession
                   by
                   Reservation
                   .
                
                 
                   17.
                   
                   Definition
                   of
                   Possession
                   .
                
                 
                   18.
                   
                   Requisites
                   to
                   begin
                   Possession
                   .
                
                 
                   19.
                   
                   Requisites
                   to
                   retain
                   Possession
                   .
                
                 
                   20.
                   
                   How
                   Possession
                   is
                   troubled
                   ,
                   interrupted
                   ,
                   or
                   lost
                   .
                
                 
                   
                   21.
                   
                   Kinds
                   of
                   Possession
                   .
                
                 
                   22.
                   
                   Lawful
                   Possession
                   gives
                   right
                   to
                   continue
                   it
                   against
                   all
                   illegal
                   and
                   clandestine
                   Acts
                   contrary
                   thereto
                   .
                
                 
                   23.
                   
                   Bonae
                   fidei
                   Possessor
                   ,
                   facit
                   fructus
                   consumptos
                   suos
                   .
                
                 
                   24.
                   
                   This
                   not
                   extended
                   to
                   unlawful
                   Possessers
                   .
                
                 
                   25.
                   
                   Possessor
                   decennalis
                   &
                   triennalis
                   non
                   tenetur
                   docere
                   de
                   titulo
                   .
                
                 
                   26.
                   
                   〈◊〉
                   Possession
                   of
                   forefaulted
                   persons
                   .
                
                 
                   27.
                   
                   Possession
                   ,
                   to
                   what
                   right
                   ascriveable
                   .
                
                 
                   28.
                   
                   The
                   nature
                   of
                   Property
                   .
                
                 
                   29.
                   
                   Property
                   by
                   Possession
                   of
                   things
                   common
                   .
                
                 
                   30.
                   
                   Appropriation
                   by
                   Industry
                   .
                
                 
                   31.
                   
                   First
                   Property
                   of
                   the
                   Ground
                   was
                   of
                   Houses
                   and
                   Walls
                   .
                
                 
                   32.
                   
                   Next
                   of
                   Fields
                   and
                   Countreys
                   .
                
                 
                   33.
                   
                   Quae
                   nullius
                   sunt
                   .
                
                 
                   34.
                   
                   Appropriation
                   by
                   Accession
                   of
                   Birth
                   and
                   Fruits
                   .
                
                 
                   35.
                   
                   Appropriation
                   by
                   Alluvion
                   .
                
                 
                   36.
                   
                   Appropriation
                   by
                   Specification
                   .
                
                 
                   37.
                   
                   Appropriation
                   by
                   necessary
                   Conjunction
                
                 
                   38.
                   
                   De
                   tigno
                   injuncto
                   .
                
                 
                   39.
                   
                   Inaedificata
                   solo
                   cedunt
                   .
                
                 
                   40.
                   
                   Things
                   sown
                   and
                   planted
                   ,
                   how
                   far
                   they
                   follow
                   the
                   ground
                   .
                
                 
                   41.
                   
                   Possession
                   of
                   Moveables
                   〈◊〉
                   Property
                   .
                
                 
                   42.
                   
                   Reprysals
                   .
                
                 
                   43.
                   
                   Enemies
                   Goods
                   taken
                   in
                   War.
                   
                
                 
                   44.
                   
                   Goods
                   of
                   Neuters
                   assisting
                   Enemies
                   become
                   Prize
                   .
                
              
               
                 HAVING
                 gone
                 thorow
                 the
                 first
                 two
                 Branches
                 of
                 privat
                 Rights
                 ,
                 Personal
                 Freedom
                 ,
                 and
                 obligation
                 ,
                 we
                 come
                 now
                 to
                 the
                 third
                 ,
                 which
                 is
                 Dominion
                 :
                 But
                 because
                 that
                 Term
                 is
                 more
                 appropriat
                 to
                 men
                 over
                 men
                 ,
                 then
                 over
                 other
                 creatures
                 ,
                 it
                 is
                 therefore
                 called
                 a
                 real
                 Right
                 ,
                 or
                 a
                 right
                 of
                 things
                 :
                 For
                 as
                 Obligation
                 is
                 a
                 right
                 personal
                 ,
                 as
                 being
                 a
                 power
                 of
                 exacting
                 from
                 persons
                 that
                 which
                 is
                 due
                 ,
                 so
                 a
                 right
                 real
                 is
                 a
                 power
                 of
                 disposal
                 of
                 things
                 ,
                 in
                 their
                 Substance
                 ,
                 Fruits
                 ,
                 or
                 use
                 :
                 For
                 unfolding
                 this
                 right
                 ,
                 and
                 the
                 progress
                 thereof
                 ,
                 both
                 according
                 to
                 the
                 order
                 of
                 time
                 ,
                 and
                 nature
                 ,
                 advert
                 ;
              
               
                 1.
                 
                 First
                 ,
                 That
                 when
                 God
                 created
                 man
                 ,
                 he
                 gave
                 him
                 the
                 Dominion
                 or
                 Lordship
                 over
                 all
                 the
                 Creatures
                 of
                 the
                 Earth
                 ,
                 in
                 the
                 Air
                 ,
                 and
                 in
                 the
                 Sea
                 ,
                 Genefis
                 1.
                 
                 Verses
                 29
                 ,
                 and
                 30.
                 with
                 power
                 to
                 Man
                 to
                 dispose
                 of
                 the
                 Creatures
                 ,
                 even
                 to
                 the
                 consumption
                 thereof
                 ;
                 and
                 it
                 is
                 like
                 ,
                 that
                 during
                 mans
                 innocency
                 ,
                 there
                 was
                 upon
                 the
                 part
                 of
                 the
                 creatures
                 ,
                 a
                 great
                 subjection
                 and
                 subserviency
                 to
                 man
                 ,
                 till
                 afterwards
                 ,
                 when
                 he
                 revolted
                 from
                 God
                 ,
                 the
                 Creatures
                 revolted
                 also
                 from
                 him
                 :
                 Yet
                 Gods
                 Dominion
                 over
                 Man
                 ,
                 and
                 Mans
                 Dominion
                 over
                 the
                 Creatures
                 ,
                 
                 remaineth
                 still
                 in
                 right
                 ;
                 so
                 that
                 he
                 hath
                 a
                 legal
                 power
                 and
                 warrand
                 to
                 dispose
                 of
                 them
                 ,
                 though
                 not
                 so
                 much
                 Possession
                 ,
                 or
                 natural
                 power
                 ,
                 being
                 less
                 able
                 to
                 master
                 them
                 then
                 before
                 .
              
               
                 It
                 is
                 a
                 false
                 and
                 groundless
                 opinion
                 which
                 some
                 hold
                 ,
                 that
                 Man
                 by
                 his
                 fall
                 hath
                 lost
                 his
                 right
                 to
                 the
                 Creatures
                 ,
                 until
                 by
                 Grace
                 he
                 be
                 restored
                 ,
                 and
                 that
                 the
                 sole
                 Dominion
                 of
                 them
                 belongs
                 to
                 the
                 Saints
                 ,
                 who
                 may
                 take
                 them
                 by
                 force
                 from
                 all
                 others
                 .
                 For
                 by
                 the
                 whole
                 strain
                 of
                 the
                 Law
                 of
                 God
                 ,
                 he
                 still
                 owneth
                 Dominion
                 and
                 Property
                 of
                 the
                 Creatures
                 in
                 Man
                 ,
                 without
                 distinction
                 ,
                 and
                 prohibiteth
                 all
                 force
                 ,
                 or
                 fraud
                 in
                 the
                 contrary
                 ,
                 which
                 sufficiently
                 cleareth
                 that
                 subtilty
                 of
                 mans
                 forefaulture
                 ;
                 which
                 ,
                 though
                 it
                 maketh
                 man
                 obnoxious
                 by
                 way
                 of
                 Obligation
                 to
                 punishment
                 ,
                 by
                 Gods
                 exterminating
                 him
                 from
                 the
                 use
                 and
                 comfort
                 of
                 the
                 Creatures
                 ,
                 yet
                 that
                 Obligation
                 doth
                 not
                 infer
                 actualceassing
                 of
                 mans
                 right
                 ,
                 much
                 less
                 the
                 stating
                 of
                 the
                 rights
                 of
                 mankind
                 in
                 a
                 small
                 part
                 of
                 them
                 .
              
               
                 This
                 Dominion
                 of
                 the
                 Creatures
                 being
                 given
                 to
                 man
                 without
                 distinct
                 proportions
                 ,
                 or
                 bounds
                 ;
                 it
                 necessarily
                 followeth
                 ,
                 that
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 the
                 birth
                 and
                 fruit
                 of
                 both
                 Sea
                 and
                 Land
                 were
                 common
                 to
                 all
                 Mankind
                 ,
                 who
                 had
                 equal
                 interest
                 therein
                 ,
                 and
                 every
                 one
                 might
                 take
                 and
                 make
                 use
                 thereof
                 ,
                 for
                 his
                 necessity
                 ,
                 utility
                 ,
                 and
                 delight
                 :
                 yet
                 so
                 ,
                 as
                 the
                 use
                 and
                 fruit
                 thereof
                 must
                 in
                 some
                 cases
                 ,
                 and
                 might
                 in
                 all
                 cases
                 become
                 proper
                 ,
                 as
                 what
                 any
                 had
                 taken
                 and
                 possest
                 for
                 his
                 use
                 ,
                 became
                 thereby
                 proper
                 ,
                 and
                 could
                 not
                 without
                 injury
                 be
                 taken
                 from
                 him
                 .
                 much
                 more
                 the
                 things
                 which
                 had
                 received
                 specification
                 from
                 his
                 Art
                 or
                 Industry
                 became
                 proper
                 ,
                 and
                 all
                 others
                 might
                 be
                 debarred
                 from
                 any
                 profit
                 or
                 use
                 thereof
                 ,
                 but
                 so
                 ,
                 that
                 some
                 property
                 or
                 use
                 might
                 be
                 communicate
                 to
                 others
                 ,
                 which
                 being
                 the
                 lesser
                 ,
                 and
                 not
                 reaching
                 the
                 power
                 of
                 the
                 substance
                 of
                 the
                 thing
                 ,
                 is
                 therefore
                 called
                 a
                 servitude
                 ,
                 whereby
                 that
                 which
                 is
                 proper
                 to
                 one
                 serveth
                 another
                 ,
                 in
                 part
                 :
                 And
                 when
                 the
                 proprietar
                 giveth
                 not
                 the
                 fruit
                 ,
                 or
                 use
                 ,
                 but
                 only
                 the
                 holding
                 ,
                 or
                 the
                 detention
                 of
                 the
                 thing
                 to
                 another
                 ,
                 for
                 his
                 security
                 of
                 some
                 debt
                 ,
                 or
                 Obligation
                 of
                 the
                 Proprietars
                 to
                 him
                 ,
                 that
                 right
                 is
                 called
                 a
                 Pawn
                 or
                 Pledge
                 ,
                 so
                 that
                 in
                 whole
                 ,
                 all
                 real
                 rights
                 are
                 either
                 that
                 original
                 community
                 of
                 all
                 men
                 ,
                 or
                 the
                 Interest
                 which
                 Possession
                 giveth
                 ,
                 or
                 Property
                 ,
                 Servitude
                 or
                 Pledge
                 ,
                 of
                 which
                 in
                 order
                 .
              
               
                 First
                 ,
                 Generally
                 as
                 they
                 were
                 of
                 old
                 ,
                 common
                 to
                 both
                 things
                 moveable
                 ,
                 and
                 immoveable
                 ,
                 and
                 then
                 specially
                 in
                 relation
                 to
                 things
                 immoveable
                 ,
                 and
                 to
                 Heretable
                 Ground-rights
                 of
                 the
                 Earth
                 ,
                 and
                 things
                 fixed
                 thereto
                 ,
                 which
                 now
                 by
                 the
                 Feudal
                 Customes
                 are
                 much
                 changed
                 from
                 what
                 they
                 were
                 ,
                 and
                 yet
                 are
                 in
                 moveables
                 .
              
               
                 2.
                 
                 The
                 distinction
                 of
                 moveable
                 and
                 Heretable
                 ,
                 is
                 very
                 necessary
                 to
                 be
                 here
                 known
                 ,
                 as
                 being
                 the
                 common
                 materials
                 of
                 real
                 Rights
                 ,
                 and
                 having
                 a
                 general
                 use
                 ;
                 any
                 thing
                 is
                 called
                 moveable
                 ,
                 which
                 by
                 its
                 nature
                 and
                 use
                 is
                 capable
                 of
                 motion
                 ,
                 as
                 things
                 immoveable
                 are
                 the
                 Earth
                 ,
                 Sea
                 ,
                 and
                 things
                 fixed
                 to
                 the
                 Earth
                 ,
                 not
                 to
                 be
                 removed
                 therefrom
                 ,
                 as
                 Trees
                 ,
                 Houses
                 ,
                 &c.
                 which
                 though
                 they
                 may
                 be
                 possibly
                 moved
                 ,
                 yet
                 it
                 is
                 not
                 their
                 use
                 so
                 to
                 be
                 ,
                 the
                 superfice
                 of
                 the
                 Earth
                 is
                 immoveable
                 ,
                 though
                 it
                 may
                 be
                 moved
                 from
                 one
                 place
                 to
                 another
                 place
                 of
                 the
                 Earth
                 :
                 The
                 Sea
                 also
                 is
                 immoveable
                 ,
                 though
                 it
                 hath
                 at
                 the
                 Shoar
                 its
                 agitation
                 by
                 ebbing
                 and
                 flowing
                 ,
                 which
                 is
                 not
                 the
                 use
                 man
                 maketh
                 of
                 it
                 .
                 These
                 things
                 are
                 called
                 Heretable
                 ,
                 because
                 they
                 descend
                 not
                 to
                 Executors
                 ,
                 to
                 whom
                 only
                 Moveables
                 befall
                 ,
                 but
                 to
                 Heirs
                 :
                 And
                 so
                 the
                 distinction
                 cometh
                 ordinarly
                 of
                 Moveables
                 and
                 Heretables
                 ,
                 as
                 that
                 which
                 is
                 fixed
                 to
                 ,
                 or
                 part
                 of
                 the
                 Ground
                 is
                 compted
                 immoveable
                 ,
                 as
                 Trees
                 ,
                 and
                 Grass
                 ,
                 and
                 all
                 he
                 natural
                 Fruits
                 of
                 the
                 
                 Earth
                 ;
                 yet
                 industrial
                 Fruits
                 ,
                 as
                 Corns
                 ,
                 are
                 counted
                 Moveable
                 ,
                 and
                 belong
                 not
                 to
                 the
                 Heirs
                 of
                 Defuncts
                 ,
                 but
                 to
                 their
                 Executors
                 ,
                 when
                 they
                 are
                 sown
                 ,
                 or
                 growing
                 upon
                 the
                 ground
                 at
                 their
                 death
                 ,
                 as
                 well
                 as
                 when
                 they
                 are
                 reaped
                 ,
                 and
                 so
                 fall
                 under
                 single
                 Escheat
                 ,
                 February
                 2.
                 1627.
                 
                 
                   Lewis
                   Somervel
                   contra
                
                 Mr.
                 
                   William
                   Stirling
                
                 .
              
               
                 The
                 distinction
                 of
                 Heretable
                 and
                 Moveable
                 is
                 derived
                 to
                 Rights
                 and
                 Obligations
                 ,
                 as
                 the
                 matter
                 thereof
                 is
                 Heretable
                 or
                 Moveable
                 ,
                 and
                 so
                 all
                 Dispositions
                 or
                 Obligations
                 for
                 constituting
                 any
                 right
                 of
                 the
                 ground
                 ,
                 in
                 property
                 ,
                 community
                 ,
                 or
                 Servitude
                 ,
                 are
                 Heretable
                 ,
                 although
                 they
                 have
                 not
                 yet
                 attained
                 their
                 effect
                 ,
                 and
                 become
                 real
                 rights
                 compleat
                 ,
                 as
                 dispositions
                 of
                 Lands
                 ,
                 Annualrents
                 ,
                 Pasturages
                 ,
                 Thirleage
                 ,
                 &c.
                 which
                 is
                 so
                 far
                 extended
                 ,
                 that
                 all
                 which
                 is
                 by
                 Destination
                 ,
                 to
                 have
                 its
                 accomplishments
                 by
                 a
                 real
                 right
                 of
                 the
                 ground
                 ,
                 is
                 Heretable
                 ,
                 as
                 Bonds
                 bearing
                 clause
                 of
                 Annualrent
                 ,
                 which
                 because
                 Annualrents
                 were
                 usually
                 by
                 Infeftment
                 ;
                 therefore
                 ,
                 the
                 very
                 provision
                 of
                 Annualrent
                 ,
                 though
                 but
                 a
                 personal
                 obliegement
                 to
                 pay
                 it
                 yearly
                 or
                 termly
                 ,
                 without
                 mention
                 of
                 Infeftment
                 ,
                 made
                 the
                 provision
                 or
                 Bond
                 Heretable
                 ,
                 and
                 not
                 to
                 descend
                 to
                 Executors
                 ,
                 Children
                 ,
                 or
                 Wives
                 ,
                 but
                 to
                 Heirs
                 only
                 ;
                 yea
                 ,
                 though
                 the
                 Bond
                 bore
                 but
                 five
                 
                   per
                   cent
                
                 ,
                 which
                 was
                 alledged
                 but
                 an
                 alimentary
                 clause
                 ,
                 June
                 28.
                 1665.
                 
                 
                   Jean
                   Pitcairn
                   contra
                   Isobel
                   Edgar
                
                 ,
                 till
                 the
                 Act
                 of
                 Parliament
                 ,
                 1641.
                 revived
                 ,
                 Parl.
                 1661.
                 cap.
                 32.
                 whereby
                 such
                 Bonds
                 as
                 were
                 ,
                 or
                 should
                 be
                 made
                 after
                 that
                 Act
                 ,
                 1641.
                 bearing
                 only
                 a
                 clause
                 of
                 Annualrent
                 ,
                 and
                 no
                 obliegement
                 to
                 Infeft
                 the
                 Creditor
                 in
                 an
                 Annualrent
                 ,
                 were
                 declared
                 to
                 be
                 Moveable
                 as
                 to
                 the
                 Defuncts
                 Children
                 ,
                 or
                 nearest
                 of
                 Kin
                 ,
                 but
                 not
                 as
                 to
                 the
                 Wife
                 or
                 Fisk
                 ,
                 to
                 fall
                 undersingle
                 Escheat
                 ,
                 and
                 that
                 because
                 many
                 have
                 their
                 Estates
                 and
                 Stocks
                 in
                 Money
                 ,
                 and
                 take
                 obliegement
                 for
                 Annualrents
                 ,
                 for
                 the
                 profit
                 thereof
                 ,
                 without
                 purpose
                 to
                 exclude
                 their
                 younger
                 Children
                 therefrom
                 :
                 But
                 Wives
                 are
                 excluded
                 ,
                 because
                 they
                 are
                 ordinarly
                 provided
                 by
                 their
                 Contracts
                 of
                 Marriage
                 ;
                 but
                 before
                 this
                 Act
                 ,
                 all
                 such
                 Bonds
                 were
                 to
                 all
                 effects
                 Heretable
                 ,
                 yet
                 so
                 ,
                 assums
                 destinat
                 for
                 Annualrent
                 ,
                 though
                 
                   de
                   facto
                
                 ,
                 they
                 bore
                 none
                 ,
                 are
                 Heretable
                 ,
                 quoad
                 ,
                 the
                 party
                 who
                 destinat
                 ,
                 as
                 when
                 a
                 Tocher
                 is
                 oblieged
                 by
                 a
                 Wifes
                 Father
                 or
                 Brother
                 to
                 be
                 payed
                 to
                 her
                 Husband
                 ,
                 who
                 is
                 oblieged
                 to
                 imploy
                 it
                 upon
                 Annualrent
                 :
                 This
                 sum
                 as
                 to
                 the
                 Husband
                 is
                 Heretable
                 ,
                 and
                 excludes
                 his
                 Executors
                 :
                 But
                 as
                 to
                 the
                 Debitor
                 who
                 was
                 neither
                 oblieged
                 to
                 pay
                 Annualrent
                 ,
                 or
                 imploy
                 it
                 ,
                 it
                 is
                 moveable
                 ,
                 and
                 so
                 would
                 affect
                 the
                 Debitors
                 Executors
                 ,
                 and
                 exhaust
                 his
                 moveables
                 ,
                 but
                 would
                 only
                 belong
                 to
                 the
                 Creditors
                 Heirs
                 ,
                 January
                 19.
                 1637.
                 
                 
                   Robison
                   contra
                   Seatoun
                   .
                   July
                
                 25.
                 1662.
                 
                 
                   Barbara
                   Nasmith
                   contra
                   Jaffray
                
                 .
              
               
                 This
                 was
                 so
                 far
                 extended
                 ,
                 that
                 when
                 the
                 Destination
                 was
                 by
                 a
                 distinct
                 article
                 ,
                 or
                 Bond
                 ;
                 yet
                 the
                 Executor
                 might
                 be
                 compelled
                 to
                 assign
                 ,
                 or
                 repay
                 the
                 sum
                 to
                 the
                 Heir
                 ,
                 
                   Spots
                   .
                   juramentum
                   de
                   calumnia
                   ,
                   Margaret
                   contra
                   Janet
                   Watson
                   .
                   Idem
                   de
                   haeredibus
                   ,
                
                 Executors
                 of
                 
                   David
                   Seatoun
                   contra
                   Thomas
                   Robison
                
                 .
              
               
                 Bonds
                 also
                 become
                 Heretable
                 by
                 distinct
                 superveening
                 Rights
                 ,
                 as
                 by
                 a
                 several
                 Disposition
                 of
                 the
                 Debitors
                 ,
                 of
                 his
                 whole
                 Goods
                 and
                 Lands
                 ,
                 with
                 obliegement
                 to
                 Infeft
                 ,
                 and
                 also
                 by
                 a
                 superveening
                 Appryzing
                 .
              
               
                 But
                 even
                 the
                 compleat
                 Heretable
                 Rights
                 themselves
                 ,
                 containing
                 also
                 personal
                 Clauses
                 of
                 Requisition
                 ,
                 become
                 moveable
                 by
                 the
                 Requisition
                 or
                 Charge
                 ,
                 which
                 is
                 ,
                 
                   pro
                   tempore
                
                 ,
                 a
                 passing
                 from
                 the
                 infeftment
                 ,
                 and
                 taking
                 the
                 Creditor
                 to
                 the
                 personal
                 obliegement
                 ,
                 yet
                 so
                 ,
                 as
                 when
                 ever
                 he
                 pleaseth
                 to
                 pass
                 from
                 the
                 Requisition
                 or
                 Charge
                 ,
                 it
                 convalesceth
                 ,
                 and
                 is
                 not
                 excluded
                 by
                 interveening
                 
                 Rights
                 ,
                 and
                 was
                 found
                 moveable
                 by
                 a
                 Charge
                 ,
                 though
                 but
                 against
                 one
                 of
                 the
                 Cautioners
                 ,
                 not
                 only
                 as
                 to
                 him
                 ,
                 but
                 as
                 to
                 all
                 the
                 Debitors
                 ,
                 seing
                 thereby
                 the
                 Creditor
                 had
                 taken
                 his
                 option
                 ,
                 January
                 24.
                 1666.
                 
                 Collonel
                 
                   James
                   Montgomery
                   contra
                   Stuart
                
                 .
                 But
                 the
                 shewing
                 the
                 Defuncts
                 mind
                 to
                 require
                 ,
                 is
                 not
                 sufficient
                 to
                 make
                 the
                 sum
                 moveable
                 ,
                 unless
                 it
                 be
                 done
                 
                   habili
                   modo
                
                 :
                 So
                 a
                 Requisition
                 being
                 disconform
                 to
                 the
                 clause
                 of
                 a
                 Requisition
                 ,
                 was
                 found
                 not
                 to
                 make
                 the
                 sum
                 moveable
                 ,
                 January
                 18.
                 1665.
                 
                 
                   Stuart
                   contra
                   Stuart
                
                 .
                 Yea
                 ,
                 a
                 Charge
                 upon
                 a
                 Bond
                 of
                 Corroboration
                 ,
                 accumulating
                 the
                 Principal
                 and
                 Annual
                 in
                 a
                 former
                 security
                 by
                 Infeftment
                 ,
                 and
                 bearing
                 but
                 Derogation
                 of
                 the
                 former
                 security
                 ,
                 was
                 found
                 to
                 make
                 the
                 whole
                 sum
                 moveable
                 ,
                 and
                 to
                 belong
                 to
                 the
                 Executor
                 ,
                 without
                 necessity
                 to
                 instruct
                 a
                 warrand
                 to
                 give
                 the
                 Charge
                 ,
                 which
                 was
                 presumed
                 ;
                 albeit
                 the
                 Defunct
                 upon
                 death-bed
                 exprest
                 ,
                 that
                 the
                 sum
                 belonged
                 to
                 his
                 Heir
                 ,
                 June
                 25.
                 1672.
                 
                 Executors
                 and
                 Heir
                 of
                 Sir
                 
                   Robert
                   Seatoun
                
                 .
                 But
                 sums
                 were
                 not
                 found
                 Heretable
                 ,
                 because
                 a
                 Disposition
                 of
                 Land
                 did
                 bear
                 ,
                 as
                 the
                 condition
                 of
                 the
                 Reversion
                 ,
                 that
                 the
                 Land
                 should
                 not
                 be
                 redeemed
                 ,
                 or
                 the
                 Acquirer
                 denuded
                 ,
                 till
                 he
                 were
                 satisfied
                 of
                 all
                 sums
                 due
                 to
                 him
                 ,
                 or
                 which
                 should
                 de
                 due
                 to
                 him
                 by
                 the
                 Disponer
                 ;
                 neither
                 yet
                 when
                 the
                 sums
                 are
                 in
                 the
                 dispositive
                 clause
                 ,
                 to
                 be
                 contracted
                 thereafter
                 but
                 only
                 sums
                 which
                 are
                 the
                 anterior
                 causes
                 of
                 the
                 Disposition
                 ,
                 for
                 thereby
                 the
                 Creditor
                 doth
                 not
                 make
                 such
                 sums
                 
                   jura
                   fixa
                
                 ;
                 nor
                 are
                 they
                 the
                 causes
                 of
                 the
                 Disposition
                 ,
                 February
                 18.
                 1676.
                 
                 
                   Thomas
                   Wauch
                   contra
                
                 Doctor
                 Jamison
                 .
                 Sums
                 are
                 also
                 Heretable
                 ,
                 when
                 Executors
                 are
                 expresly
                 excluded
                 ;
                 and
                 a
                 Charge
                 or
                 Decreet
                 for
                 such
                 sums
                 ,
                 will
                 not
                 make
                 them
                 moveable
                 ,
                 July
                 13.
                 1676.
                 
                 
                   Christy
                   contra
                   Christy
                
                 :
                 The
                 reason
                 is
                 ,
                 because
                 the
                 mind
                 of
                 the
                 Creditor
                 ,
                 by
                 calling
                 for
                 his
                 Money
                 ,
                 is
                 not
                 to
                 retain
                 it
                 in
                 his
                 hands
                 as
                 moveables
                 ,
                 but
                 to
                 make
                 it
                 a
                 fixed
                 right
                 for
                 his
                 Heir
                 ,
                 seing
                 he
                 excludes
                 his
                 Executors
                 .
                 And
                 for
                 the
                 like
                 reason
                 ,
                 Wives
                 charging
                 for
                 their
                 Heritable
                 sums
                 ,
                 the
                 Stocks
                 whereof
                 is
                 not
                 in
                 their
                 Husbands
                 power
                 ,
                 are
                 not
                 presumed
                 thereby
                 to
                 make
                 them
                 moveable
                 ,
                 and
                 to
                 fall
                 in
                 the
                 power
                 of
                 their
                 Husbands
                 :
                 And
                 if
                 any
                 party
                 in
                 his
                 Process
                 or
                 Charge
                 ,
                 should
                 so
                 declare
                 his
                 intent
                 ,
                 it
                 would
                 not
                 make
                 the
                 sum
                 moveable
                 .
                 But
                 Requisition
                 or
                 a
                 Charge
                 will
                 make
                 sums
                 which
                 were
                 Heretable
                 by
                 Infeftment
                 or
                 Destination
                 ,
                 moveable
                 .
                 And
                 so
                 likewise
                 will
                 a
                 Decreet
                 for
                 payment
                 ,
                 Decem.
                 13.
                 1676.
                 
                 Mr.
                 
                   John
                   Fairholm
                   contra
                
                 Mr.
                 
                   Francis
                   Montgomery
                
                 .
                 Sums
                 consigned
                 by
                 an
                 order
                 of
                 Redemption
                 ,
                 do
                 not
                 thereby
                 become
                 moveable
                 till
                 declarator
                 of
                 Redemption
                 ,
                 or
                 till
                 the
                 Creditor
                 accept
                 of
                 the
                 Confignation
                 ,
                 and
                 insist
                 for
                 the
                 consigned
                 sums
                 ,
                 which
                 if
                 he
                 do
                 not
                 ,
                 his
                 Executor
                 cannot
                 recover
                 the
                 same
                 ,
                 but
                 his
                 Heir
                 ,
                 to
                 whom
                 the
                 Wodsett
                 right
                 belongs
                 .
                 For
                 it
                 is
                 not
                 in
                 the
                 power
                 of
                 the
                 debitor
                 to
                 alter
                 the
                 condition
                 of
                 his
                 Creditors
                 sum
                 ,
                 and
                 to
                 make
                 it
                 either
                 Heretable
                 or
                 Moveable
                 ,
                 without
                 consent
                 of
                 the
                 Creditor
                 ,
                 or
                 authority
                 of
                 a
                 Judge
                 ;
                 but
                 the
                 Consignet
                 may
                 take
                 up
                 his
                 sum
                 Consigned
                 ,
                 and
                 pass
                 from
                 his
                 order
                 ,
                 January
                 21.
                 1673.
                 
                 
                   Thomas
                   Nicol
                   contra
                   Lowrie
                   .
                   June
                
                 18.
                 1675.
                 
                 Laird
                 of
                 
                   Lie
                   contra
                   Foulis
                   of
                   Blacktoun
                
                 .
              
               
                 The
                 Requisition
                 and
                 Charge
                 may
                 not
                 only
                 be
                 past
                 from
                 expresly
                 ,
                 but
                 tacitly
                 ,
                 by
                 taking
                 Annualrent
                 after
                 the
                 Charge
                 ,
                 if
                 it
                 be
                 for
                 Terms
                 thereafter
                 ,
                 as
                 in
                 the
                 last
                 case
                 ,
                 Spots
                 .
                 Assignation
                 ,
                 
                   Denaldson
                   contra
                   Donaldson
                
                 .
                 Requisition
                 or
                 a
                 charge
                 ,
                 makes
                 Bonds
                 Heretable
                 ,
                 even
                 after
                 the
                 Act
                 ,
                 1641.
                 
                   moveable
                   as
                   to
                   the
                   relict
                
                 .
                 The
                 like
                 is
                 when
                 they
                 become
                 otherways
                 simply
                 moveable
                 .
              
               
                 But
                 sums
                 only
                 Heretable
                 by
                 Destination
                 for
                 Annualrent
                 ,
                 are
                 moveable
                 till
                 the
                 first
                 Term
                 of
                 payment
                 of
                 the
                 Annualrent
                 be
                 past
                 ,
                 though
                 the
                 Term
                 of
                 payment
                 of
                 the
                 Principal
                 be
                 not
                 come
                 ;
                 yet
                 if
                 the
                 first
                 Term
                 of
                 payment
                 of
                 Annualrent
                 be
                 past
                 ,
                 the
                 sum
                 is
                 Heretable
                 ,
                 July
                 31.
                 1666.
                 
                 Sir
                 
                   Lodovick
                   Gordoun
                   
                   contra
                
                 Sir
                 
                   John
                   Keith
                
                 .
                 And
                 if
                 the
                 Debitor
                 die
                 before
                 that
                 time
                 ,
                 they
                 affect
                 his
                 Executors
                 ,
                 June
                 29.
                 1624.
                 
                 
                   Smith
                   contra
                
                 Relict
                 of
                 
                   Peter
                   Sanderson
                
                 ,
                 or
                 by
                 the
                 Creditors
                 death
                 before
                 the
                 first
                 Term
                 of
                 the
                 Annualtent
                 ,
                 they
                 fall
                 to
                 his
                 Executors
                 and
                 Wife
                 ,
                 February
                 12.
                 1623.
                 
                 
                   Wallace
                   contra
                   Mcdowal
                
                 .
                 And
                 generally
                 all
                 Rights
                 and
                 Obliegments
                 ,
                 having
                 a
                 tract
                 of
                 Future
                 time
                 ,
                 are
                 Heretable
                 as
                 to
                 the
                 Executors
                 ,
                 who
                 are
                 thereby
                 excluded
                 ,
                 though
                 they
                 no
                 way
                 relate
                 to
                 Infeftments
                 ,
                 or
                 Lands
                 ,
                 as
                 Pensions
                 ,
                 Tacks
                 ,
                 &c.
                 
                 But
                 as
                 to
                 the
                 〈◊〉
                 ,
                 where
                 the
                 distinction
                 is
                 betwixt
                 Moveables
                 ,
                 Liferent
                 Rights
                 ,
                 and
                 Heretable
                 Rights
                 ;
                 The
                 first
                 being
                 carried
                 by
                 single
                 Escheat
                 ;
                 the
                 next
                 by
                 Liferent
                 Escheat
                 ,
                 the
                 whole
                 by
                 forefaulture
                 .
                 All
                 Rights
                 relating
                 to
                 Infeftment
                 by
                 Destination
                 ,
                 are
                 Heretable
                 ,
                 or
                 moveable
                 in
                 the
                 same
                 manner
                 as
                 betwixt
                 Heirs
                 and
                 Executors
                 :
                 But
                 Rights
                 having
                 a
                 tract
                 of
                 time
                 ,
                 but
                 not
                 for
                 a
                 Liferent
                 ,
                 are
                 Moveable
                 ,
                 and
                 fall
                 under
                 single
                 Escheat
                 ;
                 yet
                 the
                 bygones
                 of
                 Annualrent
                 by
                 Infeftment
                 ,
                 are
                 still
                 moveable
                 :
                 But
                 as
                 to
                 both
                 effects
                 ,
                 Assignations
                 to
                 Literent
                 Tacks
                 ,
                 were
                 found
                 moveable
                 ,
                 and
                 to
                 fall
                 under
                 single
                 escheat
                 ,
                 Hope
                 ,
                 Horning
                 ,
                 Sir
                 
                   Robert
                   Ker
                   contra
                
                 Sir
                 
                   John
                   Ker.
                
                 Clauses
                 also
                 of
                 relief
                 in
                 Heretable
                 Bondsare
                 moveable
                 ;
                 and
                 the
                 
                   jus
                   Marti
                
                 of
                 Husbands
                 ,
                 though
                 they
                 carry
                 the
                 profit
                 of
                 the
                 Wises
                 Heretable
                 Rights
                 ,
                 or
                 Rights
                 of
                 Liferent
                 ,
                 fall
                 under
                 the
                 Husbands
                 single
                 escheat
                 .
              
               
                 3.
                 
                 To
                 return
                 now
                 to
                 the
                 several
                 kinds
                 of
                 real
                 Rights
                 ;
                 The
                 First
                 whereof
                 ,
                 is
                 ,
                 that
                 original
                 Community
                 which
                 all
                 men
                 had
                 at
                 first
                 ,
                 in
                 the
                 whole
                 Creatures
                 of
                 this
                 inferior
                 World.
                 
              
               
                 For
                 as
                 to
                 that
                 Community
                 which
                 is
                 competent
                 to
                 a
                 Nation
                 ,
                 Incorporation
                 .
                 Society
                 ,
                 or
                 more
                 single
                 Persons
                 ,
                 it
                 is
                 property
                 indeed
                 to
                 these
                 in
                 respect
                 of
                 other
                 Men
                 ,
                 though
                 amongst
                 themselves
                 it
                 keepeth
                 a
                 proportion
                 with
                 the
                 universal
                 Community
                 ;
                 First
                 ,
                 In
                 that
                 there
                 is
                 an
                 equal
                 right
                 and
                 interest
                 presumed
                 to
                 be
                 in
                 all
                 these
                 that
                 have
                 Community
                 ,
                 unless
                 the
                 contrair
                 appear
                 .
              
               
                 Secondly
                 ,
                 That
                 this
                 Equality
                 is
                 not
                 exact
                 in
                 the
                 use
                 ,
                 but
                 that
                 which
                 is
                 enjoyed
                 in
                 common
                 ,
                 may
                 freely
                 be
                 made
                 use
                 of
                 for
                 the
                 ends
                 of
                 the
                 Community
                 ,
                 though
                 some
                 make
                 use
                 of
                 more
                 ,
                 and
                 others
                 of
                 less
                 ,
                 according
                 to
                 their
                 need
                 or
                 satisfaction
                 :
                 As
                 when
                 two
                 persons
                 have
                 an
                 universal
                 society
                 of
                 all
                 their
                 means
                 ,
                 if
                 the
                 one
                 be
                 taler
                 then
                 the
                 other
                 ,
                 he
                 is
                 not
                 to
                 go
                 naked
                 ,
                 in
                 so
                 far
                 as
                 he
                 exceeds
                 his
                 fellow
                 :
                 Or
                 if
                 his
                 appetit
                 be
                 greater
                 ,
                 he
                 is
                 not
                 to
                 pinch
                 it
                 :
                 and
                 if
                 he
                 have
                 more
                 Children
                 ,
                 he
                 may
                 entertain
                 and
                 provide
                 them
                 ,
                 and
                 thereby
                 consume
                 more
                 of
                 the
                 common
                 Stock
                 then
                 the
                 other
                 ;
                 so
                 that
                 in
                 these
                 universal
                 Societies
                 ,
                 there
                 is
                 not
                 an
                 Arithmetical
                 equality
                 ,
                 but
                 a
                 Geometrical
                 proportion
                 to
                 the
                 need
                 and
                 use
                 of
                 the
                 parties
                 ,
                 to
                 be
                 observed
                 .
              
               
                 Thirdly
                 ,
                 Such
                 Communities
                 may
                 be
                 past
                 from
                 ,
                 and
                 division
                 being
                 made
                 of
                 that
                 which
                 is
                 common
                 ,
                 thereby
                 it
                 will
                 become
                 proper
                 to
                 either
                 party
                 ,
                 unless
                 the
                 nature
                 of
                 the
                 thing
                 ,
                 or
                 paction
                 hinder
                 ;
                 in
                 which
                 case
                 ,
                 division
                 cannot
                 be
                 made
                 without
                 consent
                 of
                 the
                 whole
                 ;
                 for
                 (
                 as
                 is
                 showen
                 before
                 )
                 under
                 the
                 
                   Obediential
                   Obligations
                   of
                   Restitution
                
                 ,
                 to
                 every
                 man
                 that
                 which
                 is
                 his
                 own
                 ,
                 divisions
                 of
                 that
                 which
                 is
                 common
                 ,
                 is
                 comprehended
                 .
              
               
                 Fourthly
                 ,
                 Even
                 during
                 the
                 Community
                 ,
                 that
                 which
                 any
                 party
                 taketh
                 for
                 his
                 use
                 is
                 proper
                 ,
                 and
                 may
                 not
                 be
                 taken
                 from
                 him
                 by
                 any
                 other
                 ,
                 if
                 he
                 exceed
                 not
                 the
                 ends
                 ,
                 or
                 the
                 interest
                 of
                 the
                 Society
                 ,
                 by
                 seeking
                 more
                 then
                 is
                 proportional
                 to
                 his
                 need
                 and
                 use
                 ,
                 with
                 the
                 rest
                 in
                 the
                 Society
                 :
                 All
                 these
                 agree
                 to
                 the
                 original
                 Community
                 of
                 Mankind
                 ,
                 and
                 so
                 they
                 did
                 continue
                 in
                 the
                 first
                 and
                 golden
                 Age
                 of
                 the
                 World
                 ,
                 when
                 Gold
                 was
                 not
                 known
                 ,
                 nor
                 regarded
                 ,
                 but
                 simplicity
                 
                 and
                 sincerity
                 were
                 the
                 Gold
                 of
                 that
                 Age
                 ,
                 whereby
                 every
                 man
                 contented
                 himself
                 with
                 the
                 natural
                 Fruits
                 and
                 Birth
                 of
                 the
                 Earth
                 ,
                 Sea
                 ,
                 and
                 Rivers
                 :
                 And
                 it
                 is
                 like
                 ,
                 that
                 the
                 Fruits
                 of
                 the
                 Ground
                 and
                 Trees
                 ,
                 were
                 satisfying
                 to
                 man
                 at
                 first
                 ,
                 before
                 they
                 came
                 to
                 hunting
                 ,
                 and
                 killing
                 of
                 Beasts
                 ,
                 fishing
                 in
                 the
                 Seas
                 ,
                 and
                 Rivers
                 ,
                 and
                 Haulking
                 and
                 killing
                 of
                 Fowls
                 .
              
               
                 5.
                 
                 Then
                 also
                 ,
                 men
                 were
                 contented
                 with
                 Caves
                 of
                 the
                 Earth
                 ,
                 or
                 shades
                 of
                 Trees
                 for
                 Houses
                 ,
                 and
                 skins
                 of
                 Beasts
                 for
                 Cloathing
                 ;
                 in
                 this
                 Community
                 do
                 many
                 of
                 the
                 Savage
                 Nations
                 of
                 America
                 continue
                 to
                 this
                 day
                 ,
                 in
                 these
                 vast
                 and
                 unpeopled
                 places
                 of
                 the
                 World
                 :
                 But
                 for
                 the
                 most
                 part
                 ,
                 man
                 being
                 multiplied
                 upon
                 the
                 face
                 of
                 the
                 Earth
                 ,
                 there
                 was
                 necessity
                 of
                 division
                 ,
                 and
                 appropriation
                 ,
                 which
                 hath
                 so
                 far
                 prevailed
                 ,
                 that
                 now
                 there
                 remains
                 nothing
                 common
                 ,
                 which
                 by
                 its
                 nature
                 and
                 mans
                 necessity
                 ,
                 can
                 be
                 appropriat
                 ,
                 whereby
                 some
                 things
                 in
                 whole
                 ,
                 and
                 some
                 uses
                 of
                 others
                 remain
                 yet
                 common
                 to
                 all
                 men
                 ;
                 as
                 ,
              
               
                 6.
                 
                 First
                 ,
                 The
                 Air
                 is
                 common
                 to
                 all
                 men
                 ,
                 because
                 it
                 can
                 have
                 no
                 limits
                 or
                 bounds
                 ,
                 and
                 because
                 all
                 men
                 every
                 where
                 must
                 necessarily
                 breath
                 it
                 .
              
               
                 Secondly
                 ,
                 Running
                 Waters
                 are
                 common
                 to
                 all
                 men
                 ,
                 because
                 they
                 can
                 have
                 no
                 bounds
                 ;
                 but
                 Water
                 standing
                 ,
                 and
                 capable
                 of
                 bounds
                 ,
                 is
                 proper
                 .
              
               
                 Thirdly
                 ,
                 The
                 vast
                 Ocean
                 is
                 common
                 to
                 all
                 mankind
                 ,
                 as
                 to
                 Navigation
                 and
                 Fishing
                 ,
                 which
                 are
                 the
                 only
                 uses
                 thereof
                 ,
                 because
                 it
                 is
                 not
                 capable
                 of
                 bounds
                 ;
                 but
                 where
                 the
                 Sea
                 is
                 inclosed
                 ,
                 in
                 Bays
                 ,
                 Creeks
                 ,
                 or
                 otherways
                 is
                 capable
                 of
                 any
                 bounds
                 or
                 meeths
                 ,
                 as
                 within
                 the
                 points
                 of
                 such
                 Lands
                 ,
                 or
                 within
                 the
                 view
                 of
                 such
                 Shoars
                 ,
                 there
                 it
                 may
                 become
                 proper
                 ,
                 but
                 with
                 the
                 reservation
                 of
                 passage
                 for
                 Commerce
                 as
                 in
                 the
                 Land.
                 
              
               
                 Fourthly
                 ,
                 All
                 the
                 wild
                 and
                 free
                 creatures
                 ,
                 which
                 are
                 in
                 the
                 property
                 of
                 none
                 ,
                 are
                 in
                 some
                 sort
                 common
                 to
                 all
                 ,
                 as
                 Fishes
                 ,
                 Fowls
                 ,
                 Bees
                 ,
                 &c.
                 
                 But
                 in
                 respect
                 property
                 hath
                 taken
                 hold
                 of
                 all
                 that
                 is
                 appropriable
                 ,
                 these
                 are
                 said
                 rather
                 to
                 belong
                 to
                 none
                 ,
                 as
                 being
                 by
                 common
                 consent
                 declared
                 void
                 by
                 all
                 ,
                 that
                 property
                 thereof
                 may
                 be
                 inferred
                 by
                 occupation
                 ,
                 and
                 possession
                 ,
                 without
                 respect
                 to
                 the
                 persons
                 necessity
                 or
                 use
                 ,
                 as
                 was
                 in
                 the
                 ancient
                 Community
                 ,
                 but
                 that
                 simply
                 whosoever
                 possesseth
                 that
                 which
                 belongeth
                 to
                 none
                 ,
                 doth
                 thereby
                 acquire
                 the
                 property
                 thereof
                 .
              
               
                 Such
                 also
                 are
                 Gemms
                 and
                 precious
                 Stones
                 on
                 the
                 Shoar
                 ,
                 or
                 things
                 relinquished
                 by
                 the
                 proper
                 owners
                 ,
                 except
                 where
                 there
                 is
                 a
                 National
                 Community
                 ,
                 that
                 people
                 or
                 their
                 authority
                 ,
                 do
                 possess
                 in
                 common
                 ,
                 not
                 only
                 some
                 reserved
                 rights
                 of
                 the
                 Earth
                 ,
                 but
                 also
                 the
                 rights
                 of
                 precious
                 things
                 ,
                 or
                 things
                 relinquished
                 ,
                 or
                 lost
                 by
                 Shipwrack
                 ,
                 or
                 otherways
                 ,
                 whereby
                 the
                 imaginary
                 possession
                 of
                 having
                 such
                 within
                 their
                 Territories
                 ,
                 is
                 sufficient
                 by
                 the
                 custome
                 of
                 Nations
                 to
                 appropriat
                 them
                 ,
                 and
                 to
                 exclude
                 other
                 Nations
                 ,
                 or
                 single
                 persons
                 of
                 that
                 same
                 Nation
                 from
                 them
                 .
                 So
                 with
                 us
                 ,
                 Treasures
                 hid
                 in
                 the
                 Earth
                 ,
                 whose
                 proper
                 owners
                 cannot
                 be
                 known
                 ,
                 are
                 not
                 his
                 in
                 whose
                 Ground
                 they
                 are
                 found
                 ,
                 nor
                 the
                 finders
                 ,
                 but
                 belong
                 to
                 the
                 King
                 :
                 And
                 things
                 stray
                 or
                 waith
                 ,
                 whose
                 owners
                 cannot
                 appear
                 ,
                 are
                 publick
                 ,
                 And
                 ship-wrack
                 ,
                 which
                 is
                 only
                 understood
                 ,
                 when
                 all
                 living
                 things
                 in
                 the
                 Ship
                 have
                 perished
                 ;
                 but
                 where
                 an
                 Ox
                 escaped
                 out
                 of
                 the
                 Ship
                 to
                 Land
                 alive
                 ,
                 the
                 Goods
                 were
                 not
                 found
                 escheatable
                 as
                 Shipwrack
                 ,
                 November
                 22.
                 1622.
                 
                 
                   Hamiltoun
                   contra
                   Cochran
                
                 .
                 But
                 shipwrack
                 is
                 not
                 to
                 be
                 made
                 use
                 of
                 by
                 the
                 King
                 ,
                 in
                 prejudice
                 of
                 the
                 owners
                 of
                 such
                 Countreys
                 ,
                 as
                 use
                 
                 not
                 that
                 Law
                 themselves
                 ,
                 but
                 they
                 shall
                 have
                 the
                 same
                 favour
                 here
                 ,
                 as
                 they
                 keep
                 to
                 Ships
                 of
                 this
                 Land
                 broken
                 with
                 them
                 ,
                 Par.
                 1429.
                 cap.
                 124.
                 
              
               
                 Fifthly
                 ,
                 Of
                 things
                 appropriat
                 ,
                 there
                 remains
                 still
                 the
                 common
                 use
                 of
                 Ways
                 and
                 Passages
                 ,
                 which
                 is
                 like
                 a
                 servitude
                 on
                 property
                 ,
                 for
                 this
                 is
                 necessarly
                 required
                 for
                 the
                 use
                 of
                 man
                 ;
                 and
                 therefore
                 ,
                 understood
                 as
                 an
                 use
                 reserved
                 ,
                 both
                 in
                 their
                 tacit
                 consent
                 to
                 appropriation
                 ,
                 and
                 in
                 their
                 custom
                 .
                 So
                 all
                 Nations
                 have
                 free
                 passage
                 by
                 Navigation
                 ,
                 through
                 the
                 Ocean
                 ,
                 Bays
                 and
                 Navigable
                 Rivers
                 ;
                 and
                 have
                 also
                 the
                 benefite
                 of
                 Stations
                 in
                 the
                 Sea
                 or
                 Rivers
                 ,
                 and
                 have
                 the
                 common
                 use
                 of
                 the
                 Shoars
                 ,
                 for
                 casting
                 Anchors
                 ,
                 disloading
                 of
                 Goods
                 ,
                 taking
                 in
                 of
                 Ballast
                 ,
                 or
                 Water
                 rising
                 in
                 Fountains
                 there
                 ,
                 drying
                 of
                 Nets
                 ,
                 erecting
                 of
                 Tents
                 ,
                 and
                 the
                 like
                 .
                 Yet
                 doth
                 the
                 Shoar
                 remain
                 proper
                 ,
                 not
                 only
                 as
                 to
                 Jurisdiction
                 ,
                 but
                 as
                 to
                 Houses
                 ,
                 or
                 Works
                 built
                 thereupon
                 ;
                 and
                 as
                 to
                 Minerals
                 ,
                 Coals
                 or
                 the
                 like
                 found
                 there
                 ,
                 and
                 so
                 is
                 not
                 in
                 whole
                 common
                 ,
                 but
                 some
                 uses
                 thereof
                 only
                 .
              
               
                 Nor
                 doth
                 it
                 follow
                 ,
                 that
                 these
                 uses
                 are
                 not
                 common
                 to
                 all
                 men
                 ,
                 because
                 they
                 are
                 denyed
                 to
                 enemies
                 ;
                 for
                 ,
                 as
                 for
                 these
                 ,
                 we
                 may
                 take
                 away
                 that
                 which
                 is
                 in
                 their
                 power
                 ,
                 in
                 some
                 cases
                 ;
                 so
                 ,
                 much
                 more
                 may
                 we
                 detain
                 from
                 them
                 that
                 which
                 is
                 ours
                 ,
                 and
                 as
                 we
                 pursue
                 their
                 Persons
                 and
                 Goods
                 in
                 their
                 own
                 ,
                 much
                 more
                 in
                 our
                 bounds
                 .
              
               
                 The
                 Shoar
                 in
                 the
                 civil
                 Law
                 is
                 defined
                 to
                 be
                 so
                 far
                 as
                 the
                 greatest
                 Winter
                 Tides
                 do
                 run
                 ,
                 
                   Inst.
                   de
                   rerum
                   divisione
                
                 .
                 §
                 .
                 11.
                 which
                 must
                 be
                 understood
                 of
                 ordinary
                 Tides
                 ,
                 and
                 not
                 of
                 extraordinary
                 spring
                 Tides
                 .
                 But
                 the
                 use
                 of
                 the
                 Banks
                 ,
                 of
                 the
                 Sea
                 ,
                 or
                 Rivers
                 to
                 cast
                 Anchors
                 ,
                 or
                 lay
                 Goods
                 thereon
                 ,
                 or
                 to
                 tye
                 Cables
                 to
                 Trees
                 growing
                 thereon
                 ;
                 or
                 the
                 use
                 of
                 Ports
                 ,
                 which
                 are
                 industrial
                 ,
                 or
                 Stations
                 made
                 by
                 Art
                 ,
                 or
                 fortified
                 for
                 security
                 ,
                 are
                 not
                 common
                 to
                 all
                 men
                 ,
                 but
                 publick
                 to
                 their
                 own
                 people
                 ,
                 or
                 allowed
                 to
                 others
                 freely
                 for
                 commerce
                 ,
                 or
                 in
                 some
                 cases
                 are
                 granted
                 for
                 a
                 reasonable
                 satisfaction
                 of
                 Anchorage
                 ,
                 Portage
                 ,
                 or
                 other
                 Shoar
                 dues
                 ,
                 which
                 oftimes
                 belong
                 to
                 private
                 persons
                 ,
                 by
                 their
                 proper
                 right
                 or
                 custom
                 ,
                 or
                 by
                 publick
                 grant
                 .
              
               
                 So
                 also
                 ,
                 Ways
                 or
                 Passages
                 in
                 the
                 Land
                 are
                 common
                 to
                 all
                 ,
                 and
                 may
                 not
                 be
                 justly
                 refused
                 by
                 one
                 Nation
                 to
                 another
                 ;
                 and
                 being
                 refused
                 ,
                 have
                 always
                 been
                 accompted
                 lawful
                 to
                 be
                 forced
                 ,
                 as
                 Plutarch
                 relates
                 of
                 Simon
                 ,
                 who
                 going
                 to
                 Lacedemon
                 ,
                 forced
                 his
                 passage
                 through
                 Corinth
                 .
                 And
                 Agesilaus
                 returning
                 from
                 Asia
                 ,
                 craved
                 passage
                 through
                 Macedon
                 ,
                 and
                 while
                 they
                 craved
                 time
                 to
                 consult
                 of
                 an
                 answer
                 ,
                 he
                 conceiving
                 delay
                 to
                 be
                 a
                 denyal
                 ,
                 said
                 ,
                 
                   consult
                   you
                   ,
                   but
                   I
                   will
                   pass
                
                 ;
                 but
                 to
                 take
                 away
                 all
                 questions
                 ,
                 whether
                 these
                 were
                 by
                 might
                 or
                 right
                 ,
                 we
                 have
                 a
                 divine
                 Example
                 of
                 
                   Moses
                   ,
                   Numbers
                
                 20.
                 
                 Verses
                 17
                 ,
                 and
                 19.
                 where
                 Israel
                 in
                 their
                 way
                 to
                 Canaan
                 ,
                 craved
                 passage
                 of
                 Edom
                 ,
                 by
                 the
                 high
                 ways
                 ,
                 and
                 offered
                 payment
                 even
                 for
                 their
                 Water
                 ,
                 which
                 was
                 to
                 be
                 understood
                 of
                 their
                 standing
                 Water
                 ,
                 as
                 Wells
                 ,
                 which
                 were
                 rare
                 and
                 precious
                 there
                 ;
                 and
                 did
                 the
                 like
                 with
                 the
                 Ammonites
                 ,
                 and
                 upon
                 refusal
                 ,
                 forced
                 it
                 by
                 War.
                 
              
               
                 There
                 is
                 also
                 in
                 Property
                 implyed
                 an
                 Obligation
                 of
                 Commerce
                 ,
                 or
                 Exchange
                 ,
                 in
                 case
                 of
                 necessity
                 ;
                 for
                 without
                 this
                 ,
                 property
                 could
                 not
                 consist
                 ,
                 seing
                 by
                 the
                 division
                 inferred
                 there
                 through
                 ,
                 every
                 man
                 cannot
                 have
                 actually
                 all
                 necessars
                 without
                 Exchange
                 ,
                 which
                 being
                 denyed
                 in
                 cases
                 of
                 necessity
                 ,
                 or
                 where
                 there
                 is
                 no
                 common
                 Authority
                 ,
                 may
                 be
                 taken
                 by
                 force
                 ,
                 as
                 these
                 who
                 pass
                 through
                 the
                 Territories
                 of
                 others
                 ,
                 if
                 by
                 their
                 opposition
                 ,
                 or
                 otherways
                 they
                 be
                 short
                 of
                 provision
                 ,
                 they
                 may
                 lawfully
                 take
                 the
                 same
                 for
                 Money
                 ,
                 as
                 is
                 implyed
                 in
                 Moses
                 
                 offer
                 to
                 Edom
                 ,
                 yea
                 ,
                 there
                 is
                 implyed
                 in
                 property
                 ,
                 an
                 Obligation
                 to
                 give
                 in
                 cases
                 of
                 necessity
                 ,
                 to
                 these
                 who
                 have
                 not
                 wherewith
                 to
                 exchange
                 ,
                 and
                 cannot
                 otherways
                 preserve
                 their
                 life
                 ,
                 but
                 with
                 the
                 Obligation
                 of
                 Recompence
                 when
                 they
                 are
                 able
                 ,
                 for
                 humane
                 necessity
                 doth
                 also
                 infer
                 this
                 ,
                 but
                 it
                 must
                 be
                 a
                 real
                 ,
                 and
                 not
                 a
                 pretended
                 and
                 feigned
                 necessity
                 .
                 So
                 David
                 being
                 hungry
                 ,
                 eat
                 the
                 Shew-bread
                 ,
                 though
                 appropriat
                 to
                 God.
                 And
                 the
                 Disciples
                 being
                 hungry
                 ,
                 eat
                 the
                 Ears
                 of
                 Corn
                 ;
                 and
                 this
                 is
                 the
                 ground
                 of
                 the
                 Obligation
                 ,
                 to
                 aliment
                 the
                 poor
                 ,
                 which
                 though
                 it
                 also
                 floweth
                 from
                 the
                 Obligation
                 of
                 Charity
                 ;
                 yet
                 (
                 as
                 hath
                 been
                 spoken
                 before
                 )
                 that
                 Obligation
                 hath
                 no
                 determinat
                 bounds
                 ,
                 but
                 is
                 left
                 to
                 the
                 discretion
                 of
                 the
                 giver
                 ,
                 not
                 of
                 the
                 demander
                 ,
                 and
                 so
                 can
                 be
                 no
                 warrand
                 for
                 taking
                 by
                 force
                 ,
                 and
                 without
                 consent
                 .
              
               
                 7.
                 
                 The
                 Community
                 that
                 is
                 of
                 Grass
                 and
                 Fruits
                 growing
                 upon
                 the
                 high-ways
                 ,
                 followeth
                 the
                 Community
                 of
                 the
                 ways
                 themselves
                 :
                 But
                 the
                 common
                 use
                 of
                 natural
                 Fruits
                 brought
                 forth
                 without
                 industry
                 ,
                 even
                 in
                 proper
                 Fields
                 ,
                 as
                 of
                 Nutts
                 ,
                 Berries
                 or
                 the
                 like
                 ;
                 Or
                 the
                 promiscuous
                 use
                 of
                 Pasturage
                 in
                 the
                 Winter
                 time
                 ,
                 accustomed
                 in
                 many
                 places
                 of
                 Scotland
                 ,
                 are
                 no
                 part
                 of
                 this
                 Community
                 ,
                 but
                 are
                 for
                 the
                 most
                 part
                 permitted
                 as
                 of
                 little
                 moment
                 ,
                 or
                 disadvantage
                 ;
                 and
                 therefore
                 ,
                 may
                 be
                 denyed
                 without
                 injury
                 .
              
               
                 8.
                 
                 The
                 second
                 step
                 of
                 real
                 Rights
                 is
                 Possession
                 ,
                 which
                 as
                 it
                 is
                 the
                 way
                 to
                 property
                 ,
                 and
                 in
                 〈◊〉
                 cases
                 doth
                 fully
                 accomplish
                 it
                 ,
                 so
                 it
                 hath
                 in
                 it
                 a
                 distinct
                 lesser
                 Right
                 then
                 property
                 ,
                 which
                 hath
                 no
                 other
                 name
                 then
                 Possession
                 ,
                 though
                 it
                 be
                 more
                 facti
                 then
                 juris
                 :
                 And
                 seing
                 Possession
                 is
                 a
                 common
                 precognit
                 to
                 the
                 most
                 of
                 real
                 Rights
                 ,
                 it
                 fitly
                 falleth
                 in
                 here
                 to
                 be
                 considered
                 ,
                 both
                 as
                 it
                 is
                 a
                 Fact
                 ,
                 and
                 as
                 it
                 is
                 a
                 Right
                 ;
                 for
                 as
                 it
                 is
                 a
                 Fact
                 ,
                 it
                 is
                 not
                 only
                 requisite
                 to
                 constitute
                 real
                 Rights
                 ,
                 but
                 is
                 also
                 an
                 effect
                 thereof
                 ,
                 when
                 constitute
                 .
              
               
                 9.
                 
                 Possession
                 hath
                 its
                 name
                 from
                 its
                 special
                 kind
                 ,
                 for
                 it
                 is
                 as
                 much
                 as
                 
                   positio
                   sedium
                
                 ,
                 expressing
                 the
                 way
                 of
                 Possession
                 of
                 the
                 Earth
                 ,
                 (
                 at
                 first
                 common
                 )
                 by
                 Families
                 ,
                 Nations
                 ,
                 or
                 Persons
                 ,
                 by
                 fixing
                 or
                 settling
                 their
                 Seats
                 or
                 Habitations
                 there
                 ,
                 evidencing
                 their
                 affection
                 and
                 purpose
                 to
                 appropriat
                 these
                 Seats
                 ,
                 which
                 therefore
                 was
                 not
                 understood
                 by
                 their
                 passing
                 through
                 it
                 ,
                 but
                 by
                 fixing
                 in
                 it
                 ;
                 and
                 therefore
                 ,
                 Territories
                 of
                 old
                 were
                 called
                 Possessions
                 .
                 That
                 we
                 may
                 take
                 up
                 aright
                 the
                 nature
                 of
                 Possession
                 ,
                 wherein
                 it
                 doth
                 consist
                 ,
                 and
                 how
                 it
                 is
                 begun
                 ,
                 continued
                 ,
                 interrupted
                 ,
                 and
                 lost
                 ,
                 we
                 must
                 first
                 distinguish
                 the
                 several
                 kinds
                 of
                 Possession
                 :
                 And
                 secondly
                 ,
                 collect
                 the
                 common
                 nature
                 wherein
                 they
                 agree
                 :
                 And
                 thirdly
                 ,
                 the
                 point
                 of
                 Right
                 thence
                 arising
                 .
              
               
                 As
                 to
                 the
                 First
                 ,
                 The
                 reason
                 why
                 the
                 kinds
                 and
                 distinction
                 of
                 Possession
                 are
                 so
                 much
                 multiplied
                 ,
                 is
                 because
                 by
                 positive
                 Law
                 ,
                 and
                 the
                 custom
                 of
                 Nations
                 ,
                 Property
                 and
                 Servitude
                 cannot
                 be
                 constitute
                 but
                 by
                 Possession
                 ,
                 though
                 it
                 be
                 not
                 natural
                 or
                 necessary
                 to
                 these
                 Rights
                 ,
                 but
                 by
                 the
                 will
                 and
                 constitution
                 of
                 men
                 ;
                 therefore
                 it
                 receives
                 diversification
                 at
                 their
                 pleasure
                 .
              
               
                 10.
                 
                 So
                 what
                 men
                 think
                 fit
                 to
                 call
                 or
                 esteem
                 Possession
                 ,
                 is
                 enough
                 to
                 constitute
                 Property
                 ,
                 seing
                 without
                 any
                 thing
                 such
                 ,
                 it
                 may
                 be
                 constitute
                 ,
                 as
                 afterward
                 appears
                 .
                 Hence
                 ariseth
                 the
                 distinction
                 of
                 Possession
                 ,
                 in
                 Natural
                 ,
                 and
                 Civil
                 ;
                 the
                 former
                 being
                 that
                 which
                 is
                 ,
                 and
                 the
                 latter
                 that
                 which
                 is
                 holden
                 or
                 repute
                 such
                 ,
                 under
                 which
                 there
                 are
                 degrees
                 ,
                 as
                 it
                 cometh
                 nearer
                 to
                 the
                 natural
                 Possession
                 ;
                 we
                 shall
                 proceed
                 in
                 order
                 from
                 the
                 more
                 plenary
                 and
                 plain
                 Possession
                 ,
                 to
                 these
                 which
                 are
                 less
                 clear
                 .
              
               
               
                 11.
                 
                 First
                 then
                 ,
                 the
                 clearest
                 Possession
                 is
                 of
                 Moveables
                 ,
                 and
                 it
                 is
                 the
                 first
                 possession
                 that
                 was
                 amongst
                 men
                 ,
                 for
                 so
                 did
                 the
                 Fruits
                 of
                 things
                 become
                 proper
                 ;
                 and
                 thereafter
                 ,
                 Ornaments
                 ,
                 Cloathes
                 ,
                 Instruments
                 ,
                 and
                 Cattel
                 become
                 proper
                 ,
                 the
                 possession
                 whereof
                 is
                 simple
                 and
                 plain
                 ,
                 holding
                 and
                 detaining
                 them
                 for
                 our
                 proper
                 use
                 ,
                 and
                 debarring
                 others
                 from
                 them
                 ,
                 either
                 by
                 detaining
                 them
                 in
                 our
                 hands
                 ,
                 or
                 upon
                 our
                 bodies
                 ,
                 or
                 keeping
                 them
                 under
                 our
                 view
                 or
                 power
                 ,
                 and
                 making
                 use
                 of
                 them
                 ,
                 or
                 having
                 them
                 in
                 fast
                 places
                 ,
                 to
                 which
                 others
                 had
                 no
                 easie
                 access
                 .
                 This
                 possession
                 of
                 Moveables
                 was
                 so
                 begun
                 and
                 continued
                 ,
                 and
                 by
                 contrary
                 Acts
                 interrupted
                 and
                 lost
                 ,
                 when
                 others
                 exercised
                 the
                 same
                 Acts
                 ,
                 either
                 without
                 the
                 possessors
                 consent
                 ,
                 or
                 by
                 their
                 tollerance
                 ,
                 or
                 tradition
                 and
                 delivery
                 ,
                 or
                 by
                 forsaking
                 or
                 relinquishing
                 them
                 ,
                 so
                 that
                 in
                 the
                 matter
                 of
                 possession
                 of
                 Moveables
                 ,
                 there
                 is
                 little
                 controversie
                 .
              
               
                 12.
                 
                 Secondly
                 ,
                 Possession
                 of
                 the
                 Ground
                 is
                 also
                 clear
                 in
                 many
                 cases
                 ;
                 As
                 First
                 ,
                 In
                 Habitations
                 ,
                 whether
                 in
                 Caves
                 ,
                 Tents
                 ,
                 or
                 proper
                 Houses
                 .
                 Next
                 in
                 Gardens
                 ,
                 Inclosures
                 and
                 all
                 Plantations
                 .
                 Thirdly
                 ,
                 In
                 Fields
                 by
                 Pasturage
                 or
                 Tillage
                 ,
                 in
                 so
                 far
                 as
                 the
                 Acts
                 extend
                 ,
                 so
                 far
                 these
                 all
                 are
                 most
                 natural
                 possessions
                 :
                 But
                 after
                 that
                 most
                 ancient
                 simplicity
                 ,
                 Rights
                 and
                 the
                 ways
                 of
                 acquiring
                 thereof
                 were
                 multiplied
                 ;
                 and
                 therefore
                 ,
                 possession
                 could
                 not
                 be
                 intire
                 ,
                 but
                 behoved
                 to
                 be
                 divided
                 amongst
                 the
                 several
                 interests
                 ,
                 then
                 did
                 the
                 difficulties
                 arise
                 ,
                 as
                 when
                 one
                 had
                 the
                 property
                 ,
                 a
                 second
                 the
                 fruits
                 ,
                 a
                 third
                 the
                 use
                 ,
                 a
                 fourth
                 the
                 servitudes
                 in
                 some
                 ,
                 part
                 a
                 fifth
                 the
                 detention
                 for
                 security
                 ,
                 a
                 sixth
                 ,
                 the
                 custody
                 or
                 location
                 ,
                 and
                 all
                 these
                 exercised
                 ,
                 either
                 by
                 the
                 parties
                 themselves
                 ,
                 their
                 servants
                 or
                 Children
                 in
                 their
                 power
                 ,
                 and
                 their
                 Procurators
                 in
                 their
                 name
                 :
                 Yea
                 ,
                 and
                 by
                 opposite
                 and
                 interrupting
                 Acts
                 ,
                 many
                 at
                 once
                 pretending
                 to
                 the
                 same
                 kinds
                 and
                 parts
                 of
                 possession
                 .
              
               
                 13.
                 
                 So
                 then
                 the
                 third
                 kind
                 of
                 Possession
                 was
                 ,
                 when
                 the
                 Earth
                 began
                 to
                 be
                 divided
                 by
                 limits
                 and
                 bounds
                 ,
                 and
                 to
                 have
                 common
                 denominations
                 ,
                 then
                 the
                 possession
                 of
                 the
                 whole
                 was
                 attained
                 by
                 exercising
                 possessory
                 Acts
                 upon
                 a
                 part
                 ,
                 as
                 he
                 who
                 possesseth
                 a
                 Field
                 ,
                 needs
                 not
                 go
                 about
                 it
                 ,
                 or
                 touch
                 every
                 Turff
                 of
                 it
                 ,
                 by
                 himself
                 or
                 his
                 Cattel
                 ,
                 but
                 by
                 possessing
                 a
                 part
                 ,
                 unless
                 there
                 were
                 contrary
                 possessory
                 Acts.
                 So
                 possession
                 of
                 the
                 greater
                 part
                 of
                 Lands
                 ,
                 contained
                 in
                 one
                 Tenement
                 ,
                 was
                 found
                 sufficient
                 to
                 validat
                 a
                 base
                 Infeftment
                 ,
                 as
                 to
                 the
                 whole
                 ,
                 and
                 to
                 exclude
                 a
                 posterior
                 publick
                 Infeftment
                 ,
                 for
                 removing
                 the
                 Tennents
                 from
                 a
                 part
                 of
                 the
                 Tenement
                 ,
                 though
                 the
                 base
                 Infeftment
                 had
                 possession
                 several
                 years
                 ,
                 and
                 had
                 attained
                 or
                 pursued
                 for
                 no
                 possession
                 of
                 these
                 Tenements
                 ,
                 Spots
                 .
                 removing
                 ,
                 
                   Hunter
                   contra
                   Hardie
                
                 ,
                 observed
                 by
                 
                   Dury
                   ,
                   January
                
                 14.
                 1630.
                 
                 The
                 like
                 of
                 possession
                 of
                 a
                 Tack
                 ,
                 of
                 a
                 part
                 of
                 Teinds
                 in
                 a
                 Tack
                 ,
                 found
                 sufficient
                 to
                 validat
                 the
                 Tack
                 as
                 to
                 the
                 whole
                 ,
                 Spots
                 .
                 1.
                 possessione
                 ,
                 Lady
                 
                   Merchistoun
                   contra
                   Wrights-houses
                
                 .
              
               
                 14.
                 
                 Possession
                 Civil
                 is
                 extended
                 to
                 uplifting
                 of
                 Mails
                 and
                 Duties
                 ,
                 which
                 is
                 sufficient
                 to
                 introduce
                 and
                 preserve
                 property
                 ,
                 though
                 the
                 pasturage
                 and
                 tillage
                 ,
                 and
                 all
                 other
                 natural
                 deeds
                 of
                 possession
                 be
                 in
                 others
                 ,
                 who
                 are
                 properly
                 called
                 possessors
                 ,
                 who
                 hold
                 and
                 possess
                 for
                 themselves
                 ,
                 in
                 so
                 far
                 as
                 concern
                 the
                 excresce
                 of
                 the
                 profits
                 ,
                 above
                 the
                 rent
                 ,
                 as
                 to
                 which
                 they
                 possess
                 in
                 name
                 of
                 their
                 Masters
                 ;
                 and
                 therefore
                 ,
                 this
                 possession
                 is
                 partly
                 naturral
                 to
                 the
                 Master
                 of
                 the
                 Ground
                 ,
                 and
                 partly
                 civil
                 by
                 their
                 Tennants
                 .
              
               
                 15.
                 
                 Fifthly
                 ,
                 Possession
                 is
                 attained
                 Symbolically
                 ,
                 where
                 there
                 is
                 not
                 use
                 of
                 the
                 whole
                 or
                 a
                 part
                 ,
                 but
                 only
                 of
                 a
                 Symbol
                 or
                 Token
                 ,
                 and
                 this
                 is
                 when
                 the
                 thing
                 to
                 be
                 possest
                 ,
                 is
                 present
                 ,
                 as
                 the
                 civil
                 possession
                 by
                 Infeftment
                 ,
                 by
                 delivery
                 
                 of
                 Earth
                 and
                 Stone
                 upon
                 the
                 Ground
                 of
                 the
                 Lands
                 ,
                 or
                 by
                 delivery
                 of
                 a
                 parcel
                 of
                 Corns
                 for
                 a
                 Stack
                 or
                 Field
                 of
                 Corn
                 ,
                 or
                 some
                 of
                 a
                 herd
                 or
                 Flock
                 for
                 the
                 whole
                 Flock
                 being
                 present
                 ,
                 in
                 which
                 the
                 Symbols
                 being
                 also
                 parts
                 of
                 the
                 thing
                 to
                 be
                 possest
                 ,
                 have
                 some
                 affinity
                 to
                 natural
                 possessions
                 .
              
               
                 Sixthly
                 ,
                 Civil
                 Possession
                 is
                 by
                 a
                 Token
                 or
                 Symbole
                 ,
                 which
                 is
                 no
                 part
                 of
                 the
                 thing
                 to
                 be
                 possest
                 ,
                 but
                 is
                 a
                 Token
                 to
                 represent
                 it
                 ,
                 as
                 either
                 having
                 some
                 resemblance
                 with
                 it
                 ,
                 as
                 the
                 delivery
                 of
                 a
                 Copy
                 or
                 Scroll
                 for
                 an
                 office
                 ,
                 or
                 a
                 penny
                 for
                 an
                 Annualrent
                 ,
                 or
                 otherways
                 hath
                 no
                 resemblance
                 ,
                 but
                 is
                 a
                 Token
                 meerly
                 suppositious
                 to
                 represent
                 it
                 ,
                 as
                 delivery
                 of
                 a
                 Batton
                 in
                 Resignation
                 ;
                 or
                 Delivery
                 of
                 a
                 thing
                 bought
                 or
                 sold
                 ,
                 by
                 a
                 wisp
                 of
                 Straw
                 ,
                 which
                 ordinarly
                 is
                 in
                 absence
                 of
                 the
                 thing
                 to
                 be
                 possessed
                 .
              
               
                 16.
                 
                 Seventhly
                 ,
                 Possession
                 is
                 attained
                 or
                 retained
                 without
                 Symbol
                 ,
                 and
                 without
                 Interposition
                 of
                 any
                 person
                 in
                 our
                 power
                 or
                 procurator
                 ,
                 but
                 only
                 by
                 conjunction
                 of
                 Interest
                 :
                 So
                 when
                 the
                 property
                 of
                 Lands
                 is
                 granted
                 to
                 one
                 ,
                 and
                 the
                 Usufruct
                 or
                 Liferent
                 to
                 another
                 ,
                 or
                 when
                 the
                 Liferent
                 is
                 reserved
                 ,
                 the
                 possesssion
                 of
                 the
                 Liferenter
                 is
                 held
                 to
                 be
                 the
                 possession
                 of
                 the
                 Fiar
                 ,
                 as
                 to
                 all
                 other
                 third
                 parties
                 ,
                 and
                 Rights
                 .
                 And
                 a
                 Husbands
                 possession
                 of
                 Lands
                 by
                 himself
                 ,
                 or
                 any
                 deriving
                 right
                 from
                 him
                 ,
                 is
                 held
                 to
                 be
                 the
                 Wifes
                 possession
                 ,
                 by
                 her
                 Liferent
                 Infeftment
                 .
              
               
                 The
                 several
                 kinds
                 and
                 degrees
                 of
                 possession
                 being
                 thus
                 laid
                 open
                 ,
                 it
                 will
                 be
                 more
                 easie
                 to
                 takeup
                 the
                 common
                 notion
                 and
                 nature
                 of
                 it
                 ,
                 and
                 it
                 may
                 be
                 thus
                 described
                 .
              
               
                 17.
                 
                 Possession
                 is
                 the
                 holding
                 or
                 detaining
                 of
                 any
                 thing
                 by
                 our selves
                 ,
                 or
                 others
                 for
                 our
                 use
                 ,
                 it
                 is
                 not
                 every
                 holding
                 or
                 detaining
                 which
                 makes
                 possession
                 ;
                 for
                 so
                 Depositars
                 detain
                 ,
                 but
                 because
                 it
                 is
                 not
                 for
                 their
                 use
                 ,
                 they
                 do
                 not
                 possess
                 .
                 To
                 Possession
                 there
                 must
                 be
                 an
                 act
                 of
                 the
                 body
                 ,
                 which
                 is
                 detention
                 and
                 holding
                 ;
                 and
                 an
                 act
                 of
                 the
                 mind
                 ,
                 which
                 is
                 the
                 inclination
                 or
                 affection
                 to
                 make
                 use
                 of
                 the
                 thing
                 detained
                 ,
                 which
                 being
                 of
                 the
                 mind
                 ,
                 is
                 not
                 so
                 easily
                 perceiveable
                 ,
                 as
                 that
                 of
                 the
                 body
                 ,
                 but
                 it
                 is
                 presumed
                 whensoever
                 the
                 profite
                 of
                 the
                 detainer
                 may
                 be
                 to
                 make
                 use
                 of
                 the
                 thing
                 ,
                 but
                 where
                 it
                 may
                 be
                 wrong
                 ,
                 or
                 hurtful
                 ,
                 it
                 is
                 not
                 presumed
                 :
                 As
                 he
                 who
                 taketh
                 another
                 mans
                 Horse
                 by
                 the
                 Head
                 ,
                 or
                 keepeth
                 that
                 which
                 is
                 waith
                 ;
                 or
                 taketh
                 in
                 his
                 hands
                 the
                 Money
                 or
                 Goods
                 of
                 another
                 ,
                 which
                 if
                 it
                 were
                 to
                 make
                 use
                 of
                 ,
                 it
                 would
                 infer
                 theft
                 ;
                 and
                 therefore
                 ,
                 such
                 detention
                 is
                 not
                 presumed
                 to
                 be
                 possession
                 .
                 He
                 also
                 who
                 detaineth
                 or
                 holdeth
                 a
                 thing
                 ,
                 not
                 at
                 all
                 for
                 his
                 own
                 use
                 ,
                 but
                 for
                 anothers
                 ,
                 who
                 doth
                 detain
                 by
                 him
                 ,
                 as
                 by
                 his
                 Servant
                 ,
                 or
                 Procurator
                 ,
                 doth
                 not
                 possess
                 :
                 But
                 otherways
                 ,
                 if
                 he
                 have
                 no
                 warrand
                 from
                 another
                 ,
                 but
                 only
                 intended
                 ,
                 or
                 is
                 oblieged
                 that
                 it
                 shall
                 be
                 to
                 the
                 behove
                 of
                 another
                 ,
                 in
                 that
                 case
                 he
                 is
                 possessor
                 ,
                 because
                 the
                 real
                 Right
                 is
                 in
                 him
                 ,
                 and
                 there
                 is
                 upon
                 him
                 only
                 an
                 obligation
                 to
                 make
                 it
                 forthcoming
                 to
                 another
                 :
                 And
                 they
                 who
                 possess
                 partly
                 for
                 themselves
                 ,
                 and
                 partly
                 for
                 others
                 ,
                 as
                 Tennants
                 have
                 possession
                 in
                 part
                 .
              
               
                 18.
                 
                 To
                 come
                 now
                 to
                 the
                 Requisites
                 for
                 entering
                 and
                 beginning
                 Possession
                 ,
                 there
                 must
                 be
                 both
                 the
                 detention
                 of
                 the
                 body
                 ,
                 and
                 the
                 detention
                 of
                 the
                 mind
                 ,
                 for
                 use
                 ,
                 for
                 neither
                 of
                 the
                 two
                 alone
                 can
                 begin
                 possession
                 ;
                 corporal
                 possession
                 alone
                 can
                 neither
                 begin
                 it
                 ,
                 nor
                 continue
                 it
                 ;
                 and
                 if
                 any
                 act
                 of
                 the
                 mind
                 were
                 enough
                 ,
                 possession
                 would
                 be
                 very
                 large
                 ,
                 and
                 but
                 imaginary
                 ,
                 but
                 the
                 manner
                 of
                 this
                 seasure
                 of
                 possession
                 ,
                 to
                 begin
                 it
                 is
                 very
                 diverse
                 ,
                 by
                 all
                 the
                 several
                 ways
                 which
                 are
                 before
                 set
                 forth
                 .
              
               
               
                 19.
                 
                 Possession
                 being
                 once
                 begun
                 ,
                 is
                 continued
                 ,
                 not
                 only
                 by
                 reiteration
                 of
                 possessory
                 acts
                 ,
                 but
                 even
                 by
                 the
                 mind
                 only
                 ,
                 though
                 there
                 be
                 no
                 outward
                 acts
                 exerced
                 ,
                 and
                 the
                 mind
                 and
                 affection
                 to
                 continue
                 possession
                 is
                 always
                 presumed
                 ,
                 unless
                 the
                 contrary
                 appear
                 ,
                 so
                 that
                 if
                 the
                 thing
                 once
                 possessed
                 be
                 void
                 ,
                 as
                 to
                 outward
                 acts
                 ,
                 yet
                 it
                 is
                 held
                 possest
                 by
                 the
                 mind
                 ;
                 and
                 any
                 contrary
                 act
                 of
                 others
                 ,
                 entering
                 to
                 that
                 possession
                 ,
                 is
                 unwarrantable
                 ,
                 and
                 intrusion
                 .
                 For
                 as
                 hath
                 been
                 before
                 showen
                 ,
                 intrusion
                 is
                 where
                 the
                 entry
                 is
                 made
                 in
                 possession
                 without
                 violenc
                 ,
                 but
                 without
                 warrand
                 or
                 consent
                 ,
                 as
                 ejection
                 is
                 by
                 violence
                 .
                 But
                 these
                 contrary
                 acts
                 ,
                 though
                 unwarrantable
                 ,
                 yet
                 they
                 take
                 away
                 the
                 possession
                 that
                 is
                 detained
                 by
                 the
                 mind
                 .
              
               
                 20.
                 
                 Possession
                 then
                 is
                 lost
                 by
                 a
                 contrary
                 Possession
                 ,
                 and
                 it
                 is
                 interrupted
                 by
                 contrary
                 acts
                 ,
                 and
                 attempts
                 of
                 possession
                 ,
                 which
                 if
                 they
                 do
                 not
                 attain
                 the
                 effect
                 to
                 expulse
                 it
                 ,
                 it
                 is
                 called
                 also
                 a
                 troubled
                 or
                 disquieted
                 possession
                 ,
                 for
                 nothing
                 can
                 be
                 possessed
                 
                   in
                   solidum
                
                 ,
                 by
                 more
                 then
                 one
                 ,
                 either
                 simply
                 ,
                 or
                 in
                 relation
                 to
                 the
                 same
                 right
                 ,
                 as
                 there
                 cannot
                 be
                 more
                 Proprietars
                 then
                 one
                 ,
                 of
                 the
                 same
                 kind
                 ,
                 though
                 one
                 be
                 superior
                 ,
                 and
                 another
                 Vassal
                 ,
                 so
                 more
                 Liferenters
                 cannot
                 possess
                 
                   in
                   solidum
                
                 ;
                 and
                 therefore
                 ,
                 the
                 entry
                 to
                 possess
                 that
                 which
                 is
                 already
                 possessed
                 ,
                 must
                 expulse
                 the
                 prior
                 ,
                 or
                 else
                 introduce
                 a
                 partial
                 and
                 common
                 possession
                 ;
                 yet
                 it
                 is
                 not
                 the
                 contrary
                 attempts
                 ,
                 or
                 every
                 act
                 that
                 expelleth
                 a
                 prior
                 possession
                 ;
                 but
                 if
                 the
                 same
                 be
                 violent
                 ,
                 the
                 prior
                 possessor
                 hath
                 the
                 benefit
                 of
                 possessory
                 Judgements
                 ,
                 and
                 may
                 lawfully
                 use
                 violence
                 to
                 continue
                 possession
                 ,
                 which
                 afterwards
                 he
                 may
                 not
                 ,
                 for
                 recovery
                 thereof
                 ,
                 when
                 it
                 is
                 lost
                 ,
                 though
                 unwarrantably
                 ,
                 or
                 violently
                 :
                 Thus
                 Possession
                 is
                 transferred
                 from
                 one
                 to
                 another
                 :
                 But
                 Possession
                 is
                 simply
                 lost
                 ,
                 when
                 it
                 is
                 forsaken
                 and
                 relinquished
                 ;
                 it
                 is
                 not
                 easie
                 to
                 be
                 known
                 when
                 Possession
                 is
                 detained
                 by
                 the
                 mind
                 ,
                 and
                 when
                 relinquished
                 ,
                 wherein
                 there
                 is
                 a
                 general
                 Rule
                 ,
                 that
                 dereliction
                 is
                 not
                 presumed
                 ,
                 except
                 it
                 appear
                 by
                 evident
                 declaratory
                 Acts
                 or
                 Circumstances
                 ,
                 as
                 when
                 it
                 is
                 thrown
                 away
                 in
                 any
                 publick
                 place
                 ,
                 where
                 it
                 cannot
                 but
                 be
                 taken
                 up
                 ,
                 or
                 when
                 another
                 is
                 suffered
                 to
                 possess
                 without
                 contradiction
                 ,
                 or
                 when
                 possessory
                 Acts
                 have
                 been
                 long
                 abstained
                 from
                 ;
                 all
                 which
                 conjectures
                 ,
                 are
                 
                   in
                   arbitrio
                   judicis
                
                 .
              
               
                 21.
                 
                 From
                 what
                 hath
                 been
                 said
                 ,
                 the
                 ordinary
                 distinctions
                 of
                 Possession
                 may
                 be
                 easily
                 understood
                 ,
                 as
                 being
                 either
                 natural
                 or
                 civil
                 ,
                 continued
                 quiet
                 and
                 peaceable
                 ,
                 or
                 interrupted
                 and
                 disturbed
                 ,
                 lawful
                 or
                 unlawful
                 .
                 Under
                 which
                 distinction
                 ,
                 are
                 comprehended
                 ,
                 
                   possessio
                   bonae
                   fidei
                
                 ,
                 which
                 may
                 be
                 called
                 innocent
                 Possession
                 ;
                 and
                 
                   malae
                   fidei
                
                 ,
                 or
                 fraudulent
                 ,
                 and
                 Possession
                 publick
                 and
                 clandestine
                 ,
                 and
                 long
                 possession
                 ,
                 momentany
                 or
                 precarious
                 .
              
               
                 22.
                 
                 To
                 come
                 to
                 the
                 Right
                 implyed
                 in
                 Possession
                 ,
                 it
                 is
                 mainly
                 in
                 two
                 points
                 ;
                 First
                 ,
                 in
                 the
                 right
                 to
                 continue
                 it
                 against
                 all
                 illegal
                 contrary
                 acts
                 .
                 Secondly
                 ,
                 The
                 right
                 of
                 Appropriation
                 of
                 the
                 Fruits
                 consumed
                 ,
                 
                   bona
                   fide
                
                 ,
                 both
                 these
                 are
                 introduced
                 by
                 positive
                 Law
                 ,
                 for
                 utilities
                 sake
                 :
                 For
                 ,
                 by
                 equity
                 any
                 man
                 might
                 at
                 any
                 time
                 recover
                 the
                 possession
                 of
                 that
                 which
                 is
                 his
                 own
                 by
                 force
                 ,
                 and
                 all
                 the
                 Fruits
                 thereof
                 ,
                 whether
                 extant
                 or
                 consumed
                 :
                 But
                 civil
                 Society
                 and
                 Magistracy
                 being
                 erected
                 ,
                 it
                 is
                 the
                 main
                 foundation
                 of
                 the
                 peace
                 ,
                 and
                 preservation
                 thereof
                 ,
                 that
                 possession
                 may
                 not
                 be
                 recovered
                 by
                 violence
                 ,
                 but
                 by
                 order
                 of
                 Law
                 ;
                 and
                 therefore
                 ,
                 there
                 is
                 no
                 more
                 allowed
                 to
                 private
                 force
                 ,
                 then
                 to
                 continue
                 possession
                 ,
                 against
                 contrary
                 ,
                 violent
                 and
                 clandestine
                 Acts
                 ,
                 immediatly
                 after
                 acting
                 of
                 the
                 former
                 ,
                 or
                 notice
                 of
                 the
                 latter
                 :
                 But
                 a
                 violent
                 clandestine
                 and
                 unlawful
                 possession
                 ,
                 may
                 not
                 be
                 troubled
                 ,
                 though
                 there
                 be
                 an
                 evident
                 right
                 ;
                 much
                 less
                 may
                 Possession
                 be
                 entered
                 ,
                 where
                 there
                 is
                 a
                 Right
                 in
                 a
                 party
                 
                 himself
                 ,
                 or
                 his
                 predecessor
                 ,
                 to
                 whom
                 he
                 is
                 Heir
                 in
                 that
                 thing
                 ;
                 for
                 as
                 they
                 are
                 accounted
                 as
                 one
                 person
                 in
                 Law
                 ,
                 so
                 their
                 Possession
                 is
                 accounted
                 as
                 one
                 Possession
                 .
                 Like
                 unto
                 this
                 ,
                 is
                 the
                 Right
                 of
                 appearand
                 Heirs
                 ,
                 to
                 possess
                 their
                 predecessors
                 Rents
                 ,
                 though
                 they
                 be
                 not
                 Infeft
                 ,
                 which
                 will
                 not
                 only
                 exoner
                 the
                 possessors
                 ,
                 but
                 if
                 the
                 appearand
                 Heir
                 die
                 uninfeft
                 ,
                 his
                 nearest
                 of
                 kin
                 will
                 have
                 right
                 to
                 the
                 Rents
                 resting
                 ,
                 from
                 his
                 predecessors
                 death
                 to
                 his
                 own
                 death
                 ,
                 and
                 these
                 will
                 be
                 subject
                 to
                 hi
                 own
                 proper
                 Debts
                 ,
                 albeit
                 they
                 will
                 not
                 affect
                 the
                 Land
                 it self
                 ,
                 but
                 the
                 next
                 appearand
                 Heir
                 must
                 enter
                 to
                 the
                 Defunct
                 last
                 Infeft
                 ,
                 and
                 his
                 Person
                 and
                 Estate
                 will
                 only
                 be
                 lyable
                 for
                 the
                 Debts
                 of
                 the
                 Defunct
                 to
                 whom
                 he
                 entered
                 .
              
               
                 23.
                 
                 The
                 other
                 Possessory
                 Right
                 is
                 ,
                 that
                 which
                 was
                 allowed
                 in
                 the
                 Civil
                 Law
                 ,
                 
                   bonae
                   fidei
                   possessor
                   facit
                   fructus
                   consumptos
                   suos
                   ,
                   l.
                   certum
                
                 22.
                 
                 
                   Cod.
                   de
                   rei
                   vindicatione
                
                 ;
                 the
                 reason
                 whereof
                 ,
                 is
                 because
                 they
                 who
                 enjoy
                 that
                 which
                 they
                 think
                 their
                 own
                 ,
                 do
                 consume
                 the
                 Fruits
                 thereof
                 ,
                 without
                 expectation
                 of
                 repetition
                 or
                 account
                 ,
                 else
                 they
                 are
                 presumed
                 to
                 reserve
                 them
                 ,
                 or
                 imploy
                 them
                 profitably
                 for
                 Restitution
                 ,
                 and
                 if
                 it
                 were
                 otherways
                 ,
                 there
                 could
                 be
                 no
                 quiet
                 nor
                 security
                 to
                 mens
                 minds
                 ,
                 who
                 could
                 call
                 nothing
                 securely
                 their
                 own
                 ,
                 if
                 the
                 event
                 of
                 a
                 dubious
                 Right
                 might
                 make
                 them
                 restore
                 what
                 they
                 had
                 consumed
                 ,
                 
                   bona
                   fide
                
                 ,
                 and
                 as
                 it
                 is
                 in
                 the
                 favours
                 of
                 the
                 innocent
                 possessor
                 ;
                 so
                 it
                 is
                 in
                 hatred
                 of
                 the
                 negligence
                 of
                 the
                 other
                 party
                 not
                 pursuing
                 his
                 Right
                 .
              
               
                 24.
                 
                 This
                 Right
                 is
                 only
                 competent
                 to
                 possessors
                 ,
                 
                   bonae
                   fidei
                
                 ,
                 who
                 do
                 truely
                 think
                 that
                 which
                 they
                 possess
                 to
                 be
                 their
                 own
                 ,
                 and
                 know
                 not
                 the
                 right
                 of
                 any
                 other
                 ;
                 but
                 private
                 knowledge
                 upon
                 information
                 ,
                 without
                 legal
                 diligence
                 ,
                 or
                 other
                 solemnity
                 allowed
                 in
                 Law
                 ,
                 at
                 least
                 the
                 private
                 knowledge
                 be
                 certain
                 ,
                 is
                 not
                 regarded
                 ,
                 nor
                 doth
                 constitute
                 the
                 knower
                 ,
                 
                   in
                   mala
                   fide
                   ,
                   March
                
                 14.
                 1626.
                 
                 
                   Nisbit
                   contra
                   Williamson
                
                 .
                 But
                 a
                 Mother
                 was
                 not
                 found
                 to
                 enjoy
                 this
                 benefit
                 in
                 prejudice
                 of
                 her
                 Children
                 ,
                 there
                 being
                 several
                 presumptions
                 of
                 her
                 knowledge
                 of
                 their
                 right
                 ,
                 November
                 20.
                 1662.
                 
                 Children
                 of
                 
                   Wolmet
                   contra
                
                 Lady
                 Wolmet
                 and
                 Dankeith
                 her
                 Husband
                 .
                 In
                 some
                 cases
                 a
                 Citation
                 and
                 Production
                 of
                 any
                 other
                 evidently
                 preferable
                 Right
                 is
                 sufficient
                 ,
                 when
                 the
                 possessor
                 hath
                 no
                 probable
                 Title
                 ;
                 but
                 where
                 he
                 hath
                 a
                 doubtful
                 Title
                 ,
                 
                   mala
                   fides
                
                 ,
                 is
                 only
                 induced
                 by
                 Litiscontestation
                 ,
                 or
                 Sentence
                 ,
                 as
                 in
                 Reductions
                 ,
                 whether
                 the
                 defender
                 is
                 lyable
                 for
                 the
                 bygone
                 profites
                 ,
                 from
                 Citation
                 ,
                 Litiscontestation
                 ,
                 or
                 Decreet
                 is
                 in
                 the
                 arbitriment
                 of
                 the
                 Judge
                 ,
                 July
                 11.
                 1627.
                 
                 Pitmedden
                 and
                 the
                 Lord
                 
                   Elphingstoun
                   contra
                   Smith
                
                 .
                 The
                 like
                 in
                 a
                 Tack
                 reduced
                 upon
                 a
                 failzie
                 ,
                 Hope
                 ,
                 Reduction
                 ,
                 
                   Seatoun
                   contra
                   Seatoun
                
                 .
                 The
                 like
                 ,
                 June
                 2.
                 1610.
                 
                 Mr.
                 
                   Robert
                   Hunter
                   contra
                
                 Lord
                 Sanquhar
                 .
                 The
                 like
                 as
                 to
                 a
                 Decreet
                 of
                 Removing
                 reduced
                 ,
                 and
                 the
                 violent
                 profits
                 found
                 due
                 only
                 after
                 Litiscontestation
                 in
                 the
                 reduction
                 ,
                 January
                 24.
                 1611.
                 
                 
                   Jousie
                   contra
                   Mortimer
                
                 .
                 And
                 found
                 only
                 to
                 take
                 effect
                 after
                 Sentence
                 ,
                 in
                 Reduction
                 of
                 an
                 Appryzing
                 ,
                 because
                 the
                 half
                 of
                 the
                 of
                 the
                 sum
                 was
                 payed
                 ,
                 Hope
                 ,
                 poinding
                 ,
                 
                   James
                   Lamb
                   contra
                   Smeatoun
                   Hepburn
                
                 .
                 And
                 though
                 the
                 Possessors
                 Right
                 was
                 but
                 a
                 Tack
                 ,
                 which
                 fell
                 in
                 consequence
                 with
                 the
                 setters
                 〈◊〉
                 ,
                 reduced
                 in
                 Parliament
                 ;
                 yet
                 the
                 Tacks-mans
                 Possession
                 ,
                 
                   bona
                   fide
                
                 ,
                 was
                 sustained
                 ,
                 though
                 he
                 needed
                 not
                 to
                 be
                 called
                 to
                 the
                 Decreet
                 of
                 Parliament
                 ,
                 seing
                 that
                 on
                 that
                 Decreet
                 there
                 was
                 nothing
                 done
                 to
                 make
                 him
                 know
                 it
                 ,
                 or
                 put
                 him
                 in
                 
                   mala
                   fide
                   ,
                   July
                
                 19.
                 1664.
                 
                 
                   Elizabeth
                   Dowglas
                
                 and
                 Longformacus
                 her
                 Spouse
                 contra
                 Laird
                 of
                 Wedderburn
                 .
                 Upon
                 this
                 ground
                 ,
                 an
                 adjudger
                 was
                 preferred
                 to
                 the
                 bygone
                 duties
                 uplifted
                 by
                 him
                 ,
                 to
                 a
                 prior
                 Appryzer
                 ,
                 who
                 charged
                 the
                 Superiour
                 to
                 Infeft
                 him
                 before
                 the
                 Adjudication
                 ,
                 December
                 1.
                 1632.
                 
                 Laird
                 of
                 
                   Kilkerran
                   contra
                   Ferguson
                
                 .
                 This
                 was
                 extended
                 to
                 the
                 profits
                 uplifted
                 by
                 Infeftment
                 upon
                 a
                 Disposition
                 ,
                 though
                 granted
                 after
                 the
                 
                 Liferent
                 Escheat
                 fell
                 ,
                 in
                 prejudice
                 of
                 the
                 Superiour
                 and
                 Donatar
                 ,
                 July
                 3.
                 1624.
                 
                 
                   Moor
                   contra
                   Hannay
                
                 and
                 the
                 Earl
                 of
                 Galloway
                 ;
                 And
                 extended
                 to
                 a
                 Tack
                 or
                 Few
                 of
                 Ward-Lands
                 not
                 Confirmed
                 by
                 the
                 Superiour
                 ,
                 in
                 prejudice
                 of
                 his
                 Donatar
                 of
                 the
                 Ward
                 ,
                 March
                 13.
                 1627.
                 
                 Laird
                 of
                 
                   Ley
                   contra
                   Blair
                
                 .
                 And
                 extended
                 to
                 the
                 profits
                 of
                 a
                 Procurator-Fiscals
                 place
                 ,
                 wherein
                 the
                 incumbent
                 served
                 three
                 years
                 without
                 interruption
                 ,
                 though
                 his
                 Right
                 was
                 reduced
                 thereafter
                 ,
                 and
                 declared
                 null
                 ,
                 
                   ab
                   initio
                   ,
                   February
                
                 17.
                 1624.
                 
                 
                   Thomson
                   contra
                   Law.
                
                 It
                 was
                 also
                 extended
                 to
                 one
                 ,
                 who
                 having
                 a
                 posterior
                 Right
                 of
                 Reversion
                 ,
                 first
                 redeemed
                 and
                 possessed
                 thereby
                 ,
                 as
                 to
                 bygones
                 ,
                 before
                 the
                 Citation
                 ,
                 though
                 he
                 had
                 not
                 possest
                 so
                 long
                 as
                 to
                 give
                 him
                 the
                 benefite
                 of
                 a
                 possessory
                 Judgement
                 ,
                 November
                 18.
                 1664.
                 
                 
                   Guthrie
                   contra
                
                 Laird
                 of
                 Sornbeg
                 .
                 It
                 was
                 also
                 sustained
                 against
                 a
                 Minor
                 ,
                 reducing
                 upon
                 Minority
                 and
                 Lesion
                 ,
                 yet
                 the
                 possessor
                 by
                 vertue
                 of
                 his
                 Contract
                 ,
                 was
                 secure
                 as
                 to
                 bygons
                 ,
                 before
                 Citation
                 ;
                 here
                 there
                 was
                 a
                 probable
                 cause
                 of
                 contracting
                 for
                 an
                 onerous
                 consideration
                 ,
                 though
                 not
                 fully
                 equivalent
                 ,
                 February
                 16.
                 1666.
                 
                 Earl
                 of
                 
                   Wintoun
                   contra
                
                 Countess
                 of
                 Wintoun
                 .
              
               
                 Upon
                 this
                 Title
                 ,
                 a
                 Tennent
                 was
                 liberat
                 from
                 removing
                 ,
                 upon
                 a
                 warning
                 by
                 a
                 Fiar
                 after
                 the
                 death
                 of
                 his
                 Father
                 the
                 Liferenter
                 ,
                 in
                 respect
                 he
                 set
                 the
                 Tack
                 without
                 mention
                 of
                 his
                 Liferent
                 ,
                 and
                 was
                 reputed
                 Fiar
                 ;
                 and
                 therefore
                 ,
                 the
                 Son
                 was
                 put
                 to
                 a
                 new
                 warning
                 ,
                 February
                 16.
                 1669.
                 
                 
                   Hamiltoun
                   contra
                   Harper
                
                 .
              
               
                 Possession
                 
                   bona
                   fide
                
                 ,
                 was
                 found
                 to
                 Liberat
                 an
                 Appryzer
                 from
                 being
                 countable
                 to
                 the
                 other
                 Appryzers
                 within
                 year
                 and
                 day
                 ,
                 July
                 17.
                 1675.
                 
                 Bailzie
                 
                   Baird
                   contra
                
                 Bailzie
                 Johnstoun
                 .
                 It
                 was
                 also
                 sustained
                 against
                 the
                 Donatar
                 of
                 forefaulture
                 ,
                 January
                 28.
                 1679.
                 
                 Laird
                 of
                 
                   Blair
                   contra
                
                 Lady
                 Heslehead
                 .
                 It
                 was
                 also
                 sustained
                 upon
                 an
                 Infeftment
                 for
                 relief
                 ,
                 whereby
                 the
                 rents
                 were
                 to
                 be
                 imputed
                 in
                 satisfaction
                 ,
                 both
                 of
                 the
                 Principal
                 and
                 Annual
                 ,
                 February
                 8.
                 1676.
                 
                 
                   Margaret
                   Scrimzour
                   contra
                
                 the
                 Earl
                 of
                 Northesk
                 .
                 Yea
                 ,
                 it
                 was
                 sustained
                 ,
                 though
                 the
                 possessors
                 Title
                 was
                 forged
                 ,
                 he
                 being
                 a
                 singular
                 Successor
                 ,
                 not
                 accessory
                 to
                 ,
                 or
                 conscious
                 of
                 the
                 forgery
                 ,
                 even
                 after
                 improbation
                 of
                 his
                 Title
                 ,
                 was
                 proponed
                 by
                 exception
                 ,
                 but
                 not
                 sustained
                 ,
                 but
                 reserved
                 by
                 way
                 of
                 Action
                 ,
                 in
                 which
                 the
                 Title
                 was
                 found
                 false
                 ,
                 yet
                 the
                 
                   bona
                   fides
                
                 was
                 extended
                 to
                 the
                 rents
                 spent
                 ,
                 till
                 he
                 was
                 put
                 in
                 
                   mala
                   fide
                
                 ,
                 by
                 probation
                 of
                 the
                 forgery
                 ,
                 but
                 he
                 was
                 found
                 lyable
                 ,
                 
                   in
                   quantum
                   lucratus
                
                 ,
                 for
                 getting
                 more
                 price
                 for
                 the
                 Land
                 in
                 question
                 ,
                 then
                 he
                 payed
                 to
                 his
                 Author
                 therefore
                 ,
                 December
                 10.
                 1677.
                 
                 Dick
                 of
                 
                   Grange
                   contra
                
                 Sir
                 
                   Laurance
                   Oliphant
                
                 .
              
               
                 But
                 no
                 unlawful
                 Possession
                 is
                 valid
                 in
                 this
                 case
                 ,
                 if
                 it
                 be
                 vitious
                 ,
                 violent
                 ,
                 clandestine
                 ,
                 or
                 momentany
                 .
                 But
                 it
                 is
                 not
                 so
                 evident
                 when
                 a
                 possession
                 is
                 accounted
                 momentany
                 ;
                 sure
                 little
                 time
                 will
                 suffice
                 in
                 Moveables
                 ,
                 but
                 in
                 Lands
                 more
                 time
                 is
                 required
                 ;
                 a
                 year
                 or
                 term
                 ,
                 or
                 less
                 time
                 may
                 suffice
                 .
              
               
                 This
                 Right
                 is
                 different
                 from
                 the
                 possessory
                 Judgement
                 competent
                 upon
                 Infeftments
                 which
                 require
                 longer
                 time
                 ;
                 and
                 because
                 it
                 is
                 an
                 effect
                 of
                 Infeftments
                 ,
                 Tacks
                 or
                 the
                 like
                 ,
                 we
                 shall
                 speak
                 thereof
                 in
                 that
                 place
                 .
                 If
                 the
                 Possession
                 
                   bona
                   fide
                
                 ,
                 be
                 by
                 vertue
                 of
                 a
                 colourable
                 Title
                 ,
                 though
                 perhaps
                 null
                 in
                 it self
                 upon
                 informalities
                 in
                 the
                 Law
                 requisite
                 ,
                 or
                 upon
                 Inhibition
                 ,
                 interdiction
                 ,
                 or
                 want
                 of
                 power
                 in
                 the
                 granter
                 ,
                 it
                 is
                 effectual
                 .
                 Yet
                 when
                 by
                 a
                 common
                 or
                 known
                 Law
                 ,
                 the
                 Title
                 is
                 void
                 materially
                 ;
                 in
                 this
                 case
                 the
                 possessor
                 is
                 not
                 esteemed
                 to
                 possess
                 ,
                 
                   bona
                   fide
                
                 ,
                 it
                 being
                 so
                 evident
                 ,
                 
                   ignorantia
                   juris
                   non
                   excusat
                
                 :
                 As
                 if
                 a
                 Relict
                 should
                 possess
                 Lands
                 or
                 others
                 ,
                 the
                 Marriage
                 being
                 dissolved
                 by
                 her
                 Husbands
                 death
                 within
                 year
                 and
                 day
                 ,
                 November
                 16.
                 1633.
                 
                 
                   Grant
                   contra
                   Grant.
                
                 Hereby
                 
                 it
                 is
                 evident
                 ,
                 that
                 possession
                 hath
                 much
                 in
                 it
                 dictinct
                 and
                 several
                 from
                 Fact
                 ,
                 and
                 therefore
                 it
                 stands
                 in
                 place
                 of
                 a
                 Title
                 in
                 Ejections
                 and
                 Spuilzies
                 .
              
               
                 25.
                 
                 By
                 the
                 Canon
                 Law
                 allowed
                 by
                 our
                 Custom
                 ,
                 
                   possessor
                   decennalis
                   &
                   triennalis
                   non
                   tenetur
                   docere
                   de
                   titulo
                   etiam
                   in
                   causa
                   salsi
                   ,
                
                 whereupon
                 Prebendars
                 were
                 assoilzied
                 from
                 production
                 in
                 an
                 improbation
                 of
                 their
                 provisions
                 ,
                 
                   Hope
                   ,
                   Improb
                
                 .
                 Bishop
                 of
                 
                   Galloway
                   contra
                
                 the
                 Prebendars
                 of
                 the
                 Chappel-royal
                 .
                 But
                 this
                 holds
                 not
                 in
                 Reductions
                 ,
                 where
                 the
                 Title
                 is
                 supposed
                 ,
                 but
                 craved
                 to
                 be
                 reduced
                 upon
                 a
                 better
                 Right
                 ,
                 as
                 when
                 the
                 debate
                 is
                 ,
                 who
                 hath
                 the
                 right
                 of
                 Patronage
                 ,
                 Earl
                 of
                 
                   Wigtoun
                   contra
                   Drummellier
                   ,
                   July
                
                 24.
                 1622.
                 
                 Earl
                 of
                 
                   Wigtoun
                   contra
                
                 Bishop
                 of
                 Glasgow
                 ;
                 for
                 in
                 these
                 cases
                 an
                 Ecclesiastical
                 persons
                 Title
                 was
                 to
                 be
                 reduced
                 ,
                 
                   in
                   consequentiam
                
                 with
                 the
                 Patrons
                 Title
                 ,
                 which
                 hath
                 not
                 this
                 priviledge
                 .
                 But
                 this
                 possession
                 must
                 be
                 as
                 being
                 holden
                 and
                 repute
                 a
                 part
                 of
                 a
                 Benefice
                 ,
                 and
                 must
                 be
                 proven
                 by
                 Witnesses
                 ;
                 and
                 therefore
                 ,
                 the
                 possession
                 of
                 Lands
                 by
                 tollerance
                 ,
                 was
                 found
                 probable
                 by
                 Witnesses
                 ,
                 to
                 elide
                 thirteen
                 years
                 possession
                 thereof
                 by
                 a
                 Minister
                 ,
                 who
                 pretended
                 to
                 it
                 as
                 a
                 part
                 of
                 his
                 Glibe
                 Ministers
                 of
                 contra
                 Duke
                 of
                 Bucleugh
                 .
                 And
                 if
                 the
                 Church-mens
                 Title
                 can
                 be
                 found
                 ,
                 their
                 possession
                 will
                 be
                 ascribed
                 thereto
                 ,
                 and
                 regulate
                 thereby
                 .
                 And
                 therefore
                 the
                 Bishop
                 of
                 Dumblain
                 ,
                 as
                 Dean
                 of
                 the
                 Chapel-Royal
                 ,
                 having
                 long
                 possest
                 ten
                 Chalders
                 of
                 Victual
                 ,
                 as
                 a
                 part
                 of
                 his
                 Benefice
                 ,
                 there
                 being
                 found
                 a
                 Mortification
                 of
                 that
                 Victual
                 by
                 the
                 King
                 ,
                 bearing
                 the
                 King
                 to
                 have
                 had
                 right
                 by
                 Disposition
                 from
                 another
                 ,
                 and
                 that
                 others
                 right
                 being
                 produced
                 ,
                 did
                 bear
                 ,
                 
                   Reversion
                   in
                   the
                   body
                   thereof
                   for
                   seven
                   thousand
                   Merks
                   ,
                
                 which
                 being
                 payed
                 to
                 the
                 King
                 when
                 the
                 Bishops
                 were
                 supprest
                 ,
                 and
                 his
                 grant
                 of
                 Redemption
                 thereupon
                 voluntarly
                 ,
                 without
                 an
                 Order
                 or
                 Sentence
                 :
                 The
                 Church-mens
                 possession
                 more
                 then
                 thirteen
                 years
                 before
                 the
                 Redemption
                 ,
                 and
                 thirteen
                 years
                 after
                 the
                 Redemption
                 ,
                 was
                 elided
                 by
                 the
                 reverse
                 Right
                 and
                 Redemption
                 :
                 Neither
                 did
                 the
                 Act
                 of
                 Sederunt
                 ,
                 after
                 the
                 Reformation
                 ,
                 declaring
                 ten
                 years
                 possession
                 of
                 Kirk
                 Lands
                 before
                 the
                 Reformation
                 ,
                 and
                 thirty
                 years
                 after
                 ,
                 to
                 import
                 a
                 right
                 sustain
                 this
                 Church-mans
                 possession
                 :
                 That
                 Act
                 being
                 only
                 for
                 Fews
                 ,
                 granted
                 by
                 Church-men
                 ,
                 not
                 for
                 rights
                 granted
                 to
                 Church-men
                 ,
                 July
                 7.
                 1676.
                 
                 Bishop
                 of
                 
                   Dumblain
                   contra
                   Francis
                   Kinloch
                
                 .
                 And
                 it
                 was
                 found
                 ,
                 that
                 thirteen
                 years
                 possession
                 of
                 Viccarage
                 by
                 a
                 Minister
                 ,
                 did
                 not
                 prefer
                 him
                 to
                 a
                 Tacksman
                 ,
                 where
                 the
                 Ministers
                 Title
                 was
                 a
                 Decreet
                 of
                 Locality
                 produced
                 ,
                 and
                 not
                 containing
                 the
                 Teinds
                 in
                 question
                 ,
                 February
                 24.
                 1681
                 
                 Doctor
                 
                   Lesly
                   contra
                
                 the
                 Minister
                 of
                 Glenmuck
                 .
                 This
                 right
                 in
                 favours
                 of
                 Church-men
                 ,
                 is
                 by
                 a
                 rule
                 of
                 Chancelary
                 of
                 Rome
                 ,
                 which
                 hath
                 been
                 continued
                 after
                 Reformation
                 ,
                 as
                 being
                 convenient
                 ,
                 that
                 less
                 time
                 and
                 Title
                 should
                 give
                 right
                 to
                 the
                 Church
                 Benefices
                 ,
                 whose
                 Mortifications
                 may
                 be
                 easilier
                 lost
                 ,
                 or
                 supprest
                 ,
                 then
                 other
                 Rights
                 .
                 There
                 is
                 also
                 another
                 rule
                 in
                 the
                 Chancelary
                 ,
                 that
                 
                   triennalis
                   pacificus
                   possessor
                   beneficii
                   est
                   inde
                   securus
                
                 ;
                 this
                 rule
                 gives
                 not
                 right
                 to
                 the
                 Church
                 ,
                 but
                 prefers
                 one
                 Church-man
                 to
                 another
                 ,
                 if
                 he
                 continue
                 to
                 possess
                 three
                 years
                 ,
                 without
                 interruption
                 ,
                 though
                 he
                 could
                 not
                 defend
                 by
                 his
                 Right
                 .
              
               
                 There
                 is
                 a
                 third
                 Benefite
                 by
                 Possession
                 of
                 Benefices
                 and
                 Stipends
                 ,
                 by
                 seven
                 years
                 peaceable
                 possession
                 ,
                 whereby
                 they
                 have
                 the
                 benefit
                 of
                 a
                 possessory
                 Judgement
                 ,
                 and
                 cannot
                 be
                 called
                 in
                 question
                 but
                 by
                 Reduction
                 ,
                 or
                 Declarator
                 ;
                 and
                 therefore
                 ,
                 a
                 Ministers
                 possession
                 of
                 his
                 Stipend
                 for
                 seven
                 years
                 ,
                 was
                 continued
                 ,
                 though
                 it
                 partly
                 affected
                 the
                 Stock
                 ,
                 and
                 no
                 Title
                 produced
                 but
                 a
                 Horning
                 upon
                 a
                 Decreet
                 of
                 Locality
                 ,
                 which
                 was
                 lost
                 and
                 never
                 Booked
                 ,
                 December
                 6.
                 1672
                 ,
                 Mr.
                 
                   John
                   Veitch
                   contra
                
                 Laird
                 of
                 Wedderly
                 .
                 And
                 a
                 Minister
                 having
                 possessed
                 his
                 Stipend
                 seven
                 years
                 after
                 the
                 restitution
                 of
                 Bishops
                 ,
                 was
                 preferred
                 to
                 a
                 Dean
                 ,
                 who
                 had
                 a
                 Right
                 before
                 the
                 year
                 1637.
                 and
                 that
                 all
                 
                 Bishops
                 and
                 Deans
                 are
                 restored
                 by
                 Act
                 of
                 Parliament
                 ,
                 to
                 their
                 Rights
                 and
                 Possessions
                 as
                 before
                 ,
                 1637.
                 untill
                 the
                 Deans
                 Right
                 were
                 declared
                 ,
                 
                   in
                   petitorio
                   ,
                   February
                
                 9.
                 1675.
                 
                 Mr.
                 
                   Lewis
                   Dunlap
                   contra
                
                 his
                 Parochioners
                 of
                 Skeen
                 .
                 And
                 by
                 an
                 Act
                 of
                 Sederunt
                 ,
                 possession
                 of
                 Benefices
                 ,
                 or
                 Ecclesiastical
                 Rights
                 ,
                 thirty
                 years
                 after
                 the
                 Reformation
                 ,
                 or
                 ten
                 years
                 before
                 ,
                 is
                 appointed
                 to
                 stand
                 as
                 a
                 valid
                 Title
                 ,
                 Hope
                 ,
                 possession
                 ,
                 Earl
                 of
                 
                   Home
                   contra
                
                 Earl
                 of
                 Bucleugh
                 .
              
               
                 26.
                 
                 So
                 also
                 Possession
                 of
                 a
                 forefault
                 person
                 five
                 years
                 ,
                 and
                 being
                 repute
                 as
                 Heretable
                 〈◊〉
                 ,
                 is
                 appointed
                 to
                 stand
                 as
                 a
                 valid
                 Right
                 to
                 the
                 King
                 ,
                 and
                 his
                 Donatar
                 of
                 forefaulture
                 ,
                 Parl.
                 1584.
                 cap.
                 2.
                 
                 And
                 so
                 it
                 was
                 found
                 ,
                 though
                 the
                 Donatar
                 was
                 nearest
                 of
                 Kin
                 to
                 the
                 forefault
                 person
                 ,
                 and
                 might
                 be
                 presumed
                 to
                 have
                 had
                 his
                 right
                 ,
                 
                   Maxwel
                   contra
                   Westraw
                   ,
                   July
                
                 11.
                 1623.
                 where
                 Hope
                 observes
                 ,
                 
                   that
                   the
                   Donatar
                   made
                   faith
                   ,
                   that
                   he
                   had
                   just
                   reason
                   to
                   affirm
                   that
                   the
                   Rights
                   were
                   wanting
                   ,
                   Hope
                
                 Possession
                 .
                 This
                 was
                 sustained
                 ,
                 though
                 it
                 was
                 offered
                 to
                 be
                 proven
                 ,
                 that
                 the
                 Rights
                 were
                 reduced
                 ,
                 
                   in
                   foro
                   contradictorio
                
                 ,
                 upon
                 recognition
                 ,
                 February
                 20.
                 1611.
                 
                 
                   Hairstones
                   contra
                   Campbel
                
                 .
                 The
                 like
                 ,
                 though
                 the
                 forefault
                 persons
                 predecessors
                 was
                 denuded
                 ,
                 by
                 a
                 publick
                 Infeftment
                 of
                 Wodsett
                 ;
                 and
                 possessed
                 also
                 by
                 a
                 Back-bond
                 ,
                 seing
                 the
                 Wodsett
                 might
                 have
                 been
                 renounced
                 ;
                 therefore
                 it
                 was
                 left
                 to
                 the
                 Inquest
                 ,
                 appointed
                 to
                 cognosce
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 whether
                 the
                 possessor
                 was
                 repute
                 as
                 Heretor
                 ,
                 or
                 as
                 Backtacks-man
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 Sir
                 
                   John
                   Scot
                
                 of
                 
                   Scotstarbet
                   contra
                
                 Tennents
                 of
                 Garvock
                 .
                 So
                 effectual
                 is
                 Possession
                 active
                 ,
                 besides
                 that
                 it
                 is
                 the
                 ground
                 of
                 prescription
                 ,
                 whereby
                 property
                 and
                 all
                 other
                 rights
                 are
                 introduced
                 ;
                 and
                 passive
                 ,
                 it
                 is
                 sufficient
                 to
                 hold
                 out
                 all
                 others
                 ,
                 who
                 have
                 not
                 a
                 good
                 right
                 ,
                 and
                 it
                 is
                 always
                 favourable
                 in
                 dubious
                 cases
                 ;
                 from
                 the
                 experience
                 whereof
                 ,
                 is
                 the
                 vulgar
                 saying
                 ,
                 
                   that
                   Possession
                   is
                   eleven
                   points
                   of
                   the
                   Law.
                   
                
              
               
                 27.
                 
                 Possession
                 as
                 distinct
                 from
                 Right
                 ,
                 is
                 ascriveable
                 only
                 to
                 that
                 Title
                 ,
                 by
                 which
                 it
                 did
                 begin
                 ,
                 in
                 prejudice
                 of
                 him
                 from
                 whence
                 the
                 Possession
                 was
                 acquired
                 ,
                 and
                 must
                 be
                 restored
                 ,
                 notwithstanding
                 any
                 other
                 Right
                 in
                 the
                 Possessor
                 ,
                 to
                 which
                 he
                 might
                 ascribe
                 it
                 ,
                 and
                 which
                 after
                 he
                 had
                 quit
                 the
                 Possession
                 ,
                 might
                 recover
                 it
                 ,
                 Spots
                 .
                 possession
                 ,
                 
                   George
                   Herreis
                   contra
                   Anderson
                   .
                   Idem
                   .
                   Elphingstoun
                
                 of
                 
                   Selms
                   contra
                   Bethia
                   Gutherie
                
                 .
                 The
                 like
                 ,
                 when
                 it
                 is
                 acknowledged
                 as
                 accepted
                 from
                 a
                 party
                 ,
                 after
                 Decreet
                 of
                 Removing
                 ,
                 
                   Nicol.
                   de
                   migrando
                
                 ,
                 Earl
                 of
                 
                   Angus
                   contra
                   Gilbertson
                
                 .
                 Possession
                 attained
                 without
                 Process
                 ,
                 by
                 on
                 who
                 had
                 in
                 his
                 person
                 ,
                 both
                 a
                 Wodsett
                 and
                 an
                 Appryzing
                 of
                 the
                 Lands
                 ,
                 found
                 only
                 ascryveable
                 to
                 the
                 Appryzing
                 ,
                 that
                 the
                 same
                 might
                 be
                 satisfied
                 by
                 Intromission
                 ,
                 as
                 being
                 
                   jus
                   nobilius
                   &
                   durior
                   sors
                
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 the
                 Earl
                 of
                 
                   Nithisdale
                   contra
                
                 Countess
                 of
                 Balcleugh
                 .
                 But
                 as
                 to
                 all
                 others
                 from
                 whom
                 the
                 Possession
                 flowed
                 not
                 ,
                 the
                 same
                 may
                 be
                 defended
                 upon
                 all
                 Rights
                 in
                 the
                 Possessor
                 ,
                 or
                 him
                 from
                 whom
                 he
                 hath
                 tollerance
                 or
                 right
                 .
              
               
                 28.
                 
                 The
                 Main
                 real
                 Right
                 is
                 Property
                 ,
                 standing
                 in
                 the
                 middle
                 betwixt
                 Community
                 and
                 Possession
                 ,
                 which
                 precide
                 it
                 ,
                 and
                 Servitude
                 and
                 Pledge
                 which
                 follow
                 it
                 .
              
               
                 The
                 nature
                 of
                 Property
                 is
                 best
                 understood
                 ,
                 when
                 it
                 is
                 compared
                 with
                 Community
                 ;
                 for
                 in
                 this
                 they
                 both
                 agree
                 ,
                 that
                 either
                 hath
                 a
                 power
                 to
                 dispose
                 of
                 things
                 ,
                 and
                 in
                 this
                 differ
                 ,
                 that
                 Community
                 is
                 a
                 promiscuous
                 ,
                 and
                 a
                 conjunct
                 power
                 ;
                 but
                 property
                 is
                 a
                 disjunct
                 and
                 separat
                 power
                 of
                 disposal
                 ,
                 which
                 ,
                 if
                 it
                 be
                 with
                 diminution
                 of
                 any
                 part
                 of
                 the
                 Fruits
                 or
                 use
                 ,
                 it
                 is
                 a
                 diminished
                 property
                 ,
                 and
                 that
                 diminution
                 is
                 called
                 a
                 Servitude
                 ,
                 or
                 Pledge
                 ;
                 but
                 though
                 the
                 Proprietar
                 ,
                 and
                 these
                 who
                 have
                 Servitudes
                 ,
                 have
                 both
                 the
                 power
                 of
                 Disposal
                 
                 of
                 the
                 same
                 thing
                 ,
                 yet
                 in
                 this
                 they
                 differ
                 from
                 Community
                 ,
                 that
                 it
                 is
                 not
                 promiscuous
                 ,
                 but
                 a
                 distinct
                 power
                 ,
                 relating
                 to
                 distinct
                 Effects
                 and
                 Interests
                 .
              
               
                 The
                 way
                 to
                 distinguish
                 betwixt
                 Property
                 and
                 Servitude
                 is
                 ,
                 that
                 the
                 greatest
                 interest
                 retaineth
                 the
                 name
                 of
                 Property
                 ,
                 which
                 hath
                 in
                 it
                 a
                 power
                 of
                 Disposal
                 of
                 the
                 Substance
                 of
                 the
                 thing
                 ,
                 or
                 alienation
                 thereof
                 ;
                 whereas
                 ,
                 Servitude
                 is
                 the
                 lesser
                 Right
                 ,
                 and
                 reacheth
                 but
                 the
                 Fruits
                 or
                 use
                 in
                 part
                 ,
                 or
                 for
                 a
                 time
                 ;
                 it
                 will
                 be
                 here
                 proper
                 to
                 inquire
                 the
                 manner
                 of
                 Constitution
                 of
                 Property
                 ,
                 where
                 it
                 was
                 not
                 ;
                 for
                 the
                 transmission
                 of
                 Property
                 (
                 being
                 constitute
                 )
                 from
                 one
                 to
                 another
                 ,
                 comes
                 in
                 afterwards
                 amongst
                 Conveyances
                 ,
                 or
                 Transmissions
                 of
                 Rights
                 .
              
               
                 29.
                 
                 The
                 first
                 and
                 most
                 simple
                 way
                 of
                 constitution
                 of
                 Property
                 ,
                 is
                 by
                 Possession
                 of
                 things
                 common
                 to
                 all
                 men
                 ,
                 in
                 so
                 far
                 as
                 the
                 Possessors
                 use
                 requireth
                 ;
                 for
                 as
                 before
                 is
                 showen
                 the
                 original
                 Community
                 of
                 the
                 Creatures
                 ,
                 did
                 necessarly
                 carry
                 this
                 with
                 it
                 ,
                 that
                 every
                 one
                 might
                 possess
                 that
                 which
                 was
                 possest
                 by
                 no
                 other
                 ,
                 in
                 so
                 far
                 as
                 his
                 use
                 required
                 ,
                 and
                 might
                 not
                 be
                 lawfully
                 dispossessed
                 thereof
                 without
                 his
                 own
                 consent
                 ,
                 which
                 made
                 it
                 to
                 become
                 proper
                 to
                 him
                 ,
                 and
                 that
                 he
                 might
                 defend
                 violence
                 against
                 his
                 posession
                 of
                 it
                 .
                 This
                 Property
                 began
                 first
                 in
                 Moveables
                 ,
                 Cloathes
                 ,
                 and
                 Ornaments
                 of
                 the
                 Body
                 ,
                 Instruments
                 for
                 making
                 use
                 of
                 the
                 Creatures
                 ,
                 as
                 Darts
                 ,
                 which
                 are
                 the
                 most
                 ancient
                 Instruments
                 of
                 force
                 ,
                 while
                 man
                 was
                 satisfied
                 with
                 the
                 natural
                 Fruits
                 of
                 the
                 Earth
                 ,
                 and
                 such
                 other
                 Creatures
                 as
                 for
                 his
                 use
                 and
                 delectation
                 ,
                 he
                 seized
                 on
                 for
                 the
                 time
                 .
              
               
                 30.
                 
                 Secondly
                 ,
                 Appropriation
                 was
                 by
                 mans
                 Industry
                 and
                 Possession
                 ,
                 by
                 subduing
                 and
                 taming
                 of
                 the
                 Creatures
                 ,
                 and
                 his
                 Affection
                 to
                 make
                 use
                 of
                 them
                 ,
                 not
                 for
                 a
                 time
                 ,
                 but
                 constantly
                 ,
                 for
                 thereby
                 not
                 only
                 his
                 common
                 Right
                 and
                 Possession
                 ,
                 but
                 his
                 industry
                 and
                 labour
                 did
                 properly
                 Entitle
                 him
                 to
                 these
                 things
                 he
                 possest
                 :
                 Thus
                 when
                 man
                 made
                 use
                 of
                 the
                 other
                 Creatures
                 ,
                 not
                 by
                 his
                 own
                 strenth
                 alone
                 ,
                 nor
                 by
                 Darts
                 ,
                 Stones
                 or
                 the
                 like
                 ,
                 but
                 made
                 use
                 of
                 one
                 Creature
                 to
                 master
                 others
                 ,
                 as
                 Hounds
                 ,
                 Halks
                 ,
                 &c.
                 these
                 Instruments
                 of
                 pleasure
                 managed
                 by
                 him
                 ,
                 became
                 unquestionably
                 proper
                 to
                 him
                 ;
                 then
                 man
                 proceeded
                 also
                 to
                 subdue
                 and
                 make
                 proper
                 Cattel
                 ,
                 as
                 Cows
                 ,
                 Oxen
                 ,
                 Sheep
                 ,
                 Horse
                 ,
                 Mules
                 ,
                 Camels
                 ,
                 &c.
                 by
                 constant
                 use
                 making
                 of
                 their
                 work
                 and
                 fruits
                 .
              
               
                 Thirdly
                 ,
                 Property
                 having
                 extended
                 it self
                 to
                 the
                 ground
                 ,
                 appropriated
                 Seats
                 for
                 Habitation
                 ,
                 and
                 Fields
                 for
                 Pasturage
                 ,
                 and
                 Tillage
                 ,
                 and
                 that
                 for
                 a
                 constant
                 abode
                 ;
                 whereas
                 at
                 first
                 ,
                 though
                 mans
                 use-making
                 of
                 the
                 Earth
                 did
                 introduce
                 some
                 kind
                 of
                 Property
                 in
                 it
                 for
                 the
                 time
                 ,
                 yet
                 was
                 it
                 without
                 a
                 purpose
                 or
                 evidence
                 of
                 a
                 constant
                 or
                 perpetual
                 appropriation
                 ,
                 but
                 men
                 moved
                 with
                 their
                 Cattel
                 ,
                 from
                 place
                 to
                 place
                 ,
                 without
                 fixation
                 in
                 any
                 one
                 place
                 .
              
               
                 31.
                 
                 This
                 fixation
                 of
                 the
                 Ground
                 began
                 first
                 in
                 Houses
                 ,
                 and
                 Wells
                 ,
                 which
                 in
                 the
                 places
                 of
                 the
                 World
                 first
                 Inhabited
                 by
                 man
                 ,
                 were
                 rare
                 ,
                 and
                 of
                 great
                 necessity
                 and
                 use
                 ,
                 and
                 therefore
                 ,
                 Digged
                 with
                 Industry
                 ,
                 and
                 preserved
                 with
                 Earnestness
                 .
              
               
                 32.
                 
                 Fourthly
                 ,
                 When
                 man
                 increased
                 upon
                 the
                 Earth
                 ,
                 and
                 Societies
                 became
                 to
                 be
                 Erected
                 ,
                 they
                 possessed
                 whole
                 Countreys
                 ,
                 and
                 divided
                 them
                 amongst
                 them
                 ,
                 by
                 Meiths
                 and
                 Marches
                 ,
                 and
                 when
                 any
                 one
                 of
                 them
                 swelled
                 to
                 that
                 
                 greatness
                 ,
                 that
                 their
                 Territories
                 could
                 not
                 contain
                 them
                 ,
                 either
                 the
                 whole
                 ,
                 or
                 the
                 Excreass
                 of
                 them
                 removed
                 to
                 places
                 of
                 the
                 Earth
                 not
                 then
                 inhabited
                 ,
                 and
                 fixed
                 Seats
                 for
                 themselves
                 ,
                 though
                 the
                 unjust
                 ambition
                 of
                 some
                 of
                 them
                 ,
                 made
                 them
                 expell
                 others
                 :
                 Yet
                 that
                 ,
                 as
                 contrary
                 to
                 the
                 Law
                 of
                 Nature
                 ,
                 was
                 also
                 abhorred
                 ,
                 and
                 gave
                 occasion
                 to
                 the
                 rest
                 ,
                 from
                 that
                 same
                 Law
                 to
                 concur
                 with
                 ,
                 and
                 maintain
                 the
                 oppressed
                 .
                 So
                 that
                 almost
                 the
                 whole
                 Face
                 of
                 the
                 Earth
                 became
                 changed
                 from
                 its
                 Original
                 Community
                 ,
                 and
                 there
                 was
                 a
                 tacite
                 consent
                 of
                 Division
                 ,
                 and
                 Property
                 established
                 throughout
                 the
                 World
                 ,
                 except
                 some
                 Barbarous
                 Nations
                 ,
                 and
                 nothing
                 was
                 left
                 common
                 that
                 could
                 be
                 proper
                 ,
                 but
                 the
                 few
                 ways
                 of
                 Community
                 (
                 of
                 which
                 before
                 )
                 do
                 only
                 remain
                 .
                 In
                 which
                 Division
                 and
                 Appropriation
                 ,
                 this
                 also
                 is
                 implyed
                 ,
                 by
                 the
                 common
                 consent
                 of
                 Nations
                 ,
                 that
                 what
                 is
                 possessed
                 or
                 appropriated
                 by
                 none
                 ,
                 or
                 relinquished
                 ,
                 is
                 not
                 now
                 common
                 to
                 all
                 ,
                 but
                 held
                 as
                 belonging
                 to
                 none
                 ,
                 that
                 by
                 posession
                 it
                 might
                 be
                 appropriat
                 .
              
               
                 33.
                 
                 And
                 therefore
                 ,
                 Fifthly
                 ,
                 Property
                 is
                 introduced
                 ,
                 by
                 Possession
                 of
                 things
                 which
                 are
                 simply
                 void
                 and
                 belong
                 to
                 none
                 ,
                 and
                 that
                 without
                 limitation
                 .
                 This
                 is
                 by
                 the
                 Law
                 of
                 Nations
                 ,
                 and
                 their
                 common
                 consent
                 ,
                 whence
                 is
                 that
                 principle
                 ,
                 
                   Quod
                   nullius
                   est
                   fit
                   occupantis
                
                 .
                 And
                 this
                 way
                 of
                 Appropriation
                 ,
                 differeth
                 from
                 the
                 first
                 way
                 ,
                 whereby
                 things
                 common
                 or
                 their
                 Fruits
                 ,
                 become
                 proper
                 by
                 seasure
                 and
                 possession
                 ;
                 for
                 ,
                 that
                 being
                 an
                 effect
                 of
                 the
                 Native
                 Community
                 ,
                 was
                 with
                 this
                 limitation
                 imployed
                 in
                 the
                 Nature
                 of
                 Community
                 ,
                 that
                 one
                 might
                 sease
                 upon
                 no
                 more
                 then
                 their
                 use
                 required
                 ,
                 without
                 hurt
                 to
                 the
                 rest
                 ,
                 who
                 enjoyed
                 that
                 same
                 Community
                 ,
                 as
                 in
                 a
                 Theatre
                 ,
                 which
                 is
                 common
                 to
                 a
                 City
                 ,
                 every
                 Citizen
                 as
                 he
                 cometh
                 ,
                 may
                 possess
                 a
                 place
                 for
                 himself
                 ,
                 by
                 standing
                 ,
                 or
                 sitting
                 there
                 ,
                 but
                 he
                 may
                 notly
                 along
                 ,
                 if
                 thereby
                 others
                 of
                 the
                 Society
                 might
                 be
                 hindered
                 ,
                 to
                 be
                 present
                 and
                 behold
                 .
                 So
                 if
                 Property
                 now
                 were
                 but
                 the
                 effect
                 of
                 that
                 Original
                 Community
                 ,
                 when
                 the
                 Earth
                 is
                 so
                 straitned
                 with
                 the
                 increase
                 of
                 man
                 ,
                 it
                 would
                 be
                 the
                 ground
                 of
                 perpetual
                 Contention
                 and
                 War
                 ,
                 that
                 the
                 Possessions
                 of
                 some
                 were
                 unequal
                 and
                 exceeded
                 ,
                 and
                 others
                 had
                 not
                 enough
                 ;
                 therefore
                 ,
                 for
                 preservation
                 of
                 the
                 common
                 Peace
                 of
                 mankind
                 ,
                 the
                 custom
                 and
                 consent
                 of
                 Nations
                 ,
                 hath
                 allowed
                 Property
                 of
                 things
                 void
                 by
                 Occupation
                 ,
                 without
                 any
                 further
                 debate
                 .
                 All
                 these
                 ways
                 of
                 Appropriation
                 are
                 by
                 Possession
                 or
                 Occupation
                 ,
                 and
                 thus
                 are
                 all
                 free
                 Creatures
                 Appropriat
                 ,
                 as
                 Fowls
                 of
                 the
                 Air
                 ,
                 wild
                 Beasts
                 of
                 the
                 Earth
                 ,
                 Fish
                 of
                 the
                 Sea
                 ,
                 without
                 distinction
                 ,
                 upon
                 whose
                 ground
                 they
                 be
                 taken
                 ;
                 and
                 though
                 men
                 may
                 be
                 hindered
                 to
                 come
                 within
                 the
                 ground
                 of
                 others
                 ,
                 there
                 being
                 now
                 no
                 ground
                 for
                 passage
                 only
                 upon
                 account
                 of
                 Hunting
                 ,
                 Halking
                 ,
                 or
                 Fishing
                 :
                 Yea
                 ,
                 though
                 in
                 some
                 Nations
                 ,
                 the
                 use
                 of
                 some
                 of
                 these
                 free
                 Creatures
                 be
                 prohibite
                 to
                 any
                 but
                 to
                 the
                 Soveraign
                 power
                 ,
                 yet
                 the
                 personal
                 restraint
                 hindereth
                 not
                 ,
                 but
                 he
                 who
                 seaseth
                 upon
                 any
                 wild
                 Creature
                 in
                 another
                 mans
                 bounds
                 ,
                 it
                 becometh
                 his
                 own
                 ,
                 though
                 he
                 be
                 punishable
                 for
                 that
                 trespass
                 ;
                 and
                 Positive
                 Law
                 may
                 make
                 a
                 part
                 of
                 the
                 punishment
                 to
                 be
                 the
                 loss
                 of
                 what
                 he
                 hath
                 taken
                 .
                 So
                 likewise
                 ,
                 it
                 is
                 the
                 first
                 seasure
                 that
                 introduceth
                 Property
                 ,
                 and
                 not
                 the
                 first
                 attempt
                 ,
                 and
                 prosecution
                 ;
                 as
                 he
                 who
                 pursueth
                 or
                 woundeth
                 a
                 wild
                 Beast
                 ,
                 a
                 Fowl
                 ,
                 or
                 Fish
                 ,
                 is
                 not
                 thereby
                 Proprietar
                 ,
                 unless
                 he
                 had
                 brought
                 it
                 within
                 his
                 power
                 ,
                 as
                 if
                 he
                 had
                 killed
                 it
                 ,
                 or
                 wounded
                 it
                 to
                 death
                 ;
                 or
                 otherways
                 ,
                 given
                 the
                 effectual
                 Cause
                 whereby
                 it
                 cannot
                 use
                 its
                 native
                 freedom
                 as
                 at
                 the
                 Whale
                 Fishing
                 at
                 Greenland
                 ,
                 he
                 that
                 woundeth
                 a
                 Whale
                 ,
                 so
                 that
                 she
                 cannot
                 keep
                 the
                 Sea
                 for
                 the
                 smart
                 of
                 her
                 Wound
                 ,
                 and
                 so
                 must
                 needs
                 come
                 to
                 Land
                 ,
                 is
                 Proprietar
                 ,
                 and
                 not
                 he
                 that
                 lays
                 first
                 hand
                 on
                 her
                 at
                 Land
                 ,
                 though
                 the
                 falling
                 in
                 upon
                 anothers
                 Game
                 ,
                 when
                 he
                 alone
                 is
                 in
                 prosecution
                 ,
                 may
                 be
                 〈◊〉
                 civility
                 ,
                 or
                 injury
                 ,
                 yet
                 it
                 hindereth
                 not
                 the
                 constitution
                 of
                 Property
                 ,
                 though
                 it
                 be
                 a
                 just
                 ground
                 to
                 annull
                 the
                 Right
                 of
                 the
                 first
                 
                 Possessor
                 ,
                 and
                 make
                 him
                 restore
                 to
                 the
                 first
                 prosecuter
                 ,
                 if
                 he
                 continue
                 his
                 pursuit
                 ,
                 with
                 a
                 probability
                 to
                 reach
                 his
                 prey
                 .
                 And
                 therefore
                 ,
                 in
                 the
                 last
                 Dutch
                 War
                 ,
                 a
                 Frigot
                 of
                 the
                 Kings
                 ,
                 called
                 ,
                 
                   the
                   Nightingall
                
                 ,
                 and
                 a
                 French
                 Frigot
                 ,
                 being
                 then
                 auxiliary
                 to
                 the
                 King
                 in
                 that
                 War
                 ,
                 having
                 Rencountered
                 a
                 Dutch
                 Privateer
                 ,
                 who
                 had
                 possessed
                 and
                 manned
                 three
                 Pryzes
                 ,
                 and
                 having
                 debelled
                 him
                 ,
                 in
                 the
                 mean
                 time
                 the
                 Prizes
                 made
                 sail
                 to
                 escape
                 ;
                 while
                 the
                 two
                 Frigots
                 were
                 taking
                 two
                 of
                 these
                 Pryzes
                 ,
                 a
                 Scotish
                 Privateer
                 atacked
                 the
                 third
                 ,
                 called
                 ,
                 
                   the
                   Tortoice
                
                 ,
                 and
                 made
                 her
                 strick
                 Sail
                 ,
                 but
                 not
                 knowing
                 whether
                 the
                 other
                 Frigots
                 were
                 friends
                 or
                 foes
                 at
                 such
                 a
                 distance
                 ,
                 did
                 not
                 board
                 her
                 ,
                 till
                 they
                 came
                 near
                 .
                 The
                 French
                 Frigot
                 being
                 nearer
                 then
                 the
                 English
                 Frigot
                 ,
                 both
                 the
                 French
                 Frigot
                 and
                 the
                 Scotish
                 Privateer
                 claimed
                 the
                 Tortoice
                 as
                 their
                 Prize
                 :
                 The
                 English
                 Captain
                 sent
                 the
                 Prize
                 to
                 Leith
                 ,
                 and
                 declared
                 the
                 case
                 under
                 his
                 hand
                 ,
                 whereupon
                 the
                 Admiral
                 adjudged
                 the
                 Tortoice
                 Prize
                 to
                 Rankine
                 the
                 Scotish
                 Privateer
                 ,
                 and
                 the
                 matter
                 being
                 brought
                 before
                 the
                 Lords
                 by
                 Reduction
                 ,
                 the
                 French
                 Privateer
                 pursued
                 not
                 ,
                 but
                 the
                 Kings
                 Advocat
                 ;
                 the
                 Lords
                 found
                 ,
                 that
                 the
                 Frigots
                 under
                 the
                 Kings
                 pay
                 having
                 defeat
                 the
                 Dutch
                 Privateer
                 ,
                 who
                 was
                 Possessed
                 of
                 the
                 Tortoice
                 ,
                 and
                 being
                 in
                 view
                 and
                 prosecution
                 of
                 her
                 ,
                 that
                 Rankins
                 Capture
                 and
                 Possession
                 was
                 injurious
                 ,
                 otherways
                 then
                 to
                 assist
                 the
                 first
                 attacker
                 ,
                 unless
                 it
                 were
                 proven
                 that
                 the
                 Prize
                 would
                 have
                 escaped
                 ,
                 if
                 it
                 had
                 not
                 been
                 stopped
                 ,
                 and
                 forced
                 to
                 strick
                 Sail
                 to
                 Captain
                 
                   Rankine
                   ,
                   February
                
                 15.
                 1667.
                 
                 Kings
                 Advocat
                 contra
                 Captain
                 Rankine
                 .
              
               
                 The
                 Creatures
                 are
                 understood
                 to
                 be
                 free
                 while
                 they
                 are
                 not
                 within
                 the
                 power
                 of
                 any
                 .
                 But
                 Fishes
                 within
                 Ponds
                 are
                 proper
                 ,
                 and
                 Fowls
                 though
                 never
                 so
                 wild
                 ,
                 while
                 the
                 are
                 in
                 custody
                 .
                 Amongst
                 these
                 free
                 Creatures
                 ,
                 these
                 which
                 are
                 tame
                 are
                 not
                 comprehended
                 ,
                 but
                 only
                 these
                 which
                 are
                 wild
                 ,
                 which
                 if
                 they
                 be
                 tamed
                 ,
                 contrary
                 their
                 Nature
                 ,
                 are
                 so
                 long
                 proper
                 ,
                 as
                 their
                 tameness
                 remains
                 ;
                 but
                 if
                 they
                 return
                 to
                 their
                 ancient
                 wildness
                 ,
                 the
                 property
                 thereof
                 is
                 lost
                 ;
                 so
                 soon
                 as
                 the
                 owner
                 ceaseth
                 to
                 pursue
                 for
                 Possession
                 ,
                 It
                 is
                 so
                 long
                 continued
                 ,
                 or
                 understood
                 to
                 be
                 continued
                 by
                 the
                 mind
                 ,
                 having
                 once
                 begun
                 by
                 bodily
                 Acts
                 ;
                 and
                 therefore
                 ,
                 prosecution
                 of
                 wild
                 Creatures
                 will
                 not
                 begin
                 ,
                 though
                 it
                 may
                 continue
                 the
                 property
                 of
                 them
                 .
                 Bees
                 are
                 numbered
                 amongst
                 these
                 wild
                 Creatures
                 ,
                 which
                 therefore
                 are
                 not
                 proper
                 ,
                 though
                 they
                 hyve
                 on
                 Trees
                 ,
                 more
                 then
                 Fowls
                 who
                 set
                 their
                 Nests
                 thereupon
                 ,
                 but
                 if
                 they
                 be
                 within
                 a
                 Skep
                 ,
                 or
                 work
                 in
                 the
                 hollow
                 of
                 a
                 Tree
                 ,
                 Wall
                 ,
                 or
                 in
                 a
                 House
                 ,
                 they
                 are
                 proper
                 ,
                 or
                 while
                 they
                 Hyve
                 ,
                 or
                 flying
                 away
                 are
                 pursued
                 by
                 the
                 Proprietar
                 :
                 but
                 thereafter
                 they
                 belong
                 to
                 him
                 who
                 next
                 getteth
                 them
                 in
                 his
                 power
                 :
                 As
                 also
                 ,
                 these
                 who
                 were
                 tamed
                 and
                 become
                 wild
                 ,
                 become
                 theirs
                 who
                 regain
                 and
                 tame
                 them
                 again
                 ,
                 and
                 return
                 not
                 to
                 their
                 first
                 owner
                 .
                 Thus
                 are
                 also
                 Gemms
                 ,
                 Pearls
                 and
                 precious
                 Stones
                 ,
                 appropriat
                 by
                 the
                 finders
                 .
                 And
                 likewise
                 Lands
                 not
                 possest
                 ,
                 or
                 which
                 do
                 arise
                 of
                 new
                 ,
                 as
                 do
                 some
                 Islands
                 in
                 the
                 Sea
                 ,
                 or
                 more
                 frequently
                 in
                 publick
                 Rivers
                 ,
                 which
                 by
                 the
                 Civil
                 Law
                 are
                 accounted
                 to
                 accress
                 to
                 these
                 whose
                 Ground
                 lyes
                 nearest
                 proportionably
                 ,
                 according
                 to
                 that
                 part
                 of
                 the
                 Ground
                 that
                 fronts
                 them
                 ;
                 but
                 where
                 such
                 civil
                 constitution
                 is
                 not
                 ,
                 such
                 Islands
                 are
                 publick
                 as
                 the
                 Rivers
                 are
                 ,
                 in
                 which
                 they
                 are
                 bred
                 .
              
               
                 34.
                 
                 The
                 Second
                 way
                 of
                 Appropriation
                 ,
                 is
                 by
                 Accession
                 ,
                 whereby
                 the
                 accessories
                 of
                 things
                 proper
                 are
                 also
                 proper
                 ,
                 as
                 the
                 birth
                 of
                 all
                 Cattel
                 ,
                 and
                 their
                 Fruits
                 .
                 It
                 is
                 likewise
                 a
                 natural
                 acquisition
                 of
                 property
                 ,
                 which
                 ariseth
                 by
                 accretion
                 of
                 part
                 ,
                 accretion
                 of
                 Birth
                 and
                 of
                 Fruits
                 ,
                 and
                 even
                 the
                 Dung
                 ,
                 or
                 any
                 other
                 profite
                 followeth
                 the
                 property
                 of
                 that
                 whereunto
                 it
                 is
                 accessory
                 ,
                 not
                 only
                 because
                 by
                 common
                 utility
                 ,
                 that
                 is
                 understood
                 to
                 be
                 comprehended
                 in
                 the
                 common
                 consent
                 of
                 Mankind
                 ,
                 to
                 depart
                 from
                 the
                 Original
                 Community
                 of
                 the
                 Earth
                 ,
                 and
                 
                 all
                 the
                 parts
                 ,
                 Fruits
                 and
                 Profits
                 thereof
                 ,
                 and
                 all
                 other
                 things
                 thereupon
                 ,
                 that
                 the
                 samine
                 might
                 be
                 appropriat
                 .
                 But
                 also
                 from
                 that
                 general
                 consent
                 of
                 Mankind
                 ,
                 
                   Quae
                   nullius
                   sunt
                   ,
                   fiunt
                   occupantis
                   .
                
                 And
                 so
                 the
                 Birth
                 and
                 Fruits
                 being
                 a
                 new
                 production
                 ,
                 are
                 carryed
                 as
                 accessory
                 by
                 the
                 first
                 possession
                 .
              
               
                 So
                 Trees
                 and
                 all
                 Plants
                 ,
                 as
                 the
                 Birth
                 of
                 the
                 Earth
                 are
                 carried
                 therewith
                 ,
                 while
                 they
                 are
                 growing
                 thereupon
                 ,
                 even
                 to
                 singular
                 Successors
                 ;
                 but
                 if
                 separat
                 ,
                 or
                 contained
                 in
                 moveable
                 Boxes
                 ,
                 they
                 are
                 not
                 so
                 carryed
                 with
                 the
                 Ground
                 ,
                 as
                 accessories
                 ,
                 but
                 are
                 separat
                 Moveables
                 .
                 So
                 likewise
                 ,
                 the
                 Natural
                 Fruits
                 of
                 the
                 Ground
                 ,
                 as
                 Grass
                 ,
                 and
                 Herbs
                 ,
                 are
                 carryed
                 as
                 the
                 Fruit
                 thereof
                 accessory
                 thereto
                 .
                 But
                 by
                 our
                 Custom
                 ,
                 Corns
                 and
                 Industrial
                 Fruits
                 ,
                 are
                 esteemed
                 as
                 distinct
                 Moveables
                 ,
                 even
                 before
                 they
                 be
                 separat
                 or
                 ripe
                 ,
                 and
                 belong
                 not
                 to
                 purchasers
                 of
                 Land
                 or
                 Heirs
                 .
                 These
                 are
                 the
                 ways
                 of
                 constituting
                 Property
                 by
                 natural
                 equity
                 ,
                 without
                 consideration
                 of
                 the
                 positive
                 Law
                 of
                 any
                 particular
                 Nation
                 ;
                 but
                 there
                 is
                 no
                 doubt
                 that
                 the
                 sole
                 Dispositive
                 Will
                 of
                 the
                 owner
                 ,
                 may
                 state
                 the
                 property
                 of
                 what
                 is
                 his
                 ,
                 and
                 fully
                 at
                 his
                 dispose
                 in
                 another
                 :
                 So
                 may
                 the
                 publick
                 content
                 of
                 any
                 people
                 introduce
                 ways
                 of
                 Appropriation
                 ,
                 as
                 they
                 find
                 most
                 convenient
                 ,
                 for
                 publick
                 good
                 ,
                 and
                 that
                 either
                 expresly
                 by
                 Statute
                 ,
                 or
                 Declaration
                 of
                 the
                 Legislative
                 Authority
                 ,
                 or
                 tacitly
                 by
                 Consuetude
                 ;
                 and
                 albeit
                 it
                 be
                 a
                 good
                 and
                 solide
                 rule
                 ,
                 
                   Quod
                   meum
                   est
                   ,
                   sine
                   me
                   alienum
                   fieri
                   nequit
                   ,
                
                 yet
                 it
                 hath
                 the
                 exception
                 of
                 publick
                 sanction
                 ,
                 or
                 common
                 custom
                 ,
                 and
                 so
                 though
                 it
                 be
                 not
                 by
                 the
                 sole
                 and
                 proper
                 consent
                 of
                 the
                 owner
                 ,
                 yet
                 it
                 is
                 by
                 the
                 consent
                 of
                 that
                 Society
                 of
                 people
                 ,
                 or
                 their
                 Authority
                 ,
                 wherein
                 the
                 submission
                 or
                 consent
                 of
                 every
                 one
                 in
                 the
                 Society
                 is
                 implyed
                 ,
                 in
                 so
                 far
                 as
                 the
                 design
                 of
                 Association
                 extends
                 .
              
               
                 Therefore
                 ,
                 first
                 ,
                 In
                 Fungibles
                 and
                 all
                 such
                 things
                 as
                 are
                 not
                 discernable
                 from
                 others
                 of
                 that
                 kind
                 ,
                 Possession
                 is
                 generally
                 esteemed
                 to
                 constitute
                 property
                 ,
                 which
                 is
                 most
                 evident
                 in
                 current
                 Money
                 ,
                 which
                 ,
                 if
                 it
                 be
                 not
                 sealed
                 ,
                 and
                 during
                 its
                 remaining
                 so
                 ,
                 is
                 otherways
                 undiscernable
                 ,
                 and
                 doth
                 so
                 far
                 become
                 the
                 property
                 of
                 the
                 Possessor
                 ,
                 that
                 it
                 passeth
                 to
                 all
                 singular
                 Successors
                 without
                 any
                 question
                 ,
                 of
                 the
                 knowledge
                 ,
                 fraud
                 ,
                 or
                 other
                 fault
                 of
                 the
                 Authors
                 ,
                 without
                 which
                 ,
                 Commerce
                 could
                 not
                 be
                 secured
                 ;
                 if
                 Money
                 ,
                 which
                 is
                 the
                 common
                 mean
                 of
                 it
                 ,
                 did
                 not
                 pass
                 currently
                 without
                 all
                 question
                 ,
                 whose
                 it
                 had
                 been
                 ,
                 or
                 how
                 it
                 ceassed
                 to
                 be
                 his
                 ,
                 
                   l.
                   si
                   alien
                
                 .
                 78.
                 
                   ff
                   .
                   de
                   solutionibus
                
                 ,
                 and
                 though
                 that
                 Law
                 is
                 in
                 the
                 case
                 of
                 commixtion
                 of
                 Money
                 with
                 his
                 Money
                 ,
                 who
                 was
                 not
                 owner
                 of
                 it
                 ,
                 whereby
                 it
                 is
                 esteemed
                 as
                 consumption
                 of
                 the
                 Money
                 commixed
                 ,
                 that
                 ground
                 doth
                 necessarily
                 reach
                 all
                 Money
                 ,
                 so
                 soon
                 as
                 it
                 passeth
                 to
                 any
                 singular
                 successor
                 by
                 commerce
                 ,
                 for
                 thereby
                 in
                 the
                 same
                 way
                 it
                 is
                 consumed
                 .
              
               
                 35.
                 
                 Secondly
                 ,
                 Upon
                 the
                 like
                 ground
                 it
                 is
                 ,
                 that
                 Appropriation
                 by
                 Alluvion
                 ,
                 is
                 admitted
                 in
                 all
                 Nations
                 ,
                 for
                 thereby
                 the
                 adjection
                 of
                 others
                 ground
                 insensibly
                 ,
                 and
                 unperceivably
                 by
                 the
                 running
                 of
                 a
                 River
                 ,
                 becomes
                 a
                 part
                 of
                 the
                 ground
                 to
                 which
                 it
                 is
                 adjected
                 ,
                 because
                 it
                 is
                 uncertain
                 from
                 whose
                 Ground
                 such
                 small
                 and
                 unperceivable
                 particles
                 are
                 carryed
                 by
                 the
                 Water
                 ,
                 and
                 thereby
                 also
                 the
                 frequent
                 questions
                 that
                 would
                 arise
                 betwixt
                 the
                 Proprietars
                 ,
                 upon
                 the
                 opposit
                 Banks
                 of
                 Rivers
                 are
                 prevented
                 ;
                 and
                 though
                 the
                 adjection
                 may
                 be
                 perceivable
                 and
                 considerable
                 in
                 a
                 tract
                 of
                 time
                 ,
                 it
                 maketh
                 no
                 difference
                 ,
                 if
                 at
                 no
                 particular
                 instant
                 the
                 adjection
                 be
                 considerable
                 ,
                 as
                 the
                 motion
                 of
                 the
                 Palm
                 of
                 a
                 Horologe
                 is
                 insensible
                 at
                 any
                 instant
                 ,
                 though
                 it
                 be
                 very
                 perceivable
                 when
                 put
                 together
                 ,
                 in
                 less
                 then
                 the
                 quarter
                 of
                 an
                 hour
                 .
              
               
                 36.
                 
                 Thirdly
                 ,
                 Upon
                 the
                 same
                 ground
                 ,
                 confusion
                 of
                 Liquids
                 ,
                 which
                 are
                 not
                 separable
                 ,
                 
                 altereth
                 the
                 property
                 ,
                 in
                 so
                 far
                 that
                 what
                 before
                 belonged
                 to
                 several
                 owners
                 severally
                 ,
                 becometh
                 now
                 to
                 belong
                 to
                 the
                 same
                 owners
                 ,
                 
                   pro
                   indiviso
                
                 ,
                 according
                 to
                 the
                 proportion
                 of
                 the
                 value
                 of
                 their
                 shares
                 ,
                 neither
                 is
                 there
                 any
                 difference
                 ,
                 whether
                 the
                 confusion
                 be
                 made
                 by
                 the
                 consent
                 of
                 parties
                 ,
                 by
                 accident
                 ,
                 or
                 by
                 mistake
                 ,
                 or
                 fault
                 ,
                 the
                 effect
                 being
                 the
                 same
                 in
                 all
                 :
                 that
                 because
                 the
                 parts
                 are
                 undiscernable
                 and
                 inseparable
                 ,
                 so
                 as
                 to
                 give
                 every
                 owner
                 the
                 individual
                 body
                 he
                 had
                 before
                 ,
                 therefore
                 ,
                 he
                 can
                 only
                 receive
                 by
                 equivolence
                 ,
                 the
                 like
                 value
                 by
                 division
                 .
              
               
                 Fourthly
                 ,
                 upon
                 the
                 same
                 ground
                 ,
                 commixture
                 of
                 Grain
                 or
                 other
                 arid
                 bodies
                 ,
                 belonging
                 to
                 divers
                 owners
                 ,
                 which
                 cannot
                 be
                 easily
                 separate
                 ,
                 or
                 of
                 any
                 materials
                 in
                 one
                 Mass
                 ,
                 Work
                 ,
                 or
                 Artifice
                 ,
                 if
                 they
                 be
                 not
                 separable
                 ,
                 they
                 induce
                 a
                 communion
                 proportionable
                 to
                 the
                 value
                 of
                 the
                 several
                 ingredients
                 :
                 And
                 though
                 all
                 the
                 ingredients
                 remain
                 without
                 alteration
                 of
                 their
                 substance
                 ,
                 so
                 that
                 in
                 subtilty
                 ,
                 the
                 property
                 of
                 each
                 part
                 might
                 be
                 considered
                 as
                 remaining
                 with
                 the
                 former
                 owner
                 ,
                 not
                 only
                 in
                 commixture
                 ,
                 but
                 in
                 confusion
                 ,
                 alluvion
                 ,
                 and
                 Money
                 :
                 Yet
                 publick
                 Authority
                 for
                 utilities
                 sake
                 ,
                 constituteth
                 or
                 declareth
                 Property
                 in
                 manner
                 foresaid
                 ,
                 which
                 is
                 also
                 consequent
                 from
                 necessity
                 ,
                 and
                 the
                 nature
                 of
                 the
                 thing
                 ,
                 though
                 there
                 were
                 no
                 positive
                 Law
                 ;
                 and
                 such
                 commixtures
                 are
                 not
                 like
                 the
                 commixtures
                 of
                 a
                 Flock
                 ,
                 where
                 every
                 individual
                 is
                 discernable
                 and
                 separable
                 ,
                 as
                 having
                 the
                 several
                 marks
                 of
                 their
                 distinct
                 owners
                 ;
                 and
                 if
                 a
                 commixture
                 in
                 that
                 case
                 should
                 become
                 undiscernable
                 ,
                 it
                 would
                 of
                 necessity
                 introduce
                 a
                 community
                 ,
                 as
                 if
                 different
                 Flocks
                 of
                 unmarked
                 Lambs
                 should
                 in
                 any
                 way
                 fall
                 to
                 come
                 together
                 ,
                 so
                 that
                 the
                 owners
                 ,
                 or
                 the
                 servants
                 could
                 not
                 distinguish
                 their
                 own
                 ,
                 there
                 were
                 no
                 remeed
                 but
                 to
                 divide
                 according
                 to
                 the
                 number
                 belonging
                 to
                 the
                 several
                 owners
                 ,
                 and
                 till
                 that
                 division
                 were
                 made
                 ,
                 every
                 owner
                 had
                 proportionable
                 interest
                 in
                 every
                 individual
                 ,
                 seing
                 none
                 of
                 them
                 could
                 say
                 or
                 instruct
                 this
                 or
                 that
                 to
                 be
                 properly
                 his
                 own
                 .
              
               
                 38.
                 
                 Fifthly
                 ,
                 Positive
                 Law
                 for
                 the
                 common
                 benefit
                 ,
                 constituteth
                 Property
                 by
                 necessar
                 conjunction
                 in
                 constructure
                 ;
                 such
                 is
                 the
                 Roman
                 Law
                 ,
                 
                   de
                   tigno
                   injuncto
                
                 ,
                 whereby
                 a
                 Beam
                 ,
                 or
                 any
                 other
                 material
                 builded
                 in
                 a
                 House
                 ,
                 becomes
                 proper
                 to
                 the
                 owner
                 of
                 the
                 House
                 or
                 Building
                 ,
                 that
                 pollicy
                 be
                 not
                 prejudged
                 by
                 demolishing
                 of
                 Buildings
                 ,
                 which
                 therefore
                 taketh
                 effect
                 ,
                 whether
                 the
                 materials
                 be
                 made
                 use
                 of
                 bona
                 ,
                 or
                 
                   mala
                   fide
                
                 ;
                 yea
                 ,
                 though
                 the
                 materials
                 were
                 affected
                 with
                 theft
                 ,
                 which
                 in
                 other
                 cases
                 ,
                 is
                 
                   labes
                   realis
                
                 ,
                 the
                 publick
                 interest
                 would
                 not
                 suffer
                 demolition
                 ,
                 but
                 give
                 the
                 prior
                 owner
                 the
                 value
                 ,
                 
                   secundum
                   pretium
                   affectionis
                
                 ,
                 and
                 further
                 punish
                 the
                 transgressor
                 ;
                 as
                 the
                 Roman
                 Law
                 gave
                 the
                 double
                 value
                 ,
                 but
                 if
                 before
                 receiving
                 of
                 that
                 satisfaction
                 ,
                 the
                 Building
                 become
                 to
                 be
                 demolished
                 ,
                 there
                 is
                 no
                 doubt
                 but
                 the
                 owner
                 of
                 such
                 materials
                 will
                 recover
                 the
                 same
                 ,
                 
                   rei
                   vindicatione
                
                 .
              
               
                 Upon
                 the
                 like
                 ground
                 of
                 common
                 utility
                 ,
                 the
                 Roman
                 Law
                 did
                 constitute
                 Property
                 by
                 contexture
                 ,
                 whereby
                 the
                 materials
                 wrought
                 into
                 Cloth
                 ,
                 Garment
                 ,
                 or
                 other
                 Artifact
                 ,
                 did
                 become
                 the
                 property
                 of
                 the
                 owner
                 of
                 that
                 Artifact
                 ,
                 if
                 without
                 destruction
                 thereof
                 ,
                 or
                 considerable
                 detriment
                 thereto
                 ;
                 such
                 materials
                 could
                 not
                 be
                 separate
                 therefrom
                 ,
                 in
                 which
                 they
                 made
                 no
                 difference
                 ,
                 whether
                 these
                 materials
                 were
                 made
                 use
                 of
                 bona
                 ,
                 or
                 
                   mala
                   fide
                
                 ;
                 nor
                 did
                 the
                 inherent
                 labes
                 of
                 materials
                 stolen
                 ,
                 hinder
                 the
                 accession
                 and
                 appropriation
                 thereof
                 by
                 contexture
                 ,
                 §
                 .
                 26.
                 
                   instit
                   .
                   de
                   rerum
                   divisione
                
                 :
                 But
                 both
                 in
                 constructure
                 and
                 contexture
                 ,
                 he
                 who
                 thereby
                 acquireth
                 the
                 property
                 of
                 materials
                 belonging
                 to
                 other
                 owners
                 ,
                 seing
                 restitution
                 thereof
                 ceasseth
                 ,
                 he
                 is
                 lyable
                 ,
                 not
                 only
                 for
                 recompence
                 ,
                 
                   in
                   quantum
                   locupletior
                   fastus
                   est
                
                 ,
                 but
                 also
                 for
                 reparation
                 of
                 the
                 damage
                 
                 of
                 the
                 former
                 owner
                 ,
                 in
                 which
                 the
                 manner
                 of
                 Acquisition
                 is
                 considered
                 ;
                 for
                 ,
                 if
                 the
                 materials
                 of
                 others
                 be
                 made
                 use
                 of
                 ,
                 in
                 constructure
                 or
                 contexture
                 ,
                 
                   bona
                   fide
                
                 ,
                 the
                 orninar
                 value
                 thereof
                 is
                 only
                 due
                 ,
                 but
                 otherways
                 the
                 greatest
                 value
                 ,
                 according
                 to
                 the
                 estimation
                 of
                 the
                 former
                 owner
                 ,
                 
                   per
                   pretium
                   affectionis
                
                 .
              
               
                 In
                 Contexture
                 it
                 is
                 considered
                 ,
                 what
                 is
                 the
                 design
                 of
                 the
                 Artefact
                 ,
                 that
                 it
                 may
                 appear
                 what
                 it
                 is
                 principal
                 and
                 what
                 it
                 is
                 accessory
                 ,
                 as
                 in
                 Cloathes
                 the
                 Materials
                 though
                 much
                 more
                 precious
                 then
                 the
                 Cloath
                 ,
                 are
                 accessory
                 thereto
                 ,
                 and
                 the
                 property
                 of
                 the
                 whole
                 befalleth
                 not
                 to
                 the
                 owner
                 of
                 the
                 Materials
                 ,
                 but
                 the
                 owner
                 of
                 the
                 Cloathes
                 .
                 And
                 precious
                 Stones
                 set
                 in
                 Rings
                 ,
                 are
                 accessory
                 thereto
                 ,
                 though
                 more
                 precious
                 then
                 the
                 Gold
                 ,
                 or
                 other
                 Material
                 of
                 the
                 Ring
                 .
                 But
                 otherways
                 ,
                 if
                 a
                 Gemm
                 beset
                 in
                 Gold
                 ,
                 the
                 Gold
                 becomes
                 accessory
                 thereto
                 ,
                 and
                 wherever
                 the
                 case
                 is
                 dubious
                 ,
                 that
                 which
                 is
                 of
                 greatest
                 value
                 carrieth
                 the
                 property
                 of
                 the
                 whole
                 .
              
               
                 Albeit
                 that
                 contraversies
                 have
                 been
                 seldom
                 moved
                 with
                 us
                 ,
                 as
                 to
                 constructure
                 ,
                 or
                 contexture
                 ,
                 it
                 is
                 not
                 to
                 be
                 doubted
                 ,
                 but
                 we
                 would
                 proceed
                 upon
                 the
                 like
                 grounds
                 of
                 equity
                 and
                 utility
                 .
              
               
                 Upon
                 the
                 like
                 ground
                 of
                 accession
                 ,
                 questions
                 in
                 relation
                 to
                 Pictures
                 are
                 to
                 be
                 resolved
                 ,
                 for
                 if
                 the
                 Ground
                 ,
                 broad
                 ,
                 or
                 Table
                 of
                 a
                 Picture
                 belong
                 to
                 one
                 and
                 the
                 same
                 be
                 painted
                 by
                 another
                 ,
                 either
                 for
                 his
                 own
                 use
                 ,
                 or
                 for
                 the
                 use
                 of
                 a
                 third
                 party
                 ,
                 there
                 doth
                 not
                 continue
                 two
                 distinct
                 properties
                 ,
                 one
                 of
                 the
                 Broad
                 ,
                 and
                 another
                 of
                 the
                 Picture
                 ,
                 nor
                 a
                 communion
                 by
                 proportion
                 of
                 Interest
                 ,
                 but
                 the
                 property
                 of
                 the
                 whole
                 befalleth
                 to
                 one
                 ,
                 as
                 to
                 which
                 ,
                 there
                 was
                 a
                 contrariety
                 betwixt
                 the
                 two
                 
                   Roman
                   Juris-consults
                   ,
                   Paulus
                
                 and
                 Caius
                 ,
                 for
                 Paulus
                 allowed
                 the
                 Picture
                 to
                 follow
                 the
                 Broad
                 ,
                 as
                 accessory
                 thereto
                 ,
                 and
                 carried
                 therewith
                 ,
                 
                   l.
                   in
                   rem
                
                 ,
                 23.
                 
                 §
                 .
                 3.
                 
                   ff
                   .
                   de
                   rei
                   vindicatione
                
                 ;
                 but
                 Caius
                 on
                 the
                 contrair
                 ,
                 attributeth
                 the
                 Broad
                 as
                 accessory
                 to
                 the
                 Picture
                 ,
                 l.
                 9.
                 
                 §
                 .
                 2.
                 
                   ff
                   .
                   de
                   acquirendo
                   rerum
                   dominio
                   ,
                
                 and
                 both
                 Sentences
                 be
                 confirmed
                 by
                 Justinian
                 in
                 the
                 Digest
                 .
                 In
                 the
                 Institutes
                 ,
                 he
                 prefers
                 the
                 opinion
                 of
                 Caius
                 ,
                 §
                 .
                 34.
                 
                 
                   Instit.
                   de
                   rerum
                   divisione
                
                 ;
                 upon
                 that
                 reason
                 ,
                 that
                 it
                 were
                 ridiculous
                 ,
                 that
                 a
                 precious
                 Picture
                 of
                 Appelles
                 should
                 follow
                 a
                 Broad
                 ,
                 though
                 of
                 the
                 lowest
                 value
                 :
                 Albeit
                 before
                 ,
                 precious
                 Stones
                 ,
                 though
                 of
                 greater
                 value
                 then
                 Cloth
                 ,
                 were
                 declared
                 by
                 him
                 to
                 be
                 carryed
                 therewith
                 ,
                 Positive
                 Law
                 may
                 determine
                 the
                 point
                 either
                 way
                 ,
                 without
                 injustice
                 ,
                 according
                 to
                 equity
                 and
                 expediency
                 ;
                 but
                 there
                 are
                 diverse
                 cases
                 in
                 the
                 matter
                 ,
                 which
                 should
                 be
                 diversly
                 resolved
                 ;
                 as
                 ,
              
               
                 First
                 ,
                 If
                 any
                 Picture
                 be
                 Painted
                 upon
                 a
                 Wall
                 ,
                 or
                 other
                 immoveable
                 ,
                 it
                 doth
                 necessarily
                 cede
                 to
                 the
                 ground
                 thereof
                 ,
                 and
                 quality
                 ,
                 wherever
                 the
                 Picture
                 is
                 ,
                 for
                 ornament
                 of
                 its
                 ground
                 ,
                 as
                 when
                 a
                 Scrine
                 ,
                 or
                 Cabine
                 ,
                 or
                 the
                 like
                 Moveables
                 are
                 Painted
                 ,
                 because
                 the
                 adorning
                 of
                 the
                 ground
                 is
                 in
                 that
                 case
                 designed
                 ;
                 but
                 a
                 Face
                 or
                 any
                 other
                 Picture
                 ,
                 where
                 the
                 Broad
                 is
                 only
                 designed
                 for
                 it
                 ,
                 the
                 Broad
                 is
                 most
                 conveniently
                 esteemed
                 as
                 accessory
                 thereto
                 ,
                 and
                 in
                 all
                 cases
                 ,
                 the
                 owner
                 of
                 the
                 whole
                 is
                 lyable
                 
                   in
                   quantum
                   lucratus
                   est
                
                 ,
                 even
                 though
                 the
                 Painting
                 be
                 done
                 by
                 him
                 ,
                 who
                 knew
                 that
                 the
                 ground
                 was
                 not
                 his
                 own
                 ,
                 for
                 in
                 that
                 case
                 ,
                 the
                 presumption
                 is
                 not
                 strong
                 enough
                 ,
                 that
                 he
                 did
                 it
                 
                   animo
                   donandi
                
                 ,
                 for
                 it
                 cannot
                 be
                 imagined
                 ,
                 that
                 the
                 making
                 use
                 of
                 an
                 inconsiderable
                 Broad
                 of
                 an
                 other
                 ,
                 should
                 infer
                 the
                 purpose
                 of
                 gifting
                 a
                 fine
                 Picture
                 thereupon
                 ,
                 neither
                 that
                 they
                 who
                 Paint
                 a
                 Wall
                 ,
                 Scrine
                 ,
                 or
                 Boxes
                 of
                 others
                 ,
                 being
                 Articens
                 ,
                 who
                 work
                 for
                 profit
                 ,
                 did
                 the
                 same
                 to
                 gift
                 .
                 but
                 to
                 obliege
                 the
                 other
                 party
                 .
              
               
               
                 Writing
                 upon
                 Parchment
                 ,
                 Paper
                 ,
                 or
                 other
                 Tables
                 ,
                 was
                 by
                 the
                 Rontan
                 Law
                 accounted
                 as
                 accessory
                 thereto
                 ,
                 
                   Instit.
                   de
                   rerum
                   divisione
                
                 ,
                 §
                 .
                 33.
                 l.
                 3.
                 
                 §
                 .
                 
                   pen.
                   ff
                   .
                   ad
                   exhibendum
                
                 ,
                 which
                 is
                 very
                 disionant
                 from
                 that
                 which
                 is
                 there
                 determined
                 of
                 Pictures
                 ;
                 and
                 therefore
                 ,
                 is
                 every
                 where
                 in
                 desuetude
                 ,
                 as
                 is
                 observed
                 by
                 
                   Grotius
                   ,
                   Minsynger
                
                 and
                 others
                 ,
                 both
                 as
                 to
                 Writing
                 and
                 Printing
                 in
                 the
                 same
                 way
                 as
                 Painting
                 ;
                 for
                 if
                 the
                 Writing
                 be
                 upon
                 the
                 Wall
                 or
                 other
                 Moveables
                 of
                 another
                 ,
                 or
                 if
                 it
                 be
                 upon
                 the
                 Books
                 of
                 others
                 ,
                 it
                 cedeth
                 thereto
                 ;
                 but
                 if
                 it
                 be
                 upon
                 Paper
                 or
                 Parchment
                 ,
                 the
                 design
                 and
                 use
                 whereof
                 is
                 for
                 Writing
                 ,
                 and
                 the
                 use
                 whereof
                 is
                 consumed
                 and
                 lost
                 by
                 Writing
                 ,
                 it
                 doth
                 follow
                 the
                 Writing
                 ,
                 and
                 it
                 were
                 very
                 unreasonable
                 to
                 think
                 that
                 the
                 Evidents
                 and
                 Securities
                 of
                 Lands
                 ,
                 or
                 any
                 Manuscript
                 ,
                 should
                 be
                 accessory
                 to
                 the
                 Paper
                 ,
                 or
                 Parchment
                 whereon
                 they
                 were
                 Written
                 ,
                 and
                 which
                 were
                 only
                 designed
                 to
                 bear
                 and
                 preserve
                 the
                 Write
                 .
              
               
                 38.
                 
                 It
                 is
                 a
                 Rule
                 in
                 the
                 Roman
                 Law
                 ,
                 which
                 we
                 follow
                 
                   inedificatum
                   solo
                   cedit
                
                 ,
                 for
                 thereby
                 all
                 Buildings
                 of
                 Houses
                 ,
                 Walls
                 ,
                 Wells
                 ,
                 Dyks
                 ,
                 &c.
                 
                 And
                 generally
                 ,
                 all
                 things
                 sixed
                 to
                 the
                 Ground
                 ,
                 are
                 accounted
                 as
                 parts
                 of
                 the
                 Ground
                 ,
                 and
                 pass
                 therewith
                 (
                 though
                 not
                 exprest
                 )
                 to
                 all
                 singular
                 Successors
                 :
                 And
                 not
                 to
                 Executors
                 ,
                 but
                 to
                 Heirs
                 ;
                 and
                 thence
                 ,
                 not
                 only
                 the
                 Materials
                 of
                 others
                 become
                 the
                 owners
                 of
                 the
                 Ground
                 ,
                 on
                 which
                 they
                 are
                 builded
                 ,
                 and
                 for
                 preserving
                 of
                 policy
                 ,
                 cannot
                 be
                 demolished
                 ,
                 as
                 hath
                 been
                 said
                 of
                 Constructure
                 :
                 But
                 likeways
                 ,
                 he
                 that
                 Builds
                 with
                 his
                 own
                 Materials
                 upon
                 another
                 Mans
                 Ground
                 ,
                 the
                 samin
                 accresce
                 to
                 the
                 Ground
                 ,
                 and
                 if
                 the
                 owner
                 of
                 these
                 Materials
                 knew
                 the
                 Ground
                 to
                 be
                 anothers
                 ,
                 the
                 Roman
                 Law
                 gave
                 him
                 no
                 Recompence
                 therefore
                 ,
                 but
                 presumed
                 it
                 to
                 be
                 done
                 ,
                 
                   animo
                   donandi
                
                 ,
                 which
                 is
                 rather
                 penal
                 ,
                 in
                 hatred
                 of
                 these
                 who
                 incroach
                 upon
                 the
                 ground
                 of
                 others
                 ,
                 then
                 from
                 any
                 sufficient
                 ground
                 of
                 presumption
                 ;
                 and
                 therefore
                 ,
                 our
                 Custom
                 doth
                 allow
                 a
                 Recompence
                 to
                 the
                 Builder
                 ,
                 in
                 so
                 far
                 as
                 the
                 Heretor
                 were
                 profited
                 thereby
                 ,
                 in
                 that
                 he
                 might
                 get
                 a
                 greater
                 Rent
                 for
                 that
                 Building
                 .
                 But
                 Building
                 by
                 Tennents
                 of
                 Houses
                 for
                 their
                 own
                 use
                 ,
                 though
                 at
                 their
                 removing
                 ,
                 they
                 leave
                 the
                 Land
                 in
                 better
                 condition
                 ,
                 then
                 at
                 their
                 entry
                 ,
                 they
                 get
                 no
                 satisfaction
                 thereof
                 ,
                 without
                 paction
                 .
                 And
                 a
                 Liferenter
                 having
                 Rebuilded
                 a
                 Jointure-house
                 ,
                 which
                 was
                 burnt
                 by
                 accident
                 in
                 her
                 Vidowity
                 ,
                 and
                 Rebuilt
                 by
                 her
                 second
                 Husband
                 ,
                 was
                 found
                 to
                 have
                 no
                 satisfaction
                 therefore
                 ,
                 except
                 the
                 House
                 had
                 been
                 accustomed
                 to
                 be
                 set
                 for
                 Rent
                 ;
                 and
                 that
                 the
                 Liferenter
                 ,
                 or
                 her
                 Husband
                 had
                 no
                 power
                 to
                 demolish
                 any
                 thing
                 ,
                 that
                 was
                 fixed
                 to
                 the
                 Ground
                 ,
                 February
                 2.
                 1672.
                 
                 Captain
                 
                   Gutbrie
                   contra
                
                 Laird
                 of
                 Mckerstoun
                 .
                 And
                 an
                 Appryzer
                 having
                 Rebuilded
                 a
                 burnt
                 House
                 ,
                 was
                 not
                 presumed
                 to
                 gift
                 the
                 same
                 to
                 a
                 Liferenter
                 ,
                 albeit
                 her
                 Seasine
                 was
                 Registrat
                 ,
                 but
                 she
                 had
                 her
                 option
                 ,
                 either
                 to
                 get
                 so
                 much
                 out
                 of
                 the
                 Rent
                 of
                 the
                 Tenement
                 ,
                 as
                 it
                 was
                 worth
                 before
                 the
                 Reparation
                 ;
                 or
                 to
                 have
                 the
                 possefsion
                 of
                 the
                 Tenement
                 ,
                 paying
                 the
                 Annualrent
                 of
                 the
                 Sums
                 necessarly
                 and
                 profitably
                 wared
                 upon
                 the
                 Reparation
                 thereof
                 ,
                 during
                 her
                 Life
                 ,
                 January
                 24.
                 1672.
                 
                 
                   Hacket
                   contra
                   Wat.
                
                 
              
               
                 There
                 remains
                 to
                 be
                 cleared
                 ,
                 that
                 Appropriation
                 which
                 is
                 by
                 Specification
                 ,
                 whereby
                 of
                 materials
                 belonging
                 to
                 other
                 owners
                 ,
                 a
                 new
                 species
                 is
                 produced
                 ,
                 whether
                 the
                 product
                 belongs
                 to
                 the
                 owners
                 of
                 the
                 materials
                 ,
                 or
                 to
                 him
                 for
                 whom
                 the
                 Work
                 was
                 made
                 ,
                 as
                 to
                 which
                 ,
                 the
                 two
                 great
                 Sects
                 of
                 the
                 ancient
                 Lawers
                 ,
                 were
                 divided
                 ,
                 Proculus
                 and
                 his
                 followers
                 attributing
                 the
                 property
                 of
                 all
                 materials
                 to
                 him
                 that
                 made
                 the
                 Work.
                 And
                 Sabinus
                 and
                 his
                 ,
                 attributing
                 the
                 whole
                 to
                 the
                 owners
                 of
                 the
                 materials
                 :
                 But
                 Tribonian
                 midseth
                 the
                 matter
                 thus
                 ,
                 that
                 if
                 the
                 product
                 can
                 easily
                 be
                 reduced
                 to
                 the
                 first
                 matter
                 ,
                 the
                 owners
                 of
                 the
                 matter
                 remain
                 proprietars
                 of
                 the
                 whole
                 ,
                 as
                 when
                 a
                 Cup
                 or
                 other
                 〈◊〉
                 is
                 
                 made
                 of
                 Mettal
                 ;
                 but
                 otherways
                 the
                 materials
                 cedes
                 to
                 the
                 Workmanship
                 ,
                 not
                 only
                 when
                 the
                 materials
                 are
                 consumed
                 ,
                 but
                 even
                 when
                 they
                 remain
                 ,
                 and
                 cannot
                 be
                 reduced
                 to
                 their
                 first
                 nature
                 ,
                 as
                 Wine
                 of
                 other
                 mens
                 Grapes
                 ,
                 Mault
                 of
                 other
                 mens
                 Bear
                 ,
                 Cloth
                 of
                 other
                 mens
                 Wool
                 ,
                 and
                 even
                 a
                 Ship
                 of
                 other
                 mens
                 Timber
                 ,
                 but
                 not
                 by
                 Maultning
                 of
                 Barly
                 ,
                 or
                 Dying
                 of
                 Cloth
                 ,
                 or
                 the
                 like
                 ,
                 which
                 change
                 not
                 the
                 
                   Species
                   .
                   Conanus
                
                 is
                 of
                 opinion
                 ,
                 that
                 whether
                 the
                 Workmanship
                 or
                 the
                 Materials
                 be
                 more
                 precious
                 ,
                 the
                 property
                 is
                 carried
                 by
                 the
                 value
                 .
                 And
                 〈◊〉
                 esteemeth
                 ,
                 that
                 there
                 ariseth
                 a
                 communion
                 ,
                 as
                 in
                 confusion
                 of
                 Liquors
                 ,
                 proportioned
                 according
                 to
                 the
                 value
                 of
                 the
                 Materials
                 and
                 Workmanship
                 .
                 Positive
                 Law
                 ,
                 or
                 Custom
                 may
                 without
                 injustice
                 ,
                 follow
                 any
                 of
                 these
                 ways
                 ,
                 reparation
                 being
                 always
                 made
                 to
                 the
                 party
                 who
                 loses
                 his
                 interest
                 ,
                 unless
                 the
                 presumption
                 be
                 strong
                 enough
                 to
                 infer
                 ,
                 that
                 the
                 Workmanship
                 was
                 performed
                 ,
                 
                   animo
                   donandi
                
                 ,
                 by
                 him
                 who
                 knew
                 the
                 Materials
                 belonged
                 to
                 others
                 .
              
               
                 In
                 Immoveables
                 ,
                 the
                 constitution
                 or
                 transmisson
                 of
                 property
                 ,
                 is
                 exprest
                 in
                 Write
                 ,
                 and
                 is
                 parted
                 in
                 many
                 interests
                 ;
                 but
                 in
                 Moveables
                 ,
                 property
                 is
                 simple
                 and
                 full
                 without
                 servitude
                 ,
                 and
                 there
                 is
                 no
                 other
                 interest
                 in
                 them
                 ,
                 unless
                 they
                 be
                 impledged
                 ,
                 neither
                 need
                 the
                 Title
                 Constitution
                 or
                 Transmission
                 of
                 property
                 in
                 Moveables
                 be
                 instructed
                 by
                 Write
                 ,
                 but
                 is
                 presumed
                 from
                 possession
                 ;
                 and
                 therefore
                 ,
                 for
                 the
                 Restitution
                 or
                 recovery
                 of
                 Moveables
                 from
                 the
                 possessor
                 thereof
                 ,
                 it
                 is
                 not
                 sufficient
                 to
                 instruct
                 that
                 the
                 pursuer
                 had
                 a
                 sufficient
                 right
                 thereto
                 ,
                 as
                 by
                 the
                 birth
                 or
                 fruit
                 of
                 his
                 Ground
                 or
                 Cattel
                 ;
                 or
                 as
                 being
                 bought
                 by
                 him
                 and
                 in
                 his
                 Possession
                 :
                 But
                 he
                 must
                 instruct
                 the
                 manner
                 how
                 his
                 Possession
                 ceassed
                 ,
                 as
                 being
                 either
                 taken
                 from
                 him
                 by
                 violence
                 ,
                 or
                 by
                 stealth
                 ,
                 or
                 having
                 strayed
                 ,
                 and
                 being
                 lost
                 or
                 the
                 like
                 ;
                 and
                 the
                 reason
                 thereof
                 is
                 ,
                 because
                 moveables
                 pass
                 without
                 Write
                 ,
                 and
                 oftimes
                 without
                 witness
                 ;
                 and
                 therefore
                 ,
                 whatever
                 right
                 parties
                 once
                 had
                 to
                 Moveables
                 ,
                 it
                 is
                 presumed
                 to
                 be
                 transmitted
                 by
                 Donation
                 ,
                 sale
                 ,
                 or
                 otherways
                 ,
                 unless
                 it
                 be
                 proven
                 that
                 he
                 lost
                 Possession
                 ,
                 as
                 aforesaid
                 ;
                 or
                 otherways
                 ,
                 that
                 it
                 be
                 proven
                 by
                 the
                 Defenders
                 Oath
                 ,
                 that
                 he
                 knew
                 the
                 thing
                 in
                 question
                 to
                 be
                 the
                 pursuers
                 proper
                 Goods
                 ;
                 for
                 in
                 that
                 case
                 ,
                 even
                 his
                 privat
                 knowledge
                 will
                 prejudge
                 him
                 ,
                 though
                 he
                 had
                 bought
                 it
                 at
                 a
                 competent
                 rate
                 ,
                 though
                 it
                 be
                 not
                 so
                 in
                 Heretable
                 Rights
                 ,
                 to
                 whose
                 constitution
                 and
                 transmission
                 ,
                 Write
                 and
                 Solemnities
                 are
                 necessar
                 ,
                 neither
                 will
                 it
                 avail
                 ,
                 though
                 it
                 were
                 a
                 Horse
                 bought
                 in
                 publick
                 Mercat
                 and
                 Booked
                 there
                 ;
                 for
                 we
                 have
                 not
                 the
                 priviledge
                 of
                 Fairs
                 which
                 the
                 English
                 have
                 ,
                 that
                 Horse
                 bought
                 in
                 publick
                 Mercat
                 should
                 be
                 secured
                 to
                 the
                 buyer
                 ,
                 without
                 further
                 question
                 ,
                 but
                 he
                 buys
                 the
                 same
                 with
                 the
                 peril
                 of
                 the
                 sellers
                 rigt
                 ,
                 March
                 19.
                 1639.
                 
                 
                   Ferguson
                   contra
                   Forrest
                
                 .
                 Hence
                 it
                 is
                 ,
                 that
                 in
                 all
                 Actions
                 for
                 recovery
                 of
                 moveables
                 ,
                 there
                 is
                 no
                 more
                 lybelled
                 ,
                 then
                 that
                 the
                 moveables
                 were
                 the
                 proper
                 Goods
                 of
                 the
                 pursuer
                 ,
                 and
                 in
                 his
                 Possession
                 ,
                 for
                 such
                 time
                 ,
                 by
                 using
                 the
                 same
                 as
                 his
                 own
                 proper
                 goods
                 ,
                 and
                 condescending
                 how
                 he
                 ceassed
                 to
                 possess
                 ,
                 as
                 being
                 lent
                 by
                 him
                 ,
                 which
                 was
                 found
                 relevant
                 to
                 be
                 proven
                 by
                 witnesses
                 ,
                 though
                 the
                 question
                 was
                 of
                 a
                 Book
                 of
                 a
                 considerable
                 value
                 ,
                 January
                 27.
                 1665.
                 
                 
                   Walter
                   Scot
                
                 Oy
                 to
                 
                   Scotishtarbet
                   contra
                
                 Sir
                 
                   John
                   Fletcher
                
                 ;
                 or
                 that
                 the
                 goods
                 did
                 stray
                 ,
                 February
                 3.
                 1672.
                 
                 Scot
                 of
                 
                   Gorrenberrie
                   contra
                   Elliot
                
                 ;
                 or
                 if
                 the
                 goods
                 were
                 in
                 possession
                 of
                 a
                 Defunct
                 at
                 his
                 death
                 ,
                 the
                 presumption
                 of
                 sale
                 ceasseth
                 ;
                 or
                 if
                 there
                 be
                 a
                 stronger
                 contrary
                 presumption
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 Jewels
                 ,
                 which
                 the
                 Defender
                 neither
                 could
                 use
                 as
                 proper
                 to
                 his
                 quality
                 ,
                 and
                 he
                 was
                 not
                 a
                 Merchant
                 or
                 Jewler
                 ;
                 (
                 these
                 Jewels
                 were
                 once
                 in
                 pignorat
                 by
                 Write
                 ,
                 )
                 in
                 that
                 case
                 possession
                 was
                 not
                 found
                 sufficient
                 to
                 infer
                 property
                 ,
                 December
                 12.
                 1665.
                 
                 
                   John
                   Ramsay
                   contra
                   James
                   Wilson
                
                 .
                 And
                 even
                 in
                 the
                 case
                 of
                 Ships
                 of
                 War
                 ,
                 which
                 are
                 the
                 most
                 considerable
                 moveables
                 ,
                 property
                 was
                 presumed
                 by
                 possession
                 without
                 write
                 ,
                 July
                 26.
                 1673.
                 
                 Captain
                 
                   Hamiltoun
                   contra
                
                 the
                 owners
                 of
                 the
                 Statine
                 ,
                 and
                 the
                 property
                 of
                 Money
                 was
                 inferred
                 ,
                 
                 by
                 having
                 the
                 Key
                 of
                 the
                 Chist
                 in
                 which
                 the
                 Money
                 was
                 unsealed
                 ,
                 unless
                 a
                 contrary
                 positive
                 probation
                 were
                 adduced
                 ,
                 June
                 18.
                 1675.
                 
                 
                   Tailour
                   contra
                   Rankin
                
                 .
                 Yea
                 ,
                 moveables
                 acquired
                 
                   bona
                   side
                
                 ,
                 for
                 causes
                 onerous
                 ,
                 were
                 found
                 not
                 lyable
                 to
                 a
                 Hypothecation
                 ,
                 or
                 conditions
                 of
                 a
                 written
                 disposition
                 of
                 them
                 unless
                 they
                 had
                 been
                 affected
                 with
                 diligence
                 ,
                 when
                 they
                 were
                 in
                 the
                 hands
                 of
                 him
                 to
                 whom
                 they
                 were
                 disponed
                 with
                 these
                 conditions
                 ,
                 December
                 17.
                 1675.
                 
                 Creditors
                 of
                 
                   James
                   Masterioun
                   contra
                
                 Creditors
                 of
                 
                   Alies
                   Thin
                
                 .
              
               
                 These
                 are
                 the
                 ways
                 of
                 Appropriation
                 by
                 private
                 Right
                 ;
                 Appropriation
                 by
                 publick
                 Right
                 is
                 by
                 War
                 ,
                 and
                 force
                 ,
                 where
                 there
                 is
                 no
                 common
                 Judge
                 or
                 Authority
                 ,
                 for
                 in
                 that
                 case
                 ,
                 equity
                 and
                 that
                 common
                 justice
                 ,
                 which
                 is
                 acknowledged
                 by
                 all
                 Nations
                 ,
                 as
                 the
                 rule
                 of
                 right
                 and
                 wrong
                 ,
                 especially
                 in
                 so
                 far
                 as
                 it
                 is
                 owned
                 by
                 the
                 Law
                 of
                 Nations
                 ,
                 is
                 a
                 sufficient
                 warrand
                 for
                 obtaining
                 satisfaction
                 by
                 force
                 ,
                 where
                 it
                 is
                 denyed
                 by
                 justice
                 ;
                 but
                 our
                 design
                 here
                 being
                 only
                 to
                 consider
                 privat
                 Rights
                 ,
                 we
                 shall
                 but
                 noice
                 that
                 which
                 by
                 publick
                 Authority
                 is
                 allowed
                 in
                 these
                 cases
                 ,
                 to
                 be
                 the
                 peculiar
                 Right
                 of
                 privat
                 persons
                 ,
                 which
                 doth
                 only
                 reach
                 moveables
                 ,
                 seazed
                 upon
                 by
                 reprysals
                 ,
                 or
                 the
                 Goods
                 of
                 enemies
                 ,
                 or
                 their
                 partakers
                 taken
                 in
                 publick
                 War.
                 
              
               
                 42.
                 
                 Reprysals
                 or
                 Letters
                 of
                 Mark
                 ,
                 are
                 granted
                 by
                 Princes
                 or
                 States
                 ,
                 by
                 their
                 Warrand
                 or
                 Commission
                 ,
                 to
                 seaze
                 upon
                 the
                 Goods
                 of
                 all
                 persons
                 under
                 the
                 Dominion
                 of
                 such
                 Princes
                 or
                 people
                 ,
                 who
                 have
                 refused
                 to
                 make
                 just
                 reparation
                 ,
                 for
                 the
                 wrongs
                 and
                 damages
                 done
                 by
                 any
                 of
                 their
                 Subjects
                 ,
                 which
                 the
                 Law
                 of
                 Nations
                 doth
                 justly
                 and
                 necessarly
                 allow
                 ,
                 for
                 the
                 common
                 good
                 of
                 mankind
                 ;
                 for
                 if
                 private
                 persons
                 be
                 injured
                 ,
                 by
                 these
                 who
                 are
                 not
                 under
                 one
                 common
                 authority
                 with
                 them
                 ,
                 by
                 Piracy
                 ,
                 Pillage
                 or
                 otherways
                 ,
                 oftimes
                 they
                 cannot
                 know
                 the
                 injurer
                 ,
                 and
                 all
                 force
                 being
                 stated
                 in
                 publick
                 Authority
                 ,
                 they
                 cannot
                 make
                 use
                 thereof
                 to
                 redress
                 or
                 revenge
                 themselves
                 ;
                 and
                 therefore
                 ,
                 they
                 can
                 only
                 make
                 application
                 to
                 the
                 Soveraign
                 Authority
                 of
                 that
                 society
                 of
                 people
                 ,
                 whereof
                 they
                 are
                 members
                 ,
                 and
                 represent
                 and
                 instruct
                 the
                 injury
                 and
                 damage
                 sustained
                 by
                 them
                 ,
                 by
                 the
                 Subjects
                 of
                 other
                 Princes
                 or
                 States
                 ,
                 and
                 thereupon
                 desire
                 that
                 a
                 redress
                 may
                 be
                 demanded
                 ,
                 which
                 is
                 ordinarly
                 done
                 by
                 Ambassadours
                 ,
                 or
                 other
                 Ministers
                 of
                 State
                 ;
                 and
                 if
                 redress
                 be
                 not
                 so
                 obtained
                 ,
                 the
                 Soveraign
                 authority
                 of
                 the
                 persons
                 injured
                 ,
                 may
                 and
                 ought
                 to
                 give
                 Commissions
                 for
                 seazing
                 upon
                 the
                 goods
                 of
                 any
                 of
                 the
                 people
                 of
                 that
                 Society
                 ,
                 whereof
                 the
                 injurers
                 are
                 members
                 ,
                 till
                 just
                 satisfaction
                 and
                 reparation
                 be
                 obtained
                 ,
                 and
                 though
                 there
                 be
                 that
                 singularity
                 in
                 it
                 ,
                 that
                 the
                 goods
                 of
                 these
                 who
                 did
                 not
                 the
                 injury
                 ,
                 are
                 taken
                 to
                 satisfie
                 the
                 same
                 ;
                 yet
                 therin
                 ,
                 there
                 is
                 not
                 only
                 necessity
                 but
                 moral
                 justice
                 ,
                 allowed
                 and
                 approven
                 by
                 the
                 Custom
                 of
                 all
                 Nations
                 ,
                 by
                 their
                 common
                 consent
                 ,
                 for
                 without
                 this
                 Societies
                 could
                 not
                 be
                 preserved
                 ;
                 and
                 therefore
                 ,
                 the
                 publick
                 association
                 of
                 people
                 implyeth
                 this
                 in
                 it
                 ,
                 that
                 the
                 Society
                 is
                 lyable
                 for
                 reparation
                 of
                 the
                 injuries
                 and
                 damages
                 of
                 any
                 of
                 their
                 Society
                 ,
                 when
                 reparation
                 is
                 refused
                 .
              
               
                 Reprysals
                 ought
                 to
                 be
                 limited
                 to
                 a
                 just
                 satisfaction
                 ;
                 and
                 therefore
                 ,
                 what
                 is
                 thereby
                 seazed
                 ,
                 ought
                 to
                 be
                 adjndged
                 in
                 Courts
                 of
                 Admirality
                 ,
                 wherein
                 it
                 ought
                 to
                 be
                 proven
                 ,
                 that
                 the
                 goods
                 seazed
                 belonged
                 to
                 persons
                 of
                 that
                 Society
                 ,
                 of
                 which
                 the
                 injurer
                 is
                 a
                 member
                 ,
                 and
                 to
                 be
                 valued
                 according
                 to
                 the
                 rate
                 they
                 are
                 worth
                 ,
                 where
                 they
                 are
                 brought
                 in
                 and
                 to
                 be
                 adjudged
                 ,
                 in
                 satisfaction
                 to
                 the
                 injured
                 of
                 their
                 damage
                 and
                 interest
                 ,
                 in
                 whole
                 or
                 in
                 part
                 :
                 So
                 that
                 the
                 excress
                 should
                 be
                 forthco
                 ming
                 to
                 the
                 owner
                 :
                 thereof
                 ;
                 and
                 so
                 soon
                 as
                 satisfaction
                 is
                 obtained
                 ,
                 the
                 reprysals
                 ought
                 to
                 ceass
                 :
                 Neither
                 doth
                 the
                 use-making
                 of
                 reprysals
                 in
                 this
                 just
                 order
                 and
                 measure
                 ,
                 import
                 the
                 breach
                 of
                 Treaties
                 ,
                 
                 
                 
                 or
                 common
                 Peace
                 ,
                 or
                 infer
                 publick
                 War
                 ,
                 though
                 they
                 may
                 become
                 the
                 occasion
                 thereof
                 .
              
               
                 43.
                 
                 But
                 where
                 the
                 injury
                 is
                 publick
                 and
                 attrocious
                 ,
                 the
                 Law
                 of
                 Nations
                 hath
                 necessarly
                 and
                 justly
                 allowed
                 publick
                 War
                 ,
                 not
                 only
                 to
                 reach
                 the
                 moveables
                 of
                 publick
                 enemies
                 ,
                 but
                 their
                 Territories
                 ,
                 Jurisdictions
                 and
                 Estates
                 ,
                 wherein
                 the
                 proportion
                 of
                 satisfaction
                 cannot
                 be
                 so
                 measured
                 ,
                 nor
                 is
                 it
                 so
                 considered
                 as
                 in
                 reprysals
                 .
                 That
                 which
                 accreweth
                 to
                 privat
                 persons
                 in
                 War
                 ,
                 is
                 only
                 the
                 giving
                 of
                 quarter
                 ,
                 or
                 getting
                 of
                 spoil
                 ,
                 in
                 so
                 far
                 as
                 the
                 same
                 is
                 allowed
                 ,
                 or
                 permitted
                 by
                 the
                 Commanders
                 in
                 chief
                 ,
                 warranted
                 by
                 publick
                 Authority
                 ,
                 as
                 is
                 ordinar
                 to
                 the
                 Souldiers
                 upon
                 defates
                 of
                 their
                 enemies
                 ,
                 to
                 seaze
                 upon
                 ,
                 and
                 appropriat
                 such
                 moveables
                 as
                 are
                 upon
                 their
                 enemies
                 persons
                 ,
                 or
                 in
                 their
                 baggage
                 :
                 And
                 sometimes
                 for
                 the
                 encouraging
                 of
                 Souldiers
                 besieging
                 ,
                 and
                 for
                 the
                 obstinacy
                 of
                 the
                 besieged
                 ,
                 the
                 plunder
                 of
                 places
                 gained
                 by
                 force
                 ,
                 is
                 for
                 some
                 time
                 permitted
                 ,
                 and
                 ceasseth
                 so
                 soon
                 as
                 countermanded
                 .
                 In
                 other
                 cases
                 ,
                 what
                 belongs
                 to
                 enemies
                 is
                 confiscated
                 for
                 publick
                 use
                 ,
                 and
                 Souldiers
                 ought
                 to
                 be
                 contented
                 with
                 their
                 wages
                 .
              
               
                 44.
                 
                 The
                 main
                 privat
                 interest
                 in
                 publick
                 War
                 ,
                 is
                 that
                 which
                 accreweth
                 by
                 Commissions
                 granted
                 by
                 the
                 Admiral
                 ,
                 for
                 seazing
                 and
                 appropriating
                 of
                 the
                 Ships
                 and
                 Goods
                 of
                 publick
                 enemies
                 ,
                 and
                 of
                 these
                 who
                 become
                 partakers
                 of
                 the
                 War
                 ,
                 and
                 who
                 carry
                 not
                 themselves
                 as
                 friends
                 ,
                 or
                 newters
                 ,
                 to
                 the
                 Princes
                 ,
                 or
                 States
                 ingaged
                 in
                 the
                 War
                 :
                 For
                 by
                 our
                 Custom
                 ,
                 albeit
                 such
                 Ships
                 and
                 Goods
                 be
                 confiscat
                 as
                 publick
                 ,
                 belonging
                 to
                 the
                 King
                 or
                 States
                 ;
                 yet
                 private
                 persons
                 who
                 undertake
                 these
                 Commissions
                 ,
                 have
                 the
                 expenses
                 and
                 profit
                 of
                 these
                 seazures
                 ,
                 paying
                 a
                 fifteenth
                 part
                 thereof
                 to
                 the
                 King
                 ,
                 and
                 a
                 tenth
                 part
                 to
                 the
                 Admiral
                 .
              
               
                 There
                 have
                 been
                 many
                 questions
                 as
                 to
                 the
                 Rights
                 and
                 Interests
                 of
                 Allies
                 ,
                 and
                 Newters
                 ,
                 very
                 fully
                 and
                 accuratly
                 debated
                 ,
                 and
                 decided
                 in
                 the
                 Session
                 ,
                 upon
                 occasion
                 of
                 the
                 late
                 Wars
                 ,
                 betwixt
                 the
                 King
                 and
                 the
                 States
                 of
                 the
                 United
                 Provinces
                 ,
                 which
                 ,
                 because
                 they
                 are
                 of
                 great
                 use
                 ,
                 for
                 clearing
                 the
                 important
                 points
                 that
                 occur
                 in
                 these
                 controversies
                 ,
                 and
                 for
                 vindicating
                 of
                 the
                 publick
                 justice
                 of
                 the
                 Kingdom
                 ,
                 we
                 shall
                 in
                 the
                 clearest
                 and
                 shortest
                 method
                 we
                 can
                 ,
                 give
                 account
                 of
                 what
                 hath
                 been
                 determined
                 in
                 all
                 the
                 Pryzes
                 which
                 came
                 before
                 the
                 Lords
                 of
                 Session
                 in
                 these
                 Wars
                 .
              
               
                 The
                 Lord
                 Admiral
                 of
                 Scotland
                 is
                 the
                 Judge
                 ordinar
                 ,
                 and
                 the
                 sole
                 Judge
                 in
                 the
                 first
                 instance
                 of
                 all
                 Prizes
                 taken
                 at
                 Sea
                 ,
                 but
                 in
                 the
                 second
                 instance
                 ,
                 the
                 Lords
                 of
                 Session
                 ,
                 who
                 are
                 the
                 supream
                 Judges
                 in
                 all
                 civil
                 Causes
                 in
                 Scotland
                 ,
                 which
                 are
                 not
                 determined
                 by
                 ,
                 or
                 depending
                 before
                 the
                 Parliament
                 ,
                 or
                 their
                 Commissioners
                 ,
                 do
                 upon
                 complaint
                 of
                 iniquity
                 committed
                 by
                 the
                 Admiral
                 ,
                 before
                 final
                 sentence
                 Advocat
                 such
                 Causes
                 ,
                 wherein
                 they
                 find
                 probable
                 ground
                 of
                 iniquity
                 alledged
                 and
                 instructed
                 ;
                 or
                 in
                 the
                 second
                 instance
                 after
                 sentence
                 ,
                 do
                 grant
                 Letters
                 of
                 suspension
                 ,
                 or
                 reduction
                 of
                 the
                 Admirals
                 Decreets
                 ,
                 whereupon
                 all
                 intricat
                 and
                 difficile
                 questions
                 in
                 matters
                 of
                 Pryzes
                 come
                 to
                 be
                 debated
                 and
                 determined
                 by
                 the
                 Lords
                 ;
                 there
                 is
                 no
                 question
                 ,
                 when
                 the
                 Goods
                 and
                 Ships
                 seazed
                 on
                 belong
                 to
                 enemies
                 ,
                 but
                 only
                 when
                 they
                 do
                 belong
                 ,
                 or
                 are
                 pretended
                 to
                 belong
                 to
                 Allies
                 or
                 Newters
                 .
              
               
                 The
                 Lords
                 ,
                 upon
                 complaint
                 of
                 iniquity
                 committed
                 by
                 the
                 Admiral
                 ,
                 it
                 being
                 alledged
                 ,
                 that
                 the
                 Lords
                 were
                 not
                 Judges
                 in
                 the
                 matters
                 of
                 Pryzes
                 in
                 the
                 first
                 instance
                 ,
                 yet
                 they
                 found
                 ,
                 both
                 by
                 the
                 amplitude
                 of
                 the
                 power
                 of
                 their
                 Jurisdiction
                 ,
                 
                 and
                 by
                 the
                 custom
                 in
                 former
                 times
                 ,
                 that
                 it
                 was
                 competent
                 to
                 the
                 Lords
                 to
                 Advocat
                 Causes
                 from
                 the
                 Admiral
                 upon
                 iniquity
                 ,
                 albeit
                 the
                 process
                 cannot
                 begin
                 before
                 them
                 in
                 the
                 first
                 instance
                 ;
                 for
                 as
                 they
                 are
                 the
                 Kings
                 ordinar
                 Council
                 ,
                 all
                 matters
                 ,
                 not
                 belonging
                 to
                 the
                 Jurisdiction
                 of
                 another
                 Court
                 ,
                 belongeth
                 to
                 them
                 ;
                 and
                 therefore
                 ,
                 they
                 may
                 ,
                 and
                 oft
                 have
                 Advocat
                 Causes
                 from
                 the
                 Justice
                 General
                 ,
                 and
                 other
                 Judges
                 in
                 Criminal
                 Causes
                 ;
                 albeit
                 the
                 Lords
                 cannot
                 decide
                 these
                 Causes
                 ,
                 as
                 being
                 only
                 Judges
                 in
                 Causes
                 Civil
                 ,
                 yet
                 they
                 may
                 Advocat
                 the
                 same
                 ,
                 that
                 in
                 case
                 ,
                 the
                 reasons
                 of
                 Advocation
                 be
                 relevant
                 and
                 proven
                 ,
                 they
                 may
                 remit
                 the
                 Cause
                 to
                 the
                 proper
                 and
                 competent
                 Judge
                 ,
                 if
                 the
                 reason
                 of
                 Advocation
                 be
                 upon
                 incompetency
                 ,
                 or
                 to
                 other
                 unsuspect
                 Judges
                 ,
                 if
                 the
                 reason
                 be
                 upon
                 the
                 suspicion
                 of
                 the
                 Judge
                 ,
                 as
                 being
                 concerned
                 in
                 the
                 Cause
                 ,
                 or
                 nearly
                 related
                 to
                 the
                 parties
                 ,
                 or
                 having
                 enmity
                 against
                 any
                 of
                 them
                 ;
                 and
                 therefore
                 ,
                 the
                 Lords
                 in
                 the
                 Advocation
                 ,
                 raised
                 by
                 the
                 owners
                 of
                 the
                 Ship
                 ,
                 called
                 ,
                 
                   the
                   Bounder
                
                 ,
                 against
                 Captain
                 Gilleis
                 ,
                 it
                 being
                 ,
                 alledged
                 that
                 the
                 Admiral
                 had
                 committed
                 iniquity
                 ,
                 in
                 granting
                 a
                 conjunct
                 probation
                 for
                 proving
                 the
                 property
                 of
                 the
                 Ship
                 and
                 loadning
                 ;
                 the
                 Lords
                 found
                 this
                 no
                 relevant
                 ground
                 of
                 Advocation
                 of
                 the
                 Cause
                 ,
                 it
                 being
                 in
                 
                   arbitrio
                   judicis
                
                 ,
                 whether
                 to
                 grant
                 a
                 conjunct
                 probation
                 before
                 answer
                 to
                 the
                 relevancy
                 of
                 the
                 reasons
                 of
                 Adjudication
                 ,
                 or
                 to
                 discuss
                 the
                 relevancy
                 first
                 ,
                 and
                 then
                 to
                 admit
                 the
                 points
                 found
                 relevant
                 to
                 probation
                 ;
                 but
                 in
                 the
                 other
                 way
                 witnesses
                 ,
                 are
                 adduced
                 for
                 either
                 party
                 ,
                 yet
                 this
                 being
                 only
                 ,
                 
                   ex
                   nobili
                   officio
                
                 ,
                 the
                 Lords
                 remitted
                 the
                 Cause
                 to
                 the
                 Admiral
                 ,
                 and
                 ordained
                 him
                 to
                 proceed
                 to
                 discuss
                 the
                 relevancy
                 ,
                 there
                 being
                 pregnant
                 grounds
                 of
                 Adjudication
                 instantly
                 verified
                 ,
                 June
                 12.
                 1673.
                 and
                 upon
                 his
                 refusal
                 ,
                 they
                 did
                 Advocat
                 the
                 Cause
                 to
                 themselves
                 ;
                 they
                 did
                 also
                 ordain
                 the
                 Admiral
                 to
                 proceed
                 upon
                 the
                 evidences
                 adduced
                 to
                 adjudge
                 or
                 assoilzie
                 ,
                 without
                 allowing
                 a
                 conjunct
                 probation
                 before
                 answer
                 ,
                 and
                 declared
                 ,
                 that
                 if
                 he
                 proceeded
                 not
                 accordingly
                 ,
                 they
                 would
                 Advocat
                 the
                 Cause
                 ,
                 albeit
                 the
                 Danish
                 Treaty
                 bear
                 ,
                 
                   that
                   their
                   Ships
                   shall
                   not
                   be
                   medled
                   with
                   ,
                   or
                   their
                   Goods
                   disloaded
                   ,
                   till
                   they
                   be
                   adjudged
                   in
                   a
                   Court
                   of
                   Admirality
                
                 ;
                 for
                 the
                 Lords
                 are
                 the
                 Kings
                 great
                 Court
                 of
                 Admirality
                 ,
                 in
                 the
                 same
                 way
                 as
                 his
                 Commissioners
                 in
                 England
                 are
                 Judges
                 in
                 the
                 second
                 instance
                 ,
                 of
                 Pryzes
                 brought
                 before
                 the
                 Admiral
                 of
                 
                   England
                   ,
                   December
                
                 17.
                 1673.
                 
                 Captain
                 
                   Stuart
                   contra
                
                 the
                 owners
                 of
                 the
                 Danish
                 Ship
                 ,
                 called
                 ,
                 
                   the
                   Seal
                   Fish.
                
                 
              
               
                 When
                 Questions
                 concerning
                 Prizes
                 come
                 before
                 the
                 Lords
                 ,
                 they
                 do
                 not
                 exclude
                 the
                 Defences
                 of
                 strangers
                 ,
                 as
                 being
                 competent
                 ,
                 and
                 omitted
                 in
                 the
                 first
                 instance
                 ,
                 though
                 that
                 be
                 a
                 Rule
                 by
                 our
                 custom
                 ,
                 but
                 do
                 proceed
                 according
                 to
                 the
                 common
                 Law
                 of
                 Nations
                 ,
                 and
                 so
                 they
                 decided
                 ,
                 July
                 23.
                 1667.
                 
                 
                   Hans
                   Jurgan
                   contra
                
                 Captain
                 Logan
                 ,
                 which
                 was
                 the
                 first
                 case
                 occurring
                 in
                 that
                 question
                 ,
                 and
                 was
                 always
                 followed
                 after
                 .
              
               
                 The
                 rule
                 by
                 which
                 the
                 Lords
                 have
                 always
                 proceeded
                 in
                 the
                 matter
                 of
                 Pryzes
                 ,
                 hath
                 been
                 the
                 Law
                 and
                 Custom
                 of
                 Nations
                 ;
                 and
                 therefore
                 ,
                 the
                 Tenor
                 of
                 the
                 Admirals
                 Commission
                 was
                 not
                 found
                 to
                 be
                 the
                 rule
                 ,
                 February
                 21.
                 1668.
                 
                 
                   Bartholomew
                   Parkman
                   contra
                
                 Captain
                 Allan
                 .
              
               
                 The
                 treaties
                 betwixt
                 the
                 King
                 and
                 his
                 Allies
                 ,
                 in
                 so
                 far
                 as
                 they
                 differ
                 from
                 the
                 common
                 Law
                 of
                 Nations
                 ,
                 have
                 always
                 been
                 allowed
                 by
                 the
                 Lords
                 ,
                 as
                 exceptions
                 from
                 that
                 general
                 Rule
                 ,
                 and
                 good
                 Defences
                 to
                 the
                 people
                 ,
                 comprehended
                 in
                 these
                 Treaties
                 .
              
               
                 In
                 dubious
                 cases
                 ,
                 the
                 Lords
                 have
                 proceeded
                 by
                 the
                 Kings
                 Instructions
                 ,
                 ordinarly
                 adhibit
                 to
                 the
                 Admiralities
                 of
                 all
                 his
                 Kingdoms
                 ,
                 that
                 they
                 might
                 keep
                 one
                 
                 uniform
                 rule
                 with
                 strangers
                 ,
                 in
                 which
                 ,
                 not
                 only
                 respect
                 hath
                 been
                 had
                 unto
                 Justice
                 ,
                 but
                 even
                 favour
                 towards
                 Allies
                 ,
                 and
                 policy
                 and
                 prudence
                 towards
                 all
                 Newters
                 ,
                 that
                 none
                 of
                 them
                 might
                 receive
                 irritation
                 ,
                 by
                 the
                 extension
                 of
                 Justice
                 in
                 savourable
                 case
                 〈◊〉
              
               
                 The
                 ground
                 of
                 Justice
                 for
                 confiscating
                 the
                 Ships
                 of
                 those
                 who
                 are
                 not
                 enemies
                 is
                 ,
                 that
                 they
                 have
                 assisted
                 the
                 enemy
                 in
                 carrying
                 on
                 the
                 War
                 ,
                 and
                 thereby
                 became
                 accessories
                 to
                 the
                 War
                 ,
                 and
                 by
                 that
                 Delinquence
                 ,
                 do
                 confiscat
                 the
                 Ships
                 ,
                 and
                 the
                 loading
                 ,
                 by
                 which
                 they
                 have
                 had
                 accession
                 ;
                 for
                 the
                 Law
                 and
                 Custom
                 of
                 Nations
                 hath
                 very
                 fitly
                 restricted
                 the
                 reparation
                 of
                 this
                 Delinquence
                 ,
                 so
                 as
                 not
                 to
                 state
                 the
                 parties
                 offenders
                 ,
                 as
                 enemies
                 ,
                 and
                 thereby
                 to
                 make
                 all
                 their
                 goods
                 confiscable
                 ,
                 as
                 enemies
                 goods
                 ,
                 but
                 doth
                 limit
                 the
                 same
                 to
                 these
                 Ships
                 ,
                 in
                 which
                 the
                 concurse
                 is
                 acted
                 ,
                 ifthey
                 be
                 seazed
                 in
                 that
                 Voyage
                 ,
                 in
                 which
                 they
                 give
                 assistance
                 ,
                 or
                 in
                 the
                 immediat
                 return
                 .
              
               
                 Ingagement
                 in
                 War
                 by
                 Princes
                 and
                 States
                 ,
                 cannot
                 justly
                 hinder
                 the
                 free
                 Trade
                 of
                 other
                 people
                 ,
                 upon
                 whom
                 ,
                 neither
                 party
                 hath
                 either
                 Obligation
                 or
                 Jurisdiction
                 ;
                 but
                 the
                 common
                 consent
                 and
                 Custom
                 of
                 Nations
                 requireth
                 an
                 equality
                 and
                 newtrality
                 in
                 all
                 other
                 parties
                 ,
                 that
                 they
                 concur
                 not
                 in
                 the
                 War
                 with
                 either
                 party
                 ,
                 forbearing
                 assistance
                 in
                 the
                 War
                 ,
                 which
                 is
                 by
                 furnishing
                 them
                 men
                 ,
                 instruments
                 of
                 War
                 ,
                 materials
                 specially
                 requisit
                 for
                 the
                 present
                 War
                 ,
                 Money
                 furnished
                 for
                 publick
                 use
                 ,
                 and
                 in
                 some
                 cases
                 Victual
                 ,
                 as
                 when
                 carried
                 to
                 places
                 besieged
                 ,
                 and
                 other
                 things
                 which
                 have
                 promiscuous
                 use
                 in
                 Peace
                 and
                 War
                 ,
                 when
                 there
                 is
                 a
                 special
                 application
                 there
                 of
                 to
                 the
                 necessar
                 use
                 of
                 the
                 War
                 ;
                 as
                 Iron
                 ,
                 Brass
                 ,
                 Leid
                 ,
                 Pitch
                 ,
                 Tar
                 ,
                 and
                 the
                 like
                 ,
                 which
                 are
                 therefore
                 called
                 counterband-goods
                 ,
                 or
                 prohibit-goods
                 ;
                 and
                 by
                 the
                 Denunciations
                 of
                 War
                 ,
                 intimation
                 is
                 ordinarly
                 made
                 to
                 Newters
                 ,
                 from
                 what
                 things
                 to
                 abstain
                 ,
                 as
                 from
                 carrying
                 of
                 counterband-goods
                 towards
                 enemies
                 Ports
                 ,
                 or
                 carrying
                 the
                 goods
                 and
                 ware
                 of
                 enemies
                 ,
                 whereby
                 their
                 Trade
                 is
                 promoted
                 ,
                 and
                 they
                 enabled
                 to
                 maintain
                 the
                 War
                 ;
                 or
                 by
                 carrying
                 on
                 their
                 .
                 Trade
                 under
                 the
                 colour
                 of
                 the
                 Trade
                 of
                 Neuters
                 ;
                 and
                 therefore
                 ,
                 in
                 time
                 of
                 War
                 ,
                 Neuters
                 do
                 instruct
                 their
                 Vessels
                 with
                 Passes
                 ,
                 and
                 other
                 Documents
                 ,
                 instructing
                 ,
                 that
                 the
                 bottom
                 and
                 goods
                 belong
                 to
                 their
                 subjects
                 free-men
                 ,
                 and
                 that
                 the
                 parties
                 ingaged
                 in
                 the
                 War
                 ,
                 or
                 any
                 of
                 their
                 subjects
                 have
                 no
                 interest
                 therein
                 ;
                 which
                 Passes
                 are
                 upon
                 the
                 oaths
                 of
                 the
                 owners
                 of
                 the
                 Ship
                 ,
                 or
                 Masters
                 thereof
                 ,
                 and
                 those
                 who
                 embarque
                 the
                 loading
                 ;
                 and
                 where
                 there
                 is
                 any
                 Treaty
                 ,
                 the
                 formula
                 of
                 such
                 Passes
                 useth
                 to
                 be
                 exprest
                 ,
                 always
                 including
                 an
                 oath
                 ,
                 and
                 being
                 given
                 by
                 such
                 Magistrates
                 as
                 are
                 agreed
                 upon
                 .
              
               
                 First
                 ,
                 Then
                 seing
                 the
                 accession
                 of
                 Neuters
                 is
                 a
                 Delinquence
                 ,
                 it
                 can
                 have
                 no
                 place
                 where
                 there
                 is
                 not
                 a
                 publick
                 denunced
                 War
                 ,
                 which
                 were
                 presumed
                 to
                 be
                 known
                 to
                 the
                 Delinquent
                 ;
                 and
                 therefore
                 ,
                 the
                 Ship
                 and
                 Goods
                 belonging
                 to
                 Neuters
                 ,
                 were
                 not
                 found
                 Prize
                 ,
                 because
                 carrying
                 counterband-goods
                 towards
                 the
                 enemies
                 Ports
                 ,
                 unless
                 the
                 War
                 had
                 been
                 nottourly
                 known
                 ,
                 at
                 the
                 place
                 where
                 they
                 loosed
                 ,
                 at
                 the
                 time
                 when
                 they
                 loosed
                 ,
                 and
                 acts
                 of
                 hostility
                 ,
                 and
                 declaring
                 of
                 Prizes
                 ,
                 in
                 neighbouring
                 places
                 was
                 not
                 found
                 sufficient
                 ,
                 July
                 22.
                 1667.
                 
                 
                   Hans
                   Jurgan
                   contra
                
                 Captain
                 Logan
                 .
                 The
                 like
                 was
                 found
                 of
                 a
                 Ship
                 of
                 Hamburg
                 ,
                 carrying
                 counterband-goods
                 to
                 Danish
                 Ports
                 ,
                 after
                 acts
                 of
                 hostility
                 betwixt
                 the
                 King
                 and
                 the
                 Danes
                 ,
                 because
                 the
                 Ship
                 was
                 taken
                 before
                 the
                 Proclamation
                 of
                 the
                 War
                 against
                 the
                 
                   Danes
                   ,
                   February
                
                 25.
                 1668.
                 
                 Merchants
                 of
                 
                   Hamburg
                   contra
                
                 Captain
                 Dishingtoun
                 .
                 If
                 Ships
                 have
                 in
                 them
                 counterband-goods
                 ,
                 they
                 may
                 be
                 brought
                 up
                 ,
                 if
                 the
                 Port
                 be
                 not
                 exprest
                 upon
                 oath
                 ,
                 and
                 be
                 a
                 free
                 Port
                 ,
                 or
                 be
                 contradicted
                 by
                 the
                 oaths
                 of
                 the
                 Skipper
                 and
                 Company
                 ,
                 which
                 infers
                 a
                 full
                 probation
                 ,
                 
                 in
                 case
                 they
                 acknowledge
                 an
                 unfree
                 Port
                 ,
                 and
                 a
                 presumptive
                 probation
                 ,
                 in
                 case
                 the
                 Pass
                 bear
                 not
                 a
                 free
                 Port
                 ,
                 yet
                 it
                 admits
                 a
                 contrary
                 probation
                 ,
                 for
                 proving
                 of
                 the
                 true
                 Port
                 ,
                 January
                 21.
                 1673.
                 
                 
                   Hendrick
                   Anderson
                
                 Master
                 of
                 
                   the
                   Sun
                   of
                   Dantzick
                   contra
                
                 Captain
                 Dowglas
                 .
                 The
                 like
                 was
                 found
                 ,
                 where
                 the
                 Pass
                 made
                 the
                 Port
                 uncertain
                 and
                 ambiguous
                 ,
                 bearing
                 ,
                 
                   London
                   to
                   be
                   the
                   Port
                
                 ,
                 but
                 a
                 greater
                 fraught
                 promised
                 ,
                 if
                 the
                 Ship
                 was
                 brought
                 up
                 into
                 Holland
                 ,
                 which
                 was
                 found
                 to
                 be
                 elided
                 by
                 a
                 positive
                 contrair
                 probation
                 ,
                 February
                 19.
                 1673.
                 the
                 owners
                 of
                 
                   the
                   Palm-tree
                   ,
                   and
                   Patience
                   contra
                
                 Captain
                 Atchison
                 .
              
               
                 Amongst
                 counterband
                 ,
                 Pitch
                 and
                 Tar
                 were
                 found
                 comprehended
                 ,
                 July
                 9.
                 1668.
                 
                 Captain
                 
                   Allan
                   contra
                   Bartholomew
                   Parkman
                
                 ,
                 Timber
                 propper
                 for
                 Shipping
                 ,
                 as
                 Masts
                 ,
                 &c.
                 is
                 unquestionably
                 counterband
                 ,
                 but
                 Timber
                 of
                 promiscuous
                 use
                 ,
                 is
                 not
                 counterband
                 ,
                 except
                 in
                 special
                 cases
                 ,
                 for
                 the
                 peculiar
                 use
                 of
                 the
                 War.
                 
              
               
                 There
                 is
                 a
                 particular
                 Article
                 in
                 the
                 first
                 Treaty
                 betwixt
                 the
                 King
                 and
                 the
                 Swedes
                 ,
                 by
                 which
                 it
                 is
                 declared
                 ,
                 that
                 in
                 regard
                 the
                 most
                 of
                 the
                 materials
                 of
                 the
                 Swedish
                 Trade
                 ,
                 are
                 Pitch
                 ,
                 Tar
                 ,
                 〈◊〉
                 ,
                 &c.
                 which
                 are
                 counterband
                 ,
                 yet
                 the
                 King
                 declares
                 ,
                 these
                 shall
                 not
                 be
                 seazed
                 upon
                 that
                 accompt
                 ,
                 which
                 was
                 not
                 found
                 sufficient
                 to
                 defend
                 a
                 Swedish
                 Ship
                 carrying
                 such
                 counterband-goods
                 ,
                 not
                 being
                 the
                 product
                 of
                 their
                 own
                 Countrey
                 ,
                 July
                 27.
                 and
                 31.
                 and
                 November
                 6.
                 1665.
                 
                 
                   Parkman
                   contra
                
                 Captain
                 Allan
                 .
              
               
                 In
                 the
                 last
                 Treaty
                 betwixt
                 the
                 King
                 and
                 the
                 Swedes
                 ,
                 there
                 is
                 an
                 Article
                 ,
                 bearing
                 ,
                 
                   that
                   counterband
                   shall
                   be
                   prize
                
                 ,
                 si
                 deprehendatur
                 ;
                 and
                 therefore
                 ,
                 it
                 was
                 thereby
                 inferred
                 ,
                 that
                 the
                 Ship
                 and
                 remanent
                 loadning
                 was
                 not
                 Prize
                 ,
                 July
                 18.
                 1673.
                 
                 Captain
                 
                   Winchester
                   contra
                
                 the
                 owners
                 of
                 the
                 
                   St.
                   Andrew
                
                 .
              
               
                 There
                 was
                 the
                 like
                 Article
                 ,
                 both
                 as
                 to
                 counterband
                 ,
                 and
                 enemies
                 goods
                 ,
                 in
                 the
                 Treaty
                 of
                 Breda
                 ,
                 betwixt
                 the
                 King
                 ,
                 the
                 Dutch
                 ,
                 the
                 French
                 and
                 Danes
                 ,
                 at
                 the
                 pacification
                 of
                 the
                 first
                 Dutch
                 War
                 ,
                 but
                 that
                 pacification
                 being
                 broken
                 by
                 the
                 second
                 Dutch
                 War
                 ,
                 it
                 was
                 not
                 found
                 effectual
                 in
                 the
                 subsequent
                 War
                 ,
                 upon
                 a
                 Letter
                 from
                 the
                 King.
                 
              
               
                 A
                 Ship
                 was
                 not
                 found
                 Prize
                 for
                 carrying
                 of
                 Victual
                 or
                 Money
                 to
                 the
                 enemies
                 Countrey
                 ,
                 July
                 16.
                 1673.
                 
                 Captain
                 
                   Lyel
                   contra
                
                 the
                 Master
                 of
                 the
                 Leopard
                 .
              
               
                 There
                 is
                 no
                 doubt
                 but
                 carrying
                 of
                 Souldiers
                 to
                 the
                 enemies
                 Countrey
                 of
                 what
                 Nation
                 soever
                 they
                 be
                 is
                 counterband
                 ,
                 and
                 useth
                 to
                 be
                 exprest
                 in
                 the
                 Treaties
                 of
                 Allies
                 generally
                 ,
                 under
                 the
                 name
                 of
                 men
                 ,
                 which
                 can
                 only
                 be
                 understood
                 of
                 strangers
                 when
                 they
                 are
                 actual
                 Souldiers
                 in
                 the
                 enemies
                 service
                 ,
                 for
                 thereby
                 there
                 is
                 a
                 greater
                 participation
                 of
                 the
                 War
                 ,
                 then
                 either
                 by
                 carrying
                 of
                 enemies
                 goods
                 ,
                 or
                 by
                 carrying
                 the
                 instruments
                 of
                 War
                 towards
                 the
                 enemies
                 Ports
                 ;
                 but
                 otherways
                 ,
                 passengers
                 who
                 are
                 Neuters
                 ,
                 may
                 freely
                 go
                 to
                 the
                 Ports
                 of
                 enemies
                 for
                 Trading
                 ,
                 travelling
                 ,
                 or
                 any
                 other
                 end
                 not
                 being
                 found
                 or
                 presumed
                 to
                 become
                 Citizens
                 or
                 Souldiers
                 there
                 ,
                 but
                 residing
                 only
                 as
                 Factors
                 for
                 strangers
                 ,
                 and
                 not
                 contributing
                 with
                 the
                 enemy
                 to
                 the
                 War
                 ,
                 they
                 do
                 not
                 exceed
                 the
                 bounds
                 of
                 Neutrality
                 .
              
               
                 The
                 difficulty
                 is
                 greater
                 in
                 case
                 persons
                 belonging
                 to
                 the
                 enemies
                 Countrey
                 ,
                 be
                 carryed
                 in
                 the
                 Ships
                 of
                 Allies
                 or
                 Neuters
                 ,
                 and
                 there
                 is
                 little
                 doubt
                 but
                 the
                 persons
                 of
                 enemies
                 ,
                 residing
                 in
                 the
                 enemies
                 Countrey
                 ,
                 and
                 contributing
                 to
                 the
                 War
                 ,
                 have
                 the
                 same
                 or
                 more
                 effect
                 ,
                 then
                 the
                 carrying
                 of
                 their
                 goods
                 ,
                 though
                 
                 that
                 hath
                 not
                 occurred
                 to
                 be
                 determined
                 with
                 us
                 ,
                 and
                 there
                 is
                 less
                 doubt
                 ,
                 that
                 being
                 born
                 in
                 the
                 enemies
                 Countrey
                 ,
                 or
                 having
                 resided
                 there
                 as
                 Citizens
                 ,
                 but
                 having
                 left
                 the
                 same
                 before
                 the
                 War
                 ,
                 doth
                 no
                 further
                 state
                 them
                 as
                 enemies
                 ,
                 then
                 that
                 by
                 their
                 Language
                 ,
                 or
                 other
                 evidence
                 they
                 are
                 presumed
                 to
                 be
                 enemies
                 ,
                 unless
                 they
                 make
                 it
                 appear
                 that
                 they
                 had
                 left
                 the
                 enemies
                 Countrey
                 ,
                 and
                 fixed
                 their
                 residence
                 else-where
                 :
                 Neither
                 will
                 any
                 burdens
                 imposed
                 upon
                 their
                 Lands
                 or
                 Houses
                 ,
                 import
                 their
                 concurse
                 in
                 the
                 War
                 as
                 enemies
                 .
              
               
                 There
                 was
                 a
                 special
                 Concession
                 by
                 the
                 King
                 in
                 favours
                 of
                 the
                 King
                 of
                 Spain
                 ,
                 that
                 because
                 the
                 Language
                 of
                 his
                 Subjects
                 in
                 the
                 Netherlands
                 ,
                 is
                 the
                 same
                 with
                 these
                 of
                 the
                 
                   United
                   Provinces
                
                 ,
                 that
                 there
                 should
                 be
                 no
                 seazure
                 of
                 the
                 Ships
                 belonging
                 to
                 his
                 Subjects
                 ,
                 upon
                 accompt
                 of
                 being
                 served
                 ,
                 or
                 Navigat
                 by
                 Hollanders
                 .
              
               
                 There
                 is
                 also
                 an
                 Article
                 in
                 the
                 Swedish
                 Treaty
                 ,
                 that
                 it
                 should
                 be
                 free
                 for
                 them
                 to
                 make
                 use
                 of
                 Dutch
                 Masters
                 for
                 Navigating
                 their
                 Ships
                 ,
                 provided
                 that
                 these
                 Masters
                 fix
                 their
                 Domiciles
                 in
                 Sweden
                 ,
                 and
                 become
                 Citizens
                 and
                 Inhabitants
                 there
                 .
              
               
                 These
                 Concessions
                 gave
                 great
                 occasion
                 of
                 doubt
                 ,
                 whether
                 these
                 or
                 other
                 Allies
                 or
                 Newters
                 might
                 make
                 use
                 of
                 Hollanders
                 as
                 Mariners
                 ,
                 or
                 Servants
                 in
                 their
                 Ships
                 ,
                 because
                 ,
                 if
                 without
                 that
                 Concession
                 they
                 were
                 free
                 to
                 hire
                 Hollanders
                 for
                 Servants
                 ,
                 they
                 might
                 hire
                 them
                 for
                 Masters
                 of
                 Ships
                 ,
                 as
                 well
                 as
                 other
                 Mariners
                 ,
                 and
                 so
                 needed
                 no
                 such
                 priviledge
                 ,
                 and
                 therefore
                 run
                 no
                 hazard
                 by
                 being
                 Navigat
                 by
                 Hollanders
                 ;
                 but
                 if
                 they
                 might
                 not
                 lawfully
                 make
                 use
                 of
                 a
                 Hollands
                 Master
                 ,
                 till
                 they
                 had
                 it
                 by
                 special
                 priviledge
                 ,
                 
                   a
                   pari
                
                 ,
                 they
                 could
                 not
                 make
                 use
                 of
                 Hollands
                 Mariners
                 .
                 It
                 is
                 clear
                 ,
                 that
                 the
                 being
                 by
                 Nation
                 Hollanders
                 inferreth
                 no
                 hazard
                 ,
                 either
                 as
                 to
                 the
                 Masters
                 or
                 Sea-men
                 ,
                 for
                 the
                 War
                 is
                 only
                 with
                 the
                 Citizens
                 and
                 Inhabitants
                 of
                 the
                 enemies
                 Countrey
                 ,
                 so
                 that
                 the
                 true
                 Domicile
                 or
                 Residence
                 is
                 the
                 main
                 point
                 in
                 question
                 .
                 There
                 is
                 also
                 great
                 difference
                 betwixt
                 the
                 Master
                 or
                 Stearsman
                 and
                 the
                 common
                 Mariners
                 ;
                 for
                 the
                 Master
                 is
                 in
                 possession
                 of
                 ,
                 and
                 intrusted
                 with
                 the
                 Ship
                 ,
                 which
                 is
                 affected
                 both
                 with
                 his
                 Delinquence
                 ,
                 and
                 by
                 his
                 Contracts
                 of
                 Bottomarie
                 ;
                 and
                 therefore
                 ,
                 his
                 oath
                 alone
                 is
                 always
                 accounted
                 sufficient
                 probation
                 ,
                 as
                 to
                 the
                 property
                 of
                 the
                 Ship
                 ,
                 and
                 frequently
                 the
                 Stearsman
                 is
                 intrusted
                 with
                 the
                 Loading
                 ,
                 in
                 which
                 case
                 also
                 his
                 oath
                 will
                 be
                 sufficient
                 probation
                 as
                 to
                 the
                 property
                 thereof
                 ,
                 but
                 the
                 oaths
                 of
                 the
                 Mariners
                 have
                 only
                 been
                 made
                 use
                 of
                 as
                 ordinar
                 witnesses
                 ,
                 proving
                 by
                 the
                 concurse
                 of
                 two
                 or
                 more
                 ,
                 and
                 the
                 confessions
                 of
                 the
                 Master
                 ,
                 Stearsman
                 or
                 Company
                 at
                 Sea
                 when
                 they
                 were
                 taken
                 ,
                 have
                 not
                 been
                 allowed
                 as
                 sufficient
                 probation
                 ,
                 to
                 Confiscat
                 the
                 Ship
                 or
                 Loading
                 ,
                 yea
                 ,
                 though
                 renewed
                 after
                 they
                 came
                 to
                 Land
                 ,
                 but
                 only
                 when
                 taken
                 judicially
                 ,
                 and
                 very
                 little
                 use
                 hath
                 been
                 made
                 of
                 the
                 oaths
                 of
                 the
                 Privateer
                 ,
                 or
                 his
                 Company
                 ,
                 for
                 proving
                 against
                 Strangers
                 ,
                 but
                 only
                 their
                 own
                 oaths
                 ,
                 and
                 other
                 evidences
                 ,
                 the
                 oath
                 of
                 the
                 Skipper
                 alone
                 was
                 found
                 to
                 prove
                 against
                 the
                 owners
                 ,
                 July
                 13.
                 1669.
                 
                 Captain
                 
                   Wood
                   contra
                   Booz
                   Neilson
                
                 .
              
               
                 The
                 taking
                 priviledge
                 for
                 a
                 Hollands
                 Master
                 upon
                 the
                 considerations
                 aforesaid
                 ,
                 doth
                 not
                 import
                 that
                 Mariners
                 may
                 not
                 be
                 made
                 use
                 of
                 ,
                 who
                 are
                 by
                 Nation
                 Holanders
                 ,
                 if
                 they
                 reside
                 not
                 in
                 the
                 Jurisdiction
                 of
                 the
                 enemy
                 ;
                 neither
                 will
                 the
                 being
                 of
                 some
                 of
                 them
                 aboard
                 ,
                 infer
                 such
                 evidence
                 ,
                 that
                 the
                 whole
                 Ship
                 and
                 Loading
                 belong
                 not
                 to
                 Newters
                 and
                 Free
                 men
                 ;
                 but
                 if
                 the
                 most
                 part
                 of
                 the
                 Company
                 be
                 Hollanders
                 ,
                 or
                 if
                 the
                 Master
                 be
                 a
                 Hollander
                 ,
                 the
                 presumption
                 is
                 strong
                 ,
                 and
                 gives
                 sufficien
                 ground
                 for
                 seazure
                 ;
                 and
                 therefore
                 ,
                 is
                 fitly
                 declared
                 
                 by
                 Treaties
                 ,
                 that
                 if
                 the
                 Master
                 by
                 Nation
                 be
                 a
                 Hollander
                 ,
                 the
                 Pass
                 shall
                 bear
                 expretly
                 ,
                 
                   that
                   it
                   is
                   sworn
                   upon
                   oath
                   that
                   he
                   is
                   Citizen
                   and
                   Inhabitant
                   in
                
                 Sweden
                 .
              
               
                 The
                 King
                 by
                 his
                 Proclamation
                 of
                 the
                 first
                 War
                 against
                 the
                 Dutch
                 ,
                 did
                 command
                 to
                 seaze
                 and
                 make
                 Prizes
                 of
                 all
                 Ships
                 ,
                 where
                 there
                 were
                 found
                 any
                 number
                 of
                 men
                 belonging
                 to
                 the
                 enemy
                 ;
                 and
                 therefore
                 ,
                 a
                 Swedish
                 Ship
                 was
                 found
                 Prize
                 ,
                 because
                 Navigat
                 with
                 Hollanders
                 ,
                 being
                 all
                 or
                 the
                 most
                 part
                 of
                 her
                 company
                 ,
                 albeit
                 she
                 had
                 a
                 Pass
                 from
                 Sweden
                 in
                 the
                 Terms
                 of
                 the
                 formula
                 ,
                 contained
                 in
                 the
                 Swedish
                 Treaty
                 ;
                 and
                 albeit
                 the
                 Treaty
                 bear
                 ,
                 that
                 where
                 such
                 a
                 Pass
                 is
                 ,
                 
                   in
                   bona
                   aut
                   homines
                   nullo
                   modo
                   inquiratur
                   ,
                
                 because
                 in
                 that
                 same
                 Article
                 it
                 is
                 subjoyned
                 ,
                 
                   nisi
                   gravis
                   suspicio
                   subsit
                
                 ,
                 and
                 it
                 was
                 a
                 most
                 weighty
                 ground
                 of
                 suspition
                 ,
                 that
                 the
                 Ship
                 or
                 Goods
                 belonged
                 to
                 Hollanders
                 ,
                 that
                 the
                 Company
                 acknowledged
                 that
                 they
                 resided
                 in
                 Holland
                 ,
                 and
                 were
                 taken
                 on
                 there
                 immediatly
                 before
                 this
                 Voyage
                 in
                 this
                 Process
                 ,
                 it
                 being
                 alledged
                 ,
                 that
                 the
                 confession
                 of
                 the
                 Company
                 ,
                 taken
                 by
                 an
                 Admiral
                 Depute
                 at
                 Cromarty
                 ,
                 was
                 extorted
                 by
                 holding
                 Swords
                 and
                 Pistols
                 to
                 their
                 Breasts
                 ,
                 or
                 that
                 the
                 samin
                 was
                 so
                 extorted
                 at
                 Sea
                 ,
                 when
                 they
                 were
                 taken
                 ,
                 it
                 was
                 found
                 sufficient
                 to
                 enervat
                 their
                 Testimonies
                 ,
                 if
                 they
                 were
                 made
                 to
                 swear
                 at
                 Sea
                 ,
                 the
                 Privateer
                 and
                 Company
                 having
                 Swords
                 and
                 Pistols
                 in
                 their
                 hands
                 ,
                 because
                 to
                 evite
                 the
                 insamy
                 of
                 Perjury
                 ,
                 they
                 might
                 adhere
                 in
                 their
                 judicial
                 Re-examination
                 to
                 their
                 Testimonies
                 taken
                 at
                 Sea
                 ,
                 upon
                 oath
                 ,
                 albeit
                 not
                 true
                 ,
                 or
                 if
                 by
                 force
                 or
                 just
                 fear
                 ,
                 they
                 did
                 so
                 depone
                 before
                 the
                 Admiral
                 Deput
                 ,
                 February
                 25.
                 1668.
                 the
                 owners
                 of
                 the
                 Ship
                 ,
                 called
                 ,
                 
                   the
                   Castle
                   of
                   Riga
                   contra
                
                 Captain
                 Seatoun
                 .
                 The
                 like
                 was
                 found
                 ,
                 where
                 a
                 great
                 part
                 of
                 the
                 Company
                 were
                 
                   Hollanders
                   ,
                   June
                
                 30.
                 1668.
                 
                 
                   Peterson
                   contra
                
                 Captain
                 Anderson
                 .
                 And
                 in
                 the
                 case
                 betwixt
                 Captain
                 Allan
                 and
                 
                   Bartholomew
                   Parkman
                
                 ,
                 decided
                 ,
                 July
                 9.
                 1668.
                 the
                 Ship
                 was
                 found
                 Prize
                 for
                 having
                 a
                 number
                 of
                 Hollanders
                 Sailers
                 ,
                 viz.
                 three
                 ,
                 the
                 Company
                 being
                 nine
                 ,
                 and
                 for
                 having
                 a
                 small
                 parcel
                 of
                 Tar
                 ,
                 as
                 counterband
                 aboard
                 ,
                 and
                 having
                 aboard
                 the
                 product
                 of
                 counterband
                 ,
                 taken
                 in
                 the
                 immediat
                 return
                 of
                 that
                 Voyage
                 ;
                 upon
                 all
                 which
                 grounds
                 joyntly
                 ,
                 the
                 Ship
                 was
                 declared
                 Prize
                 .
              
               
                 But
                 in
                 this
                 War
                 there
                 hath
                 no
                 Ship
                 been
                 declared
                 Prize
                 upon
                 account
                 of
                 the
                 Companies
                 being
                 Hollanders
                 ,
                 neither
                 because
                 the
                 Master
                 was
                 a
                 Hollander
                 ,
                 if
                 he
                 were
                 not
                 also
                 a
                 part
                 owner
                 ,
                 albeit
                 two
                 of
                 the
                 Company
                 were
                 
                   Hollanders
                   ,
                   July
                
                 24.
                 1673.
                 
                 Captain
                 
                   Bennet
                   contra
                
                 the
                 owners
                 of
                 
                   the
                   Pearl
                
                 .
                 But
                 the
                 Master
                 being
                 a
                 Hollander
                 was
                 found
                 a
                 sufficient
                 ground
                 of
                 suspition
                 and
                 seazure
                 ,
                 but
                 not
                 of
                 Confiscation
                 ,
                 the
                 property
                 being
                 proven
                 to
                 pertain
                 to
                 free
                 men
                 ;
                 and
                 therefore
                 ,
                 probation
                 was
                 allowed
                 to
                 either
                 party
                 ,
                 July
                 16.
                 1673.
                 
                 Captain
                 
                   Lyle
                   contra
                
                 the
                 Master
                 of
                 the
                 Ship
                 ,
                 called
                 ,
                 
                   the
                   Leopard
                
                 .
              
               
                 The
                 hyring
                 of
                 the
                 enemies
                 people
                 is
                 no
                 assistance
                 to
                 them
                 in
                 the
                 War
                 ,
                 but
                 rather
                 a
                 weakening
                 of
                 them
                 ,
                 so
                 that
                 if
                 these
                 of
                 the
                 enemies
                 Country
                 be
                 only
                 aboard
                 as
                 Servants
                 to
                 Newters
                 ,
                 and
                 not
                 upon
                 their
                 own
                 account
                 ,
                 either
                 as
                 Traders
                 or
                 Passengers
                 ,
                 there
                 hath
                 been
                 no
                 inquiry
                 in
                 the
                 last
                 War
                 ,
                 as
                 to
                 their
                 Residence
                 ,
                 neither
                 hath
                 any
                 thing
                 as
                 to
                 that
                 point
                 been
                 mentioned
                 in
                 the
                 last
                 Proclamation
                 of
                 War
                 ,
                 or
                 in
                 His
                 Majesties
                 Instructions
                 to
                 the
                 Admiralities
                 of
                 His
                 Kingdoms
                 ;
                 and
                 though
                 the
                 Law
                 might
                 have
                 reached
                 Ships
                 Navigat
                 by
                 Hollanders
                 ,
                 residing
                 in
                 Holland
                 ,
                 and
                 not
                 changing
                 the
                 Domicile
                 ,
                 yet
                 in
                 favour
                 and
                 prudence
                 ,
                 that
                 ground
                 hath
                 not
                 been
                 sustained
                 ,
                 it
                 being
                 more
                 the
                 Kings
                 Interest
                 to
                 allow
                 his
                 enemies
                 to
                 withdraw
                 from
                 their
                 Countrey
                 ,
                 then
                 to
                 force
                 them
                 to
                 serve
                 only
                 there
                 .
              
               
               
                 Counterband
                 is
                 not
                 only
                 a
                 cause
                 of
                 Confiscation
                 ,
                 when
                 taken
                 going
                 towards
                 enemies
                 Ports
                 ,
                 but
                 also
                 when
                 the
                 Ship
                 is
                 taken
                 in
                 her
                 return
                 from
                 the
                 enemies
                 Port
                 in
                 that
                 same
                 Voyage
                 ,
                 for
                 then
                 the
                 Delinquence
                 is
                 compleat
                 ,
                 whereas
                 it
                 had
                 not
                 taken
                 effect
                 before
                 the
                 Ship
                 attained
                 the
                 Port
                 ,
                 and
                 yet
                 might
                 be
                 justly
                 seazed
                 before
                 the
                 full
                 effect
                 ,
                 because
                 the
                 seazure
                 of
                 the
                 Ship
                 in
                 her
                 Voyage
                 is
                 the
                 impediment
                 that
                 the
                 effect
                 is
                 not
                 attained
                 ;
                 and
                 therefore
                 ,
                 the
                 common
                 custom
                 of
                 Nations
                 hath
                 allowed
                 such
                 seazures
                 ,
                 for
                 otherways
                 it
                 were
                 impossible
                 to
                 hinder
                 Newters
                 to
                 carry
                 Counterband-goods
                 to
                 enemies
                 ,
                 for
                 carrying
                 on
                 the
                 War
                 ;
                 neither
                 will
                 the
                 pretence
                 of
                 altering
                 their
                 resolution
                 ,
                 to
                 sail
                 to
                 ,
                 or
                 disload
                 in
                 a
                 free
                 Port
                 ,
                 be
                 a
                 sufficient
                 Defence
                 ,
                 unless
                 the
                 Ship
                 were
                 actually
                 stearing
                 another
                 course
                 ;
                 but
                 if
                 a
                 Ship
                 should
                 be
                 pursued
                 to
                 be
                 searched
                 for
                 counterband
                 in
                 her
                 passage
                 to
                 an
                 enemies
                 Port
                 ,
                 and
                 should
                 be
                 waited
                 for
                 till
                 her
                 return
                 ,
                 and
                 taken
                 as
                 she
                 came
                 from
                 that
                 Port
                 ,
                 there
                 could
                 be
                 far
                 less
                 pretence
                 to
                 excuse
                 that
                 Delinquence
                 ;
                 and
                 therefore
                 ,
                 it
                 was
                 one
                 of
                 the
                 grounds
                 of
                 Confiscation
                 of
                 Parkmans
                 Ship
                 ,
                 taken
                 by
                 Captain
                 Allan
                 ,
                 that
                 she
                 was
                 taken
                 in
                 the
                 return
                 of
                 the
                 same
                 Voyage
                 ,
                 in
                 which
                 she
                 carryed
                 counterband
                 to
                 the
                 enemies
                 Ports
                 ,
                 July
                 9.
                 1668.
                 
                 And
                 though
                 in
                 that
                 case
                 the
                 reason
                 was
                 lybelled
                 ,
                 that
                 the
                 Ship
                 was
                 taken
                 ,
                 having
                 in
                 her
                 the
                 product
                 of
                 counterband
                 ,
                 having
                 the
                 same
                 effect
                 with
                 counterband
                 it self
                 ,
                 
                   quia
                   surrogatum
                   sapit
                   naturam
                   surrogati
                
                 ,
                 yet
                 without
                 that
                 ,
                 in
                 the
                 foresaid
                 case
                 of
                 Captain
                 Lyle
                 ,
                 it
                 was
                 found
                 sufficient
                 that
                 the
                 Ship
                 was
                 taken
                 in
                 the
                 return
                 of
                 that
                 same
                 Voyage
                 ,
                 in
                 which
                 she
                 carryed
                 counterband
                 ,
                 without
                 mention
                 of
                 the
                 product
                 thereof
                 ,
                 July
                 16.
                 1673.
                 in
                 which
                 case
                 it
                 was
                 found
                 necessar
                 that
                 the
                 Ship
                 belonged
                 to
                 the
                 same
                 owners
                 ,
                 that
                 had
                 carryed
                 in
                 the
                 counterband
                 ,
                 so
                 that
                 though
                 the
                 Ship
                 had
                 been
                 light
                 without
                 any
                 Loading
                 ,
                 she
                 would
                 have
                 been
                 Prize
                 ,
                 unless
                 she
                 had
                 been
                 a
                 Swedish
                 Ship
                 ,
                 and
                 so
                 secured
                 by
                 the
                 Swedish
                 Treaty
                 ,
                 Confiscating
                 only
                 counterband
                 when
                 it
                 is
                 actually
                 taken
                 .
              
               
                 It
                 is
                 a
                 most
                 convenient
                 moderation
                 of
                 the
                 Law
                 of
                 Nations
                 ,
                 that
                 the
                 Delinquence
                 of
                 carrying
                 counterband
                 ,
                 is
                 followed
                 no
                 further
                 then
                 the
                 immediat
                 return
                 of
                 that
                 Voyage
                 ,
                 otherways
                 it
                 would
                 be
                 the
                 foundation
                 of
                 marring
                 Trade
                 ,
                 by
                 perpetual
                 quarrels
                 ,
                 upon
                 pretence
                 of
                 counterband
                 carryed
                 in
                 to
                 enemies
                 in
                 former
                 Voyages
                 .
              
               
                 In
                 these
                 Wars
                 there
                 has
                 been
                 no
                 occasion
                 to
                 determine
                 ,
                 whether
                 it
                 be
                 a
                 cause
                 of
                 Confiscation
                 ,
                 if
                 a
                 Ship
                 be
                 taken
                 in
                 return
                 of
                 that
                 Voyage
                 ,
                 wherein
                 she
                 was
                 Loaded
                 with
                 enemies
                 goods
                 .
              
               
                 The
                 Dutch
                 by
                 their
                 Declaration
                 did
                 prohibit
                 all
                 Friends
                 and
                 Allies
                 ,
                 not
                 only
                 to
                 carry
                 counterband-goods
                 to
                 any
                 Port
                 in
                 the
                 Kings
                 Dominions
                 ,
                 but
                 to
                 be
                 found
                 therewith
                 upon
                 his
                 Coasts
                 ,
                 or
                 diverting
                 from
                 the
                 Voyage
                 they
                 might
                 make
                 with
                 counterband
                 towards
                 the
                 Kings
                 Ports
                 ,
                 holding
                 that
                 for
                 a
                 sufficient
                 probation
                 of
                 their
                 intending
                 these
                 Ports
                 ,
                 which
                 is
                 like
                 they
                 would
                 not
                 take
                 off
                 by
                 Documents
                 aboard
                 ,
                 expressing
                 their
                 own
                 Ports
                 ,
                 or
                 the
                 Ports
                 of
                 Newters
                 ,
                 it
                 being
                 so
                 easie
                 to
                 procure
                 false
                 and
                 colourable
                 Documents
                 ,
                 yet
                 that
                 was
                 never
                 sustained
                 as
                 a
                 relevant
                 ground
                 of
                 Adjudication
                 with
                 us
                 .
              
               
                 By
                 what
                 hath
                 been
                 said
                 ,
                 the
                 confiscation
                 of
                 the
                 Ships
                 and
                 Goods
                 of
                 Allies
                 and
                 Newters
                 upon
                 account
                 of
                 counterband
                 ,
                 and
                 the
                 assistance
                 given
                 to
                 enemies
                 thereby
                 ,
                 hath
                 been
                 cleared
                 ;
                 the
                 other
                 chief
                 ground
                 of
                 confiscation
                 of
                 the
                 Ships
                 and
                 goods
                 of
                 Newters
                 ,
                 is
                 by
                 their
                 concurse
                 with
                 enemies
                 ,
                 in
                 carrying
                 on
                 their
                 Trade
                 ;
                 and
                 therefore
                 ,
                 in
                 all
                 the
                 Treaties
                 ,
                 the
                 formula
                 of
                 Passes
                 doth
                 require
                 ,
                 that
                 it
                 be
                 attested
                 upon
                 oath
                 ,
                 that
                 the
                 ship
                 and
                 Loading
                 belongs
                 to
                 the
                 Subjects
                 of
                 
                 that
                 Ally
                 ,
                 and
                 no
                 part
                 thereof
                 to
                 the
                 Kings
                 enemies
                 ;
                 and
                 likewise
                 the
                 particular
                 kinds
                 and
                 quantities
                 of
                 the
                 Cargo
                 ,
                 and
                 the
                 owners
                 thereof
                 ,
                 and
                 of
                 the
                 Ship
                 must
                 be
                 exprest
                 .
              
               
                 Some
                 are
                 of
                 opinion
                 ,
                 that
                 an
                 unfree
                 Ship
                 Confiscats
                 the
                 Loading
                 ,
                 as
                 accessory
                 thereto
                 ,
                 but
                 that
                 unfree
                 Loading
                 or
                 a
                 part
                 thereof
                 doth
                 not
                 Confiscat
                 the
                 Ship
                 ,
                 which
                 is
                 but
                 a
                 groundless
                 subtilty
                 ;
                 the
                 reason
                 of
                 this
                 Confiscation
                 being
                 the
                 partaking
                 with
                 enemies
                 in
                 carrying
                 on
                 of
                 their
                 Trade
                 ,
                 it
                 taketh
                 place
                 alike
                 in
                 the
                 Ship
                 and
                 Loading
                 ,
                 or
                 any
                 part
                 thereof
                 ;
                 but
                 it
                 being
                 a
                 Delinquence
                 ,
                 it
                 hath
                 still
                 the
                 exception
                 of
                 the
                 
                   bona
                   fides
                
                 ,
                 and
                 ignorance
                 of
                 these
                 who
                 partake
                 in
                 that
                 Conjunction
                 of
                 Trade
                 ,
                 but
                 though
                 the
                 Society
                 or
                 partnership
                 was
                 entered
                 into
                 before
                 the
                 War
                 ,
                 it
                 was
                 not
                 found
                 to
                 liberat
                 ,
                 seing
                 there
                 was
                 time
                 and
                 opportunity
                 to
                 dissolve
                 it
                 after
                 ,
                 July
                 17.
                 1673.
                 
                 Master
                 of
                 the
                 
                   Golden
                   Falcon
                   contra
                
                 Captain
                 Buchannan
                 .
              
               
                 That
                 a
                 part
                 of
                 the
                 Ship
                 belonging
                 to
                 an
                 enemy
                 ,
                 doth
                 confiscat
                 the
                 whole
                 Ship
                 ,
                 and
                 Loading
                 ,
                 hath
                 been
                 of
                 times
                 decided
                 ,
                 even
                 in
                 the
                 case
                 where
                 the
                 Master
                 was
                 hired
                 by
                 the
                 Swedes
                 ,
                 or
                 other
                 Allies
                 ,
                 and
                 was
                 a
                 sworn
                 Citizen
                 in
                 Sweden
                 ,
                 unless
                 it
                 were
                 sufficiently
                 instructed
                 ,
                 that
                 he
                 were
                 an
                 Inhabitant
                 and
                 Residenter
                 there
                 ,
                 and
                 had
                 changed
                 his
                 Domicile
                 from
                 Holland
                 ,
                 and
                 carried
                 his
                 Wife
                 and
                 Family
                 ,
                 if
                 any
                 he
                 had
                 ,
                 to
                 a
                 newtral
                 place
                 .
                 Neither
                 was
                 the
                 production
                 of
                 a
                 Burgess
                 Brieff
                 in
                 Sweden
                 found
                 sufficient
                 ,
                 seing
                 the
                 Skipper
                 by
                 his
                 oath
                 acknowledged
                 ,
                 that
                 he
                 left
                 his
                 Wife
                 lying-in
                 at
                 
                   Amsterdam
                   ,
                   February
                
                 28.
                 1673.
                 and
                 July
                 18.
                 1673.
                 
                 Master
                 of
                 
                   the
                   Elsingburg
                   contra
                
                 Captain
                 Dowglas
                 .
                 The
                 like
                 was
                 found
                 ,
                 because
                 the
                 Master
                 by
                 his
                 oath
                 acknowledged
                 that
                 he
                 was
                 a
                 Hollander
                 ,
                 and
                 a
                 part
                 owner
                 ,
                 and
                 that
                 the
                 evidences
                 that
                 his
                 Domicile
                 was
                 still
                 in
                 Holland
                 ,
                 was
                 more
                 pregnant
                 then
                 that
                 he
                 had
                 changed
                 the
                 same
                 to
                 
                   Copenhagen
                   ,
                   June
                
                 25.
                 1673.
                 
                 Captain
                 contra
                 Master
                 of
                 
                   the
                   Saint
                   Mary
                
                 .
                 The
                 like
                 was
                 found
                 where
                 the
                 Skippers
                 oath
                 bore
                 him
                 to
                 be
                 a
                 part
                 owner
                 and
                 a
                 Hollander
                 ,
                 and
                 that
                 he
                 intended
                 to
                 change
                 his
                 Domicile
                 ,
                 but
                 had
                 not
                 done
                 it
                 ,
                 though
                 he
                 produced
                 a
                 Swedish
                 Burgess
                 Brieff
                 ,
                 July
                 .
                 10.
                 1673.
                 
                 Captain
                 
                   Frazer
                   contra
                
                 Master
                 of
                 
                   the
                   young
                   Tobias
                
                 .
                 It
                 was
                 so
                 decided
                 ,
                 July
                 23.
                 1673.
                 
                 Captain
                 
                   Seatoun
                   contra
                
                 the
                 owners
                 of
                 the
                 
                   King
                   David
                
                 ;
                 where
                 the
                 Skippers
                 oath
                 contradicted
                 the
                 Pass
                 .
                 acknowledging
                 himself
                 a
                 part
                 owner
                 ,
                 and
                 an
                 Emdener
                 ,
                 under
                 the
                 Jurisdiction
                 of
                 the
                 States
                 ,
                 though
                 he
                 shew
                 Certificats
                 of
                 being
                 a
                 Burgess
                 ,
                 and
                 having
                 Children
                 in
                 Denmark
                 ;
                 seing
                 it
                 was
                 also
                 deponed
                 that
                 his
                 Wife
                 and
                 Family
                 remained
                 in
                 Emden
                 .
                 The
                 like
                 was
                 also
                 lately
                 found
                 in
                 the
                 case
                 of
                 Captain
                 
                   Stuart
                   contra
                
                 the
                 Master
                 of
                 
                   the
                   Wine
                   grape
                
                 ,
                 in
                 Novemb.
                 1674.
                 where
                 many
                 evidences
                 were
                 adduced
                 for
                 changing
                 the
                 Masters
                 Domicile
                 ,
                 to
                 Sweden
                 but
                 the
                 contrary
                 evidences
                 were
                 found
                 the
                 stronger
                 .
                 The
                 like
                 was
                 found
                 in
                 the
                 reduction
                 at
                 the
                 instance
                 of
                 the
                 owners
                 of
                 the
                 Ship
                 ,
                 called
                 
                   the
                   Calmer
                
                 ,
                 against
                 Captain
                 Smeatoun
                 ,
                 which
                 was
                 first
                 found
                 Prize
                 by
                 the
                 Admiral
                 ,
                 and
                 twice
                 thereafter
                 by
                 the
                 Lords
                 ,
                 be
                 cause
                 the
                 Skippers
                 oath
                 contradicted
                 the
                 Pass
                 ,
                 bearing
                 ,
                 
                   the
                   Ship
                   to
                   belong
                   wholly
                   to
                   Swedes
                   ,
                
                 and
                 yet
                 he
                 deponed
                 that
                 he
                 was
                 an
                 eighth
                 part
                 owner
                 ,
                 and
                 a
                 Hollander
                 ,
                 and
                 probation
                 having
                 been
                 adduced
                 by
                 Commission
                 ,
                 both
                 from
                 Sweden
                 and
                 Holland
                 ,
                 the
                 most
                 pregnant
                 probation
                 was
                 ,
                 that
                 his
                 true
                 Domicile
                 was
                 at
                 
                   Amsterdam
                   ,
                   December
                
                 13.
                 1673.
                 
              
               
                 The
                 Loading
                 belonging
                 to
                 enemies
                 ,
                 was
                 also
                 found
                 to
                 make
                 the
                 Ship
                 Prize
                 ,
                 seing
                 it
                 appeared
                 ,
                 that
                 they
                 knew
                 the
                 same
                 to
                 belong
                 to
                 enemies
                 ,
                 when
                 inloaded
                 ,
                 and
                 had
                 no
                 priviledge
                 by
                 Treaty
                 ,
                 July
                 15.
                 1673.
                 
                 Captain
                 
                   Wilson
                   contra
                
                 Master
                 of
                 the
                 Ship
                 ,
                 called
                 ,
                 
                   the
                   Venus
                
                 .
                 In
                 like
                 manner
                 ,
                 the
                 most
                 part
                 of
                 the
                 Loading
                 being
                 proven
                 to
                 belong
                 to
                 a
                 Jew
                 ,
                 residing
                 and
                 Traffiquing
                 in
                 Amsterdam
                 ,
                 the
                 
                 same
                 was
                 found
                 Pryze
                 ,
                 but
                 the
                 Ship
                 belonging
                 to
                 Lubeck
                 was
                 found
                 free
                 ,
                 because
                 the
                 loosed
                 from
                 Lisbon
                 before
                 the
                 certainty
                 of
                 a
                 War
                 ,
                 and
                 so
                 was
                 
                   in
                   bona
                   fide
                
                 to
                 ingage
                 for
                 a
                 Fraught
                 with
                 a
                 Hollander
                 ;
                 neither
                 was
                 it
                 respected
                 that
                 this
                 Jew
                 was
                 an
                 Agent
                 for
                 the
                 King
                 of
                 Portugal
                 ,
                 seing
                 he
                 was
                 a
                 residing
                 Traffiquing
                 Merchant
                 in
                 
                   Holland
                   ,
                   February
                
                 11.
                 1673.
                 
                 Earl
                 of
                 
                   Kincarden
                   ,
                   contra
                
                 the
                 Master
                 of
                 the
                 St.
                 Andrew
                 ;
                 but
                 thereafter
                 this
                 Ship
                 was
                 also
                 found
                 Prize
                 upon
                 other
                 grounds
                 .
                 The
                 greatest
                 difficulty
                 in
                 the
                 matter
                 of
                 Prizes
                 ,
                 is
                 ,
                 the
                 discovery
                 and
                 probation
                 of
                 the
                 Interest
                 of
                 Enemies
                 ,
                 if
                 probation
                 be
                 not
                 had
                 from
                 the
                 Oath
                 of
                 the
                 Skipper
                 and
                 Company
                 ,
                 or
                 from
                 the
                 Documents
                 found
                 Aboard
                 ,
                 there
                 remains
                 no
                 more
                 but
                 presumptive
                 Probation
                 ,
                 which
                 sometimes
                 is
                 so
                 pregnant
                 ,
                 as
                 it
                 admits
                 no
                 contrary
                 positive
                 probation
                 ,
                 and
                 oftimes
                 it
                 doth
                 admit
                 the
                 same
                 ,
                 and
                 then
                 there
                 is
                 probation
                 allowed
                 to
                 either
                 Party
                 ,
                 for
                 clearing
                 the
                 Matter
                 of
                 Fact
                 ,
                 either
                 as
                 to
                 the
                 property
                 of
                 Ship
                 ,
                 or
                 Goods
                 ,
                 the
                 true
                 residence
                 of
                 the
                 Master
                 ,
                 or
                 the
                 Port
                 truly
                 intended
                 ,
                 or
                 any
                 other
                 Matter
                 of
                 Fact
                 ,
                 whereupon
                 Confiscation
                 or
                 Liberation
                 may
                 be
                 inferred
                 .
              
               
                 In
                 the
                 second
                 Dutch
                 War
                 ,
                 they
                 had
                 found
                 out
                 so
                 cunning
                 contrivances
                 to
                 cover
                 their
                 Trade
                 ,
                 that
                 the
                 same
                 could
                 hardly
                 be
                 so
                 far
                 discovered
                 as
                 to
                 make
                 a
                 lawful
                 Probation
                 ;
                 for
                 they
                 did
                 not
                 only
                 procure
                 Passes
                 from
                 the
                 Swedes
                 ,
                 and
                 Danes
                 ,
                 and
                 other
                 Allyes
                 ,
                 and
                 Newters
                 ,
                 and
                 upon
                 the
                 Priviledge
                 granted
                 to
                 them
                 of
                 Hollands
                 Masters
                 ,
                 did
                 send
                 persons
                 intrusted
                 by
                 them
                 ,
                 as
                 Masters
                 or
                 Steersmen
                 to
                 mannage
                 their
                 Trade
                 ,
                 under
                 pretence
                 of
                 fixing
                 their
                 Domiciles
                 in
                 Sweden
                 ,
                 or
                 in
                 Denmark
                 ,
                 conform
                 to
                 these
                 Treaties
                 :
                 But
                 also
                 ,
                 they
                 intrusted
                 their
                 Money
                 to
                 Merchants
                 ,
                 or
                 Factors
                 ,
                 belonging
                 to
                 the
                 Countries
                 of
                 Allyes
                 ,
                 and
                 Newters
                 ,
                 who
                 bought
                 Ships
                 and
                 Goods
                 in
                 their
                 own
                 Names
                 ,
                 but
                 to
                 the
                 use
                 and
                 behove
                 of
                 the
                 Hollanders
                 ,
                 and
                 upon
                 their
                 risk
                 and
                 advantage
                 and
                 profite
                 ,
                 so
                 that
                 they
                 had
                 pretence
                 to
                 depone
                 ,
                 that
                 the
                 propertie
                 of
                 Ship
                 and
                 Goods
                 did
                 belong
                 to
                 these
                 free-men
                 who
                 bought
                 them
                 ,
                 because
                 there
                 lay
                 only
                 an
                 obligation
                 of
                 trust
                 upon
                 them
                 ,
                 to
                 communicate
                 the
                 same
                 to
                 Hollanders
                 ;
                 as
                 did
                 appear
                 by
                 a
                 report
                 returned
                 from
                 the
                 Magistrats
                 of
                 Stock-holme
                 ,
                 upon
                 a
                 Commission
                 from
                 the
                 Lords
                 for
                 clearing
                 the
                 property
                 of
                 the
                 Ship
                 called
                 ,
                 
                   the
                   Wine
                   Grape
                
                 ,
                 and
                 her
                 Loading
                 ,
                 for
                 the
                 persons
                 who
                 by
                 the
                 Pass
                 ,
                 made
                 faith
                 as
                 owners
                 ,
                 being
                 interrogat
                 ,
                 
                   whether
                   they
                   had
                   lent
                   their
                   names
                   for
                   the
                   behove
                   of
                   the
                
                 Dutch
                 ,
                 
                   or
                   had
                   bought
                   the
                   Ship
                   and
                   Goods
                   for
                   their
                   use
                
                 ;
                 so
                 that
                 the
                 benefit
                 or
                 loss
                 was
                 to
                 redound
                 to
                 the
                 Dutch
                 ,
                 they
                 declined
                 to
                 give
                 a
                 direct
                 answer
                 upon
                 Oath
                 ,
                 denying
                 the
                 same
                 ,
                 and
                 only
                 asserted
                 ,
                 that
                 they
                 ought
                 not
                 to
                 be
                 interrogat
                 upon
                 such
                 indirect
                 dealing
                 ,
                 or
                 the
                 like
                 ,
                 or
                 to
                 that
                 purpose
                 :
                 yea
                 ,
                 use
                 was
                 made
                 of
                 the
                 Name
                 and
                 Trust
                 of
                 his
                 Majesties
                 Subjects
                 ,
                 to
                 collour
                 the
                 Dutch
                 Trade
                 ,
                 and
                 many
                 Passes
                 were
                 procured
                 from
                 the
                 Admirality
                 of
                 England
                 for
                 the
                 same
                 effect
                 :
                 all
                 these
                 were
                 the
                 more
                 easily
                 obtained
                 ,
                 because
                 the
                 sufferings
                 of
                 innocent
                 Merchants
                 ,
                 upon
                 accompt
                 of
                 their
                 Governours
                 was
                 generally
                 pitied
                 ,
                 and
                 the
                 profite
                 of
                 Privateers
                 was
                 al
                 's
                 generally
                 hated
                 and
                 envied
                 .
              
               
                 The
                 ordinar
                 grounds
                 of
                 a
                 presumptive
                 Probation
                 of
                 the
                 Interest
                 of
                 Enemies
                 ,
                 by
                 the
                 custom
                 of
                 Nations
                 are
                 these
                 ,
                 first
                 ,
                 if
                 in
                 the
                 time
                 of
                 War
                 ,
                 Ships
                 were
                 not
                 instructed
                 with
                 Passes
                 upon
                 Oath
                 ,
                 expressing
                 the
                 Owner
                 of
                 Ships
                 and
                 Loading
                 ;
                 and
                 therefore
                 ,
                 the
                 want
                 of
                 Passes
                 ,
                 or
                 the
                 want
                 of
                 Documents
                 for
                 instructing
                 the
                 properties
                 of
                 the
                 Ship
                 and
                 Loading
                 ,
                 or
                 any
                 part
                 thereof
                 ,
                 the
                 samen
                 is
                 presumed
                 to
                 belong
                 to
                 enemies
                 .
                 Secondly
                 ,
                 False
                 or
                 forged
                 Documents
                 .
                 Thirdly
                 ,
                 Double
                 Documents
                 .
                 Fourthly
                 ,
                 Destroying
                 of
                 Documents
                 ,
                 as
                 throwing
                 the
                 same
                 over
                 Board
                 ,
                 or
                 sending
                 them
                 away
                 at
                 the
                 time
                 of
                 the
                 Capture
                 ;
                 infer
                 that
                 the
                 Ship
                 or
                 Loading
                 ,
                 or
                 some
                 part
                 thereof
                 ,
                 belong'd
                 to
                 Enemies
                 ,
                 and
                 
                 likewise
                 the
                 having
                 Aboard
                 double
                 Flaggs
                 ,
                 to
                 be
                 made
                 use
                 of
                 at
                 diverse
                 occasions
                 .
              
               
                 As
                 to
                 the
                 first
                 ground
                 of
                 Confiscation
                 upon
                 want
                 of
                 Documents
                 ;
                 First
                 ,
                 There
                 is
                 no
                 necessity
                 to
                 have
                 Aboard
                 a
                 Vendition
                 of
                 the
                 Ship
                 in
                 write
                 ,
                 but
                 in
                 Ships
                 ,
                 as
                 other
                 moveables
                 ,
                 property
                 is
                 presumed
                 from
                 possession
                 .
                 July
                 26.
                 1673.
                 
                 Captain
                 
                   Hamiltoun
                   contra
                
                 the
                 Master
                 of
                 the
                 Ship
                 ,
                 called
                 the
                 of
                 Stattin
                 ;
                 neither
                 doth
                 the
                 want
                 of
                 a
                 Pass
                 ,
                 conform
                 to
                 the
                 formula
                 in
                 Treaties
                 ,
                 as
                 being
                 defective
                 and
                 not
                 expressing
                 the
                 Port
                 to
                 which
                 the
                 Ship
                 was
                 direct
                 ,
                 infer
                 Confiscation
                 :
                 in
                 this
                 case
                 there
                 was
                 no
                 Counterband
                 Goods
                 Aboard
                 ,
                 so
                 that
                 though
                 the
                 true
                 Port
                 had
                 been
                 the
                 Enemies
                 Port
                 ,
                 it
                 would
                 not
                 have
                 inferred
                 Confiscation
                 ,
                 January
                 21.
                 1673.
                 
                 
                   Hendrick
                   Anderson
                
                 ,
                 Master
                 of
                 the
                 Sun
                 of
                 
                   Dantzick
                   ,
                   contra
                
                 Captain
                 Dowglas
                 .
                 The
                 like
                 was
                 found
                 the
                 19.
                 of
                 February
                 ,
                 1673.
                 the
                 Owners
                 of
                 the
                 Palm-tree
                 and
                 
                   Patience
                   ,
                   contra
                
                 Captain
                 Atchison
                 .
                 and
                 upon
                 the
                 27.
                 of
                 February
                 ,
                 1673.
                 
                 The
                 owners
                 of
                 the
                 
                   King
                   David
                
                 ,
                 contra
                 Captain
                 Donaldson
                 ;
                 where
                 a
                 Swedish
                 Ship
                 wanting
                 a
                 Pass
                 ,
                 conform
                 to
                 the
                 
                   Swedish
                   formula
                
                 ,
                 and
                 not
                 being
                 upon
                 Oath
                 ,
                 though
                 these
                 were
                 found
                 presumptive
                 Probations
                 of
                 the
                 Interest
                 of
                 Enemies
                 ,
                 yet
                 not
                 so
                 pregnant
                 as
                 to
                 exclude
                 a
                 contrary
                 positive
                 Probation
                 ,
                 that
                 the
                 property
                 of
                 the
                 Ship
                 and
                 Goods
                 belonged
                 to
                 Free-men
                 ,
                 and
                 the
                 not
                 expressing
                 the
                 Port
                 in
                 the
                 Pass
                 of
                 a
                 Swedish
                 Ship
                 ,
                 was
                 not
                 found
                 so
                 to
                 infer
                 the
                 Goods
                 to
                 belong
                 to
                 Enemies
                 ,
                 but
                 that
                 it
                 admitted
                 a
                 contrary
                 Probation
                 ,
                 that
                 the
                 Ship
                 and
                 Loading
                 belonged
                 to
                 Free
                 men
                 ,
                 and
                 because
                 the
                 Loading
                 was
                 Pitch
                 and
                 Tarr
                 ,
                 which
                 is
                 Counterband
                 ,
                 the
                 not
                 expressing
                 the
                 Port
                 ,
                 being
                 essential
                 as
                 to
                 Counterband
                 ,
                 would
                 have
                 Confiscate
                 the
                 Ship
                 and
                 Loading
                 ,
                 unless
                 it
                 had
                 been
                 secured
                 by
                 the
                 Swedish
                 Treaty
                 ,
                 declaring
                 Pitch
                 and
                 Tar
                 ,
                 and
                 others
                 ,
                 being
                 the
                 Growth
                 of
                 Sweden
                 not
                 to
                 be
                 Counterband
                 ,
                 February
                 28.
                 1673.
                 
                 The
                 Master
                 of
                 the
                 St.
                 Peter
                 of
                 
                   Stoad
                   contra
                
                 Captain
                 Stewart
                 .
              
               
                 Passes
                 for
                 Ships
                 in
                 time
                 of
                 War
                 ,
                 must
                 be
                 renewed
                 for
                 every
                 Voyage
                 ,
                 and
                 cannot
                 otherwayes
                 express
                 the
                 kinds
                 and
                 quantities
                 of
                 the
                 Cargo
                 ,
                 which
                 was
                 sustained
                 as
                 one
                 of
                 the
                 reasons
                 of
                 the
                 Adjudication
                 of
                 the
                 Ship
                 called
                 the
                 Elsinburgle
                 ,
                 at
                 the
                 instance
                 of
                 Captain
                 Dowglas
                 ,
                 decided
                 July
                 18.
                 1673.
                 yet
                 a
                 Ship
                 was
                 not
                 found
                 Prize
                 as
                 wanting
                 a
                 Pass
                 for
                 the
                 present
                 Voyage
                 ;
                 in
                 respect
                 ,
                 She
                 having
                 loused
                 at
                 Nantz
                 ,
                 and
                 having
                 there
                 a
                 particular
                 Pass
                 ,
                 she
                 was
                 forced
                 in
                 to
                 England
                 by
                 stress
                 of
                 Weather
                 ,
                 and
                 there
                 sold
                 her
                 Loading
                 ,
                 and
                 went
                 back
                 to
                 Nantz
                 ,
                 and
                 took
                 in
                 the
                 like
                 Loading
                 for
                 the
                 same
                 Owners
                 and
                 Port
                 ,
                 and
                 therefore
                 altered
                 not
                 the
                 first
                 Pass
                 ,
                 June
                 17.
                 1673.
                 
                 Captain
                 
                   Donaldson
                   ,
                   contra
                
                 Master
                 of
                 the
                 Debora
                 .
              
               
                 It
                 is
                 Likwise
                 most
                 necessar
                 ,
                 that
                 Passes
                 be
                 truly
                 granted
                 upon
                 Oath
                 made
                 ,
                 which
                 is
                 the
                 greatest
                 security
                 against
                 colourable
                 Documents
                 ,
                 and
                 therefore
                 was
                 sustained
                 as
                 one
                 of
                 the
                 Grounds
                 of
                 Adjudication
                 ,
                 of
                 the
                 Ship
                 calledth
                 〈◊〉
                 St.
                 Mary
                 ,
                 that
                 the
                 Master
                 by
                 his
                 Oath
                 acknowledged
                 ,
                 that
                 he
                 had
                 not
                 made
                 Faith
                 ,
                 as
                 the
                 Pass
                 bears
                 :
                 as
                 was
                 found
                 June
                 25.
                 1673.
                 and
                 upon
                 that
                 reason
                 a
                 Ship
                 was
                 found
                 Prize
                 ;
                 in
                 which
                 case
                 also
                 ,
                 one
                 Witness
                 Deponed
                 ,
                 that
                 papers
                 were
                 thrown
                 over-board
                 ,
                 July
                 9.
                 1673.
                 
                 Captain
                 
                   Gilles
                   contra
                
                 the
                 Owners
                 of
                 the
                 Bounder
                 .
              
               
                 Double
                 Documents
                 infer
                 Confiscation
                 ,
                 but
                 that
                 is
                 Chiefly
                 understood
                 when
                 the
                 Documents
                 are
                 contrary
                 in
                 material
                 points
                 ,
                 but
                 where
                 there
                 was
                 one
                 pass
                 from
                 the
                 Colledge
                 of
                 Commerce
                 ,
                 and
                 another
                 from
                 the
                 King
                 of
                 Sweden
                 ,
                 having
                 some
                 contrariety
                 ,
                 but
                 not
                 in
                 material
                 points
                 ,
                 the
                 same
                 was
                 not
                 found
                 to
                 
                 make
                 the
                 Ship
                 prize
                 ,
                 June
                 13.
                 1673.
                 
                 Captain
                 
                   Winchester
                   ,
                   contra
                
                 the
                 Owners
                 of
                 the
                 St.
                 Andrew
                 .
              
               
                 The
                 throwing
                 of
                 papers
                 over-board
                 ,
                 or
                 destroying
                 the
                 same
                 at
                 the
                 time
                 of
                 the
                 captur
                 ,
                 is
                 a
                 most
                 pregnant
                 ground
                 of
                 Confiscation
                 ;
                 for
                 thence
                 it
                 is
                 presumed
                 ,
                 that
                 these
                 papers
                 would
                 have
                 instructed
                 the
                 property
                 to
                 belong
                 to
                 Enemies
                 ,
                 and
                 therefore
                 being
                 proven
                 but
                 by
                 one
                 Witness
                 ,
                 it
                 put
                 the
                 burthen
                 of
                 probation
                 upon
                 the
                 strangers
                 ,
                 that
                 the
                 Ship
                 and
                 Loading
                 belonged
                 to
                 free
                 men
                 ,
                 February
                 28.
                 1673.
                 
                 The
                 Master
                 of
                 the
                 
                   White
                   Dove
                   ,
                   contra
                
                 Captain
                 Alexander
                 :
                 regard
                 was
                 also
                 had
                 to
                 the
                 same
                 ,
                 though
                 but
                 proven
                 by
                 one
                 Witness
                 in
                 the
                 Confiscation
                 of
                 the
                 Bounder
                 ,
                 July
                 9.
                 1673.
                 and
                 if
                 there
                 were
                 concurring
                 Witnesses
                 in
                 this
                 point
                 ,
                 it
                 would
                 infer
                 
                   praesumptionem
                   juris
                   ,
                   &
                   de
                   jure
                   ,
                
                 not
                 admitting
                 contrair
                 probation
                 .
              
               
                 Ships
                 have
                 oftimes
                 been
                 found
                 prize
                 by
                 the
                 concurse
                 of
                 several
                 evidences
                 of
                 a
                 contrivance
                 ,
                 under
                 colourable
                 Documents
                 ,
                 and
                 therefore
                 a
                 Ship
                 was
                 found
                 prize
                 ,
                 because
                 the
                 pass
                 did
                 not
                 mention
                 the
                 Port
                 ,
                 which
                 a
                 Toll-breif
                 bore
                 to
                 be
                 Breme
                 ,
                 and
                 the
                 Master
                 by
                 his
                 Oath
                 acknowledged
                 the
                 Port
                 to
                 be
                 Amsterdam
                 ,
                 and
                 that
                 the
                 Owners
                 were
                 other
                 persons
                 then
                 were
                 exprest
                 in
                 the
                 pass
                 ,
                 and
                 that
                 the
                 Master
                 resided
                 in
                 Holland
                 ,
                 though
                 the
                 pass
                 bore
                 him
                 to
                 to
                 be
                 a
                 Burgess
                 in
                 Dantzick
                 ,
                 against
                 which
                 a
                 contrary
                 probation
                 was
                 not
                 admitted
                 ,
                 January
                 23.
                 1673.
                 the
                 Owners
                 of
                 the
                 Crown
                 of
                 
                   Dantzick
                   ,
                   contra
                
                 Captain
                 Lyon
                 ;
                 a
                 Ship
                 was
                 also
                 Confiscat
                 ,
                 because
                 the
                 Master
                 and
                 Steersman
                 deponed
                 that
                 they
                 knew
                 not
                 to
                 whom
                 the
                 Goods
                 belonged
                 ,
                 but
                 that
                 they
                 had
                 order
                 from
                 a
                 Merchant
                 in
                 Amsterdam
                 ,
                 to
                 consign
                 them
                 in
                 the
                 Pack-house
                 of
                 Stockholme
                 ,
                 to
                 be
                 delivered
                 to
                 such
                 persons
                 as
                 should
                 show
                 such
                 marks
                 ,
                 July
                 10.
                 1673.
                 
                 Captain
                 
                   Frazer
                   contra
                
                 Master
                 of
                 
                   the
                   Flying
                   Heart
                
                 ,
                 and
                 in
                 like
                 manner
                 
                   the
                   Fortune
                   of
                   Trailsoundt
                
                 was
                 found
                 prize
                 ,
                 July
                 22.
                 1673.
                 because
                 it
                 was
                 acknowledged
                 upon
                 Oath
                 ,
                 that
                 if
                 the
                 Ship
                 were
                 taken
                 by
                 Hollanders
                 ,
                 the
                 Company
                 should
                 depone
                 the
                 Goods
                 belonged
                 to
                 the
                 Tarr
                 Company
                 in
                 Stockholme
                 ,
                 as
                 the
                 pass
                 bears
                 ,
                 and
                 if
                 it
                 came
                 safe
                 to
                 Scotland
                 or
                 England
                 ,
                 they
                 should
                 declare
                 the
                 same
                 belonged
                 to
                 
                   Samuel
                   Souton
                
                 an
                 English
                 man
                 residing
                 in
                 Sweden
                 .
              
               
                 Albeit
                 a
                 part
                 of
                 Ship
                 or
                 Loading
                 be
                 found
                 to
                 belong
                 to
                 Enemies
                 ,
                 and
                 that
                 thereby
                 the
                 whole
                 becomes
                 prize
                 ,
                 as
                 being
                 partners
                 with
                 the
                 Enemy
                 in
                 carrying
                 on
                 their
                 Trade
                 ,
                 yet
                 these
                 who
                 can
                 show
                 that
                 they
                 were
                 in
                 an
                 invincible
                 ignorance
                 of
                 the
                 interest
                 of
                 an
                 Enemy
                 ,
                 and
                 did
                 all
                 that
                 they
                 could
                 do
                 ,
                 to
                 secure
                 against
                 the
                 same
                 ,
                 by
                 taking
                 the
                 Oaths
                 of
                 the
                 Owners
                 of
                 the
                 whole
                 Ship
                 and
                 Loading
                 ,
                 that
                 the
                 property
                 belonged
                 to
                 themselves
                 ,
                 and
                 no
                 part
                 thereof
                 to
                 an
                 Enemy
                 ,
                 it
                 would
                 take
                 off
                 the
                 Delinquence
                 of
                 that
                 party
                 ,
                 and
                 preserve
                 their
                 interest
                 ,
                 which
                 was
                 never
                 pleaded
                 during
                 these
                 Wars
                 ,
                 but
                 by
                 some
                 of
                 the
                 Kings
                 Subjects
                 ;
                 as
                 in
                 the
                 first
                 War
                 ,
                 the
                 King
                 having
                 by
                 His
                 Proclamation
                 ,
                 warranted
                 all
                 Ships
                 even
                 from
                 Enemies
                 ,
                 to
                 be
                 employed
                 for
                 bringing
                 Timber
                 for
                 the
                 rebuilding
                 of
                 London
                 ,
                 a
                 great
                 part
                 whereof
                 was
                 then
                 lately
                 burnt
                 ,
                 Certificats
                 and
                 passes
                 being
                 alwayes
                 had
                 from
                 the
                 Duke
                 of
                 York
                 ,
                 Lord
                 High
                 Admiral
                 of
                 England
                 ,
                 whereupon
                 
                   Iohn
                   Dyssone
                
                 Merchant
                 at
                 London
                 ,
                 Fraught
                 a
                 Ship
                 of
                 Norway
                 ,
                 whereof
                 
                   Booz
                   Neilson
                
                 was
                 Master
                 ,
                 called
                 the
                 Raphel
                 ,
                 to
                 Import
                 to
                 London
                 ,
                 six
                 thousand
                 Dail
                 boards
                 ,
                 the
                 Ship
                 in
                 her
                 Voyage
                 to
                 London
                 ,
                 was
                 taken
                 by
                 Captain
                 Wood
                 ,
                 and
                 the
                 whole
                 Ship
                 and
                 Loading
                 adjudged
                 as
                 prize
                 ,
                 which
                 being
                 brought
                 before
                 the
                 Lords
                 by
                 Reduction
                 ,
                 they
                 found
                 that
                 the
                 Ship
                 and
                 Loading
                 became
                 prize
                 ,
                 because
                 there
                 were
                 found
                 Aboard
                 fifteen
                 hundred
                 Dails
                 belonging
                 to
                 the
                 Owners
                 or
                 Company
                 ,
                 who
                 then
                 were
                 in
                 enmity
                 in
                 the
                 Danish
                 
                 War
                 ;
                 and
                 yet
                 the
                 six
                 thousand
                 Dails
                 belonging
                 to
                 the
                 London
                 Merchant
                 ,
                 who
                 had
                 contracted
                 
                   bona
                   fide
                
                 ,
                 by
                 the
                 Kings
                 Proclamation
                 did
                 not
                 become
                 prize
                 with
                 the
                 Ship
                 ,
                 as
                 was
                 decided
                 July
                 13.
                 1669.
                 for
                 the
                 London
                 Merchant
                 not
                 being
                 the
                 place
                 of
                 Embarquing
                 ,
                 could
                 not
                 know
                 whether
                 there
                 was
                 more
                 entered
                 then
                 the
                 Dails
                 he
                 Fraughted
                 ,
                 or
                 whether
                 the
                 Owners
                 gave
                 truly
                 an
                 Oath
                 upon
                 the
                 property
                 and
                 quantity
                 of
                 the
                 Loading
                 .
                 And
                 in
                 like
                 manner
                 ,
                 Sir
                 
                   Francis
                   Clerk
                
                 Merchant
                 at
                 London
                 ,
                 having
                 ordered
                 a
                 parcel
                 of
                 Brass
                 wyer
                 to
                 be
                 brought
                 home
                 to
                 him
                 from
                 Sweden
                 ,
                 the
                 samen
                 was
                 imbarqued
                 in
                 the
                 Ship
                 ,
                 called
                 ,
                 
                   the
                   Calmer
                
                 ,
                 which
                 was
                 taken
                 in
                 her
                 Voyage
                 to
                 London
                 ,
                 by
                 Captain
                 Smeatoun
                 ,
                 and
                 was
                 adjudged
                 prize
                 by
                 the
                 Admiral
                 ,
                 because
                 the
                 Pass
                 was
                 convelled
                 by
                 the
                 Masters
                 Oath
                 ,
                 yet
                 the
                 Parcel
                 of
                 Brass-wyer
                 belonging
                 to
                 Sir
                 
                   Francis
                   Clerk
                
                 ,
                 was
                 found
                 not
                 to
                 be
                 prize
                 ,
                 Decemb.
                 13.
                 1673.
                 
                 Sir
                 
                   Francis
                   Clerk
                   contra
                
                 Captain
                 Smeaton
                 ,
                 and
                 that
                 because
                 ,
                 Sir
                 Francis
                 residing
                 in
                 England
                 ,
                 and
                 not
                 being
                 upon
                 the
                 place
                 of
                 Embarquing
                 ,
                 could
                 not
                 know
                 the
                 false-hood
                 or
                 simulation
                 of
                 the
                 pass
                 ,
                 or
                 other
                 grounds
                 of
                 Confiscation
                 ;
                 and
                 albeit
                 there
                 was
                 no
                 Document
                 Aboard
                 for
                 this
                 parcel
                 of
                 Brass-wyer
                 ,
                 which
                 would
                 have
                 inferred
                 a
                 presumptive
                 probation
                 against
                 Allies
                 or
                 Newters
                 ,
                 that
                 the
                 same
                 belonged
                 to
                 enemies
                 ,
                 yet
                 the
                 same
                 or
                 any
                 other
                 presumptive
                 probation
                 ,
                 though
                 so
                 strong
                 against
                 Newters
                 ,
                 that
                 it
                 would
                 admit
                 no
                 contrary
                 probation
                 ,
                 as
                 to
                 the
                 Kings
                 Subjects
                 residing
                 in
                 His
                 Dominions
                 ,
                 who
                 could
                 not
                 Trade
                 but
                 under
                 colourable
                 Documents
                 ,
                 it
                 was
                 not
                 
                   dolus
                   malus
                
                 ,
                 unless
                 they
                 had
                 or
                 could
                 have
                 known
                 the
                 Interest
                 of
                 any
                 of
                 the
                 Kings
                 enemies
                 .
                 And
                 likewise
                 ,
                 some
                 Merchants
                 in
                 Hull
                 ,
                 having
                 embarqued
                 a
                 Loading
                 in
                 a
                 Ship
                 of
                 Hamburg
                 ,
                 called
                 the
                 Lyveday
                 ,
                 the
                 Admiral
                 found
                 the
                 Loading
                 prize
                 ,
                 because
                 there
                 were
                 double
                 and
                 forged
                 Documents
                 made
                 use
                 of
                 ,
                 against
                 which
                 no
                 contrary
                 probation
                 would
                 have
                 been
                 admitted
                 for
                 Newters
                 ,
                 who
                 being
                 free
                 with
                 all
                 parties
                 ingadged
                 in
                 the
                 War
                 ,
                 had
                 no
                 reason
                 to
                 make
                 use
                 of
                 false
                 or
                 double
                 Documents
                 ,
                 so
                 that
                 it
                 necessarily
                 inferred
                 ,
                 that
                 the
                 Ship
                 and
                 Loading
                 belonged
                 not
                 to
                 Newters
                 ,
                 but
                 to
                 Enemies
                 ,
                 yet
                 the
                 matter
                 being
                 brought
                 in
                 question
                 by
                 Reducton
                 ,
                 the
                 Lords
                 found
                 ,
                 that
                 there
                 being
                 no
                 ground
                 of
                 Confiscation
                 of
                 the
                 Ship
                 ,
                 but
                 it
                 was
                 a
                 free
                 Hamburg
                 Ship
                 ,
                 except
                 upon
                 accompt
                 of
                 the
                 colourable
                 Documents
                 for
                 the
                 Loading
                 ,
                 they
                 admitted
                 a
                 contrary
                 probation
                 ,
                 that
                 the
                 property
                 of
                 the
                 Loading
                 belonged
                 to
                 the
                 Merchants
                 of
                 
                   Hull
                   ,
                   Nov.
                
                 14.
                 1673.
                 
                 Master
                 of
                 
                   the
                   Lyveday
                   contra
                
                 Captain
                 Middletoun
                 .
                 We
                 have
                 now
                 gone
                 through
                 the
                 ordinary
                 grounds
                 of
                 Adjudication
                 of
                 prizes
                 ,
                 there
                 are
                 some
                 other
                 grounds
                 that
                 have
                 been
                 alledged
                 for
                 Confiscation
                 ,
                 but
                 have
                 not
                 been
                 sustained
                 ,
                 as
                 first
                 ,
                 It
                 was
                 not
                 found
                 a
                 ground
                 of
                 Confiscation
                 of
                 a
                 Ship
                 or
                 Loading
                 ,
                 that
                 the
                 same
                 belonged
                 to
                 the
                 Subjects
                 of
                 the
                 Duke
                 of
                 Holstein
                 ,
                 who
                 held
                 some
                 of
                 his
                 Estate
                 of
                 the
                 King
                 of
                 Denmark
                 ,
                 then
                 a
                 declared
                 enemy
                 to
                 the
                 King
                 ,
                 unless
                 the
                 Duke
                 of
                 Holsten
                 had
                 contributed
                 to
                 the
                 War
                 ,
                 as
                 was
                 found
                 January
                 4.
                 1667.
                 
                 
                   Paul
                   Herrison
                   contra
                
                 L.
                 of
                 Ludquharn
                 ,
                 neither
                 that
                 the
                 Ship
                 wanted
                 a
                 Vendition
                 in
                 write
                 ,
                 July
                 26.
                 1673.
                 
                 Captain
                 
                   Hamiltoun
                   contra
                
                 Master
                 of
                 the
                 Ship
                 called
                 of
                 Stattin
                 ;
                 neither
                 was
                 it
                 found
                 a
                 relevant
                 ground
                 of
                 Confiscation
                 ,
                 because
                 the
                 Ship
                 was
                 bought
                 in
                 Holland
                 ,
                 and
                 taken
                 at
                 Sea
                 ere
                 she
                 touched
                 any
                 other
                 ground
                 ,
                 February
                 21.
                 1673.
                 the
                 owners
                 of
                 the
                 Ship
                 called
                 ,
                 
                   the
                   Prince
                   of
                   East-Freezland
                   contra
                
                 Captain
                 Binnie
                 ;
                 the
                 like
                 was
                 found
                 in
                 the
                 foresaid
                 case
                 of
                 Captain
                 Hamiltoun
                 ,
                 neither
                 did
                 the
                 insurance
                 of
                 Ship
                 or
                 Loading
                 in
                 Holland
                 infer
                 a
                 sufficient
                 ground
                 of
                 Confiscation
                 alone
                 ,
                 though
                 it
                 might
                 concur
                 with
                 others
                 as
                 an
                 adminicle
                 ,
                 albeit
                 the
                 insurance
                 was
                 alledged
                 to
                 put
                 the
                 risk
                 and
                 hazard
                 of
                 the
                 Capture
                 upon
                 the
                 Kings
                 enemies
                 ,
                 without
                 detriment
                 to
                 his
                 Allies
                 ;
                 Yet
                 the
                 Lords
                 found
                 ,
                 that
                 seing
                 the
                 property
                 of
                 the
                 Goods
                 insured
                 ,
                 did
                 remain
                 in
                 the
                 Kings
                 Allies
                 ,
                 the
                 samen
                 ought
                 not
                 to
                 be
                 Confiscat
                 ,
                 neither
                 was
                 it
                 alledged
                 ,
                 that
                 the
                 insurance
                 was
                 expresly
                 against
                 capture
                 ,
                 but
                 against
                 hazard
                 at
                 Sea
                 in
                 general
                 ,
                 July
                 22.
                 1673.
                 
                 Captain
                 contra
                 Owners
                 of
                 
                   the
                   Fortune
                   of
                   Trailsound
                
                 .
              
               
               
                 This
                 further
                 is
                 to
                 be
                 observed
                 ,
                 that
                 when
                 the
                 Ships
                 of
                 Newters
                 have
                 aboard
                 counterband
                 ,
                 the
                 deffect
                 of
                 Documents
                 for
                 the
                 counterband
                 ,
                 or
                 double
                 ,
                 or
                 colourable
                 Documents
                 to
                 cover
                 the
                 same
                 ,
                 will
                 not
                 infer
                 confiscation
                 ,
                 if
                 the
                 property
                 be
                 proven
                 to
                 belong
                 to
                 free
                 men
                 ,
                 and
                 that
                 the
                 true
                 Port
                 intended
                 ,
                 was
                 not
                 an
                 enemies
                 Port
                 ,
                 because
                 in
                 such
                 cases
                 Newters
                 have
                 necessity
                 of
                 colourable
                 Documents
                 :
                 but
                 as
                 to
                 the
                 property
                 of
                 Ship
                 and
                 Goods
                 ,
                 they
                 have
                 no
                 such
                 necessity
                 ;
                 and
                 therefore
                 ,
                 contrary
                 probation
                 is
                 not
                 admitted
                 against
                 the
                 ordinar
                 presumptive
                 probation
                 ,
                 by
                 wanting
                 of
                 Documents
                 ,
                 concealing
                 or
                 destroying
                 of
                 Documents
                 ,
                 or
                 making
                 use
                 of
                 double
                 or
                 false
                 Documents
                 .
              
               
                 When
                 Prizes
                 adjudged
                 by
                 the
                 Admiral
                 ,
                 are
                 rouped
                 and
                 sold
                 ,
                 if
                 by
                 reduction
                 they
                 be
                 liberat
                 by
                 the
                 Lords
                 ,
                 the
                 owners
                 are
                 decerned
                 
                   in
                   solidum
                
                 ,
                 to
                 restore
                 the
                 price
                 ,
                 the
                 Ship
                 and
                 Loading
                 being
                 indivisible
                 ;
                 and
                 oftimes
                 some
                 are
                 assumed
                 as
                 owners
                 which
                 are
                 not
                 solvent
                 ,
                 June
                 10.
                 1680.
                 the
                 
                   Ann
                   of
                   Christiana
                   contra
                
                 Captain
                 Martin
                 .
                 And
                 if
                 the
                 Ship
                 and
                 Loading
                 be
                 orderly
                 rouped
                 ,
                 upon
                 the
                 Admirals
                 warrand
                 ,
                 or
                 sold
                 upon
                 his
                 Decreet
                 ,
                 before
                 the
                 same
                 be
                 called
                 in
                 question
                 by
                 citation
                 upon
                 reduction
                 ,
                 albeit
                 the
                 Lords
                 thereafter
                 liberat
                 the
                 Ship
                 ,
                 they
                 will
                 decern
                 no
                 more
                 but
                 the
                 Price
                 obtained
                 by
                 the
                 roup
                 before
                 the
                 Admirals
                 Adjudication
                 ,
                 or
                 the
                 Price
                 obtained
                 by
                 sale
                 ,
                 
                   bona
                   fide
                
                 ,
                 after
                 the
                 Admirals
                 Decreet
                 :
                 And
                 if
                 the
                 Kings
                 fifteenth
                 part
                 ,
                 and
                 the
                 Admirals
                 tenth
                 part
                 ,
                 be
                 
                   bona
                   fide
                
                 ,
                 payed
                 ,
                 they
                 are
                 liberat
                 ,
                 
                   pro
                   tanto
                
                 ,
                 and
                 the
                 strangers
                 must
                 have
                 recourse
                 to
                 the
                 Thesaury
                 and
                 against
                 the
                 Admiral
                 for
                 repetition
                 .
              
            
             
               
               
                 TITLE
                 XIII
                 .
                 Infeftments
                 of
                 Property
                 .
              
               
                 
                   1.
                   
                   The
                   original
                   of
                   Fees.
                   
                
                 
                   2.
                   
                   Feudal
                   Jurisdiction
                   ,
                   especially
                   of
                   the
                   King
                   in
                   Parliament
                   .
                
                 
                   3.
                   
                   Feudal
                   Jurisdiction
                   of
                   Superiors
                   .
                
                 
                   4.
                   
                   Allodials
                   .
                
                 
                   5.
                   
                   Requisits
                   of
                   proper
                   Fees.
                   
                
                 
                   6.
                   
                   Kinds
                   of
                   improper
                   Fees.
                   
                
                 
                   
                     7.
                     
                     Dominium
                     directum
                  
                   essential
                   to
                   all
                   Fees.
                   
                
                 
                   8.
                   
                   Dominium
                   utile
                   .
                
                 
                   9.
                   
                   Fidelity
                   also
                   necessary
                   .
                
                 
                   10.
                   
                   Feudal
                   Contracts
                   .
                
                 
                   11.
                   
                   Udal
                   rights
                   .
                
                 
                   12.
                   
                   Infeftment
                   what
                   it
                   signifies
                   .
                
                 
                   13.
                   
                   How
                   write
                   is
                   necessary
                   for
                   Infeftments
                   .
                
                 
                   14.
                   
                   What
                   kinds
                   of
                   writes
                   are
                   necessary
                   for
                   Infeftments
                   .
                
                 
                   15.
                   
                   The
                   Tenor
                   of
                   formal
                   Charters
                   .
                
                 
                   16.
                   
                   When
                   Instruments
                   of
                   seasine
                   became
                   necessary
                   .
                
                 
                   17.
                   
                   The
                   Tenor
                   of
                   formal
                   seasins
                   .
                
                 
                   18.
                   
                   The
                   essentials
                   necessary
                   in
                   seasins
                   .
                
                 
                   19.
                   
                   Seasins
                   must
                   have
                   warrands
                   and
                   adminicles
                   ,
                   and
                   what
                   these
                   are
                   .
                
                 
                   20.
                   
                   Registration
                   of
                   seasins
                   .
                
                 
                   21.
                   
                   Registration
                   of
                   resignations
                   ,
                   
                     ad
                     remanentiam
                  
                   .
                
                 
                   21.
                   
                   Registration
                   of
                   the
                   allowance
                   of
                   Apprysings
                   and
                   Adjudications
                   ,
                   Inhibitions
                   and
                   Hornings
                   .
                
                 
                   23.
                   
                   The
                   attest
                   of
                   the
                   Nottar
                   and
                   two
                   witnesses
                   ,
                   necessary
                   in
                   seasins
                   .
                
                 
                   24.
                   
                   Extracts
                   of
                   seasins
                   not
                   probative
                   .
                
                 
                   25.
                   
                   Transumpts
                   of
                   seasins
                   .
                
                 
                   26.
                   
                   Bounding
                   Infeftments
                   .
                
                 
                   27.
                   
                   Base
                   Infeftments
                   ,
                   how
                   far
                   effectual
                   without
                   Possession
                   .
                
                 
                   28.
                   
                   Infeftments
                   by
                   Confirmation
                   .
                
                 
                   29.
                   
                   Infeftments
                   upon
                   Appryzing
                   or
                   Adjudication
                   .
                
                 
                   30.
                   
                   The
                   effect
                   of
                   Appryzings
                   or
                   Adjudications
                   with
                   a
                   charge
                   .
                
                 
                   31.
                   
                   Infeftments
                   Ward
                   .
                
                 
                   32.
                   
                   Feus
                   of
                   Ward-lands
                   ,
                   how
                   far
                   valide
                   .
                
                 
                   33.
                   
                   Infeftments
                   blensh
                   .
                
                 
                   34.
                   
                   Infeftments
                   Feu
                   .
                
                 
                   35.
                   
                   The
                   annexed
                   property
                   of
                   the
                   〈◊〉
                   can
                   only
                   be
                   set
                   Feu
                   after
                   〈◊〉
                   in
                   Parliament
                   .
                
                 
                   
                   36.
                   
                   Feus
                   of
                   the
                   annexed
                   propertie
                   ,
                   set
                   with
                   diminution
                   of
                   the
                   retour
                   dutie
                   ,
                   are
                   null
                   .
                
                 
                   37.
                   
                   Feus
                   of
                   Kirk-Lands
                   .
                
                 
                   38.
                   
                   Infeftment
                   in
                   burgage
                   .
                
                 
                   39.
                   
                   Infeftment
                   in
                   mortification
                   .
                
                 
                   40.
                   
                   Manses
                   and
                   Gleibs
                   .
                
                 
                   41.
                   
                   Conjunct
                   Infeftments
                   .
                
                 
                   42.
                   
                   Infeftments
                   to
                   heirs
                   substitute
                   .
                
                 
                   43.
                   
                   Infeftments
                   simple
                   and
                   tailzied
                   .
                
                 
                   44.
                   
                   Union
                   .
                
                 
                   45.
                   
                   Erection
                   .
                
                 
                   46.
                   
                   Warrandice
                   .
                
                 
                   47.
                   
                   Tacit
                   conditions
                   implyed
                   in
                   Ward-Lands
                   .
                
                 
                   48.
                   
                   Tacit
                   conditions
                   in
                   Warandice
                   and
                   relief
                   .
                
                 
                   49.
                   
                   Tacit
                   conditions
                   in
                   Infeftments
                   of
                   Offices
                   .
                
                 
                   50.
                   
                   Tacit
                   conditions
                   in
                   Excambion
                   .
                
                 
                   51.
                   
                   Tacit
                   conditions
                   in
                   Feus
                   .
                
                 
                   52.
                   
                   Liferents
                   reserved
                   in
                   Infeftments
                   of
                   Propertie
                   .
                
                 
                   53.
                   
                   Exceptions
                   in
                   Infeftments
                   ,
                   how
                   far
                   effectual
                   .
                
                 
                   54.
                   
                   Faculties
                   reserved
                   in
                   Infeftments
                   .
                
                 
                   55.
                   
                   Burdens
                   of
                   sums
                   in
                   Infeftments
                   ,
                   how
                   far
                   effectual
                   .
                
                 
                   56.
                   
                   The
                   effect
                   of
                   impossible
                   or
                   unlawful
                   conditions
                   in
                   Infeftments
                   .
                
                 
                   57.
                   
                   Conditions
                   inconsistent
                   are
                   null
                   .
                
                 
                   58.
                   
                   Clause
                   
                     de
                     non
                     alienando
                  
                   in
                   Tailzies
                   .
                
                 
                   59.
                   
                   Clauses
                   restrictive
                   and
                   irritant
                   in
                   Tailzies
                   .
                
                 
                   
                     60.
                     
                     Regalia
                  
                   not
                   exprest
                   ,
                   are
                   not
                   carried
                   by
                   Infeftment
                   .
                
                 
                   
                     61.
                     
                     Regalia
                  
                   are
                   carried
                   in
                   Barony
                   ,
                   though
                   not
                   exprest
                   .
                
                 
                   62.
                   
                   Jurisdiction
                   and
                   Courts
                   .
                
                 
                   63.
                   
                   Jurisdiction
                   of
                   Baron
                   Courts
                   ,
                   how
                   far
                   restricted
                   .
                
                 
                   64.
                   
                   Issues
                   of
                   Baron
                   Courts
                   belong
                   to
                   themselves
                   .
                
                 
                   65.
                   
                   Infeftments
                   of
                   Constabulary
                   .
                
                 
                   
                     66.
                     
                     Fortalices
                  
                   ,
                   how
                   far
                   extended
                   .
                
                 
                   67.
                   
                   Forrestries
                   .
                
                 
                   68.
                   
                   Hunting
                   of
                   Deer
                   ,
                   
                     inter
                     regalia
                  
                   .
                
                 
                   69.
                   
                   Salmond-fishing
                   .
                
                 
                   70.
                   
                   Cruives
                   .
                
                 
                   71.
                   
                   Milns
                   .
                
                 
                   72.
                   
                   Priviledge
                   of
                   Brewing
                   .
                
                 
                   73.
                   
                   Part
                   and
                   pertinent
                   .
                
                 
                   74.
                   
                   Wood
                   and
                   Coal
                   .
                
                 
                   75.
                   
                   Houses
                   and
                   Biggings
                   ,
                   and
                   Park
                   Dykes
                   .
                
                 
                   76.
                   
                   Fowling
                   ,
                   Hunting
                   and
                   Fishing
                   :
                
                 
                   77.
                   
                   Cunningars
                   .
                
                 
                   78.
                   
                   Dovecotts
                   .
                
                 
                   79.
                   
                   Free
                   Ish
                   and
                   Entry
                   .
                
                 
                   80.
                   
                   Herezelds
                   .
                
                 
                   81.
                   
                   Steelbow-goods
                   .
                
                 
                   82.
                   
                   The
                   effect
                   of
                   Infeftments
                   ,
                   
                     in
                     possessorio
                  
                   .
                
                 
                   83.
                   
                   The
                   effect
                   of
                   Infeftments
                   ,
                   
                     in
                     petitorio
                  
                   .
                
                 
                   84.
                   
                   Inhibitions
                   and
                   their
                   effects
                   against
                   Infeftments
                   .
                
              
               
               
                 THE
                 Roman
                 Empyre
                 in
                 Italy
                 ,
                 being
                 long
                 opprest
                 ,
                 and
                 at
                 length
                 supprest
                 by
                 the
                 Inundation
                 of
                 the
                 Longobards
                 and
                 other
                 barbarous
                 Nations
                 ,
                 who
                 seated
                 themselves
                 there
                 ,
                 and
                 divided
                 these
                 beautiful
                 Courtreys
                 amongst
                 their
                 Captains
                 ,
                 and
                 they
                 sub-divided
                 the
                 same
                 to
                 their
                 Souldiers
                 ,
                 for
                 their
                 Military
                 service
                 ;
                 and
                 as
                 they
                 were
                 the
                 authors
                 of
                 this
                 new
                 Right
                 ,
                 so
                 they
                 did
                 term
                 it
                 by
                 a
                 new
                 and
                 barbarous
                 name
                 ,
                 Feudum
                 ,
                 which
                 the
                 Germans
                 call
                 Fiff
                 ,
                 and
                 we
                 with
                 the
                 English
                 call
                 a
                 Fee
                 ;
                 concerning
                 which
                 ,
                 there
                 was
                 no
                 common
                 written
                 Law
                 ,
                 but
                 the
                 several
                 Provinces
                 had
                 their
                 diverse
                 Customes
                 ,
                 as
                 they
                 thought
                 most
                 suitable
                 to
                 the
                 nature
                 of
                 this
                 Right
                 ,
                 and
                 their
                 own
                 utility
                 .
                 These
                 Books
                 annexed
                 to
                 the
                 Civil
                 Law
                 ,
                 called
                 
                   Libri
                   Feudorum
                
                 ,
                 though
                 they
                 have
                 great
                 respect
                 amongst
                 Lawers
                 ,
                 yet
                 they
                 are
                 but
                 the
                 observations
                 of
                 privat
                 persons
                 ,
                 and
                 so
                 not
                 a
                 written
                 publick
                 Law.
                 
              
               
                 By
                 the
                 Irruption
                 which
                 happened
                 in
                 the
                 sixth
                 Century
                 ,
                 the
                 Civil
                 Law
                 was
                 sopit
                 for
                 five
                 hundred
                 years
                 ,
                 it
                 was
                 revived
                 in
                 the
                 eleventh
                 Century
                 ,
                 and
                 did
                 take
                 in
                 with
                 it
                 the
                 Feudal
                 Customes
                 ,
                 which
                 have
                 been
                 propagat
                 through
                 the
                 most
                 civil
                 Nations
                 in
                 the
                 World
                 ,
                 not
                 only
                 for
                 strengthning
                 them
                 towards
                 War
                 ,
                 but
                 because
                 Soveraigns
                 had
                 thereby
                 a
                 new
                 interest
                 over
                 their
                 Subjects
                 and
                 Inferiors
                 ,
                 thereby
                 becoming
                 their
                 Feudatars
                 and
                 Vassals
                 ,
                 owing
                 always
                 to
                 them
                 fidelity
                 ,
                 and
                 oftest
                 following
                 as
                 their
                 Clients
                 and
                 Assecles
                 ,
                 acknowledging
                 them
                 as
                 their
                 Lords
                 ,
                 Superiours
                 ,
                 and
                 Paramount
                 in
                 their
                 Lands
                 and
                 Heretages
                 ,
                 which
                 are
                 all
                 derived
                 ,
                 mediatly
                 or
                 immediatly
                 from
                 the
                 Soveraign
                 authority
                 ,
                 as
                 the
                 common
                 and
                 supream
                 Superiour
                 of
                 all
                 the
                 Subjects
                 ,
                 who
                 have
                 any
                 more
                 then
                 the
                 right
                 of
                 unfixed
                 Moveables
                 .
              
               
                 2.
                 
                 And
                 thereby
                 also
                 ariseth
                 the
                 Feudal
                 Jurisdiction
                 ,
                 whereby
                 not
                 only
                 the
                 Soveraign
                 power
                 ,
                 but
                 all
                 Superiours
                 do
                 by
                 the
                 advice
                 and
                 assistance
                 of
                 their
                 Vassals
                 ,
                 who
                 are
                 called
                 Peers
                 of
                 their
                 Court
                 ,
                 order
                 and
                 determine
                 all
                 things
                 ,
                 not
                 only
                 relating
                 to
                 themselves
                 and
                 their
                 Vassals
                 ,
                 but
                 to
                 all
                 others
                 who
                 are
                 locally
                 within
                 their
                 Territories
                 ,
                 both
                 in
                 Civils
                 and
                 Criminals
                 ,
                 in
                 so
                 far
                 as
                 they
                 derive
                 Jurisdiction
                 Civil
                 or
                 Criminal
                 from
                 the
                 Soveraign
                 power
                 ,
                 immediatly
                 or
                 mediatly
                 ;
                 no
                 Nation
                 is
                 more
                 exact
                 in
                 this
                 then
                 Scotland
                 ,
                 wherein
                 the
                 King
                 as
                 Supream
                 Superiour
                 ,
                 ruleth
                 by
                 His
                 Vassals
                 assembled
                 in
                 Parliament
                 ;
                 in
                 which
                 ,
                 at
                 first
                 ,
                 all
                 were
                 personally
                 present
                 ,
                 who
                 held
                 Lands
                 immediatly
                 of
                 Him
                 ,
                 as
                 Barons
                 great
                 and
                 small
                 ,
                 Free-holders
                 and
                 Prelats
                 for
                 Church-lands
                 ;
                 the
                 free
                 Burghs
                 were
                 also
                 represented
                 in
                 Parliament
                 by
                 their
                 Commissioners
                 ,
                 as
                 holding
                 their
                 Burgage
                 Lands
                 ,
                 and
                 their
                 Freedoms
                 and
                 Priviledges
                 of
                 Burghs
                 ,
                 as
                 Feudaters
                 of
                 the
                 King
                 ;
                 so
                 that
                 there
                 was
                 not
                 one
                 foot
                 of
                 ground
                 in
                 Scotland
                 whose
                 Lord
                 was
                 not
                 present
                 in
                 Parliament
                 .
              
               
                 But
                 when
                 Fees
                 holden
                 of
                 the
                 King
                 became
                 sub-divided
                 ,
                 or
                 multiplied
                 ,
                 two
                 or
                 more
                 Commissioners
                 were
                 admitted
                 in
                 Parliament
                 ,
                 in
                 name
                 of
                 the
                 meaner
                 Barons
                 and
                 Free-holders
                 ;
                 all
                 were
                 accompted
                 great
                 Barons
                 ,
                 who
                 held
                 an
                 hundred
                 
                 merk
                 Land
                 or
                 above
                 of
                 the
                 King
                 ,
                 and
                 the
                 rest
                 meaner
                 Barons
                 ,
                 Par.
                 1503.
                 cap.
                 78.
                 
                 So
                 also
                 other
                 Superiours
                 have
                 their
                 Courts
                 ,
                 consisting
                 of
                 their
                 Vassals
                 ,
                 who
                 are
                 oblieged
                 to
                 answer
                 suit
                 thereto
                 ,
                 who
                 as
                 a
                 Jury
                 ,
                 gave
                 Doom
                 and
                 Judgement
                 of
                 old
                 ,
                 when
                 all
                 matters
                 proceeded
                 by
                 Jury
                 or
                 Inquest
                 ,
                 as
                 it
                 was
                 also
                 in
                 the
                 Kings
                 Court
                 by
                 Sheriffs
                 ,
                 Bailzies
                 ,
                 &c.
                 of
                 which
                 the
                 shadow
                 or
                 formality
                 yet
                 remaineth
                 ,
                 of
                 having
                 a
                 Doomster
                 as
                 a
                 member
                 of
                 Court
                 to
                 pronounce
                 sentence
                 ,
                 though
                 Inquests
                 be
                 in
                 most
                 things
                 laid
                 aside
                 through
                 custom
                 .
              
               
                 3.
                 
                 The
                 very
                 right
                 of
                 Superiority
                 carryes
                 this
                 right
                 of
                 Jurisdiction
                 over
                 the
                 Vassals
                 ,
                 unless
                 by
                 their
                 Infeftments
                 ,
                 or
                 Prescription
                 ,
                 they
                 be
                 exempted
                 .
              
               
                 Our
                 Learned
                 Countrey-man
                 ,
                 Mr.
                 
                   Thomas
                   Craig
                
                 Advocat
                 ,
                 hath
                 largely
                 and
                 learnedly
                 handled
                 the
                 Feudal
                 Rights
                 of
                 this
                 and
                 other
                 Nations
                 ,
                 in
                 his
                 Book
                 
                   de
                   Feudis
                
                 ;
                 and
                 therefore
                 ,
                 we
                 shall
                 only
                 follow
                 closely
                 ,
                 what
                 since
                 his
                 time
                 by
                 Statute
                 or
                 Custom
                 hath
                 been
                 cleared
                 or
                 altered
                 in
                 Feudal
                 Rights
                 ,
                 which
                 is
                 very
                 much
                 ,
                 for
                 he
                 having
                 written
                 in
                 the
                 year
                 ,
                 1600.
                 there
                 are
                 since
                 many
                 Statutes
                 ,
                 and
                 variety
                 of
                 cases
                 ,
                 which
                 did
                 occur
                 ,
                 and
                 were
                 determined
                 by
                 the
                 Lords
                 ,
                 and
                 have
                 been
                 ,
                 
                   de
                   recenti
                
                 ,
                 observed
                 as
                 they
                 were
                 done
                 by
                 the
                 most
                 eminent
                 of
                 the
                 Lords
                 and
                 Lawers
                 ,
                 as
                 by
                 Haddingtoun
                 who
                 was
                 President
                 of
                 the
                 Session
                 ,
                 and
                 by
                 President
                 Spotswood
                 ,
                 and
                 by
                 Dury
                 ,
                 who
                 continued
                 in
                 the
                 Session
                 from
                 the
                 year
                 ,
                 1620.
                 until
                 his
                 death
                 in
                 the
                 year
                 ,
                 1642.
                 
                 And
                 though
                 these
                 Decisions
                 have
                 been
                 intermitted
                 since
                 that
                 time
                 ,
                 till
                 the
                 Kings
                 return
                 ,
                 the
                 loss
                 is
                 not
                 great
                 ,
                 these
                 times
                 being
                 troublesome
                 ,
                 and
                 great
                 alterations
                 of
                 the
                 Lords
                 ;
                 but
                 the
                 Decisions
                 of
                 the
                 Lords
                 have
                 been
                 constantly
                 observed
                 since
                 the
                 Kings
                 return
                 ,
                 by
                 which
                 most
                 of
                 the
                 Feudal
                 Questions
                 are
                 determined
                 ;
                 and
                 these
                 things
                 which
                 Craig
                 could
                 but
                 conjecture
                 from
                 the
                 Nature
                 of
                 the
                 Feudal
                 Rights
                 ,
                 the
                 Customs
                 of
                 neighbouring
                 Nations
                 ,
                 and
                 the
                 opinion
                 of
                 Feudists
                 ,
                 are
                 now
                 commonly
                 known
                 ,
                 and
                 come
                 to
                 a
                 fixed
                 Custom
                 ;
                 neither
                 doth
                 he
                 observe
                 any
                 Decisions
                 particularly
                 by
                 the
                 time
                 ,
                 further
                 then
                 his
                 own
                 time
                 in
                 which
                 our
                 Feudal
                 Customs
                 could
                 little
                 be
                 determined
                 ,
                 seing
                 the
                 Lords
                 of
                 Session
                 were
                 mutable
                 and
                 ambulatory
                 ,
                 till
                 the
                 year
                 ,
                 1540.
                 in
                 which
                 ,
                 King
                 James
                 the
                 fifth
                 did
                 perfect
                 the
                 establishment
                 of
                 the
                 Session
                 in
                 a
                 Colledge
                 of
                 Justice
                 ,
                 who
                 at
                 first
                 ,
                 could
                 not
                 be
                 so
                 knowing
                 and
                 fixed
                 in
                 their
                 forms
                 and
                 customs
                 ;
                 and
                 therefore
                 ,
                 it
                 cannot
                 be
                 thought
                 strange
                 ,
                 if
                 the
                 Feudal
                 Customes
                 as
                 they
                 are
                 now
                 settled
                 ,
                 do
                 much
                 differ
                 from
                 what
                 Craig
                 did
                 observe
                 ;
                 he
                 hath
                 indeed
                 very
                 well
                 observed
                 the
                 origine
                 and
                 nature
                 of
                 Feudal
                 Rights
                 ,
                 and
                 the
                 Customs
                 of
                 Italy
                 where
                 they
                 began
                 ,
                 and
                 of
                 France
                 and
                 England
                 ,
                 whence
                 they
                 were
                 derived
                 to
                 us
                 ;
                 and
                 therefore
                 ,
                 we
                 say
                 little
                 as
                 to
                 these
                 :
                 And
                 so
                 much
                 only
                 of
                 the
                 Rights
                 themselves
                 as
                 must
                 necessarly
                 be
                 introductory
                 to
                 our
                 fixed
                 Customs
                 ;
                 in
                 which
                 ,
                 we
                 shall
                 follow
                 that
                 same
                 Method
                 (
                 as
                 most
                 accommodat
                 to
                 the
                 matter
                 )
                 which
                 we
                 observed
                 in
                 the
                 former
                 Title
                 of
                 
                   real
                   Rights
                
                 :
                 But
                 there
                 being
                 in
                 Feudal
                 Rights
                 ,
                 nothing
                 of
                 that
                 original
                 Community
                 which
                 is
                 therein
                 ,
                 being
                 only
                 a
                 promiscuous
                 property
                 of
                 Incorporations
                 or
                 persons
                 ;
                 or
                 otherways
                 a
                 servitude
                 of
                 common
                 Pasturage
                 ,
                 &c.
                 
              
               
                 Therefore
                 ,
                 we
                 shall
                 first
                 speak
                 of
                 the
                 Right
                 of
                 property
                 in
                 Fees
                 ,
                 both
                 in
                 relation
                 to
                 the
                 Superiour
                 and
                 to
                 the
                 Vassal
                 .
                 Next
                 of
                 the
                 Servitudes
                 competent
                 in
                 Fees
                 ,
                 which
                 comprehending
                 all
                 Rights
                 ,
                 not
                 reaching
                 the
                 alienation
                 or
                 substance
                 ,
                 but
                 the
                 lesser
                 interests
                 ,
                 extending
                 only
                 to
                 the
                 profits
                 or
                 use
                 of
                 Hereditaments
                 ,
                 must
                 comprehend
                 both
                 the
                 interest
                 introduced
                 by
                 Law
                 ,
                 as
                 Teinds
                 ,
                 and
                 these
                 that
                 are
                 by
                 consent
                 ,
                 by
                 Infeftments
                 or
                 other
                 grants
                 ,
                 or
                 long
                 possession
                 ,
                 whether
                 they
                 be
                 personal
                 as
                 Liferents
                 ,
                 Conjunct-fees
                 ,
                 Terces
                 ,
                 and
                 the
                 Right
                 of
                 Courtisie
                 ,
                 Annualrents
                 ,
                 Pensions
                 ,
                 Rentals
                 ,
                 Tacks
                 ,
                 &c.
                 
                 Or
                 whether
                 real
                 Servitudes
                 ,
                 
                 as
                 Thirlage
                 ,
                 Pasturage
                 ,
                 &c.
                 
                 And
                 last
                 ,
                 Feudal
                 Pledges
                 ,
                 which
                 are
                 called
                 Wodsetts
                 .
                 But
                 in
                 all
                 ,
                 we
                 are
                 only
                 here
                 to
                 speak
                 of
                 the
                 constitution
                 of
                 Feudal
                 Rights
                 ,
                 leaving
                 the
                 transmission
                 thereof
                 to
                 Heirs
                 ,
                 or
                 singular
                 Successors
                 ,
                 to
                 the
                 next
                 part
                 ,
                 
                   Vide
                   Title
                
                 24.
                 and
                 27.
                 
              
               
                 4.
                 
                 The
                 property
                 of
                 all
                 Lands
                 and
                 Immoveables
                 ,
                 or
                 Hereditaments
                 ,
                 are
                 either
                 Allodial
                 or
                 Feudal
                 ;
                 Allodial
                 is
                 that
                 ,
                 whereby
                 the
                 right
                 is
                 without
                 recognisance
                 or
                 acknowledgement
                 of
                 a
                 Superiour
                 ,
                 having
                 a
                 real
                 Right
                 in
                 the
                 thing
                 ,
                 thus
                 are
                 Moveables
                 enjoyed
                 ;
                 and
                 Lands
                 and
                 Immoveables
                 were
                 so
                 till
                 these
                 Feudal
                 Customs
                 ;
                 and
                 now
                 there
                 remains
                 little
                 Allodial
                 :
                 For
                 Lands
                 holden
                 Feu
                 or
                 Burgage
                 ,
                 or
                 Lands
                 Mortified
                 ,
                 are
                 not
                 Allodial
                 ,
                 seing
                 they
                 acknowledge
                 a
                 Superiour
                 ,
                 having
                 the
                 direct
                 Right
                 of
                 property
                 ,
                 and
                 to
                 whom
                 ,
                 there
                 must
                 be
                 some
                 Rent
                 or
                 return
                 ,
                 though
                 they
                 be
                 not
                 so
                 proper
                 Fees
                 ,
                 as
                 Land
                 holden
                 Ward
                 .
                 Yet
                 the
                 Superiours
                 Right
                 in
                 the
                 Soveraign
                 power
                 ,
                 is
                 not
                 Feudal
                 ,
                 but
                 Allodial
                 here
                 ,
                 though
                 some
                 Kingdoms
                 be
                 holden
                 of
                 Superiors
                 as
                 Feudal
                 .
                 So
                 also
                 the
                 Gleibs
                 of
                 Ministers
                 seem
                 to
                 come
                 nearest
                 to
                 Allodials
                 ,
                 having
                 no
                 Infeftment
                 holding
                 Rent
                 or
                 acknowledgement
                 ,
                 though
                 they
                 be
                 more
                 properly
                 mortified
                 Fees
                 ,
                 whereof
                 the
                 Liferent-escheat
                 befalls
                 to
                 the
                 King
                 only
                 .
              
               
                 Kirks
                 and
                 Kirk-yards
                 are
                 only
                 Allodial
                 ,
                 without
                 any
                 acknowledgement
                 of
                 a
                 Superiour
                 ,
                 but
                 they
                 are
                 destinat
                 for
                 pious
                 Uses
                 ,
                 and
                 are
                 ordained
                 to
                 be
                 upheld
                 and
                 repaired
                 ,
                 Par.
                 1563.
                 cap.
                 76.
                 
                 And
                 the
                 Parochioners
                 of
                 every
                 Paroch
                 ar
                 ordained
                 to
                 build
                 and
                 repair
                 Kirk-yard-dykes
                 with
                 Stone
                 and
                 Morter
                 ,
                 two
                 els
                 high
                 ,
                 and
                 to
                 make
                 Kirk-styles
                 therein
                 ,
                 Par.
                 1597.
                 cap.
                 232.
                 
                 The
                 manner
                 of
                 reparing
                 Kirks
                 was
                 remitted
                 to
                 the
                 Council
                 by
                 the
                 said
                 first
                 Act
                 of
                 Parliament
                 ,
                 and
                 thereupon
                 an
                 Act
                 of
                 Council
                 was
                 made
                 ,
                 which
                 is
                 ratified
                 ,
                 Par.
                 1572.
                 cap.
                 54.
                 but
                 is
                 not
                 repeated
                 in
                 the
                 Ratification
                 ,
                 but
                 only
                 in
                 general
                 ,
                 that
                 the
                 Parochioners
                 were
                 warranted
                 to
                 name
                 persons
                 to
                 stent
                 the
                 Neighbours
                 .
              
               
                 A
                 Fee
                 signifieth
                 either
                 the
                 right
                 it self
                 ,
                 or
                 the
                 thing
                 affected
                 with
                 the
                 Right
                 ,
                 whether
                 it
                 be
                 corporeal
                 ,
                 as
                 Lands
                 Lochs
                 ,
                 Woods
                 ,
                 Fortalices
                 ,
                 Milns
                 ;
                 or
                 incorporeal
                 ,
                 as
                 Annualrents
                 ,
                 Fishing
                 ,
                 Jurisdiction
                 ,
                 Pasturage
                 or
                 the
                 like
                 ,
                 and
                 at
                 the
                 first
                 ,
                 it
                 was
                 freely
                 granted
                 for
                 Fidelity
                 and
                 Military
                 service
                 of
                 the
                 Vassal
                 .
              
               
                 5.
                 
                 And
                 therefore
                 it
                 implyed
                 ,
                 first
                 ,
                 That
                 it
                 was
                 a
                 free
                 and
                 gratuitous
                 Donation
                 ,
                 as
                 to
                 Money
                 or
                 other
                 anterior
                 cause
                 ,
                 and
                 only
                 for
                 fidelity
                 and
                 service
                 .
                 Secondly
                 ,
                 None
                 could
                 succeed
                 therein
                 ,
                 but
                 such
                 as
                 could
                 perform
                 that
                 service
                 ,
                 whereby
                 women
                 were
                 excluded
                 .
                 Thirdly
                 ,
                 It
                 could
                 descend
                 to
                 none
                 but
                 to
                 the
                 Male
                 Issue
                 of
                 the
                 first
                 Vassals
                 body
                 ,
                 which
                 ceassing
                 ,
                 it
                 became
                 void
                 ,
                 and
                 could
                 not
                 be
                 transmitted
                 to
                 the
                 Collaterals
                 ,
                 or
                 to
                 the
                 Ascendents
                 of
                 the
                 first
                 Vassal
                 .
                 Fourthly
                 ,
                 Whensoever
                 it
                 was
                 open
                 or
                 void
                 by
                 the
                 death
                 of
                 the
                 Vassal
                 Infeft
                 ,
                 it
                 returned
                 to
                 the
                 Superiour
                 ,
                 until
                 the
                 Vassals
                 Heir
                 were
                 capable
                 of
                 Military
                 Service
                 ,
                 which
                 was
                 esteemed
                 to
                 be
                 so
                 soon
                 as
                 he
                 attained
                 Majority
                 .
                 And
                 while
                 it
                 was
                 in
                 non-entry
                 ,
                 by
                 the
                 negligence
                 of
                 the
                 Vassal
                 ,
                 not
                 demanding
                 Infeftment
                 ,
                 but
                 in
                 his
                 Minority
                 ,
                 when
                 he
                 was
                 unable
                 to
                 serve
                 ,
                 both
                 the
                 Lands
                 and
                 the
                 Vassal
                 were
                 in
                 the
                 hands
                 of
                 the
                 Superiour
                 ,
                 in
                 Ward
                 and
                 Custody
                 ,
                 or
                 of
                 his
                 Donatar
                 as
                 his
                 Legal
                 Tutor
                 ,
                 who
                 was
                 to
                 educat
                 him
                 for
                 his
                 own
                 service
                 ,
                 and
                 to
                 intertain
                 him
                 ,
                 beside
                 which
                 he
                 had
                 then
                 no
                 other
                 profit
                 of
                 his
                 Fee.
                 And
                 if
                 he
                 married
                 without
                 the
                 Superiours
                 consent
                 ,
                 he
                 lost
                 a
                 sum
                 equivalent
                 to
                 that
                 Tocher
                 ,
                 which
                 were
                 suitable
                 to
                 his
                 Quality
                 and
                 Estate
                 :
                 And
                 if
                 contrary
                 his
                 Superiours
                 will
                 ,
                 he
                 refused
                 a
                 suitable
                 Match
                 ,
                 he
                 forefaults
                 the
                 double
                 of
                 the
                 Tocher
                 :
                 The
                 reason
                 introductory
                 of
                 this
                 was
                 ,
                 because
                 the
                 Superiour
                 might
                 be
                 concerned
                 in
                 the
                 affinity
                 contracted
                 by
                 his
                 Vassal
                 in
                 his
                 marriage
                 .
              
               
               
                 In
                 all
                 Fees
                 ,
                 fidelity
                 by
                 the
                 Vassal
                 to
                 his
                 Superiour
                 is
                 necessarly
                 implyed
                 ,
                 and
                 if
                 any
                 thing
                 were
                 acted
                 contrary
                 to
                 fidelity
                 and
                 gratitude
                 ,
                 against
                 the
                 life
                 and
                 fame
                 of
                 the
                 Superiour
                 ,
                 to
                 the
                 great
                 prejudice
                 of
                 his
                 Estate
                 or
                 nearest
                 Relations
                 ,
                 the
                 Fee
                 became
                 void
                 ;
                 wherein
                 is
                 also
                 comprehended
                 the
                 Vassals
                 disclaiming
                 of
                 his
                 Superiour
                 ,
                 or
                 owning
                 another
                 in
                 his
                 place
                 ;
                 or
                 Infefting
                 another
                 Vassal
                 without
                 his
                 Superiours
                 consent
                 .
              
               
                 Fees
                 are
                 not
                 only
                 unalienable
                 without
                 consent
                 of
                 the
                 Superiour
                 ,
                 for
                 the
                 reasons
                 now
                 adduced
                 ;
                 but
                 they
                 are
                 
                   stricti
                   juris
                
                 ,
                 and
                 there
                 is
                 no
                 obliegement
                 upon
                 the
                 Superiour
                 to
                 receive
                 any
                 stranger
                 or
                 singular
                 successor
                 ,
                 his
                 Vassal
                 ,
                 except
                 what
                 the
                 Law
                 hath
                 introduced
                 by
                 Statute
                 or
                 Custom
                 ,
                 in
                 favours
                 of
                 Creditors
                 ,
                 for
                 obtaining
                 satisfaction
                 of
                 their
                 Debts
                 ,
                 by
                 Appryzings
                 or
                 Adjudication
                 ,
                 whereby
                 the
                 superiour
                 may
                 be
                 compelled
                 to
                 receive
                 singular
                 successors
                 :
                 Yet
                 the
                 Disposition
                 procuratory
                 ,
                 or
                 precept
                 of
                 seasing
                 before
                 Infeftment
                 are
                 asignable
                 ,
                 and
                 the
                 superiour
                 may
                 be
                 compelled
                 to
                 receive
                 the
                 Assigney
                 ,
                 if
                 the
                 Disposition
                 be
                 in
                 favours
                 of
                 Assigneys
                 :
                 But
                 Infeftment
                 being
                 once
                 taken
                 ,
                 he
                 is
                 not
                 oblieged
                 to
                 receive
                 any
                 Assigney
                 or
                 singular
                 successors
                 ,
                 otherways
                 then
                 in
                 obedience
                 of
                 Horning
                 upon
                 Appryzing
                 or
                 Adjudication
                 ,
                 getting
                 a
                 years
                 Rent
                 for
                 accepting
                 a
                 new
                 Vassal
                 .
              
               
                 6.
                 
                 These
                 being
                 the
                 ancient
                 requisits
                 of
                 Fees
                 ;
                 that
                 is
                 a
                 proper
                 Fee
                 which
                 hath
                 them
                 ,
                 and
                 the
                 want
                 of
                 any
                 of
                 them
                 makes
                 it
                 Improperin
                 so
                 far
                 ,
                 but
                 most
                 of
                 them
                 might
                 always
                 ,
                 and
                 now
                 are
                 changed
                 by
                 the
                 Tenor
                 of
                 the
                 Infeftment
                 ,
                 as
                 when
                 the
                 Fee
                 is
                 granted
                 to
                 the
                 Vassal
                 and
                 the
                 Heirs
                 of
                 his
                 body
                 ;
                 it
                 is
                 so
                 far
                 improper
                 ,
                 that
                 women
                 may
                 succeed
                 .
                 If
                 it
                 begranted
                 to
                 him
                 and
                 his
                 Heirs
                 simply
                 ,
                 then
                 his
                 Collateral
                 Heirs
                 or
                 Ascendents
                 may
                 succeed
                 :
                 Or
                 if
                 to
                 his
                 Heirs
                 male
                 whatsoever
                 ,
                 much
                 more
                 if
                 to
                 the
                 Heirs
                 or
                 Descendents
                 of
                 other
                 persons
                 in
                 Tailzies
                 .
                 Fees
                 are
                 also
                 granted
                 ,
                 not
                 for
                 Military
                 service
                 ,
                 or
                 service
                 indefinitly
                 ,
                 but
                 for
                 some
                 definite
                 particular
                 service
                 ,
                 as
                 for
                 carrying
                 of
                 a
                 Sword
                 or
                 other
                 Ensign
                 of
                 Honour
                 ,
                 before
                 the
                 Superiour
                 in
                 solemn
                 days
                 ;
                 or
                 not
                 for
                 service
                 at
                 all
                 ,
                 but
                 for
                 some
                 Rent
                 ,
                 which
                 is
                 either
                 inconsiderable
                 ,
                 as
                 a
                 meer
                 acknowledgement
                 of
                 the
                 Superiour
                 ,
                 as
                 a
                 penny
                 Money
                 ,
                 or
                 a
                 grain
                 of
                 Pepper
                 ,
                 a
                 Rose
                 ,
                 &c.
                 
                 Or
                 ,
                 for
                 a
                 Feu-ferm-duty
                 in
                 Money
                 ,
                 or
                 any
                 Fungible
                 ,
                 or
                 other
                 performance
                 :
                 Or
                 ,
                 when
                 the
                 avail
                 of
                 the
                 Marriage
                 ,
                 and
                 profit
                 of
                 the
                 Ward
                 is
                 taxed
                 to
                 such
                 a
                 sum
                 .
              
               
                 Hence
                 we
                 may
                 consider
                 ,
                 what
                 remains
                 as
                 to
                 the
                 essentials
                 of
                 Fees
                 ,
                 and
                 common
                 interests
                 thereof
                 ,
                 which
                 are
                 these
                 .
              
               
                 7.
                 
                 First
                 ,
                 there
                 must
                 remain
                 a
                 right
                 in
                 the
                 Superiour
                 ,
                 which
                 is
                 called
                 ,
                 
                   dominium
                   directum
                
                 ;
                 and
                 withal
                 ,
                 a
                 Right
                 in
                 the
                 Vassal
                 ,
                 called
                 ,
                 
                   dominium
                   utile
                
                 :
                 The
                 reason
                 of
                 the
                 distinction
                 and
                 terms
                 thereof
                 is
                 ,
                 because
                 it
                 can
                 hardly
                 be
                 determined
                 ,
                 that
                 the
                 Right
                 of
                 Property
                 is
                 in
                 either
                 the
                 Superiour
                 or
                 Vassal
                 alone
                 ,
                 so
                 that
                 the
                 other
                 should
                 only
                 have
                 a
                 servitude
                 upon
                 it
                 ,
                 though
                 some
                 have
                 thought
                 Superiority
                 but
                 a
                 servitude
                 ,
                 the
                 property
                 being
                 in
                 the
                 Vassal
                 ;
                 and
                 others
                 have
                 thought
                 the
                 Fee
                 it self
                 to
                 be
                 but
                 a
                 servitude
                 ,
                 to
                 wit
                 ,
                 the
                 perpetual
                 use
                 and
                 fruit
                 ,
                 yet
                 the
                 reconciliation
                 and
                 satisfaction
                 of
                 both
                 ,
                 hath
                 been
                 well
                 found
                 out
                 in
                 this
                 distinction
                 ,
                 whereby
                 neithers
                 interest
                 is
                 called
                 a
                 servitude
                 ;
                 but
                 by
                 the
                 resemblance
                 of
                 the
                 distinction
                 in
                 Law
                 ,
                 betwixt
                 
                   jura
                   &
                   actiones
                   directae
                
                 ,
                 and
                 these
                 which
                 for
                 resemblance
                 were
                 reductive
                 thereto
                 ,
                 and
                 therefore
                 called
                 ,
                 utiles
                 .
              
               
                 8.
                 
                 The
                 Superiors
                 Right
                 is
                 called
                 ,
                 
                   dominium
                   directum
                
                 ,
                 and
                 the
                 Vassals
                 utile
                 ,
                 and
                 without
                 these
                 ,
                 the
                 Right
                 cannot
                 consist
                 .
              
               
               
                 Secondly
                 ,
                 As
                 there
                 must
                 be
                 a
                 right
                 in
                 the
                 Superiour
                 ,
                 and
                 another
                 in
                 the
                 Vassal
                 ,
                 so
                 the
                 Vassal
                 in
                 his
                 right
                 must
                 necessarly
                 hold
                 of
                 ,
                 and
                 acknowledge
                 the
                 Superious
                 ,
                 as
                 having
                 the
                 direct
                 Right
                 in
                 the
                 Fee
                 ,
                 otherways
                 the
                 two
                 distinct
                 Rights
                 without
                 this
                 subordination
                 ,
                 will
                 make
                 but
                 two
                 partial
                 Allodial
                 Rights
                 .
              
               
                 Thirdly
                 ,
                 There
                 is
                 necessarly
                 implyed
                 in
                 Fees
                 ,
                 some
                 Rent
                 or
                 return
                 to
                 the
                 Superiour
                 for
                 the
                 Fee
                 ,
                 which
                 may
                 be
                 either
                 service
                 ,
                 Money
                 ,
                 or
                 other
                 Fungible
                 ,
                 or
                 prayers
                 and
                 supplications
                 ;
                 as
                 in
                 Fees
                 mortified
                 to
                 the
                 Kirk
                 ,
                 or
                 other
                 performance
                 ,
                 or
                 at
                 least
                 the
                 Vassals
                 fidelity
                 to
                 the
                 Superiour
                 ,
                 implying
                 ,
                 not
                 only
                 negative
                 ,
                 that
                 he
                 may
                 not
                 wrong
                 the
                 Superiour
                 ,
                 but
                 positive
                 ,
                 that
                 he
                 must
                 reveal
                 to
                 his
                 Superiour
                 any
                 design
                 against
                 his
                 Life
                 or
                 Fame
                 .
              
               
                 9.
                 
                 Which
                 fidelity
                 ,
                 though
                 it
                 be
                 not
                 exprest
                 ,
                 yet
                 it
                 is
                 necessarly
                 imported
                 in
                 all
                 kinds
                 of
                 Fees
                 ,
                 and
                 cannot
                 be
                 taken
                 away
                 by
                 any
                 paction
                 to
                 the
                 contrary
                 ,
                 without
                 destroying
                 the
                 very
                 nature
                 of
                 this
                 Right
                 .
              
               
                 10.
                 
                 To
                 come
                 now
                 to
                 the
                 constitution
                 of
                 the
                 Property
                 of
                 Lands
                 ,
                 in
                 Fee
                 and
                 Heretage
                 ,
                 the
                 Feudal
                 Contract
                 is
                 of
                 it self
                 alienative
                 as
                 Loan
                 ,
                 Sale
                 ,
                 Exchange
                 :
                 and
                 the
                 Contracts
                 in
                 Law
                 ,
                 ealled
                 ,
                 
                   do
                   ut
                   des
                
                 ,
                 and
                 
                   do
                   ut
                   facias
                
                 :
                 Of
                 which
                 two
                 last
                 ,
                 the
                 Feudal
                 Contract
                 is
                 a
                 kind
                 ,
                 seing
                 thereby
                 Land
                 or
                 other
                 immoveable
                 is
                 given
                 ,
                 for
                 giving
                 or
                 doing
                 something
                 ;
                 therefore
                 ,
                 as
                 in
                 others
                 ,
                 so
                 in
                 it
                 ,
                 the
                 will
                 of
                 the
                 owner
                 must
                 constitute
                 the
                 Right
                 in
                 the
                 Vassal
                 ;
                 and
                 seing
                 by
                 the
                 Custom
                 of
                 Nations
                 ,
                 some
                 kind
                 of
                 Possession
                 is
                 necessary
                 to
                 constitute
                 or
                 transfer
                 property
                 ,
                 the
                 Superiours
                 delivery
                 of
                 Possession
                 to
                 the
                 Vassal
                 ,
                 or
                 acknowledgement
                 and
                 approbation
                 thereof
                 in
                 the
                 Vassal
                 ,
                 to
                 be
                 holden
                 by
                 him
                 in
                 Fee
                 ,
                 were
                 sufficient
                 to
                 constitute
                 and
                 perfect
                 the
                 Fee.
                 
              
               
                 11.
                 
                 And
                 therefore
                 ,
                 in
                 the
                 Udal
                 Right
                 of
                 Lands
                 in
                 Orknay
                 and
                 Zetland
                 ,
                 whereby
                 without
                 any
                 Infeftment
                 ,
                 Investiture
                 or
                 other
                 Right
                 or
                 Write
                 ,
                 they
                 enjoy
                 Lands
                 and
                 Hereditaments
                 ;
                 it
                 sufficeth
                 them
                 to
                 instruct
                 by
                 Witnesses
                 ,
                 that
                 they
                 have
                 possest
                 ,
                 as
                 being
                 holden
                 and
                 repute
                 Heretable
                 possessors
                 of
                 such
                 Lands
                 ;
                 but
                 the
                 Law
                 and
                 Custom
                 of
                 Scotland
                 ,
                 having
                 ,
                 as
                 in
                 all
                 other
                 places
                 ,
                 necessarly
                 required
                 Write
                 ,
                 not
                 only
                 for
                 evidence
                 of
                 the
                 Constitution
                 of
                 this
                 Right
                 ,
                 but
                 as
                 Solemnities
                 for
                 the
                 perfecting
                 and
                 solemnizing
                 thereof
                 ,
                 without
                 which
                 it
                 becomes
                 not
                 a
                 compleat
                 real
                 Right
                 of
                 the
                 ground
                 ,
                 except
                 where
                 such
                 Writes
                 have
                 been
                 destroyed
                 ,
                 or
                 lost
                 in
                 times
                 of
                 trouble
                 ,
                 and
                 then
                 proving
                 the
                 Tenor
                 of
                 them
                 ,
                 must
                 be
                 used
                 :
                 Or
                 in
                 some
                 cases
                 ,
                 the
                 Heretor
                 may
                 be
                 cognosced
                 by
                 an
                 Inquest
                 ,
                 as
                 Heretable
                 possessor
                 .
                 But
                 ordinarly
                 Write
                 is
                 requisite
                 ,
                 which
                 Writes
                 are
                 called
                 an
                 Infeftment
                 ,
                 or
                 an
                 Investiture
                 .
              
               
                 12.
                 
                 Infeftment
                 or
                 infeudatio
                 ,
                 signifieth
                 the
                 Right
                 constitutive
                 of
                 a
                 Fee
                 ,
                 as
                 its
                 Etymon
                 indicateth
                 :
                 So
                 also
                 ,
                 Investiture
                 is
                 the
                 same
                 ,
                 more
                 Metaphorically
                 ,
                 as
                 we
                 are
                 said
                 to
                 be
                 invested
                 or
                 indued
                 with
                 any
                 right
                 ,
                 as
                 men
                 are
                 covered
                 with
                 a
                 Garment
                 or
                 Cloak
                 ,
                 and
                 denuded
                 and
                 divested
                 thereof
                 ,
                 when
                 it
                 is
                 extinct
                 or
                 transmitted
                 :
                 So
                 both
                 Infeftment
                 and
                 Investiture
                 signifie
                 the
                 Writes
                 ,
                 which
                 are
                 evidents
                 ,
                 signifying
                 the
                 Act
                 constituting
                 the
                 Fee
                 ;
                 and
                 these
                 are
                 two
                 ,
                 the
                 Dispositive
                 Will
                 of
                 the
                 Superiour
                 ,
                 and
                 his
                 delivery
                 of
                 Possession
                 by
                 himself
                 or
                 his
                 Procurators
                 in
                 his
                 Name
                 .
              
               
                 13.
                 
                 Of
                 a
                 long
                 time
                 ,
                 Infeftment
                 hath
                 required
                 write
                 as
                 a
                 necessar
                 solemnity
                 ,
                 not
                 only
                 as
                 a
                 mean
                 of
                 probation
                 ,
                 that
                 the
                 Superiour
                 did
                 truly
                 dispone
                 to
                 the
                 vassal
                 ,
                 any
                 immoveable
                 in
                 Fee
                 and
                 Heretage
                 ,
                 and
                 that
                 accordingly
                 the
                 vassal
                 attained
                 Possession
                 ,
                 Natural
                 ,
                 Civil
                 ,
                 or
                 Symbolical
                 ;
                 for
                 if
                 write
                 were
                 adhibite
                 
                 only
                 for
                 probation
                 ,
                 other
                 probation
                 might
                 also
                 be
                 admitted
                 ,
                 not
                 only
                 against
                 the
                 Superiour
                 ,
                 or
                 his
                 Heirs
                 by
                 their
                 Write
                 or
                 Oath
                 ,
                 but
                 even
                 against
                 their
                 singular
                 successors
                 ,
                 or
                 other
                 Competitors
                 ,
                 by
                 whose
                 oath
                 of
                 knowledge
                 or
                 write
                 ,
                 the
                 truth
                 of
                 the
                 Infeftment
                 ,
                 and
                 of
                 these
                 two
                 necessary
                 Acts
                 ,
                 to
                 constitute
                 a
                 Fee
                 ,
                 might
                 be
                 proven
                 ;
                 and
                 albeit
                 the
                 Superiours
                 oath
                 would
                 not
                 prove
                 against
                 a
                 singular
                 successor
                 ,
                 yet
                 his
                 write
                 anterior
                 to
                 that
                 singular
                 successors
                 Right
                 ,
                 acknowledging
                 ,
                 that
                 he
                 had
                 at
                 such
                 a
                 time
                 invested
                 such
                 a
                 person
                 as
                 his
                 vassal
                 ,
                 and
                 entered
                 him
                 in
                 possession
                 ,
                 which
                 would
                 prove
                 against
                 his
                 Assigney
                 ;
                 yet
                 neither
                 of
                 these
                 ways
                 would
                 constitute
                 a
                 Fee
                 ,
                 and
                 supply
                 a
                 written
                 Infeftment
                 ,
                 except
                 where
                 the
                 peculiar
                 custom
                 of
                 Fees
                 without
                 write
                 hath
                 been
                 immemorial
                 ;
                 and
                 therefore
                 sustained
                 as
                 sufficient
                 :
                 And
                 albeit
                 it
                 be
                 provided
                 by
                 ancient
                 Statutes
                 ,
                 that
                 the
                 Heretable
                 Possessors
                 of
                 Lands
                 may
                 be
                 cognosced
                 by
                 inquest
                 ,
                 yet
                 that
                 was
                 only
                 upon
                 consideration
                 of
                 Calamity
                 and
                 War
                 ,
                 whereby
                 Writes
                 were
                 destroyed
                 ,
                 and
                 where
                 no
                 competition
                 was
                 by
                 any
                 pretending
                 a
                 written
                 Infeftment
                 ,
                 and
                 Possession
                 conform
                 .
                 But
                 the
                 question
                 being
                 only
                 betwixt
                 the
                 Superiour
                 and
                 his
                 Vassal
                 ,
                 who
                 with
                 his
                 Predecessors
                 had
                 been
                 in
                 Immemorial
                 possession
                 ,
                 as
                 being
                 holden
                 and
                 repute
                 Heretable
                 possessors
                 ,
                 by
                 performing
                 the
                 deeds
                 proper
                 to
                 Vassals
                 of
                 such
                 Lands
                 ,
                 and
                 so
                 holden
                 and
                 repute
                 as
                 Heretable
                 Possessors
                 by
                 the
                 Neighbour-hood
                 ,
                 which
                 I
                 have
                 not
                 heard
                 to
                 take
                 effect
                 ;
                 but
                 as
                 to
                 the
                 Kings
                 immediat
                 Vassals
                 ,
                 who
                 claims
                 property
                 in
                 no
                 Lands
                 as
                 Supream
                 Superiour
                 ;
                 but
                 what
                 is
                 annexed
                 to
                 the
                 Crown
                 ,
                 or
                 whereof
                 the
                 property
                 is
                 acquired
                 to
                 the
                 King
                 ,
                 by
                 the
                 Casualities
                 of
                 his
                 Superiority
                 :
                 Or
                 by
                 Acquisition
                 from
                 other
                 Proprietars
                 ;
                 and
                 therefore
                 ,
                 he
                 doth
                 never
                 exclude
                 the
                 ancient
                 Heretable
                 Possessors
                 ,
                 though
                 they
                 have
                 losed
                 their
                 Rights
                 by
                 publick
                 calamity
                 ,
                 wherein
                 -
                 not
                 only
                 Adminicles
                 in
                 Write
                 ,
                 but
                 the
                 testimonies
                 of
                 Witnesses
                 above
                 exception
                 are
                 received
                 ,
                 whereby
                 if
                 the
                 Right
                 be
                 not
                 proven
                 to
                 be
                 blench
                 ,
                 or
                 Feu
                 by
                 the
                 Exchequer
                 Rolls
                 ,
                 which
                 bears
                 all
                 the
                 Kings
                 Property
                 and
                 the
                 Reddendo's
                 thereof
                 ;
                 or
                 by
                 Eque's
                 made
                 in
                 Exchequer
                 ,
                 the
                 Fee
                 will
                 be
                 held
                 Ward
                 ,
                 and
                 according
                 to
                 the
                 probation
                 and
                 verdict
                 of
                 the
                 Inquest
                 ,
                 Charters
                 will
                 be
                 granted
                 by
                 the
                 King
                 in
                 Exchequer
                 ,
                 and
                 there
                 scarce
                 can
                 be
                 pretendedany
                 Fee
                 ,
                 which
                 hath
                 not
                 been
                 already
                 established
                 by
                 write
                 .
              
               
                 14.
                 
                 The
                 Write
                 requisite
                 to
                 constitute
                 a
                 Fee
                 ,
                 must
                 contain
                 the
                 present
                 Dispositive
                 Act
                 of
                 the
                 Superiour
                 ,
                 by
                 which
                 he
                 Dispons
                 to
                 the
                 Vassal
                 and
                 his
                 Heirs
                 the
                 Fee
                 ,
                 in
                 whatsoever
                 terms
                 he
                 expresseth
                 it
                 ,
                 as
                 if
                 he
                 gift
                 ,
                 grant
                 ,
                 alienat
                 ,
                 sell
                 ,
                 or
                 dispone
                 ,
                 though
                 the
                 several
                 terms
                 exprest
                 may
                 import
                 a
                 different
                 Title
                 and
                 Warrandice
                 ;
                 yea
                 ,
                 albeit
                 no
                 Cause
                 or
                 Title
                 be
                 exprest
                 or
                 implyed
                 ,
                 but
                 only
                 that
                 the
                 Superiour
                 Dispons
                 ;
                 or
                 though
                 the
                 Cause
                 or
                 Title
                 insinuat
                 be
                 not
                 true
                 ,
                 yet
                 it
                 was
                 sufficient
                 with
                 Possession
                 until
                 the
                 Solemnity
                 of
                 Instruments
                 of
                 Seasine
                 was
                 introduced
                 ,
                 and
                 is
                 still
                 sufficient
                 when
                 Seasine
                 is
                 rightly
                 adhibit
                 ;
                 for
                 we
                 follow
                 not
                 that
                 subtility
                 of
                 annulling
                 Deeds
                 ,
                 because
                 they
                 are
                 
                   sine
                   causa
                
                 ,
                 but
                 do
                 esteem
                 them
                 as
                 gratuitous
                 Donations
                 ;
                 and
                 therefore
                 ,
                 Narratives
                 expressing
                 the
                 cause
                 of
                 the
                 Disposition
                 ,
                 are
                 never
                 inquired
                 in
                 ,
                 because
                 ,
                 though
                 there
                 were
                 no
                 cause
                 ,
                 the
                 Disposition
                 is
                 good
                 :
                 And
                 albeit
                 neither
                 
                   tenendas
                   ,
                   reddendo
                
                 ,
                 or
                 the
                 
                   modus
                   acquirendi
                
                 ,
                 be
                 exprest
                 ,
                 yet
                 if
                 the
                 property
                 was
                 the
                 Disponers
                 ,
                 and
                 he
                 do
                 but
                 express
                 the
                 Disposition
                 to
                 be
                 in
                 Fee
                 and
                 Heretage
                 ,
                 it
                 is
                 valid
                 ;
                 for
                 the
                 reddendo
                 is
                 understood
                 to
                 be
                 services
                 ,
                 accustomed
                 in
                 Ward-holdings
                 ;
                 and
                 there
                 will
                 be
                 carryed
                 (
                 though
                 not
                 exprest
                 )
                 all
                 the
                 parts
                 and
                 pertinents
                 of
                 the
                 Fee.
                 
              
               
                 And
                 therefore
                 any
                 Disposition
                 ,
                 
                   de
                   presenti
                
                 ,
                 in
                 Fee
                 ,
                 is
                 valid
                 as
                 to
                 that
                 part
                 of
                 the
                 Infeftment
                 ,
                 although
                 the
                 Disposition
                 contained
                 an
                 obliegement
                 to
                 grant
                 Charters
                 ;
                 yet
                 the
                 not
                 granting
                 there
                 of
                 doth
                 not
                 prejudge
                 .
                 And
                 if
                 Charters
                 
                 be
                 granted
                 relative
                 to
                 prior
                 obliegements
                 ,
                 yet
                 the
                 Charter
                 is
                 good
                 ,
                 without
                 necessity
                 to
                 prove
                 these
                 .
                 Nor
                 will
                 it
                 be
                 sustained
                 ,
                 for
                 the
                 Superiour
                 or
                 any
                 competitor
                 ,
                 that
                 if
                 the
                 prior
                 Obligation
                 ,
                 Disposition
                 or
                 Contract
                 were
                 produced
                 ,
                 it
                 would
                 be
                 found
                 conditional
                 ,
                 or
                 have
                 Clauses
                 in
                 favours
                 of
                 the
                 Superiour
                 ,
                 or
                 that
                 Competitor
                 ,
                 whether
                 generally
                 or
                 particularly
                 alledged
                 :
                 But
                 if
                 these
                 were
                 lost
                 ,
                 the
                 Charter
                 is
                 sufficient
                 ,
                 and
                 no
                 more
                 is
                 understood
                 to
                 be
                 in
                 the
                 real
                 Right
                 ,
                 then
                 what
                 is
                 contained
                 in
                 the
                 Charter
                 ;
                 yea
                 ,
                 though
                 the
                 Charter
                 bear
                 ,
                 according
                 to
                 the
                 provisions
                 and
                 conditions
                 contained
                 in
                 such
                 a
                 Contract
                 ,
                 Disposition
                 ,
                 or
                 Bond
                 ,
                 which
                 may
                 import
                 that
                 the
                 Superiour
                 by
                 granting
                 the
                 Charter
                 without
                 these
                 ,
                 hath
                 not
                 past
                 from
                 them
                 ;
                 and
                 therefore
                 ,
                 he
                 may
                 insist
                 upon
                 them
                 as
                 personal
                 obliegements
                 ,
                 and
                 the
                 Vassal
                 will
                 be
                 oblieged
                 to
                 produce
                 the
                 same
                 ,
                 
                   ad
                   modum
                   probationis
                
                 ,
                 by
                 Exhibition
                 as
                 an
                 incident
                 diligence
                 ,
                 whereupon
                 he
                 must
                 Depone
                 ,
                 whether
                 he
                 has
                 them
                 or
                 had
                 them
                 since
                 the
                 Citation
                 ,
                 or
                 did
                 at
                 any
                 time
                 fraudfully
                 put
                 them
                 away
                 :
                 But
                 if
                 without
                 Fraud
                 ,
                 they
                 be
                 lost
                 ,
                 the
                 Charter
                 is
                 sufficient
                 ,
                 and
                 in
                 no
                 case
                 doth
                 require
                 the
                 production
                 of
                 any
                 former
                 ground
                 .
              
               
                 Precepts
                 of
                 
                   clare
                   constat
                
                 ,
                 are
                 also
                 sufficient
                 ,
                 seing
                 they
                 contain
                 a
                 Precept
                 to
                 Infeft
                 such
                 a
                 person
                 as
                 Vassal
                 ,
                 which
                 implys
                 ,
                 the
                 Dispositive
                 .
                 Will
                 of
                 the
                 Superiour
                 ;
                 and
                 therefore
                 ,
                 is
                 valid
                 in
                 place
                 of
                 a
                 Charter
                 from
                 its
                 date
                 ,
                 albeit
                 it
                 〈◊〉
                 no
                 effect
                 against
                 singular
                 Successors
                 ,
                 as
                 to
                 that
                 Vassals
                 Predecessors
                 Rights
                 ,
                 which
                 must
                 be
                 instructed
                 by
                 the
                 Rights
                 themselves
                 ,
                 and
                 not
                 by
                 the
                 Superiours
                 acknowledgement
                 .
              
               
                 And
                 for
                 the
                 same
                 reason
                 ,
                 other
                 Precepts
                 of
                 Seasine
                 ,
                 not
                 relating
                 to
                 particular
                 Charters
                 or
                 Seasines
                 ,
                 but
                 either
                 simple
                 ,
                 or
                 bearing
                 
                   secundam
                   cartam
                   〈◊〉
                
                 ,
                 are
                 sufficient
                 ,
                 although
                 these
                 Charters
                 be
                 never
                 granted
                 :
                 But
                 there
                 will
                 be
                 only
                 understood
                 a
                 proper
                 Ward-holding
                 gratuitous
                 ,
                 without
                 〈◊〉
                 ,
                 extending
                 only
                 to
                 the
                 Heirs
                 of
                 the
                 Vassals
                 Body
                 ,
                 but
                 not
                 reaching
                 to
                 〈◊〉
                 or
                 Ascendents
                 ,
                 unless
                 the
                 precept
                 express
                 or
                 insinuat
                 an
                 onerous
                 Title
                 ,
                 〈◊〉
                 Vendition
                 ,
                 Excambion
                 ,
                 &c.
                 
              
               
                 But
                 since
                 Write
                 became
                 to
                 be
                 an
                 essential
                 solemnity
                 of
                 Fees
                 ,
                 the
                 Superiours
                 〈◊〉
                 Dispositive
                 Act
                 must
                 be
                 in
                 Write
                 ,
                 but
                 his
                 preterit
                 Declaratory
                 Act
                 ,
                 acknowledging
                 such
                 a
                 person
                 and
                 his
                 Predecessors
                 to
                 be
                 Vassals
                 ,
                 and
                 have
                 the
                 Fee
                 ,
                 〈◊〉
                 his
                 obliegement
                 to
                 grant
                 the
                 Fee
                 ,
                 though
                 never
                 so
                 express
                 ,
                 which
                 relates
                 but
                 to
                 a
                 Disposition
                 ,
                 
                   de
                   futuro
                
                 ,
                 will
                 not
                 supply
                 a
                 Charter
                 ,
                 though
                 clede
                 with
                 〈◊〉
                 Possession
                 ,
                 or
                 having
                 Seasine
                 by
                 Instrument
                 ,
                 bearing
                 to
                 be
                 
                   propriis
                   〈◊〉
                
                 ,
                 though
                 by
                 these
                 the
                 Superiour
                 may
                 be
                 compelled
                 to
                 grant
                 Charters
                 〈◊〉
                 and
                 compleat
                 ,
                 bearing
                 expresly
                 ,
                 
                   all
                   the
                   ordinar
                   Clauses
                   in
                   such
                   Rights
                   :
                
                 Yet
                 〈◊〉
                 〈◊〉
                 cases
                 ,
                 Adminiculation
                 of
                 a
                 Seasine
                 will
                 suffice
                 ,
                 as
                 in
                 the
                 Liferents
                 of
                 〈◊〉
                 ,
                 being
                 proportional
                 ,
                 or
                 in
                 very
                 ancient
                 Rights
                 ;
                 or
                 where
                 in
                 Competition
                 no
                 better
                 Right
                 is
                 shown
                 .
              
               
                 Much
                 less
                 is
                 it
                 necessary
                 to
                 have
                 formal
                 and
                 ample
                 Charters
                 in
                 the
                 best
                 style
                 upon
                 Parchment
                 ,
                 in
                 Latine
                 ,
                 sealed
                 and
                 subscribed
                 ,
                 albeit
                 Vassals
                 are
                 oblieged
                 to
                 accept
                 no
                 other
                 ,
                 and
                 the
                 Nottars
                 ,
                 drawers
                 of
                 such
                 Charters
                 may
                 be
                 deposed
                 and
                 censured
                 yet
                 the
                 Right
                 will
                 not
                 be
                 annulled
                 ,
                 or
                 postponed
                 to
                 posterior
                 ,
                 more
                 formal
                 and
                 solemn
                 Rights
                 ,
                 for
                 want
                 of
                 these
                 formalities
                 .
              
               
                 15.
                 
                 The
                 formal
                 Tenor
                 of
                 Charters
                 is
                 different
                 according
                 to
                 the
                 several
                 kinds
                 on
                 Infeftments
                 ,
                 whereof
                 some
                 are
                 original
                 Infeftments
                 ,
                 by
                 which
                 the
                 Fee
                 was
                 first
                 constitute
                 ,
                 and
                 therefore
                 are
                 most
                 plain
                 and
                 simple
                 ,
                 containing
                 the
                 dispositive
                 
                 Clauss
                 ,
                 relating
                 or
                 insinuating
                 the
                 Title
                 or
                 original
                 of
                 the
                 Right
                 ,
                 if
                 it
                 be
                 an
                 original
                 Charter
                 from
                 the
                 King
                 ,
                 it
                 begins
                 with
                 His
                 Royal
                 Title
                 ,
                 
                   Carolus
                   Dei
                   Gratia
                
                 ,
                 &c.
                 
                 And
                 bears
                 the
                 consent
                 of
                 the
                 Thesaurer
                 ,
                 and
                 Commissioners
                 for
                 the
                 Thesaury
                 ,
                 and
                 bears
                 a
                 Narrative
                 of
                 the
                 Motives
                 ,
                 inducing
                 the
                 King
                 to
                 grant
                 the
                 same
                 ;
                 and
                 if
                 it
                 be
                 Ward
                 or
                 Blench
                 ,
                 in
                 Burgage
                 or
                 Mortification
                 ,
                 it
                 bears
                 ,
                 
                   Damus
                   ,
                   concedimus
                   &
                   in
                   perpetuum
                   confirmamus
                   :
                
                 But
                 if
                 it
                 be
                 a
                 Feu
                 Charter
                 ,
                 it
                 bears
                 ,
                 
                   Arendamus
                   ,
                   locamus
                   in
                   emfeuteosin
                   dimittimus
                   &
                   in
                   perpetuum
                   confirmamus
                
                 ;
                 And
                 then
                 follows
                 the
                 Clause
                 ,
                 Tenendas
                 ,
                 and
                 the
                 Clause
                 ,
                 Reddendo
                 ,
                 which
                 if
                 it
                 be
                 Ward
                 ,
                 bears
                 ,
                 
                   Servitia
                   debita
                
                 :
                 If
                 Blench
                 ,
                 the
                 particular
                 Blench
                 Duty
                 ,
                 
                   nomine
                   Albae
                   firmae
                
                 :
                 If
                 Feu
                 ,
                 the
                 particular
                 feu
                 duty
                 ,
                 and
                 sometimes
                 the
                 duplication
                 thereof
                 ,
                 and
                 the
                 marriage
                 of
                 the
                 Heir
                 :
                 If
                 Burgage
                 ,
                 it
                 bears
                 ,
                 
                   Servitia
                   Burgalia
                
                 :
                 If
                 in
                 Mortification
                 ,
                 it
                 bears
                 ,
                 
                   Preces
                   &
                   supplicationes
                
                 .
                 And
                 ordinarly
                 Warrandices
                 ,
                 which
                 ,
                 though
                 very
                 ample
                 hath
                 no
                 effect
                 ;
                 for
                 if
                 the
                 Right
                 prove
                 invalid
                 ,
                 there
                 is
                 no
                 Action
                 against
                 the
                 King
                 ,
                 who
                 doth
                 always
                 Dispone
                 ,
                 
                   plenissimo
                   jure
                
                 ;
                 but
                 
                   periculo
                   petentis
                
                 ,
                 especially
                 when
                 he
                 Dispones
                 as
                 Supream
                 Superiour
                 ,
                 by
                 the
                 Right
                 of
                 His
                 Crown
                 :
                 But
                 if
                 he
                 dispone
                 for
                 a
                 price
                 or
                 cause
                 onerous
                 ,
                 as
                 for
                 sums
                 of
                 Money
                 ,
                 or
                 by
                 Excambion
                 .
                 Lands
                 acquired
                 by
                 him
                 ,
                 being
                 no
                 part
                 of
                 the
                 Revenue
                 of
                 the
                 Crown
                 ,
                 or
                 annexed
                 property
                 ;
                 in
                 these
                 ,
                 
                   utitur
                   jure
                   privato
                
                 ,
                 and
                 his
                 warrandice
                 may
                 have
                 effect
                 ,
                 as
                 to
                 his
                 privat
                 Patrimony
                 ,
                 and
                 not
                 as
                 to
                 the
                 Patrimony
                 of
                 the
                 Crown
                 .
              
               
                 Charters
                 granted
                 by
                 the
                 King
                 of
                 Fees
                 by
                 progress
                 ,
                 are
                 either
                 upon
                 Resignation
                 or
                 by
                 Confirmation
                 ,
                 or
                 upon
                 Apprizing
                 or
                 Adjudication
                 ,
                 which
                 differ
                 from
                 original
                 Charters
                 ,
                 in
                 their
                 several
                 specialities
                 ,
                 as
                 Chartersupon
                 Resignation
                 ,
                 after
                 the
                 Dispositive
                 Clause
                 ,
                 bear
                 the
                 conveyance
                 ,
                 
                   that
                   the
                   Lands
                   or
                   others
                   were
                   resigned
                   in
                   the
                   hands
                   of
                   His
                   Majesty
                   ,
                   or
                   His
                   Commissioners
                   ,
                   by
                   a
                   Procuratory
                   of
                   Resignation
                   a-part
                   ,
                   or
                   in
                   a
                   Disposition
                   or
                   Contract
                   expressing
                   its
                   date
                   in
                   favours
                   of
                   the
                   Acquirer
                   ,
                   his
                   Heirs
                   or
                   Assigneys
                   ,
                
                 whereupon
                 Resignation
                 being
                 made
                 in
                 the
                 Resigners
                 Life
                 ,
                 the
                 Charter
                 will
                 be
                 granted
                 to
                 him
                 or
                 to
                 his
                 Heirs
                 ,
                 served
                 generally
                 ,
                 or
                 to
                 his
                 assigneys
                 ,
                 having
                 right
                 by
                 Assignation
                 to
                 the
                 Procuratory
                 of
                 Resignation
                 .
              
               
                 Charters
                 of
                 Confirmation
                 do
                 deduce
                 the
                 Right
                 to
                 be
                 confirmed
                 ,
                 which
                 ,
                 if
                 it
                 be
                 a
                 Charter
                 
                   a
                   se
                
                 ,
                 bearing
                 ,
                 
                   to
                   be
                   holden
                   from
                   the
                   Disponer
                   of
                   the
                   King
                   ,
                
                 and
                 expressing
                 the
                 
                   Tenendas
                   &
                   reddendo
                
                 .
                 The
                 Kings
                 Charter
                 doth
                 in
                 the
                 like
                 style
                 ,
                 generally
                 relate
                 the
                 Charter
                 to
                 be
                 confirmed
                 ,
                 and
                 then
                 Ratifies
                 ,
                 Confirms
                 ,
                 and
                 approves
                 the
                 same
                 in
                 all
                 the
                 Heads
                 and
                 Articles
                 therein
                 ,
                 and
                 then
                 subjoyns
                 the
                 Tenor
                 and
                 Words
                 of
                 the
                 Charter
                 .
              
               
                 These
                 Charters
                 of
                 Confirmation
                 whensoever
                 granted
                 ,
                 are
                 drawn
                 back
                 to
                 the
                 date
                 of
                 the
                 Charter
                 Confirmed
                 (
                 which
                 were
                 absolutely
                 null
                 till
                 Confirmation
                 )
                 unless
                 there
                 be
                 a
                 
                   medium
                   impedimentum
                
                 ,
                 as
                 a
                 prior
                 Infeftment
                 by
                 Confirmation
                 ,
                 or
                 upon
                 Resignation
                 by
                 the
                 Superiour
                 ;
                 yea
                 ,
                 though
                 the
                 Infeftment
                 by
                 Confirmation
                 be
                 after
                 the
                 death
                 of
                 the
                 granter
                 of
                 the
                 Charter
                 to
                 be
                 Confirmed
                 ,
                 if
                 the
                 Superiour
                 do
                 Confirm
                 ,
                 it
                 is
                 drawn
                 back
                 ,
                 and
                 will
                 import
                 the
                 Superiours
                 passing
                 from
                 any
                 Casuality
                 ,
                 falling
                 by
                 the
                 death
                 of
                 the
                 Author
                 ,
                 unless
                 these
                 be
                 reserved
                 ,
                 wherein
                 the
                 neglect
                 of
                 the
                 Kings
                 Officers
                 may
                 not
                 be
                 imputed
                 in
                 his
                 prejudice
                 ;
                 albeit
                 Craig
                 relates
                 a
                 case
                 betwixt
                 Kirkaldie
                 of
                 Grange
                 ,
                 and
                 Ker
                 in
                 the
                 contrary
                 ,
                 l.
                 2.
                 
                 Dieges
                 .
                 4.
                 and
                 adds
                 this
                 reason
                 ,
                 
                   that
                   the
                   former
                   Vassal
                   granter
                   of
                   the
                   Charter
                   to
                   be
                   Confirmed
                   ,
                   dying
                   before
                   Confirmation
                   ,
                   it
                   might
                   be
                   truely
                   said
                   that
                   he
                   dyed
                   last
                   ,
                   Vest
                   and
                   Seased
                   as
                   of
                   Fee
                
                 ;
                 which
                 ,
                 the
                 subsequent
                 Confirmation
                 cannot
                 make
                 false
                 ,
                 yet
                 this
                 being
                 
                   fictione
                   juris
                
                 ;
                 these
                 fictions
                 
                 may
                 do
                 much
                 more
                 then
                 this
                 change
                 ,
                 and
                 there
                 is
                 nothing
                 more
                 frequent
                 ,
                 then
                 to
                 Confirm
                 very
                 old
                 Charters
                 or
                 Dispositions
                 .
              
               
                 There
                 is
                 another
                 kind
                 of
                 Charter
                 of
                 Confirmation
                 by
                 the
                 King
                 ,
                 of
                 Charters
                 granted
                 by
                 his
                 Vassals
                 to
                 their
                 Sub-vassals
                 ,
                 not
                 to
                 be
                 holden
                 
                   a
                   se
                
                 of
                 the
                 King
                 ,
                 but
                 
                   de
                   se
                
                 of
                 the
                 Disponer
                 .
                 The
                 effect
                 of
                 which
                 Confirmation
                 is
                 to
                 secure
                 the
                 acquirer
                 against
                 the
                 forefaulture
                 ,
                 or
                 Recognition
                 of
                 his
                 Superiour
                 .
              
               
                 Charters
                 by
                 the
                 King
                 upon
                 Appryzing
                 or
                 Adjudication
                 ,
                 do
                 either
                 Narrate
                 the
                 Appryzing
                 or
                 Adjudication
                 ,
                 before
                 the
                 Dispositive
                 Clause
                 :
                 Or
                 otherways
                 after
                 the
                 Dispositive
                 Clause
                 ,
                 by
                 the
                 Clause
                 beginning
                 ,
                 
                   Quae
                   quidem
                   terrae
                   perprius
                   haereditarie
                   ,
                   pertinuerunt
                   ,
                   ad
                
                 A.
                 B.
                 &c.
                 
                 Which
                 Clause
                 ,
                 is
                 also
                 next
                 to
                 the
                 Dispositive
                 in
                 Charters
                 upon
                 Resignation
                 ,
                 and
                 doth
                 express
                 the
                 Resignation
                 made
                 either
                 personally
                 by
                 the
                 Vassal
                 ,
                 or
                 more
                 ordinarly
                 by
                 his
                 Procuratory
                 ,
                 and
                 then
                 bears
                 ,
                 
                   the
                   procuratory
                   of
                   Resignation
                   and
                   the
                   date
                   thereof
                   :
                
                 But
                 if
                 it
                 be
                 upon
                 Appryzing
                 or
                 Adjudication
                 ,
                 it
                 bears
                 ,
                 
                   that
                   the
                   Lands
                   and
                   others
                   in
                   the
                   Charter
                   were
                   Appryzed
                   or
                   Adjudged
                   from
                   the
                   former
                   Vassal
                   or
                   his
                   Apparent
                   Heir
                   ,
                   lawfully
                   Charged
                   to
                   enter
                   Heir
                   in
                   special
                
                 ;
                 and
                 expresses
                 the
                 date
                 of
                 the
                 Appryzing
                 or
                 Adjudication
                 ,
                 and
                 the
                 sums
                 therein-contained
                 ,
                 and
                 bears
                 ,
                 in
                 the
                 Reddendo
                 ,
                 the
                 duties
                 and
                 services
                 ,
                 due
                 and
                 accustomed
                 before
                 the
                 said
                 Appryzing
                 or
                 Adjudication
                 .
                 The
                 Kings
                 Charters
                 bears
                 as
                 witnesses
                 ,
                 
                   several
                   Officers
                   of
                   State
                   ,
                   and
                   director
                   of
                   the
                   Chanclery
                   .
                
              
               
                 The
                 Kings
                 Charters
                 must
                 pass
                 in
                 Exchequer
                 upon
                 a
                 signature
                 signed
                 by
                 the
                 King
                 ,
                 or
                 by
                 his
                 Thesaurer
                 or
                 Commissioners
                 of
                 the
                 Thesaury
                 ,
                 and
                 a
                 quorum
                 of
                 the
                 Exchequer
                 ;
                 which
                 signature
                 is
                 recorded
                 in
                 the
                 Books
                 of
                 Exchequer
                 ,
                 and
                 then
                 passeth
                 under
                 the
                 Signet
                 ,
                 and
                 then
                 under
                 the
                 Privy
                 Seal
                 ,
                 whose
                 Warrand
                 is
                 the
                 Signature
                 ,
                 and
                 last
                 under
                 the
                 Great
                 Seal
                 .
              
               
                 Charters
                 by
                 Subjects
                 in
                 most
                 things
                 agree
                 with
                 the
                 Kings
                 Charters
                 ,
                 but
                 differ
                 in
                 these
                 points
                 ,
                 that
                 they
                 begin
                 not
                 with
                 their
                 Titles
                 ,
                 but
                 thus
                 ,
                 
                   Omnibus
                   hanc
                   Cartam
                   visuris
                   vel
                   audituris
                
                 ;
                 and
                 then
                 follows
                 the
                 Superiours
                 Title
                 or
                 Designation
                 .
                 And
                 in
                 original
                 Charters
                 ,
                 the
                 special
                 Cause
                 is
                 Narrated
                 ,
                 as
                 for
                 Implement
                 of
                 a
                 certain
                 contract
                 ,
                 Disposition
                 or
                 Obligation
                 ,
                 in
                 them
                 also
                 the
                 warrandice
                 is
                 more
                 particularly
                 expressed
                 ,
                 because
                 it
                 is
                 effectual
                 according
                 to
                 its
                 Tenor.
                 
              
               
                 In
                 the
                 Charters
                 granted
                 by
                 Subjects
                 ,
                 the
                 Precepts
                 of
                 Seasine
                 were
                 ordinarly
                 ingrossed
                 ,
                 and
                 now
                 by
                 the
                 late
                 Act
                 of
                 Parliament
                 ,
                 1672.
                 cap.
                 7th
                 .
                 Precepts
                 of
                 Seasine
                 are
                 appointed
                 to
                 be
                 insert
                 in
                 the
                 Kings
                 Charters
                 ,
                 which
                 before
                 could
                 only
                 pass
                 by
                 a
                 Write
                 ,
                 under
                 the
                 Quarter
                 Seal
                 ,
                 or
                 testimony
                 of
                 the
                 Great
                 Seal
                 .
              
               
                 
                   In
                   all
                   Charters
                   ,
                   both
                   by
                   King
                   and
                   Subjects
                   ,
                   the
                   Clause
                
                 Tenendas
                 
                   useth
                   to
                   be
                   insert
                   ,
                   expressing
                   the
                   Lands
                   ,
                   or
                   others
                   by
                   their
                   ordinary
                   Designations
                   ,
                   and
                   then
                   adding
                   ,
                
                 Per
                 omnes
                 〈◊〉
                 metas
                 antiquas
                 &
                 divisas
                 ,
                 pro
                 ut
                 jacent
                 in
                 〈◊〉
                 &
                 latitudine
                 ,
                 cumdomibus
                 ,
                 AEdificiis
                 ,
                 boscis
                 ,
                 planis
                 ,
                 moris
                 ,
                 maresiis
                 ,
                 viis
                 ,
                 〈◊〉
                 aquis
                 ,
                 rivolis
                 ,
                 stagnis
                 ,
                 pratis
                 ,
                 pascuis
                 ,
                 &
                 pasturis
                 ,
                 molendinis
                 &
                 multuris
                 ,
                 &
                 eorum
                 sequelis
                 ,
                 aucupationibus
                 ,
                 venationibus
                 ,
                 piscationibus
                 ,
                 petariis
                 ,
                 turbariis
                 ,
                 cuniculis
                 ,
                 cuniculariis
                 ,
                 columbis
                 ,
                 columbariis
                 ,
                 hortis
                 ,
                 pomariis
                 ,
                 fabrilibus
                 ,
                 brasinis
                 &
                 brueriis
                 ,
                 genestis
                 ,
                 sylvis
                 ,
                 nemoribus
                 &
                 virgultis
                 ,
                 lignis
                 ,
                 lapicidiis
                 ,
                 lapide
                 &
                 calce
                 ,
                 cum
                 curiis
                 &
                 earum
                 exitibus
                 ,
                 herezeldis
                 ,
                 〈◊〉
                 ,
                 &
                 mulierum
                 merchetis
                 ,
                 libero
                 〈◊〉
                 &
                 exitu
                 ,
                 ac
                 cum
                 omnibus
                 aliis
                 libertatibus
                 ,
                 commoditatibus
                 ,
                 proficuis
                 ,
                 astamentis
                 ,
                 
                 ac
                 justis
                 suis
                 pertinentiis
                 quibuscunque
                 tam
                 non
                 nominatis
                 quam
                 nominatis
                 ,
                 tam
                 subtus
                 quam
                 supra
                 terram
                 ,
                 procul
                 &
                 prope
                 ad
                 praedictas
                 terras
                 spectantibus
                 ,
                 seu
                 spectare
                 valentibus
                 ,
                 quomodolibet
                 in
                 futurum
                 ,
                 libere
                 ,
                 plenarie
                 ,
                 quiete
                 ,
                 integre
                 ,
                 honorifice
                 ,
                 sine
                 aliquo
                 impedimento
                 ,
                 revocatione
                 ,
                 contradictione
                 ,
                 aut
                 obstaculo
                 qualicunque
                 .
              
               
                 In
                 the
                 Charters
                 by
                 the
                 King
                 or
                 Subjects
                 ,
                 there
                 may
                 and
                 useth
                 to
                 be
                 insert
                 a
                 Clause
                 ,
                 
                   de
                   novo-damus
                
                 ,
                 which
                 doth
                 Dispone
                 the
                 Fee
                 ,
                 as
                 by
                 an
                 original
                 Right
                 ,
                 in
                 case
                 the
                 Disponers
                 Right
                 should
                 be
                 found
                 defective
                 ,
                 and
                 to
                 secure
                 against
                 any
                 Title
                 proper
                 to
                 the
                 Superiour
                 ,
                 either
                 as
                 to
                 the
                 property
                 ,
                 or
                 any
                 servitude
                 or
                 casuality
                 ;
                 which
                 Clauses
                 use
                 to
                 be
                 very
                 full
                 ,
                 and
                 to
                 express
                 
                   all
                   Nullities
                   ,
                   Title
                   ,
                   or
                   Interest
                   in
                   the
                   Superiour
                   ,
                   with
                   supply
                   of
                   all
                   defects
                
                 ;
                 and
                 bearing
                 all
                 the
                 particular
                 Casualities
                 ,
                 with
                 which
                 the
                 Fee
                 might
                 be
                 burdened
                 ,
                 which
                 are
                 effectual
                 ,
                 and
                 extended
                 to
                 the
                 full
                 against
                 Subjects
                 .
                 But
                 as
                 to
                 such
                 Clauses
                 in
                 the
                 Kings
                 Charters
                 ,
                 they
                 are
                 fully
                 extended
                 as
                 to
                 all
                 Interest
                 in
                 the
                 King
                 ,
                 relating
                 to
                 the
                 Property
                 ,
                 such
                 as
                 
                   Nullities
                   ,
                   Forefaulture
                   Recognition
                   ,
                   Purpresture
                   ,
                   Disclamation
                   :
                
                 But
                 the
                 general
                 words
                 ,
                 
                   Pro
                   omni
                   jure
                   titulo
                   &
                   interesse
                   ,
                
                 are
                 not
                 extended
                 against
                 the
                 King
                 ,
                 to
                 any
                 Casuality
                 of
                 Superiority
                 ,
                 not
                 reaching
                 ,
                 but
                 burdening
                 the
                 Property
                 ,
                 except
                 such
                 only
                 as
                 are
                 particularly
                 exprest
                 ;
                 and
                 therefore
                 ,
                 a
                 
                   novo
                   damus
                
                 ,
                 in
                 a
                 Bishops
                 Charter
                 from
                 the
                 King
                 ,
                 Disponing
                 a
                 Patronage
                 ,
                 
                   pro
                   omni
                   jure
                
                 ,
                 was
                 found
                 to
                 give
                 the
                 Bishops
                 Successor
                 right
                 to
                 that
                 Patronage
                 ,
                 though
                 it
                 was
                 a
                 Laik
                 Patronage
                 ,
                 without
                 necessity
                 to
                 instruct
                 that
                 the
                 Bishop
                 had
                 any
                 pretence
                 of
                 a
                 Title
                 thereto
                 before
                 ,
                 but
                 that
                 the
                 
                   novo
                   damus
                
                 was
                 as
                 effectual
                 as
                 an
                 original
                 Right
                 ,
                 February
                 19.
                 1680.
                 
                 Sir
                 
                   John
                   Scot
                
                 of
                 
                   Ancrum
                   contra
                
                 Arch-bishop
                 of
                 Glasgow
                 .
                 But
                 a
                 
                   novo
                   damus
                
                 by
                 the
                 King
                 ,
                 bearing
                 ,
                 
                   pro
                   omni
                   jure
                   titulo
                   &
                   interesse
                   ,
                
                 and
                 expressing
                 Ward
                 ,
                 found
                 not
                 to
                 exclude
                 the
                 Kings
                 Donator
                 from
                 the
                 Marriage
                 ,
                 as
                 being
                 a
                 Casuality
                 differing
                 from
                 the
                 Ward
                 ,
                 which
                 useth
                 to
                 pass
                 by
                 a
                 several
                 Gift
                 17.
                 day
                 of
                 July
                 1672.
                 
                 Lord
                 
                   Hatton
                   contra
                
                 the
                 Earl
                 of
                 Northesk
                 .
              
               
                 The
                 reason
                 of
                 the
                 different
                 extention
                 of
                 the
                 Clause
                 ,
                 
                   de
                   novo
                   damus
                
                 ,
                 as
                 to
                 the
                 King
                 and
                 Subjects
                 is
                 ,
                 because
                 Subjects
                 are
                 presumed
                 to
                 take
                 special
                 notice
                 of
                 all
                 Clauses
                 ,
                 that
                 they
                 insert
                 in
                 their
                 Charters
                 ,
                 which
                 
                   in
                   dubio
                
                 ,
                 are
                 interpret
                 ,
                 
                   contra
                   proferentem
                
                 .
                 But
                 these
                 Clauses
                 do
                 more
                 easily
                 pass
                 by
                 inadvertence
                 in
                 Exchequer
                 ;
                 and
                 therefore
                 ,
                 their
                 Gifts
                 are
                 more
                 regulat
                 by
                 their
                 Acts
                 ,
                 then
                 by
                 the
                 common
                 Style
                 thereof
                 .
                 For
                 though
                 Gifts
                 of
                 Ward
                 comprehend
                 Non-entry
                 ,
                 ay
                 and
                 while
                 the
                 Entry
                 of
                 the
                 righteous
                 Heir
                 :
                 Yet
                 by
                 act
                 of
                 Exchequer
                 ,
                 it
                 is
                 only
                 extended
                 to
                 three
                 Terms
                 after
                 the
                 Ward
                 ,
                 though
                 the
                 old
                 Style
                 be
                 still
                 continued
                 .
              
               
                 Charters
                 do
                 also
                 comprehend
                 several
                 conditions
                 and
                 provisions
                 ,
                 of
                 which
                 hereafter
                 .
                 And
                 some
                 Charters
                 do
                 express
                 a
                 bounding
                 ,
                 which
                 is
                 ordinary
                 in
                 these
                 within
                 Burgh
                 .
                 And
                 some
                 do
                 express
                 a
                 particular
                 enumeration
                 .
                 And
                 some
                 have
                 only
                 the
                 general
                 name
                 of
                 Barony
                 ,
                 or
                 Tenendry
                 ,
                 or
                 some
                 other
                 common
                 Designations
                 ,
                 under
                 which
                 ,
                 there
                 may
                 be
                 particular
                 Designations
                 comprehended
                 .
                 And
                 some
                 Charters
                 bear
                 ,
                 
                   Infang-thief
                   ,
                   outfang-thief
                   ,
                   Pit
                   and
                   Gallows
                   .
                
              
               
                 These
                 Charters
                 ,
                 or
                 other
                 Writes
                 in
                 place
                 of
                 Charters
                 ,
                 though
                 they
                 do
                 never
                 so
                 fully
                 comprehend
                 the
                 Dispositive
                 Will
                 of
                 the
                 Superiour
                 ,
                 yet
                 they
                 never
                 become
                 a
                 real
                 Right
                 ,
                 till
                 they
                 be
                 compleated
                 by
                 seasine
                 ,
                 which
                 imports
                 the
                 taking
                 of
                 Possession
                 for
                 seasine
                 and
                 seasure
                 are
                 from
                 the
                 same
                 original
                 ,
                 signifying
                 laying
                 hold
                 of
                 ,
                 or
                 taking
                 possession
                 :
                 And
                 disseasing
                 is
                 dispossession
                 ;
                 and
                 therefore
                 ,
                 it
                 is
                 a
                 needless
                 question
                 ,
                 whether
                 Seasine
                 or
                 Possession
                 were
                 distinct
                 ,
                 and
                 
                 which
                 were
                 most
                 effectual
                 ;
                 for
                 till
                 the
                 solemnity
                 of
                 Instruments
                 of
                 Seasine
                 was
                 introduced
                 to
                 accomplish
                 the
                 real
                 Right
                 of
                 Fees
                 ,
                 Possession
                 was
                 necessary
                 to
                 be
                 joyned
                 to
                 the
                 Disposition
                 :
                 Which
                 Possession
                 might
                 either
                 be
                 natural
                 by
                 actual
                 Inhabitation
                 ,
                 Manuring
                 or
                 Stocking
                 the
                 Ground
                 ,
                 
                   positione
                   sediuni
                
                 :
                 Or
                 might
                 be
                 Civil
                 ,
                 by
                 uplifting
                 the
                 Fruits
                 and
                 Duties
                 :
                 Or
                 it
                 might
                 be
                 Symbolical
                 ,
                 
                   positione
                   pedum
                
                 ,
                 by
                 entering
                 upon
                 the
                 Lands
                 as
                 Vassal
                 upon
                 the
                 Superiours
                 Warrand
                 .
                 But
                 if
                 this
                 Symbolical
                 Possession
                 were
                 
                   retent
                   a
                   possessione
                   naturali
                
                 ,
                 the
                 Superiour
                 disponing
                 to
                 another
                 who
                 first
                 attained
                 the
                 natural
                 Possession
                 ,
                 be
                 would
                 have
                 been
                 preferred
                 to
                 the
                 Symbolical
                 Possession
                 ,
                 as
                 being
                 suspect
                 and
                 simulat
                 ,
                 
                   retenta
                   possessione
                
                 :
                 Therefore
                 ,
                 till
                 the
                 time
                 of
                 King
                 James
                 the
                 first
                 ,
                 any
                 Charter
                 ,
                 Disposition
                 ,
                 or
                 Precept
                 from
                 a
                 Superiour
                 to
                 a
                 Vassal
                 ,
                 mentioning
                 his
                 Heirs
                 ,
                 or
                 an
                 Heretable
                 Right
                 ,
                 with
                 true
                 and
                 real
                 Possession
                 ,
                 without
                 simulation
                 ,
                 was
                 sufficient
                 to
                 compleat
                 the
                 Fee.
                 So
                 a
                 Charter
                 with
                 natural
                 Possession
                 was
                 sustained
                 ,
                 being
                 in
                 the
                 Raign
                 of
                 King
                 Robert
                 the
                 second
                 ,
                 June
                 24.
                 1625.
                 
                 And
                 also
                 before
                 the
                 Raign
                 of
                 King
                 James
                 the
                 second
                 ,
                 Hope
                 ,
                 seasine
                 ,
                 Earl
                 of
                 Mar
                 contra
                 Bishop
                 of
                 Aberdeen
                 .
              
               
                 16.
                 
                 But
                 King
                 James
                 the
                 first
                 having
                 been
                 long
                 detained
                 in
                 England
                 ,
                 being
                 taken
                 in
                 his
                 Voyage
                 coming
                 home
                 from
                 France
                 ,
                 did
                 thence
                 bring
                 in
                 the
                 Solemnity
                 of
                 Seasines
                 by
                 the
                 Instrument
                 of
                 a
                 Nottar
                 ,
                 about
                 the
                 year
                 ,
                 1530.
                 as
                 Craig
                 relateth
                 ,
                 l.
                 2.
                 dieges
                 .
                 7.
                 near
                 the
                 beginning
                 ,
                 and
                 yet
                 sayeth
                 ,
                 that
                 long
                 thereafter
                 ,
                 even
                 near
                 to
                 his
                 time
                 ,
                 the
                 Bailies
                 Seal
                 upon
                 the
                 Superiours
                 Disposition
                 ,
                 Charter
                 ,
                 or
                 Precept
                 ,
                 was
                 sufficient
                 to
                 instruct
                 Delivery
                 of
                 Possession
                 .
              
               
                 Neither
                 was
                 there
                 necessity
                 in
                 any
                 case
                 to
                 prove
                 the
                 delivery
                 ,
                 or
                 the
                 Superiours
                 Entering
                 the
                 Vassal
                 in
                 Possession
                 ,
                 but
                 that
                 was
                 presumed
                 from
                 the
                 Possession
                 it self
                 ;
                 and
                 therefore
                 ,
                 it
                 needs
                 not
                 be
                 debated
                 how
                 the
                 Vassal
                 entered
                 in
                 Possession
                 ,
                 or
                 what
                 warrand
                 the
                 Bailzie
                 had
                 to
                 give
                 him
                 Possession
                 ,
                 or
                 what
                 warrand
                 the
                 Person
                 who
                 received
                 the
                 possession
                 for
                 the
                 Vassal
                 had
                 ,
                 as
                 his
                 Procurator
                 or
                 Acturney
                 ;
                 for
                 if
                 the
                 Vassal
                 were
                 in
                 the
                 Natural
                 and
                 Civil
                 Possession
                 ;
                 all
                 these
                 powers
                 were
                 presumed
                 .
                 Neither
                 were
                 Precepts
                 of
                 Seasine
                 ,
                 or
                 Acturneys
                 then
                 in
                 use
                 ;
                 for
                 as
                 this
                 solemnity
                 of
                 an
                 Instrument
                 of
                 Seasine
                 was
                 introduced
                 from
                 England
                 ,
                 so
                 was
                 the
                 name
                 of
                 Acturney
                 ,
                 which
                 is
                 frequent
                 there
                 ,
                 but
                 seldom
                 usedhere
                 ,
                 but
                 in
                 cases
                 of
                 Seasine
                 .
              
               
                 After
                 Instruments
                 of
                 Seasine
                 became
                 in
                 use
                 ,
                 they
                 were
                 not
                 only
                 sustained
                 as
                 the
                 mean
                 of
                 probation
                 ,
                 that
                 Possession
                 or
                 Seasine
                 was
                 given
                 or
                 taken
                 ,
                 but
                 they
                 were
                 the
                 necessary
                 solemnities
                 to
                 accomplish
                 the
                 right
                 which
                 could
                 not
                 be
                 supplied
                 by
                 any
                 other
                 mean
                 or
                 probation
                 ,
                 though
                 the
                 Superiour
                 with
                 a
                 thousand
                 Witnesses
                 ,
                 should
                 subscribe
                 all
                 the
                 Contents
                 of
                 a
                 Seasine
                 .
              
               
                 It
                 would
                 be
                 of
                 no
                 effect
                 to
                 make
                 a
                 real
                 Right
                 without
                 the
                 attest
                 of
                 a
                 Nottar
                 ,
                 in
                 which
                 sense
                 ,
                 the
                 vulgar
                 maxime
                 is
                 to
                 be
                 understood
                 ,
                 
                   nulla
                   sasina
                   nulla
                   terra
                
                 ,
                 which
                 is
                 not
                 only
                 necessary
                 to
                 the
                 first
                 Vassal
                 ,
                 but
                 must
                 be
                 renewed
                 to
                 all
                 his
                 Heirs
                 and
                 Successors
                 ;
                 although
                 by
                 the
                 custome
                 of
                 France
                 ,
                 the
                 Vassal
                 being
                 once
                 Infeft
                 ,
                 his
                 Heirs
                 need
                 not
                 be
                 Infeft
                 ,
                 but
                 do
                 continue
                 to
                 possess
                 by
                 his
                 Right
                 ,
                 as
                 the
                 Heirs
                 of
                 Tacks-men
                 do
                 with
                 us
                 :
                 But
                 every
                 Heir
                 must
                 be
                 Infeft
                 in
                 Fees
                 ,
                 otherways
                 ,
                 if
                 they
                 die
                 uninfeft
                 ,
                 they
                 never
                 attain
                 the
                 real
                 Right
                 ,
                 but
                 only
                 a
                 possessory
                 Title
                 to
                 the
                 Fruits
                 and
                 Rents
                 ,
                 which
                 will
                 belong
                 to
                 their
                 Executors
                 ,
                 in
                 so
                 far
                 as
                 unuplifted
                 from
                 their
                 Predicessors
                 death
                 ,
                 till
                 their
                 own
                 death
                 ,
                 or
                 renunciation
                 to
                 be
                 Heir
                 ,
                 and
                 will
                 be
                 affected
                 for
                 their
                 proper
                 Debts
                 ,
                 which
                 will
                 not
                 affect
                 the
                 Heritage
                 ,
                 or
                 the
                 next
                 Heir
                 entering
                 ,
                 who
                 must
                 enter
                 to
                 the
                 
                 Defunct
                 ,
                 who
                 died
                 last
                 Infeft
                 ,
                 and
                 will
                 be
                 lyable
                 for
                 his
                 debts
                 ,
                 but
                 not
                 for
                 the
                 debts
                 of
                 his
                 appear
                 and
                 Heir
                 ,
                 who
                 was
                 never
                 Infeft
                 .
              
               
                 17.
                 
                 Let
                 us
                 then
                 consider
                 the
                 formal
                 Tenor
                 of
                 an
                 Instrument
                 of
                 Seasine
                 and
                 the
                 meaning
                 thereof
                 ,
                 and
                 then
                 consider
                 the
                 essentials
                 and
                 necessary
                 requisites
                 thereto
                 ,
                 and
                 how
                 far
                 unformal
                 seasines
                 have
                 been
                 sustained
                 .
              
               
                 A
                 formal
                 Seasine
                 is
                 the
                 Instrument
                 of
                 a
                 Nottar-publick
                 ,
                 bearing
                 the
                 delivery
                 of
                 Symbolical
                 Possession
                 ,
                 by
                 the
                 Superiour
                 or
                 his
                 Bailzie
                 ,
                 to
                 the
                 Vassal
                 or
                 his
                 Acturney
                 ,
                 by
                 delivery
                 of
                 Earth
                 and
                 Stone
                 ,
                 and
                 other
                 Symbols
                 accustomed
                 upon
                 the
                 Ground
                 of
                 the
                 Fee
                 ,
                 which
                 should
                 contain
                 the
                 Name
                 of
                 God
                 ,
                 as
                 its
                 initial
                 Words
                 ,
                 
                   In
                   Dei
                   nomine
                   ,
                   Amen
                
                 ,
                 that
                 may
                 keep
                 the
                 Nottar
                 in
                 remembrance
                 of
                 his
                 faith
                 and
                 trust
                 ,
                 deterring
                 him
                 to
                 take
                 the
                 Name
                 of
                 God
                 to
                 a
                 falshood
                 or
                 lie
                 .
              
               
                 Secondly
                 ,
                 It
                 should
                 bear
                 the
                 date
                 by
                 the
                 day
                 ,
                 moneth
                 ,
                 and
                 year
                 of
                 God
                 ,
                 and
                 was
                 accustomed
                 to
                 have
                 the
                 indiction
                 and
                 Name
                 of
                 the
                 Pope
                 ,
                 which
                 since
                 the
                 Reformation
                 hath
                 not
                 been
                 in
                 use
                 :
                 But
                 it
                 should
                 contain
                 the
                 Name
                 of
                 the
                 King
                 ,
                 and
                 the
                 year
                 of
                 His
                 Raign
                 .
              
               
                 Thirdly
                 ,
                 It
                 bears
                 ,
                 the
                 appearance
                 of
                 the
                 Vassal
                 ,
                 or
                 his
                 certain
                 Aucturney
                 ,
                 which
                 is
                 sufficiently
                 instructed
                 ,
                 by
                 having
                 of
                 the
                 Precept
                 of
                 Seasine
                 in
                 his
                 hands
                 ,
                 which
                 is
                 but
                 
                   presumptio
                   juris
                
                 ,
                 and
                 doth
                 not
                 exclude
                 a
                 contrary
                 probation
                 ,
                 especially
                 as
                 to
                 the
                 Heirs
                 of
                 the
                 first
                 Vassal
                 ,
                 who
                 ,
                 by
                 taking
                 Infeftment
                 ,
                 becomes
                 lyable
                 for
                 all
                 his
                 Predecessors
                 debts
                 ;
                 and
                 therefore
                 ,
                 if
                 the
                 Superiour
                 should
                 grant
                 a
                 Precept
                 of
                 
                   clare
                   constat
                
                 ,
                 the
                 bearer
                 whereof
                 ,
                 as
                 Aucturney
                 for
                 the
                 appearant
                 Heir
                 ,
                 taking
                 Seasine
                 ,
                 would
                 involve
                 the
                 appear
                 and
                 Heir
                 in
                 all
                 his
                 Fathers
                 debts
                 ;
                 and
                 therefore
                 ,
                 it
                 may
                 be
                 proven
                 by
                 the
                 Superiour
                 and
                 Aucturneys
                 oath
                 ,
                 that
                 the
                 Precept
                 of
                 Seasine
                 was
                 without
                 warrand
                 from
                 the
                 appearant
                 Heir
                 ,
                 and
                 so
                 was
                 fraudulent
                 and
                 collusive
                 ,
                 to
                 involve
                 him
                 in
                 his
                 Predecessors
                 debts
                 ,
                 in
                 an
                 overburdened
                 and
                 hurtful
                 succession
                 .
              
               
                 Fourthly
                 ,
                 It
                 must
                 bear
                 the
                 delivery
                 of
                 the
                 Precept
                 of
                 Seasine
                 to
                 the
                 Superiour
                 ,
                 if
                 he
                 be
                 present
                 ,
                 or
                 in
                 his
                 absence
                 ,
                 to
                 his
                 Bailzie
                 ,
                 whose
                 warrand
                 is
                 secured
                 ,
                 because
                 there
                 is
                 a
                 blank
                 left
                 in
                 the
                 Precept
                 for
                 his
                 Name
                 ,
                 in
                 which
                 blank
                 ,
                 any
                 persons
                 name
                 being
                 filled
                 up
                 ,
                 he
                 is
                 sufficiently
                 authorized
                 as
                 Bailzie
                 in
                 that
                 part
                 ,
                 specially
                 constitute
                 .
              
               
                 Fifthly
                 ,
                 It
                 bears
                 ,
                 the
                 Bailzies
                 accepting
                 of
                 the
                 Precept
                 ,
                 and
                 delivering
                 of
                 it
                 to
                 the
                 Nottar
                 in
                 presence
                 of
                 the
                 Witnesses
                 .
              
               
                 Sixthly
                 ,
                 It
                 must
                 bear
                 the
                 Nottars
                 reading
                 of
                 the
                 Precept
                 ,
                 and
                 exponing
                 it
                 if
                 it
                 be
                 in
                 Latine
                 ,
                 and
                 then
                 the
                 words
                 of
                 the
                 Precept
                 should
                 be
                 Ingrossed
                 .
              
               
                 Seventhly
                 ,
                 It
                 bears
                 the
                 Superiour
                 or
                 the
                 Bailzies
                 delivering
                 of
                 Earth
                 and
                 Stone
                 of
                 the
                 Land
                 to
                 the
                 Vassal
                 ,
                 or
                 to
                 his
                 Aucturney
                 ,
                 bearer
                 of
                 the
                 Precept
                 ;
                 Or
                 delivery
                 of
                 any
                 other
                 accustomed
                 Symbol
                 ,
                 as
                 a
                 penny
                 for
                 an
                 Annualrent
                 ,
                 a
                 Net
                 for
                 Fishing
                 ,
                 a
                 Clap
                 for
                 a
                 Miln
                 .
              
               
                 Eighthly
                 ,
                 It
                 bears
                 the
                 Aucturneys
                 requiring
                 Instruments
                 .
              
               
                 Ninthly
                 ,
                 It
                 must
                 bear
                 ,
                 that
                 these
                 things
                 were
                 done
                 upon
                 the
                 ground
                 of
                 the
                 Land
                 ,
                 or
                 other
                 Hereditament
                 ,
                 and
                 the
                 hour
                 of
                 the
                 day
                 ,
                 before
                 two
                 Witnesses
                 ,
                 at
                 the
                 least
                 ,
                 required
                 thereto
                 ,
              
               
               
                 And
                 last
                 ,
                 The
                 attest
                 of
                 the
                 Nottar
                 ,
                 bearing
                 the
                 auctority
                 of
                 his
                 Creation
                 ,
                 and
                 that
                 he
                 was
                 present
                 with
                 the
                 Witnesses
                 ,
                 &
                 
                   vidi
                   ,
                   scivi
                   &
                   audivi
                
                 ,
                 that
                 the
                 things
                 contained
                 in
                 the
                 Instrument
                 ,
                 were
                 so
                 done
                 as
                 is
                 exprest
                 therein
                 ,
                 and
                 that
                 he
                 took
                 a
                 Note
                 thereof
                 ,
                 and
                 thereupon
                 drew
                 a
                 formal
                 Instrument
                 ,
                 and
                 insert
                 the
                 same
                 in
                 his
                 Protocol
                 ,
                 whereunto
                 are
                 adjoyned
                 his
                 Sign
                 ,
                 his
                 Motto
                 contained
                 in
                 his
                 Commission
                 ,
                 relating
                 to
                 his
                 faithfulness
                 and
                 trust
                 ,
                 and
                 his
                 name
                 or
                 the
                 initial
                 Letters
                 thereof
                 .
              
               
                 18.
                 
                 If
                 any
                 of
                 these
                 be
                 omitted
                 ,
                 the
                 Nottar
                 may
                 be
                 exauctorat
                 and
                 punished
                 by
                 the
                 Lords
                 ;
                 but
                 the
                 essentials
                 are
                 much
                 sewer
                 :
                 Yet
                 the
                 Seasine
                 must
                 contain
                 the
                 delivery
                 of
                 symbolical
                 Posession
                 ,
                 by
                 the
                 Superior
                 or
                 his
                 Bailzie
                 to
                 the
                 Vassal
                 ,
                 or
                 his
                 Acturney
                 upon
                 the
                 Ground
                 of
                 the
                 Land
                 ,
                 or
                 other
                 Tenement
                 in
                 presence
                 of
                 the
                 Nottar
                 and
                 Witnesses
                 ,
                 with
                 the
                 date
                 and
                 subscription
                 of
                 the
                 Nottar
                 .
                 But
                 the
                 delivery
                 of
                 the
                 symbol
                 of
                 an
                 Office
                 ,
                 having
                 no
                 particular
                 place
                 or
                 ground
                 ,
                 is
                 sufficient
                 any
                 where
                 ,
                 as
                 a
                 Batton
                 for
                 a
                 Military
                 Office
                 ,
                 or
                 a
                 scrol
                 ,
                 Book
                 ,
                 or
                 Cape
                 for
                 a
                 Civil
                 Office.
                 But
                 where
                 the
                 Fee
                 hath
                 a
                 particular
                 ground
                 or
                 place
                 ,
                 there
                 it
                 must
                 be
                 taken
                 upon
                 the
                 ground
                 ,
                 and
                 it
                 will
                 not
                 be
                 sufficient
                 to
                 be
                 in
                 view
                 of
                 the
                 ground
                 ,
                 yet
                 Law
                 or
                 Custom
                 may
                 otherways
                 order
                 in
                 case
                 of
                 necessity
                 :
                 As
                 the
                 Infeftments
                 of
                 Lands
                 ,
                 
                   in
                   Nova
                   Scotia
                
                 ,
                 were
                 appointed
                 to
                 be
                 taken
                 at
                 the
                 Castle-hill
                 of
                 Edinburgh
                 .
                 And
                 when
                 Lands
                 are
                 rightly
                 Unite
                 or
                 Erected
                 in
                 Barronries
                 ,
                 Seasine
                 taken
                 upon
                 any
                 part
                 thereof
                 sufficeth
                 for
                 the
                 whole
                 ;
                 and
                 without
                 Union
                 ,
                 Seasine
                 taken
                 upon
                 any
                 part
                 of
                 the
                 Lands
                 ,
                 will
                 serve
                 for
                 all
                 the
                 Lands
                 in
                 the
                 Infeftment
                 lying
                 
                   contigue
                   .
                   Craig
                
                 relates
                 ,
                 that
                 a
                 Seasine
                 was
                 found
                 null
                 and
                 false
                 ,
                 where
                 it
                 bore
                 ,
                 
                   These
                   things
                   were
                   done
                   upon
                   the
                   ground
                   of
                   the
                   Land
                   ,
                   albeit
                   the
                   parties
                   had
                   put
                   ,
                   of
                   the
                   ground
                   of
                   the
                   Land
                   on
                   which
                   they
                   stood
                   ,
                   within
                   their
                   Shooes
                   ,
                   but
                   were
                   not
                   upon
                   the
                   fixed
                   ground
                   thereof
                   .
                
              
               
                 The
                 Instrument
                 of
                 Seasine
                 must
                 be
                 taken
                 by
                 a
                 publick
                 Nottar
                 ,
                 lawfully
                 authorized
                 ,
                 at
                 the
                 least
                 so
                 holden
                 and
                 repute
                 ;
                 for
                 though
                 the
                 Nottar
                 be
                 deprived
                 ,
                 it
                 will
                 not
                 vitiat
                 his
                 Instruments
                 ,
                 taken
                 
                   bona
                   fide
                
                 ,
                 by
                 persons
                 who
                 knew
                 not
                 his
                 deprivation
                 ,
                 till
                 it
                 be
                 commonly
                 known
                 ,
                 or
                 Letters
                 of
                 publication
                 intimat
                 at
                 the
                 Mercat
                 Cross.
                 A
                 Seasine
                 was
                 also
                 found
                 null
                 ,
                 because
                 it
                 wanted
                 these
                 words
                 ,
                 
                   vidi
                   ,
                   scivi
                   &
                   audivi
                   ,
                   Hope
                   ,
                   Seasine
                   ,
                   Primrose
                   contra
                
              
               
                 In
                 ancient
                 Rights
                 ,
                 or
                 where
                 there
                 is
                 not
                 a
                 more
                 Solemn
                 Infeftment
                 ,
                 Seasines
                 have
                 been
                 sustained
                 ,
                 though
                 with
                 considerable
                 defects
                 ,
                 as
                 where
                 the
                 Seasine
                 bore
                 
                   not
                   delivery
                   of
                   Earth
                   and
                   Stone
                   ,
                   but
                   only
                   actual
                   and
                   real
                   Seasine
                   ,
                   June
                
                 17.
                 1630.
                 
                 Earl
                 of
                 
                   Wigtoun
                   contra
                
                 Earl
                 of
                 Cassils
                 .
                 But
                 not
                 where
                 the
                 Seasine
                 wanted
                 delivery
                 of
                 Earth
                 and
                 Stone
                 ,
                 and
                 the
                 name
                 of
                 the
                 Aucturney
                 ,
                 Hope
                 ,
                 Seasine
                 ,
                 Laird
                 of
                 
                   Lie
                   contra
                
                 Earl
                 of
                 Callender
                 .
                 A
                 Seasine
                 was
                 sustained
                 ,
                 though
                 it
                 did
                 not
                 repeat
                 the
                 Precept
                 ,
                 and
                 did
                 not
                 bear
                 
                   delivery
                   of
                   Earth
                   and
                   Stone
                   ,
                   but
                   only
                   of
                   the
                   ground
                   of
                   the
                   Land
                   ,
                
                 yet
                 was
                 preferred
                 to
                 a
                 posterior
                 formal
                 Seasine
                 ,
                 taken
                 after
                 the
                 matter
                 was
                 Litigious
                 ,
                 October
                 23.
                 1680.
                 
                 Lady
                 
                   Lambertoun
                   contra
                
                 Laird
                 of
                 Polwart
                 .
                 And
                 a
                 Seasine
                 ,
                 being
                 the
                 Title
                 in
                 a
                 Reduction
                 ,
                 was
                 sustained
                 to
                 infer
                 Certification
                 ,
                 though
                 it
                 bore
                 not
                 delivery
                 of
                 Earth
                 and
                 Stone
                 ,
                 nor
                 Instruments
                 taken
                 ,
                 nor
                 the
                 hour
                 ,
                 nor
                 being
                 conform
                 to
                 the
                 warrand
                 ;
                 but
                 bearing
                 only
                 ,
                 
                   according
                   to
                   the
                   custome
                   in
                   such
                   cases
                
                 ;
                 but
                 the
                 defender
                 thereafter
                 ,
                 having
                 made
                 a
                 production
                 of
                 his
                 Right
                 ,
                 certification
                 was
                 not
                 granted
                 ,
                 
                   contra
                   non
                   producta
                   ,
                   March
                
                 20.
                 1632.
                 
                 Laird
                 of
                 Lie
                 and
                 
                   Stuart
                   contra
                
                 Earl
                 of
                 Lunderdail
                 .
                 Aand
                 Seasine
                 of
                 Land
                 and
                 a
                 Miln
                 ,
                 was
                 sustained
                 ,
                 bearing
                 
                   delivery
                   of
                   Earth
                   and
                   Stone
                   of
                   the
                   Land
                   and
                   Milne
                   ,
                
                 with
                 all
                 solemnities
                 requisite
                 ,
                 March
                 15.
                 1631.
                 
                 Laird
                 of
                 
                   Swintoun
                   contra
                
                 Vassals
                 of
                 Dumfermling
                 .
              
               
               
                 19.
                 
                 Seasines
                 being
                 but
                 the
                 assertions
                 of
                 a
                 Nottar
                 ,
                 do
                 not
                 prove
                 or
                 instruct
                 a
                 real
                 Right
                 ,
                 unless
                 they
                 be
                 astructed
                 by
                 a
                 Warrant
                 or
                 Adminicle
                 in
                 write
                 ,
                 except
                 that
                 it
                 be
                 against
                 Tenents
                 at
                 the
                 instance
                 of
                 their
                 Master
                 ,
                 who
                 is
                 known
                 to
                 be
                 in
                 Possession
                 :
                 or
                 that
                 Prescription
                 hath
                 run
                 by
                 one
                 or
                 more
                 subsequent
                 Seasines
                 ,
                 and
                 40
                 years
                 peaceable
                 Possession
                 .
                 And
                 albeit
                 the
                 most
                 ordinar
                 warrant
                 of
                 Seasines
                 be
                 the
                 Superiors
                 Precept
                 Ingrossed
                 or
                 related
                 to
                 in
                 the
                 Seasine
                 ,
                 yet
                 after
                 40
                 years
                 Possession
                 ,
                 there
                 is
                 no
                 necessity
                 to
                 produce
                 Precepts
                 of
                 Seasine
                 ,
                 Procuratories
                 ,
                 or
                 Instruments
                 of
                 Resignation
                 ,
                 even
                 in
                 the
                 Case
                 of
                 Reductions
                 of
                 Infeftments
                 for
                 want
                 of
                 these
                 ,
                 Parliament
                 1495
                 cap.
                 214.
                 
                 In
                 which
                 there
                 is
                 not
                 required
                 peaceable
                 possession
                 ,
                 neither
                 yet
                 continued
                 possession
                 ,
                 as
                 is
                 required
                 in
                 the
                 Act
                 of
                 Prescription
                 ,
                 so
                 that
                 Interruptions
                 as
                 to
                 this
                 point
                 ,
                 will
                 not
                 alter
                 the
                 case
                 :
                 but
                 there
                 is
                 no
                 necessity
                 to
                 produce
                 any
                 more
                 for
                 instructing
                 an
                 Infeftment
                 ,
                 but
                 the
                 Seasine
                 and
                 a
                 warrant
                 thereof
                 ,
                 such
                 as
                 a
                 precept
                 of
                 
                   Clare
                   Constat
                
                 ,
                 a
                 precept
                 out
                 of
                 the
                 Chanclery
                 ,
                 a
                 disposition
                 or
                 contract
                 of
                 Alienation
                 ,
                 according
                 as
                 the
                 Seasine
                 doth
                 relate
                 to
                 the
                 one
                 or
                 the
                 other
                 .
                 As
                 if
                 the
                 Seasine
                 bear
                 ,
                 to
                 proceed
                 upon
                 a
                 precept
                 contained
                 in
                 a
                 Charter
                 ter
                 ,
                 Disposition
                 ,
                 or
                 Contract
                 of
                 Alienation
                 ,
                 these
                 must
                 be
                 produced
                 specifice
                 as
                 they
                 are
                 related
                 ;
                 not
                 only
                 passive
                 to
                 defend
                 in
                 Reductions
                 ,
                 but
                 active
                 ,
                 as
                 Titles
                 of
                 Reductions
                 ,
                 Declarators
                 ,
                 and
                 all
                 other
                 Processes
                 ,
                 except
                 against
                 Tenents
                 or
                 naked
                 Possessors
                 ,
                 or
                 where
                 prescription
                 hath
                 run
                 ,
                 because
                 the
                 Charwhen
                 it
                 is
                 related
                 to
                 ,
                 is
                 a
                 part
                 of
                 the
                 Investiture
                 ,
                 making
                 up
                 the
                 real
                 Right
                 :
                 and
                 therefore
                 (
                 as
                 hath
                 been
                 now
                 shown
                 )
                 §
                 .
                 14.
                 there
                 is
                 no
                 necessity
                 to
                 produce
                 a
                 Disposition
                 ,
                 Contract
                 of
                 Alienation
                 ,
                 or
                 Bond
                 ,
                 though
                 the
                 Charter
                 relate
                 thereto
                 .
                 But
                 if
                 the
                 Seasinebear
                 ,
                 to
                 proceed
                 upon
                 a
                 Precept
                 contained
                 in
                 a
                 Disposition
                 ,
                 Contract
                 of
                 Alienation
                 or
                 Bond
                 ,
                 then
                 these
                 are
                 parts
                 of
                 the
                 Infeftment
                 ,
                 and
                 make
                 up
                 the
                 real
                 Right
                 ,
                 and
                 so
                 must
                 be
                 produced
                 ,
                 that
                 the
                 Defender
                 may
                 except
                 or
                 defend
                 upon
                 any
                 clause
                 therein
                 contained
                 ,
                 in
                 favours
                 of
                 himself
                 ,
                 his
                 predecessors
                 or
                 authors
                 ,
                 unless
                 the
                 Infeftments
                 be
                 ancient
                 ,
                 and
                 clede
                 with
                 long
                 possession
                 ;
                 in
                 which
                 case
                 ,
                 it
                 is
                 like
                 the
                 Lords
                 would
                 extend
                 the
                 foresaid
                 Statute
                 ,
                 and
                 would
                 sustain
                 a
                 Disposition
                 ,
                 Contract
                 or
                 Bond
                 ,
                 as
                 a
                 sufficient
                 Adminicle
                 of
                 the
                 Seasine
                 ,
                 though
                 it
                 related
                 not
                 thereto
                 .
                 And
                 albeit
                 this
                 Statute
                 mentions
                 only
                 ,
                 that
                 Charter
                 and
                 Seasine
                 shall
                 be
                 sufficient
                 ,
                 under
                 which
                 a
                 disposition
                 or
                 Contract
                 of
                 Alienation
                 must
                 be
                 comprehended
                 when
                 the
                 Seasine
                 is
                 immediatly
                 taken
                 thereupon
                 ,
                 and
                 not
                 upon
                 a
                 formal
                 Charter
                 ,
                 for
                 then
                 they
                 are
                 the
                 real
                 Charter
                 :
                 yea
                 ,
                 it
                 is
                 not
                 like
                 they
                 would
                 reject
                 a
                 Bond
                 ,
                 obliedging
                 to
                 grant
                 such
                 Infeftment
                 ,
                 albeit
                 it
                 do
                 not
                 
                   de
                   presenti
                
                 dispone
                 ,
                 as
                 a
                 sufficient
                 adminicle
                 to
                 sustain
                 a
                 seasine
                 ,
                 where
                 they
                 had
                 been
                 40
                 years
                 possession
                 ,
                 although
                 prescription
                 was
                 not
                 compleated
                 by
                 immediat
                 subsequent
                 Seasines
                 ,
                 or
                 uninterrupted
                 possession
                 ,
                 the
                 Party
                 making
                 faith
                 ,
                 that
                 he
                 did
                 not
                 keep
                 up
                 ,
                 or
                 conceal
                 any
                 other
                 part
                 of
                 the
                 Investiture
                 ,
                 which
                 would
                 sufficiently
                 take
                 off
                 the
                 presumption
                 of
                 Fraudful
                 concealing
                 or
                 away-putting
                 the
                 immediat
                 warrant
                 of
                 the
                 Seasine
                 ,
                 which
                 might
                 afford
                 defences
                 to
                 the
                 other
                 Party
                 .
                 For
                 even
                 in
                 a
                 recent
                 Case
                 ,
                 of
                 the
                 Infeftment
                 of
                 a
                 Wife
                 in
                 Life-rent
                 ,
                 her
                 Seasine
                 was
                 sustained
                 upon
                 Production
                 of
                 her
                 Contract
                 of
                 Marriage
                 ,
                 albeit
                 the
                 Seasine
                 proceeded
                 upon
                 a
                 Bond
                 granted
                 for
                 the
                 same
                 cause
                 ,
                 January
                 29.
                 1665.
                 
                 Mr.
                 
                   George
                   Norvil
                
                 Advocat
                 ,
                 
                   contra
                   Margaret
                   Sunter
                
                 ,
                 where
                 nothing
                 was
                 alledged
                 of
                 long
                 possession
                 .
                 See
                 what
                 was
                 found
                 November
                 22.
                 1628.
                 
                 
                   Clappertoun
                   contra
                   Hoome
                   ,
                   Hope
                
                 ,
                 Seasine
                 ,
                 Murray
                 of
                 
                   Philliphaugh
                   contra
                   Schaw
                   ,
                   Gray
                   contra
                   Finlayson
                   ,
                
                 there
                 could
                 be
                 less
                 question
                 if
                 the
                 Seasine
                 related
                 to
                 a
                 precept
                 apart
                 ,
                 and
                 did
                 not
                 bear
                 ,
                 whether
                 the
                 precept
                 proceeded
                 upon
                 a
                 Charter
                 ,
                 Disposition
                 ,
                 Alienation
                 ,
                 or
                 Bond
                 ,
                 for
                 then
                 the
                 production
                 of
                 any
                 of
                 these
                 ,
                 would
                 adminiculat
                 the
                 Seazine
                 .
              
               
               
                 Seasines
                 within
                 Burgh
                 ,
                 for
                 serving
                 of
                 Heirs
                 by
                 Hesp
                 and
                 Staple
                 ,
                 by
                 the
                 immemorial
                 Custom
                 and
                 Priviledge
                 of
                 Burgh
                 ,
                 being
                 given
                 by
                 the
                 Town-Clerk
                 ,
                 do
                 prove
                 sufficiently
                 both
                 the
                 propinquity
                 of
                 Blood
                 ,
                 that
                 the
                 same
                 was
                 Cognosced
                 and
                 Seasine
                 given
                 accordingly
                 ,
                 without
                 necessity
                 of
                 any
                 warrand
                 or
                 adminicle
                 ,
                 but
                 in
                 Seasines
                 of
                 Original
                 Rights
                 ,
                 of
                 conveyances
                 to
                 singular
                 Successors
                 ,
                 will
                 not
                 be
                 sustained
                 by
                 Seasines
                 by
                 the
                 Town
                 Clerk
                 ,
                 without
                 Adminicles
                 as
                 to
                 Tenements
                 within
                 Burghs
                 ,
                 as
                 was
                 found
                 in
                 an
                 Infeftment
                 from
                 a
                 Father
                 to
                 his
                 son
                 ,
                 bearing
                 to
                 be
                 upon
                 the
                 Fathers
                 Resignation
                 ,
                 February
                 11.
                 1681.
                 
                 
                   Francis
                   Irwing
                   contra
                   Corsan
                   ,
                   June
                
                 21.
                 1672.
                 
                 
                   William
                   Mitchel
                   contra
                   Thomas
                   Cowie
                
                 .
              
               
                 Seasines
                 
                   propriis
                   manibus
                
                 ,
                 when
                 either
                 the
                 Superior
                 himself
                 doth
                 give
                 Seasine
                 to
                 his
                 Vassals
                 Acturney
                 ,
                 or
                 when
                 the
                 Superiors
                 Baily
                 by
                 his
                 Precept
                 ,
                 gives
                 Seasine
                 to
                 the
                 Vassal
                 ,
                 himself
                 being
                 present
                 ,
                 and
                 accepting
                 ;
                 or
                 when
                 the
                 Superior
                 immediatly
                 gives
                 Seasine
                 to
                 the
                 Vassal
                 ,
                 in
                 these
                 Cases
                 ,
                 the
                 Nottars
                 warrant
                 is
                 sufficiently
                 instructed
                 by
                 the
                 Seasine
                 ,
                 and
                 by
                 the
                 Disposition
                 ,
                 Contract
                 of
                 Alienation
                 ,
                 or
                 Bond
                 :
                 Or
                 when
                 the
                 Seasine
                 is
                 
                   propriis
                   manibus
                   secundum
                   Cartam
                   Conficiendam
                
                 ,
                 if
                 a
                 Charter
                 thereafter
                 made
                 beshown
                 ,
                 as
                 a
                 Seasine
                 
                   propriis
                   manibus
                
                 ,
                 by
                 a
                 Father
                 to
                 his
                 son
                 ,
                 reserving
                 the
                 Fathers
                 Liferent
                 ,
                 was
                 found
                 valid
                 against
                 a
                 second
                 Wises
                 Infeftment
                 ,
                 granted
                 for
                 a
                 competent
                 Tocher
                 ,
                 being
                 adminiculat
                 by
                 a
                 Bond
                 granted
                 by
                 the
                 Father
                 of
                 the
                 same
                 date
                 ,
                 with
                 the
                 Seasine
                 ,
                 obliedging
                 him
                 to
                 warrant
                 the
                 same
                 ,
                 February
                 11.
                 1669.
                 
                 
                   Buchan
                   contra
                   Tait
                
                 yea
                 a
                 Seasine
                 
                   propriis
                   manibus
                
                 by
                 a
                 Superior
                 ,
                 containing
                 Resignation
                 ,
                 accepted
                 by
                 the
                 Superior
                 ,
                 and
                 immediatly
                 Seasine
                 given
                 ,
                 
                   propriis
                   manibus
                
                 was
                 sustained
                 without
                 any
                 warrant
                 ,
                 subscribed
                 by
                 the
                 Superior
                 ,
                 but
                 by
                 the
                 Vassals
                 Disposition
                 ,
                 containing
                 Procuratorie
                 of
                 Resignation
                 ,
                 there
                 being
                 no
                 more
                 solemn
                 Infeftment
                 in
                 competition
                 ,
                 Januarie
                 17.
                 1672.
                 
                 
                   John
                   Young
                   contra
                   Thomson
                
                 .
              
               
                 But
                 as
                 to
                 Seasines
                 
                   propriis
                   manibus
                
                 by
                 Husbands
                 to
                 their
                 Wives
                 in
                 Contemplation
                 of
                 Marriage
                 ,
                 either
                 before
                 Marriage
                 ,
                 where
                 Marriage
                 followed
                 ,
                 or
                 after
                 Marriage
                 ,
                 having
                 no
                 adminicle
                 but
                 the
                 Marriage
                 ;
                 The
                 Lords
                 according
                 to
                 the
                 different
                 Cases
                 ,
                 have
                 sometimes
                 sustained
                 them
                 when
                 they
                 were
                 suitable
                 to
                 the
                 parties
                 ,
                 and
                 not
                 exorbitant
                 ,
                 and
                 where
                 the
                 question
                 was
                 only
                 with
                 the
                 Husbands
                 Heir
                 ,
                 Nov.
                 22.
                 1628.
                 
                 
                   Clappertown
                   contra
                   Hoom.
                   June
                
                 19.
                 1668.
                 
                 Relict
                 of
                 Wallace
                 of
                 
                   Galrigs
                   Contra
                
                 his
                 Heir
                 ,
                 in
                 which
                 case
                 it
                 was
                 instructed
                 ,
                 that
                 about
                 that
                 time
                 the
                 Wife
                 had
                 disponed
                 to
                 her
                 Husband
                 her
                 Joynture
                 by
                 a
                 former
                 Marriage
                 .
                 But
                 such
                 Seasines
                 are
                 easily
                 improven
                 ,
                 if
                 they
                 be
                 not
                 asserted
                 by
                 the
                 Witnesses
                 insert
                 .
                 As
                 in
                 the
                 last
                 case
                 ,
                 the
                 Heir
                 insisting
                 in
                 improbation
                 ,
                 there
                 being
                 four
                 witnesses
                 in
                 the
                 Seasine
                 ,
                 two
                 of
                 them
                 deponed
                 they
                 were
                 not
                 witnesses
                 thereto
                 ,
                 the
                 third
                 remembred
                 not
                 ,
                 the
                 fourth
                 was
                 positive
                 for
                 it
                 ,
                 and
                 the
                 Nottar
                 offered
                 to
                 depone
                 that
                 it
                 was
                 true
                 ;
                 yet
                 having
                 no
                 adminicle
                 ,
                 his
                 oath
                 was
                 not
                 taken
                 ,
                 and
                 the
                 Seasine
                 was
                 improven
                 ;
                 but
                 if
                 there
                 had
                 been
                 an
                 adminicle
                 ,
                 the
                 Nottar
                 and
                 one
                 of
                 the
                 Witnesses
                 being
                 positive
                 ,
                 the
                 Seasine
                 would
                 not
                 have
                 been
                 improven
                 :
                 for
                 where
                 there
                 is
                 a
                 warrant
                 mediat
                 or
                 immediat
                 ,
                 providing
                 a
                 Seasine
                 to
                 be
                 given
                 ,
                 
                   Quid
                   fieri
                   debet
                   facile
                   〈◊〉
                
                 .
                 And
                 therefore
                 the
                 witnesses
                 not
                 remembring
                 ,
                 would
                 hardly
                 improve
                 such
                 Seasines
                 ,
                 unless
                 their
                 Testimony
                 were
                 positive
                 ,
                 giving
                 special
                 circumstances
                 of
                 their
                 remembrance
                 ,
                 as
                 being
                 in
                 such
                 another
                 Country
                 or
                 far
                 distant
                 place
                 at
                 that
                 time
                 ,
                 if
                 the
                 truth
                 of
                 that
                 were
                 otherwayes
                 astructed
                 .
                 But
                 the
                 general
                 denial
                 to
                 be
                 witnesses
                 could
                 import
                 no
                 more
                 but
                 
                   non
                   memini
                
                 :
                 and
                 therefore
                 an
                 adminicle
                 in
                 write
                 ,
                 with
                 the
                 protocol
                 or
                 oath
                 of
                 the
                 Nottar
                 ,
                 if
                 he
                 were
                 alive
                 ,
                 and
                 especially
                 if
                 possession
                 followed
                 for
                 some
                 time
                 :
                 these
                 would
                 stronglier
                 approve
                 ,
                 then
                 the
                 not
                 remembrance
                 
                 or
                 general
                 denyal
                 of
                 the
                 witnesses
                 insert
                 would
                 improve
                 .
                 But
                 this
                 dipping
                 upon
                 a
                 general
                 Question
                 ,
                 
                   de
                   side
                   instrumentorum
                
                 ,
                 we
                 shall
                 say
                 no
                 more
                 of
                 it
                 in
                 this
                 place
                 ,
                 nor
                 of
                 the
                 Admission
                 and
                 Qualification
                 of
                 Nottars
                 ,
                 as
                 to
                 which
                 ,
                 Craig
                 relates
                 the
                 customs
                 of
                 France
                 ,
                 which
                 were
                 not
                 then
                 ,
                 nor
                 have
                 not
                 yet
                 been
                 here
                 allowed
                 ;
                 but
                 certainly
                 more
                 exactness
                 ought
                 to
                 be
                 in
                 the
                 admission
                 of
                 Nottars
                 ,
                 not
                 only
                 as
                 to
                 their
                 skill
                 ,
                 but
                 as
                 to
                 their
                 reputation
                 of
                 Honesty
                 and
                 Fidelity
                 ,
                 and
                 the
                 least
                 want
                 or
                 weakning
                 of
                 these
                 should
                 turn
                 them
                 out
                 .
                 For
                 the
                 Introduction
                 of
                 the
                 Solemnity
                 of
                 the
                 Instruments
                 of
                 Nottars
                 ,
                 was
                 not
                 only
                 because
                 of
                 old
                 few
                 could
                 write
                 ,
                 and
                 the
                 impression
                 of
                 Seals
                 were
                 easily
                 imitat
                 :
                 yea
                 even
                 such
                 rude
                 Subscriptions
                 ,
                 there
                 being
                 some
                 in
                 Justinian's
                 time
                 ,
                 who
                 could
                 so
                 artificially
                 imitat
                 anothers
                 hand
                 write
                 ,
                 that
                 himself
                 could
                 not
                 know
                 it
                 ,
                 or
                 durst
                 swear
                 it
                 was
                 not
                 his
                 write
                 .
                 And
                 therefore
                 he
                 introduced
                 two
                 remeeds
                 ,
                 that
                 private
                 writes
                 should
                 not
                 prove
                 by
                 the
                 Subscription
                 of
                 the
                 party
                 ,
                 unless
                 that
                 there
                 were
                 three
                 subscribing
                 Witnesses
                 ,
                 knowing
                 he
                 Parties
                 Contracters
                 ;
                 or
                 that
                 there
                 were
                 three
                 Witnesses
                 who
                 depone
                 anent
                 the
                 truth
                 of
                 the
                 Deed
                 ,
                 or
                 otherwayes
                 ,
                 that
                 writes
                 were
                 made
                 in
                 publick
                 by
                 a
                 publick
                 person
                 ,
                 which
                 at
                 first
                 was
                 only
                 done
                 Judicially
                 ,
                 but
                 thereafter
                 Extrajudicially
                 by
                 a
                 Nottar-publick
                 ;
                 but
                 our
                 Custom
                 hath
                 returned
                 to
                 private
                 write
                 ,
                 and
                 〈◊〉
                 not
                 the
                 Instruments
                 of
                 Nottars
                 ,
                 but
                 where
                 they
                 are
                 adminiculat
                 by
                 〈◊〉
                 ,
                 〈◊〉
                 in
                 the
                 case
                 where
                 parties
                 cannot
                 write
                 :
                 and
                 then
                 in
                 matters
                 of
                 Importance
                 ,
                 two
                 Nottars
                 and
                 four
                 Witnesses
                 are
                 necessary
                 by
                 special
                 Statute
                 .
                 But
                 this
                 is
                 not
                 extended
                 to
                 seasines
                 ,
                 but
                 only
                 to
                 the
                 subscriptions
                 of
                 Nottars
                 for
                 parties
                 ,
                 February
                 11.
                 1669.
                 
                 
                   Buchan
                   contra
                   Tait
                   ,
                   Julie
                
                 5.
                 
                 〈◊〉
                 .
                 Bishop
                 of
                 
                   Aberdeen
                   contra
                
                 Viscount
                 of
                 Kenmuir
                 .
                 Yet
                 in
                 some
                 cases
                 of
                 small
                 importance
                 ,
                 Instruments
                 of
                 Nottars
                 are
                 probative
                 :
                 and
                 in
                 all
                 cases
                 where
                 witnesses
                 would
                 prove
                 ,
                 it
                 doth
                 much
                 fortifie
                 the
                 same
                 ,
                 that
                 they
                 were
                 Witnesses
                 required
                 ,
                 and
                 Instrument
                 of
                 a
                 Nottar
                 taken
                 thereupon
                 .
                 For
                 then
                 the
                 Instrument
                 of
                 the
                 Nottar
                 ,
                 astructed
                 by
                 the
                 witnesses
                 insert
                 ,
                 make
                 a
                 strong
                 probation
                 .
              
               
                 To
                 return
                 to
                 Seasines
                 
                   propriis
                   manibus
                
                 by
                 Husbands
                 to
                 Wives
                 without
                 warrand
                 or
                 adminicle
                 in
                 write
                 ,
                 they
                 are
                 not
                 generally
                 probative
                 ,
                 except
                 in
                 such
                 cases
                 as
                 have
                 been
                 now
                 exprest
                 ,
                 Hope
                 ,
                 Seasine
                 ,
                 Bell
                 and
                 
                   Morison
                   contra
                   Thomson
                
                 ,
                 Laird
                 of
                 
                   Coldingknows
                   contra
                
                 Dam
                 
                   Helen
                   Hereis
                
                 .
              
               
                 20.
                 
                 But
                 for
                 the
                 further
                 securing
                 of
                 Infeftments
                 and
                 Land-rights
                 ,
                 that
                 excellent
                 Statute
                 which
                 before
                 was
                 attempted
                 ,
                 was
                 at
                 last
                 perfected
                 ,
                 Par.
                 1617.
                 cap.
                 16.
                 whereby
                 all
                 Seasines
                 ,
                 Reversions
                 ,
                 Regresses
                 ,
                 Bonds
                 or
                 Writes
                 for
                 making
                 of
                 Reversions
                 ,
                 and
                 Regresses
                 ,
                 Assignations
                 thereto
                 ,
                 and
                 Discharges
                 thereof
                 ,
                 Renunciations
                 of
                 Wodsets
                 ,
                 and
                 grants
                 of
                 redemption
                 ,
                 not
                 being
                 Registrat
                 in
                 a
                 peculiar
                 Register
                 ,
                 appointed
                 for
                 that
                 end
                 ,
                 or
                 in
                 case
                 of
                 Consigning
                 Renunciations
                 ,
                 and
                 grants
                 of
                 redemption
                 in
                 Process
                 ,
                 within
                 60
                 dayes
                 next
                 after
                 the
                 Decreet
                 ,
                 ordaining
                 the
                 same
                 to
                 be
                 given
                 up
                 to
                 the
                 parties
                 having
                 right
                 thereto
                 ,
                 or
                 at
                 least
                 within
                 60
                 dayes
                 after
                 Seasing
                 taken
                 of
                 the
                 Lands
                 or
                 Rights
                 ,
                 to
                 which
                 the
                 reversions
                 relate
                 .
                 It
                 is
                 declared
                 ,
                 that
                 the
                 saids
                 Seasines
                 and
                 other
                 Writes
                 ,
                 shall
                 make
                 no
                 faith
                 in
                 Judgement
                 by
                 Action
                 or
                 Exception
                 ,
                 in
                 prejudice
                 of
                 a
                 third
                 Party
                 ,
                 who
                 had
                 acquired
                 a
                 perfect
                 and
                 lawful
                 right
                 to
                 the
                 saids
                 Lands
                 and
                 Heritage
                 ,
                 without
                 prejudice
                 to
                 make
                 use
                 of
                 these
                 rights
                 against
                 the
                 granter
                 and
                 his
                 Heirs
                 :
                 But
                 there
                 are
                 excepted
                 Reversions
                 contained
                 in
                 the
                 body
                 of
                 the
                 Infeftment
                 ,
                 and
                 all
                 Seasines
                 ,
                 Reversions
                 ,
                 &c.
                 
                 Of
                 Tenements
                 within
                 Burgh
                 .
              
               
                 21.
                 
                 And
                 to
                 make
                 Land-rights
                 yet
                 more
                 secure
                 ,
                 because
                 the
                 former
                 Act
                 did
                 not
                 require
                 Registration
                 of
                 Instruments
                 of
                 Resignation
                 in
                 the
                 Superiors
                 hands
                 ,
                 adremanentiam
                 ,
                 
                 whereby
                 purchasers
                 were
                 not
                 secure
                 ,
                 but
                 that
                 the
                 Lands
                 acquired
                 by
                 them
                 ,
                 might
                 have
                 been
                 resigned
                 or
                 renounced
                 to
                 the
                 Superior
                 ,
                 whereby
                 their
                 Authors
                 Fie
                 became
                 Extinct
                 ,
                 without
                 necessity
                 of
                 new
                 Infeftment
                 ,
                 being
                 consolidat
                 with
                 the
                 Superiority
                 ,
                 whereby
                 the
                 Superiors
                 Infeftment
                 carryed
                 both
                 Superiority
                 and
                 Property
                 .
                 Therefore
                 ,
                 Instruments
                 of
                 resignation
                 not
                 being
                 Registrat
                 are
                 declared
                 null
                 ,
                 yet
                 with
                 exception
                 of
                 Tenements
                 holding
                 Burgage
                 ,
                 And
                 therefore
                 a
                 Seasine
                 within
                 Burgh
                 was
                 sustained
                 ,
                 though
                 not
                 found
                 in
                 the
                 Towns
                 books
                 ,
                 June
                 30.
                 1668.
                 
                 Mr.
                 
                   Robert
                   Burnet
                   contra
                   Swan
                   ,
                   February
                
                 11.
                 1681.
                 
                 
                   Francis
                   Irwing
                   contra
                   Corsan
                
                 .
              
               
                 Upon
                 Consideration
                 of
                 this
                 Case
                 ,
                 the
                 Lords
                 by
                 act
                 of
                 Sederunt
                 ordained
                 the
                 Burrows
                 ,
                 to
                 take
                 sufficient
                 Caution
                 oftheir
                 Town
                 Clerks
                 present
                 ,
                 and
                 to
                 come
                 to
                 insert
                 in
                 their
                 books
                 ,
                 all
                 Seasines
                 given
                 by
                 them
                 of
                 the
                 Tenements
                 within
                 Burgh
                 and
                 all
                 reversions
                 ,
                 or
                 Bonds
                 for
                 granting
                 reversions
                 ,
                 assignations
                 thereto
                 ,
                 and
                 discharges
                 thereof
                 ,
                 renunciations
                 and
                 grants
                 of
                 redemption
                 ,
                 and
                 that
                 within
                 60.
                 dayes
                 after
                 the
                 giving
                 of
                 Seasine
                 ,
                 or
                 presenting
                 to
                 them
                 of
                 the
                 reversions
                 or
                 others
                 foresaids
                 ,
                 and
                 that
                 under
                 the
                 pain
                 of
                 the
                 damnage
                 of
                 any
                 Party
                 acquiring
                 
                   bona
                   fide
                
                 for
                 onerous
                 Causes
                 by
                 such
                 Latent
                 rights
                 ,
                 though
                 prior
                 ,
                 declaring
                 that
                 they
                 will
                 hold
                 all
                 such
                 Seasines
                 ,
                 reversions
                 ,
                 &c.
                 to
                 be
                 given
                 hereafter
                 ,
                 and
                 not
                 insert
                 in
                 the
                 Towns
                 books
                 in
                 manner
                 foresaid
                 ,
                 to
                 be
                 Latent
                 and
                 Fraudulent
                 ,
                 keeped
                 up
                 of
                 design
                 to
                 insnare
                 lawful
                 purchasers
                 .
                 But
                 there
                 is
                 now
                 an
                 Act
                 of
                 Parliament
                 ,
                 requiring
                 the
                 inserting
                 of
                 Seasines
                 within
                 Burgh
                 ,
                 in
                 the
                 Town-Clerks
                 Books
                 in
                 the
                 same
                 manner
                 ,
                 and
                 under
                 the
                 same
                 certifications
                 as
                 is
                 required
                 to
                 the
                 Registration
                 of
                 Seasines
                 without
                 Burgh
                 .
              
               
                 22.
                 
                 And
                 for
                 the
                 further
                 security
                 of
                 Land-rights
                 ,
                 because
                 Apprysing
                 ,
                 or
                 Adjudication
                 ,
                 with
                 a
                 Charge
                 of
                 Horning
                 thereupon
                 against
                 the
                 Superior
                 ,
                 maketh
                 for
                 some
                 time
                 ,
                 a
                 real
                 right
                 ;
                 Therefore
                 ,
                 an
                 abbreviat
                 of
                 Apprysings
                 contained
                 in
                 the
                 allowance
                 thereof
                 ,
                 written
                 on
                 the
                 back
                 of
                 the
                 same
                 ,
                 and
                 signed
                 by
                 two
                 of
                 the
                 Lords
                 ,
                 was
                 ordained
                 to
                 be
                 Registrat
                 in
                 a
                 particular
                 Register
                 for
                 that
                 purpose
                 ,
                 within
                 60.
                 dayes
                 after
                 the
                 date
                 of
                 the
                 Apprysing
                 ;
                 with
                 certification
                 ,
                 that
                 any
                 other
                 Apprysing
                 ,
                 though
                 posterior
                 in
                 date
                 ,
                 yet
                 first
                 allowed
                 and
                 registrat
                 ,
                 shall
                 be
                 preferred
                 ,
                 Parliament
                 1661.
                 cap.
                 31.
                 which
                 is
                 extended
                 to
                 Adjudications
                 ,
                 Parliament
                 1672.
                 cap.
                 19.
                 
                 But
                 this
                 relates
                 only
                 to
                 the
                 new
                 form
                 of
                 Adjudications
                 then
                 introduced
                 in
                 place
                 of
                 Apprysing
                 .
                 But
                 for
                 the
                 old
                 Adjudications
                 ,
                 upon
                 there
                 nunciations
                 of
                 Heirs
                 or
                 implement
                 of
                 Dispositions
                 ,
                 neither
                 Statute
                 nor
                 Custom
                 have
                 yet
                 cleared
                 ,
                 whether
                 these
                 will
                 be
                 effectual
                 against
                 singular
                 Successors
                 from
                 their
                 Dates
                 ,
                 or
                 from
                 the
                 Charge
                 against
                 the
                 Superior
                 ,
                 or
                 only
                 from
                 the
                 Seasines
                 thereupon
                 ;
                 which
                 ,
                 as
                 all
                 other
                 Seasines
                 ,
                 must
                 be
                 registrat
                 .
                 And
                 if
                 the
                 Lords
                 do
                 sustain
                 these
                 from
                 the
                 Charge
                 ,
                 it
                 will
                 make
                 a
                 defect
                 in
                 the
                 security
                 of
                 Land-rights
                 ,
                 till
                 it
                 be
                 supplied
                 by
                 act
                 of
                 Parliament
                 .
                 And
                 for
                 further
                 security
                 of
                 Land-rights
                 ,
                 because
                 they
                 might
                 be
                 reduced
                 upon
                 Inhibition
                 ,
                 or
                 Interdictions
                 ;
                 Therefore
                 these
                 ,
                 if
                 not
                 registrat
                 ,
                 are
                 also
                 null
                 .
                 And
                 in
                 respect
                 Horning
                 ,
                 continuing
                 unrelaxed
                 year
                 and
                 day
                 after
                 the
                 denunciation
                 ,
                 the
                 Superior
                 hath
                 the
                 Fee
                 ,
                 during
                 the
                 life
                 of
                 the
                 Vassal
                 denunced
                 ,
                 therefore
                 horning
                 ,
                 if
                 not
                 registrat
                 ,
                 is
                 also
                 null
                 ,
                 and
                 the
                 act
                 of
                 Prescription
                 excludes
                 all
                 prior
                 rights
                 ,
                 preceeding
                 40.
                 years
                 ,
                 unless
                 they
                 have
                 obtained
                 Possession
                 ,
                 or
                 done
                 digence
                 therefore
                 by
                 interruptions
                 ,
                 which
                 must
                 be
                 repeated
                 every
                 five
                 years
                 ,
                 or
                 else
                 they
                 are
                 null
                 ,
                 and
                 must
                 also
                 be
                 execute
                 by
                 a
                 Messenger
                 ;
                 so
                 that
                 where
                 before
                 a
                 Citation
                 made
                 interruption
                 ,
                 which
                 continued
                 for
                 forty
                 years
                 ,
                 which
                 might
                 much
                 insecure
                 Purchasers
                 ,
                 they
                 can
                 now
                 last
                 but
                 five
                 years
                 ,
                 in
                 which
                 short
                 time
                 the
                 noise
                 thereof
                 may
                 readily
                 reach
                 purchasers
                 ,
                 so
                 that
                 if
                 purchasers
                 get
                 a
                 progress
                 of
                 Infeftment
                 for
                 fourty
                 years
                 ,
                 he
                 may
                 by
                 the
                 Registers
                 know
                 it
                 
                 there
                 be
                 any
                 real
                 Right
                 that
                 can
                 affect
                 the
                 Fee
                 within
                 that
                 time
                 ,
                 and
                 hath
                 no
                 more
                 to
                 enquire
                 ,
                 but
                 as
                 to
                 interruptions
                 within
                 five
                 years
                 ,
                 which
                 if
                 the
                 Lords
                 appoint
                 to
                 pass
                 only
                 upon
                 Bills
                 ,
                 it
                 may
                 be
                 found
                 at
                 the
                 Signet
                 :
                 So
                 that
                 upon
                 the
                 whole
                 matter
                 ,
                 no
                 Nation
                 hath
                 so
                 much
                 security
                 of
                 irredeemable
                 Land-rights
                 as
                 we
                 have
                 .
                 It
                 is
                 true
                 ,
                 redeemable
                 rights
                 are
                 not
                 so
                 secure
                 ,
                 because
                 they
                 may
                 be
                 evacuat
                 by
                 order
                 of
                 redemption
                 ,
                 which
                 proceed
                 by
                 Instruments
                 of
                 premonition
                 and
                 Consignation
                 ,
                 which
                 require
                 no
                 registration
                 ;
                 and
                 therefore
                 ,
                 purchasers
                 of
                 Appryzings
                 or
                 Adjudications
                 ,
                 during
                 the
                 legal
                 reversion
                 ,
                 are
                 in
                 hazard
                 of
                 any
                 order
                 of
                 Redemption
                 ,
                 or
                 Summonds
                 for
                 Count
                 and
                 Reckoning
                 ;
                 and
                 likewise
                 ,
                 these
                 who
                 purchase
                 Wodsets
                 or
                 Infeftments
                 of
                 property
                 ,
                 or
                 annualrent
                 for
                 security
                 of
                 sums
                 ,
                 run
                 the
                 hazard
                 of
                 satisfaction
                 and
                 payment
                 of
                 these
                 sums
                 by
                 intromission
                 ,
                 or
                 otherways
                 ,
                 wherein
                 there
                 is
                 little
                 inconveniency
                 ;
                 for
                 no
                 man
                 should
                 purchase
                 a
                 redeemable
                 right
                 ,
                 without
                 consent
                 of
                 the
                 reverser
                 ,
                 but
                 upon
                 his
                 hazard
                 ;
                 or
                 if
                 there
                 be
                 any
                 reversion
                 ,
                 reservation
                 ,
                 or
                 real
                 burden
                 in
                 his
                 authors
                 right
                 ,
                 
                   sibi
                   imputet
                
                 ,
                 it
                 is
                 his
                 fault
                 and
                 negligence
                 ,
                 if
                 he
                 did
                 not
                 see
                 it
                 ,
                 and
                 secure
                 himself
                 against
                 it
                 .
              
               
                 The
                 Question
                 may
                 occur
                 here
                 ,
                 if
                 the
                 Keper
                 of
                 the
                 Register
                 of
                 Seasines
                 do
                 according
                 to
                 the
                 Custom
                 ,
                 mark
                 the
                 Seasine
                 Registrat
                 ,
                 and
                 attest
                 the
                 same
                 by
                 his
                 subscription
                 ,
                 and
                 yet
                 by
                 negligence
                 or
                 fraud
                 ,
                 shall
                 not
                 insert
                 it
                 in
                 the
                 Register
                 ;
                 whether
                 in
                 that
                 case
                 a
                 purchaser
                 ,
                 
                   bona
                   fide
                
                 ,
                 for
                 causes
                 onerous
                 ,
                 though
                 Infeft
                 thereafter
                 ,
                 will
                 be
                 excluded
                 by
                 that
                 prior
                 Infeftment
                 ,
                 marked
                 by
                 the
                 Clerk
                 ,
                 not
                 recorded
                 ,
                 though
                 nothing
                 hath
                 been
                 observed
                 in
                 this
                 case
                 :
                 If
                 Seasines
                 marked
                 Registrat
                 ,
                 though
                 not
                 found
                 in
                 the
                 Register
                 ,
                 were
                 found
                 sufficient
                 against
                 singular
                 Successors
                 ,
                 purchasing
                 thereafter
                 ,
                 the
                 designe
                 and
                 tenor
                 of
                 this
                 Statute
                 would
                 be
                 eluded
                 ;
                 for
                 the
                 Statute
                 bears
                 ,
                 
                   if
                   they
                   be
                   not
                   Registrat
                
                 ,
                 (
                 which
                 must
                 import
                 ,
                 there
                 being
                 insert
                 in
                 the
                 Register
                 )
                 they
                 are
                 null
                 ;
                 and
                 therefore
                 ,
                 though
                 the
                 Keeper
                 of
                 the
                 Register
                 hath
                 attested
                 such
                 Seasines
                 to
                 be
                 Registrate
                 ,
                 yet
                 truly
                 they
                 are
                 not
                 Registrat
                 .
                 And
                 no
                 purchaser
                 could
                 be
                 secure
                 by
                 inspection
                 of
                 Registers
                 ,
                 if
                 a
                 false
                 attest
                 of
                 a
                 Clerk
                 could
                 exclude
                 him
                 ,
                 who
                 oftimes
                 is
                 insolvent
                 .
                 But
                 the
                 not
                 inserting
                 of
                 Seasines
                 within
                 Burgh
                 ,
                 in
                 the
                 Towns
                 Books
                 ,
                 doth
                 not
                 annual
                 them
                 ;
                 Seasins
                 within
                 Burgh
                 being
                 a
                 total
                 exception
                 from
                 the
                 whole
                 Act
                 ;
                 for
                 Registration
                 and
                 the
                 Statute
                 being
                 defective
                 in
                 that
                 point
                 ,
                 the
                 Lords
                 did
                 very
                 fitly
                 supply
                 it
                 by
                 these
                 two
                 remeids
                 ;
                 that
                 the
                 Seasins
                 within
                 Burgh
                 ,
                 not
                 being
                 in
                 the
                 Towns
                 Books
                 ,
                 should
                 not
                 be
                 found
                 null
                 ,
                 yet
                 they
                 might
                 be
                 reduced
                 as
                 latent
                 and
                 fraudulent
                 :
                 And
                 if
                 the
                 Town
                 Clerks
                 were
                 put
                 to
                 find
                 Caution
                 for
                 the
                 damage
                 ,
                 real
                 Rights
                 within
                 Burgh
                 would
                 be
                 fully
                 as
                 secure
                 as
                 these
                 without
                 Burgh
                 .
              
               
                 23.
                 
                 Seasines
                 ,
                 as
                 all
                 other
                 Instruments
                 ,
                 must
                 have
                 the
                 attest
                 and
                 subscription
                 of
                 the
                 Nottar
                 ,
                 giver
                 thereof
                 ,
                 bearing
                 the
                 names
                 and
                 designations
                 of
                 the
                 Witnesses
                 insert
                 ,
                 whereof
                 two
                 will
                 be
                 sufficient
                 ,
                 because
                 the
                 Seasine
                 must
                 have
                 a
                 warrand
                 by
                 a
                 subscribed
                 Write
                 ,
                 by
                 the
                 author
                 of
                 the
                 Infeftment
                 ,
                 and
                 so
                 needs
                 not
                 two
                 Nottars
                 ,
                 and
                 consequently
                 requires
                 not
                 four
                 Witnesses
                 ,
                 as
                 other
                 principal
                 Writes
                 of
                 importance
                 ,
                 subscribed
                 by
                 Nottars
                 ,
                 July
                 5.
                 1680.
                 
                 Bishop
                 of
                 
                   Aberdene
                   contra
                
                 Viscount
                 of
                 Kenmure
                 .
                 Neither
                 was
                 a
                 Seasine
                 found
                 void
                 ,
                 because
                 taken
                 in
                 the
                 night
                 ,
                 nothing
                 of
                 latency
                 or
                 fraud
                 being
                 qualified
                 ,
                 but
                 Possession
                 conform
                 ,
                 
                   Margaret
                   Arnot
                
                 and
                 Patton
                 her
                 Spouse
                 contra
                 Mr.
                 
                   Archibald
                   Turner
                
                 .
              
               
                 24.
                 
                 If
                 a
                 Seasine
                 be
                 only
                 extracted
                 out
                 of
                 the
                 Register
                 of
                 Seasines
                 ,
                 it
                 will
                 not
                 be
                 sufficient
                 ,
                 because
                 that
                 Register
                 is
                 only
                 for
                 publication
                 :
                 As
                 also
                 the
                 Register
                 of
                 Hornings
                 and
                 Inhibitions
                 ,
                 and
                 not
                 for
                 conservation
                 ,
                 for
                 the
                 keeper
                 of
                 
                 the
                 Register
                 doth
                 not
                 keep
                 the
                 principal
                 Seasines
                 ,
                 but
                 gives
                 them
                 back
                 marked
                 :
                 But
                 if
                 the
                 principal
                 Seasine
                 marked
                 as
                 Registrat
                 ,
                 be
                 wanting
                 ,
                 if
                 the
                 Nottar
                 who
                 gave
                 it
                 be
                 alive
                 ,
                 he
                 may
                 renew
                 it
                 out
                 of
                 his
                 Protocol
                 ,
                 and
                 the
                 keeper
                 of
                 the
                 Register
                 of
                 seasines
                 may
                 attest
                 it
                 Registrat
                 ,
                 upon
                 the
                 day
                 mentioned
                 in
                 the
                 Register
                 ;
                 and
                 therefore
                 ,
                 the
                 Lords
                 upon
                 supplication
                 ,
                 ordains
                 the
                 keeper
                 of
                 a
                 Register
                 ,
                 so
                 to
                 mark
                 a
                 seasine
                 ,
                 January
                 2.
                 1678.
                 
                 Sir
                 
                   Andrew
                   Ramsay
                
                 Supplicant
                 .
              
               
                 25.
                 
                 But
                 if
                 the
                 Nottar
                 who
                 gave
                 the
                 seasine
                 be
                 dead
                 ,
                 there
                 remains
                 yet
                 this
                 remeid
                 ,
                 that
                 a
                 transumpt
                 may
                 be
                 made
                 upon
                 production
                 of
                 the
                 Protocol
                 and
                 Citation
                 of
                 the
                 Author
                 ,
                 or
                 his
                 Heirs
                 ,
                 or
                 any
                 other
                 party
                 having
                 interest
                 ;
                 which
                 Transumpt
                 is
                 sufficient
                 in
                 place
                 of
                 the
                 principal
                 seasing
                 ,
                 and
                 may
                 bear
                 ,
                 both
                 the
                 Transumpt
                 of
                 the
                 Protocol
                 ,
                 and
                 of
                 that
                 part
                 of
                 the
                 Register
                 ,
                 where
                 the
                 seasine
                 was
                 Registrate
                 .
                 But
                 the
                 Instrument
                 of
                 a
                 Clerk
                 ,
                 containing
                 the
                 Tenor
                 of
                 a
                 seasine
                 will
                 not
                 be
                 sufficient
                 without
                 Citation
                 of
                 the
                 parties
                 .
              
               
                 If
                 both
                 the
                 principal
                 seasine
                 and
                 the
                 protocol
                 be
                 wanting
                 ,
                 the
                 Tenor
                 of
                 the
                 seasine
                 may
                 be
                 proven
                 upon
                 Citation
                 of
                 the
                 same
                 parties
                 ,
                 as
                 in
                 a
                 Transumpt
                 ,
                 if
                 there
                 be
                 sufficient
                 adminicles
                 in
                 Write
                 ,
                 and
                 Witnesses
                 who
                 saw
                 the
                 seasine
                 ,
                 wherein
                 the
                 Extract
                 of
                 the
                 seasine
                 out
                 of
                 the
                 Register
                 is
                 a
                 good
                 Adminicle
                 .
              
               
                 Seasines
                 taken
                 out
                 of
                 the
                 Towns
                 Books
                 ,
                 not
                 by
                 the
                 Town
                 Clerk
                 who
                 gave
                 the
                 seasine
                 ,
                 but
                 by
                 his
                 successor
                 ,
                 will
                 not
                 serve
                 for
                 a
                 principal
                 seasine
                 ;
                 the
                 Towns
                 Book
                 being
                 but
                 the
                 Protocal
                 of
                 the
                 Town
                 Clerk
                 ;
                 and
                 therefore
                 ,
                 either
                 must
                 the
                 Towns
                 Book
                 be
                 produced
                 ,
                 that
                 the
                 Seasine
                 may
                 be
                 transumed
                 ,
                 or
                 Commission
                 granted
                 for
                 inspection
                 ,
                 or
                 collation
                 ,
                 which
                 being
                 returned
                 ,
                 was
                 found
                 to
                 suffice
                 as
                 a
                 Transumpt
                 ,
                 February
                 11.
                 1681.
                 
                 
                   Francis
                   Irving
                   contra
                   Corsan
                
                 .
              
               
                 26.
                 
                 Infeftments
                 do
                 sometimes
                 expresse
                 the
                 meithes
                 or
                 marches
                 of
                 the
                 Lands
                 and
                 Tenements
                 ,
                 which
                 thence
                 is
                 called
                 a
                 bounding
                 Infeftment
                 ,
                 giving
                 right
                 to
                 all
                 within
                 the
                 bounds
                 ,
                 if
                 the
                 giver
                 of
                 the
                 Charter
                 had
                 right
                 ;
                 or
                 if
                 the
                 Vassal
                 have
                 by
                 that
                 Infeftment
                 had
                 peaceable
                 Possession
                 till
                 prescription
                 ;
                 otherways
                 bounding
                 Charters
                 prejudge
                 not
                 ,
                 Par.
                 1592.
                 cap.
                 136.
                 
                 Yet
                 prescription
                 will
                 adject
                 that
                 which
                 is
                 within
                 the
                 bounding
                 to
                 another
                 Tenement
                 ,
                 which
                 will
                 not
                 be
                 elided
                 by
                 possessing
                 the
                 major
                 part
                 of
                 that
                 Tenement
                 :
                 But
                 no
                 prescription
                 can
                 give
                 right
                 to
                 what
                 is
                 without
                 the
                 bounding
                 ,
                 as
                 part
                 and
                 pertinent
                 ,
                 Novemb.
                 14.
                 1671.
                 
                 
                   Walter
                   Young
                   contra
                
                 Bailzie
                 Carmichael
                 .
                 But
                 where
                 there
                 is
                 no
                 bounding
                 ,
                 possession
                 clears
                 the
                 parts
                 and
                 pertinents
                 of
                 every
                 Tenement
                 ;
                 and
                 in
                 competition
                 ,
                 where
                 any
                 ground
                 is
                 claimed
                 as
                 part
                 and
                 pertinent
                 of
                 several
                 Tenements
                 ,
                 witnesses
                 are
                 allowed
                 to
                 either
                 party
                 ,
                 for
                 proving
                 the
                 Possession
                 and
                 interruptions
                 ,
                 unless
                 it
                 be
                 alledged
                 that
                 that
                 ground
                 is
                 
                   separ
                   〈◊〉
                   tenementum
                
                 ,
                 having
                 a
                 distinct
                 Infeftment
                 of
                 it self
                 ,
                 which
                 will
                 exclude
                 the
                 alledgeance
                 of
                 part
                 and
                 pertinent
                 ,
                 if
                 the
                 several
                 Infeftments
                 be
                 not
                 excluded
                 by
                 prescription
                 ,
                 as
                 was
                 found
                 in
                 the
                 said
                 case
                 ,
                 
                   Young
                   contra
                   Carmichael
                
                 .
                 But
                 though
                 the
                 one
                 Infeftment
                 contain
                 the
                 ground
                 in
                 question
                 ,
                 
                   per
                   expressum
                
                 ,
                 in
                 the
                 enumeration
                 of
                 the
                 parts
                 of
                 a
                 Barronry
                 or
                 Tenement
                 :
                 And
                 though
                 the
                 other
                 Infeftment
                 contain
                 no
                 enumeration
                 ,
                 or
                 in
                 the
                 enumeration
                 ,
                 mention
                 not
                 the
                 ground
                 in
                 question
                 ,
                 but
                 the
                 same
                 is
                 alledged
                 to
                 be
                 part
                 and
                 pertinent
                 comprehended
                 under
                 the
                 common
                 Designation
                 ,
                 or
                 under
                 some
                 of
                 the
                 parts
                 enumerat
                 ,
                 if
                 both
                 flow
                 from
                 one
                 common
                 author
                 ,
                 as
                 original
                 Rights
                 ,
                 the
                 first
                 is
                 preferable
                 ,
                 otherways
                 ,
                 
                 both
                 will
                 be
                 allowed
                 Witnesses
                 for
                 proving
                 Possession
                 and
                 interruption
                 ,
                 &
                 
                   in
                   paricasu
                   aut
                   dubio
                
                 ,
                 the
                 express
                 Infeftment
                 will
                 be
                 preferable
                 .
              
               
                 27.
                 
                 But
                 the
                 main
                 question
                 is
                 here
                 concerning
                 Infeftments
                 holden
                 of
                 Subjects
                 ,
                 not
                 being
                 past
                 upon
                 the
                 granters
                 resignation
                 ,
                 by
                 the
                 Superior
                 ,
                 or
                 the
                 Superiors
                 Confirmation
                 ,
                 or
                 by
                 his
                 obedience
                 upon
                 Decreets
                 of
                 Appryzing
                 or
                 Adjudications
                 ,
                 which
                 therefore
                 are
                 called
                 base
                 Infeftments
                 ,
                 and
                 private
                 Infeftments
                 ,
                 because
                 they
                 proceed
                 in
                 a
                 more
                 private
                 and
                 ignoble
                 way
                 ,
                 being
                 done
                 by
                 the
                 granter
                 and
                 receiver
                 thereof
                 ,
                 without
                 the
                 interposition
                 of
                 the
                 Superiour
                 .
              
               
                 The
                 doubt
                 is
                 ,
                 whether
                 such
                 be
                 compleat
                 real
                 rights
                 ,
                 carrying
                 the
                 property
                 of
                 the
                 ground
                 by
                 the
                 Charter
                 and
                 Seasine
                 only
                 ,
                 or
                 not
                 until
                 possession
                 of
                 the
                 Hereditament
                 be
                 obtained
                 :
                 The
                 ground
                 of
                 this
                 distinction
                 betwixt
                 Infeftments
                 ,
                 and
                 of
                 the
                 doubt
                 as
                 to
                 base
                 Infeftments
                 ,
                 is
                 from
                 the
                 Act
                 of
                 Parliament
                 ,
                 1540.
                 cap.
                 105.
                 
                 Whereby
                 it
                 is
                 clear
                 ,
                 First
                 ,
                 Before
                 that
                 Act
                 ,
                 Infeftments
                 holden
                 of
                 the
                 Disponer
                 ,
                 without
                 Resignation
                 or
                 Confirmation
                 ,
                 were
                 valid
                 without
                 possession
                 ,
                 and
                 preferable
                 to
                 all
                 posterior
                 Infeftments
                 ,
                 though
                 proceeding
                 upon
                 Resignation
                 ,
                 or
                 by
                 Confirmation
                 ,
                 for
                 it
                 is
                 for
                 remeid
                 of
                 this
                 ,
                 that
                 this
                 Statute
                 is
                 enacted
                 .
              
               
                 Secondly
                 ,
                 By
                 the
                 Letter
                 of
                 this
                 Statute
                 ,
                 posterior
                 Infeftments
                 upon
                 Resignation
                 ,
                 or
                 by
                 Confirmation
                 ,
                 are
                 only
                 preferred
                 to
                 prior
                 private
                 Infeftments
                 ,
                 when
                 the
                 obtainer
                 of
                 the
                 posterior
                 Infeftment
                 ,
                 brooks
                 the
                 Lands
                 peaceably
                 ,
                 by
                 Labouring
                 ,
                 Manuring
                 ,
                 and
                 uptaking
                 of
                 the
                 Mails
                 ,
                 Profits
                 and
                 Duties
                 ,
                 and
                 so
                 are
                 known
                 Heretable
                 Possessors
                 thereof
                 ,
                 year
                 and
                 day
                 .
                 And
                 when
                 such
                 Infeftments
                 are
                 for
                 Causes
                 onerous
                 ,
                 or
                 do
                 contain
                 or
                 import
                 warrandice
                 ;
                 neither
                 is
                 there
                 any
                 thing
                 mentioned
                 in
                 the
                 Statute
                 ,
                 as
                 to
                 the
                 competition
                 of
                 Infeftments
                 ,
                 upon
                 Appryzing
                 or
                 Adjudication
                 ,
                 with
                 prior
                 base
                 Infeftments
                 ,
                 nor
                 of
                 the
                 competition
                 of
                 one
                 base
                 Infeftment
                 with
                 another
                 :
                 Yet
                 Custome
                 since
                 that
                 Statute
                 ,
                 hath
                 cleared
                 and
                 determined
                 the
                 competition
                 of
                 publick
                 and
                 base
                 Infeftments
                 ,
                 and
                 hath
                 restricted
                 this
                 Statute
                 in
                 some
                 points
                 ,
                 and
                 extended
                 it
                 in
                 others
                 .
              
               
                 First
                 ,
                 Custom
                 hath
                 preferred
                 all
                 publick
                 Infeftments
                 upon
                 Resignation
                 or
                 Confirmation
                 ,
                 or
                 upon
                 Appryzing
                 or
                 Adjudication
                 to
                 base
                 Infeftments
                 ,
                 though
                 prior
                 ,
                 if
                 the
                 base
                 Infeftment
                 hath
                 lain
                 out
                 of
                 all
                 kind
                 of
                 possession
                 ;
                 and
                 likewise
                 ,
                 hath
                 preferred
                 posterior
                 base
                 Infeftments
                 ,
                 first
                 clede
                 with
                 Possession
                 to
                 prior
                 base
                 Infeftments
                 without
                 possession
                 ,
                 especially
                 in
                 consideration
                 ,
                 that
                 such
                 base
                 Infeftments
                 are
                 fraudulent
                 or
                 simulat
                 ,
                 
                   retenta
                   possessione
                
                 ;
                 for
                 the
                 retaining
                 of
                 Possession
                 is
                 a
                 pregnant
                 ground
                 of
                 simulation
                 ,
                 not
                 only
                 of
                 Infeftments
                 ,
                 but
                 many
                 other
                 Rights
                 ,
                 as
                 when
                 Moveables
                 are
                 disponed
                 and
                 delivered
                 ,
                 but
                 presently
                 taken
                 back
                 ,
                 and
                 the
                 natural
                 Possession
                 continued
                 in
                 the
                 Disponer
                 ,
                 though
                 Instruments
                 be
                 taken
                 upon
                 the
                 delivery
                 ;
                 yet
                 other
                 Dispositions
                 or
                 legal
                 Diligences
                 ,
                 attaining
                 and
                 retaining
                 Possession
                 are
                 preferable
                 ,
                 because
                 the
                 other
                 Dispositions
                 are
                 presumed
                 fraudulent
                 and
                 simulat
                 .
                 And
                 gifts
                 of
                 single
                 Escheat
                 or
                 Liferent
                 Escheat
                 ,
                 are
                 presumed
                 to
                 be
                 simulat
                 ,
                 if
                 the
                 rebel
                 or
                 his
                 conjunct
                 and
                 confident
                 persons
                 ,
                 be
                 long
                 suffered
                 to
                 retain
                 the
                 Possession
                 ;
                 and
                 therefore
                 ,
                 base
                 Infeftments
                 ,
                 
                   retenta
                   possessione
                
                 ,
                 are
                 also
                 presumed
                 fraudulent
                 and
                 simulat
                 ,
                 and
                 that
                 not
                 only
                 
                   presumptione
                   juris
                
                 ,
                 by
                 this
                 and
                 other
                 Statutes
                 ;
                 but
                 
                   presumptione
                   juris
                   &
                   de
                   jure
                
                 ,
                 admitting
                 no
                 contrary
                 probation
                 :
                 For
                 certainly
                 ,
                 base
                 Infeftments
                 ,
                 may
                 be
                 ,
                 and
                 oftentimes
                 have
                 been
                 without
                 simulation
                 ,
                 and
                 for
                 onerous
                 causes
                 ;
                 and
                 yet
                 these
                 have
                 never
                 been
                 sustained
                 or
                 admitted
                 to
                 probation
                 ,
                 
                 to
                 validat
                 such
                 base
                 Infeftments
                 :
                 And
                 albeit
                 long
                 retention
                 of
                 Possession
                 may
                 raise
                 
                   presumptionem
                   hominis
                
                 ,
                 that
                 publick
                 Infeftments
                 are
                 simulat
                 or
                 without
                 cause
                 onerous
                 ,
                 yet
                 that
                 presumption
                 hath
                 not
                 been
                 owned
                 by
                 Law.
                 
              
               
                 Secondly
                 ,
                 Custom
                 hath
                 preferred
                 posterior
                 base
                 Infeftments
                 ,
                 attaining
                 possession
                 or
                 using
                 diligence
                 to
                 attain
                 it
                 ,
                 to
                 prior
                 base
                 Infeftments
                 ,
                 not
                 attaining
                 Possesion
                 ,
                 nor
                 using
                 diligence
                 to
                 attain
                 it
                 :
                 And
                 albeit
                 the
                 superveening
                 Statute
                 for
                 Registration
                 of
                 Seasines
                 be
                 designed
                 for
                 publication
                 thereof
                 ,
                 that
                 purchasers
                 thereafter
                 may
                 not
                 be
                 insnared
                 or
                 disappointed
                 ,
                 whereby
                 it
                 might
                 seem
                 that
                 the
                 difference
                 betwixt
                 privat
                 or
                 base
                 Infeftments
                 ,
                 and
                 publick
                 Infeftments
                 ,
                 might
                 have
                 been
                 laid
                 aside
                 ,
                 since
                 the
                 Act
                 for
                 Registration
                 of
                 Seasines
                 ,
                 whereby
                 the
                 uncertainty
                 of
                 real
                 Rights
                 ,
                 by
                 proving
                 base
                 Infeftments
                 ,
                 cled
                 with
                 Possession
                 by
                 Witnesses
                 (
                 wherein
                 our
                 Law
                 is
                 so
                 justly
                 Jealous
                 and
                 Cautious
                 ,
                 that
                 they
                 are
                 not
                 admitted
                 in
                 cases
                 where
                 Write
                 uses
                 to
                 be
                 adhibit
                 )
                 might
                 be
                 avoided
                 :
                 Yet
                 the
                 preserence
                 of
                 publick
                 Infeftments
                 ,
                 to
                 prior
                 base
                 Infeftments
                 ,
                 not
                 cled
                 with
                 Possession
                 ,
                 being
                 fixed
                 by
                 Custom
                 from
                 this
                 Statute
                 ,
                 before
                 the
                 Act
                 for
                 Registration
                 of
                 Seasines
                 ,
                 by
                 the
                 space
                 of
                 threescore
                 seventeen
                 years
                 ,
                 hath
                 been
                 still
                 continued
                 .
                 And
                 such
                 Infeftments
                 as
                 are
                 without
                 consent
                 of
                 the
                 Superiour
                 or
                 order
                 of
                 Law
                 ,
                 have
                 still
                 retained
                 the
                 name
                 and
                 nature
                 of
                 base
                 Infeftments
                 ;
                 and
                 albeit
                 the
                 alledgeance
                 useth
                 sometimes
                 to
                 be
                 proponed
                 against
                 base
                 Infeftments
                 ,
                 that
                 they
                 are
                 null
                 ,
                 not
                 being
                 cled
                 with
                 Possession
                 ,
                 yet
                 it
                 is
                 no
                 simple
                 nullity
                 ,
                 but
                 only
                 a
                 preference
                 of
                 a
                 more
                 solemn
                 right
                 ,
                 for
                 pursuits
                 for
                 Mails
                 and
                 Duties
                 ,
                 Removings
                 ,
                 yea
                 ,
                 and
                 Reductions
                 are
                 sustained
                 thereupon
                 ,
                 and
                 will
                 not
                 be
                 excluded
                 upon
                 pretence
                 of
                 want
                 of
                 Possession
                 ,
                 as
                 thereby
                 being
                 null
                 ,
                 though
                 they
                 had
                 lain
                 long
                 out
                 of
                 Possession
                 .
                 So
                 a
                 base
                 Infeftment
                 without
                 Possession
                 ,
                 was
                 found
                 a
                 sufficient
                 Title
                 in
                 a
                 Reduction
                 to
                 inforce
                 production
                 of
                 all
                 other
                 Infeftments
                 ,
                 base
                 or
                 publick
                 ,
                 albeit
                 the
                 Superiour
                 did
                 not
                 concur
                 ,
                 Spots
                 .
                 Kirk-men
                 ,
                 
                   Dowglas
                   contra
                
                 the
                 Earl
                 of
                 Home
                 :
                 And
                 such
                 Infeftments
                 do
                 always
                 exclude
                 posterior
                 Arrestments
                 :
                 They
                 do
                 also
                 exclude
                 the
                 Terce
                 of
                 the
                 granters
                 Relict
                 ,
                 January
                 27.
                 1669.
                 
                 Bell
                 of
                 
                   Belford
                   contra
                
                 Lady
                 Rutherford
                 .
              
               
                 But
                 base
                 Infeftments
                 do
                 not
                 exclude
                 the
                 Liferent
                 Escheat
                 of
                 their
                 authour
                 ,
                 unless
                 they
                 attain
                 Possession
                 
                   in
                   cursu
                   rebellionis
                   ,
                   March
                
                 19.
                 1633.
                 
                 Laird
                 of
                 
                   Rentoun
                   contra
                
                 Laird
                 of
                 
                   Blackiter
                   .
                   February
                
                 21.
                 1667.
                 
                 
                   Robert
                   Milne
                   contra
                   Clerkson
                
                 .
              
               
                 Where
                 there
                 is
                 no
                 further
                 ground
                 of
                 Simulation
                 then
                 the
                 want
                 of
                 Possession
                 ,
                 very
                 little
                 Possession
                 or
                 Diligence
                 ,
                 for
                 Possession
                 will
                 prefer
                 base
                 Infeftments
                 to
                 Posterior
                 publick
                 Infeftments
                 ,
                 or
                 to
                 posterior
                 base
                 Infeftments
                 ,
                 cled
                 with
                 Possession
                 ;
                 as
                 the
                 lifting
                 of
                 one
                 Terms
                 Rent
                 did
                 prefer
                 a
                 base
                 Infeftment
                 to
                 a
                 posterior
                 publick
                 Infeftment
                 cled
                 with
                 many
                 years
                 Possession
                 ,
                 Hope
                 ,
                 alienation
                 ,
                 
                   Hamiltoun
                   contra
                   Mcadam
                
                 .
                 And
                 the
                 payment
                 of
                 a
                 small
                 part
                 of
                 Annualrent
                 ,
                 far
                 within
                 a
                 Terms
                 Annual
                 ,
                 was
                 sustained
                 to
                 prefer
                 a
                 base
                 Infeftment
                 of
                 Annualrent
                 ,
                 and
                 it
                 was
                 also
                 preferred
                 ,
                 because
                 there
                 was
                 a
                 Decreet
                 of
                 Poynding
                 of
                 the
                 Ground
                 ,
                 though
                 not
                 put
                 to
                 Execution
                 ,
                 February
                 26.
                 and
                 27.
                 1662.
                 
                 Creditors
                 of
                 Kinglassie
                 competing
                 .
                 And
                 a
                 citation
                 for
                 attaining
                 Possession
                 was
                 found
                 sufficient
                 ,
                 February
                 13.
                 1624.
                 
                 
                   Corse
                   contra
                   July
                
                 2.
                 1625.
                 
                 
                   Raploch
                   contra
                
                 Tenents
                 of
                 
                   Lethem
                   .
                   June
                
                 26.
                 1662.
                 
                 
                   Wilson
                   contra
                   Thomson
                   .
                   January
                
                 24.
                 1679.
                 
                 
                   Hamiltoun
                   contra
                   Seatoun
                
                 .
                 Yea
                 ,
                 a
                 base
                 Infeftment
                 of
                 Annualrent
                 was
                 preferred
                 to
                 a
                 posterior
                 base
                 Infeftment
                 of
                 property
                 ,
                 which
                 interveened
                 before
                 the
                 first
                 Term
                 ,
                 at
                 which
                 the
                 Annualrent
                 was
                 payable
                 ,
                 and
                 cled
                 with
                 Possession
                 before
                 that
                 Term
                 ;
                 so
                 that
                 the
                 Annualrenter
                 did
                 not
                 lye
                 out
                 of
                 Possession
                 ,
                 but
                 could
                 attain
                 none
                 ,
                 July
                 26.
                 1676.
                 
                 Captain
                 
                   Alison
                   contra
                   Bailzie
                   Carmichael
                
                 .
                 
                 And
                 an
                 Infeftment
                 of
                 Annualrent
                 being
                 out
                 of
                 discontiguous
                 Lands
                 in
                 several
                 Shires
                 ,
                 was
                 preferred
                 as
                 to
                 both
                 Tenements
                 ,
                 by
                 getting
                 payment
                 of
                 Annualrents
                 from
                 the
                 Heretor
                 or
                 Tenents
                 ,
                 of
                 either
                 Tenement
                 ,
                 November
                 6.
                 1673.
                 
                 Mr.
                 
                   Alexander
                   Miln
                   contra
                
                 Mr.
                 
                   Thomas
                   Hay
                
                 .
                 And
                 Possession
                 by
                 an
                 Infeftment
                 for
                 Corroboration
                 of
                 an
                 Annualrent
                 ,
                 did
                 preferr
                 the
                 principal
                 Infeftment
                 of
                 Annualrent
                 ,
                 having
                 no
                 other
                 Possession
                 ,
                 July
                 9.
                 1668.
                 
                 
                   Alexander
                   contra
                   〈◊〉
                
                 .
                 And
                 an
                 Infeftment
                 of
                 principal
                 Lands
                 ,
                 and
                 Warrandice
                 Lands
                 ,
                 being
                 cled
                 with
                 Possession
                 of
                 the
                 principal
                 Lands
                 ,
                 these
                 being
                 evicted
                 ,
                 was
                 found
                 to
                 make
                 the
                 Infeftment
                 of
                 the
                 Warrandice
                 Lands
                 effectual
                 from
                 its
                 date
                 ,
                 and
                 preferred
                 to
                 a
                 posterior
                 publick
                 Infeftment
                 of
                 the
                 Warrandice
                 Lands
                 ,
                 though
                 cled
                 with
                 long
                 Possession
                 ,
                 January
                 9.
                 1666.
                 
                 
                   Elizabeth
                   Brown
                   contra
                   John
                   Scot.
                
                 Yea
                 ,
                 base
                 Infeftments
                 to
                 Wivesupon
                 their
                 Contracts
                 of
                 marrage
                 ,
                 〈◊〉
                 preferre
                 to
                 all
                 posterior
                 Infeftments
                 ,
                 and
                 the
                 Husbands
                 Possession
                 is
                 accounted
                 the
                 Wives
                 Possession
                 ,
                 though
                 he
                 be
                 common
                 author
                 to
                 both
                 ,
                 November
                 23.
                 1664.
                 
                 
                   Elizabeth
                   Nisbet
                   contra
                   Patrick
                   Murray
                
                 .
                 And
                 though
                 the
                 Husband
                 did
                 not
                 〈◊〉
                 himself
                 ,
                 but
                 Wodsetters
                 deriving
                 right
                 from
                 him
                 ,
                 June
                 18.
                 1667.
                 
                 Lady
                 
                   〈◊〉
                   contra
                
                 Sir
                 
                   John
                   Strachan
                
                 .
                 And
                 where
                 the
                 Husbands
                 Mother
                 did
                 〈◊〉
                 by
                 a
                 Liferent
                 flowing
                 from
                 the
                 Husbands
                 Father
                 ,
                 to
                 who
                 〈◊〉
                 he
                 was
                 Heir
                 ,
                 it
                 was
                 found
                 sufficient
                 to
                 cloath
                 his
                 Wifes
                 Infeftment
                 with
                 Possession
                 ,
                 February
                 21.
                 1672.
                 
                 Mr.
                 
                   James
                   Reid
                   contra
                
                 Countess
                 of
                 Dundee
                 .
              
               
                 But
                 a
                 base
                 Infeftment
                 of
                 a
                 Wodsett
                 ,
                 with
                 a
                 back-tack
                 to
                 the
                 granter
                 ,
                 is
                 not
                 held
                 cled
                 with
                 Possession
                 by
                 the
                 granters
                 Possession
                 as
                 Tacks-man
                 ,
                 till
                 some
                 further
                 possession
                 be
                 attained
                 .
              
               
                 Where
                 there
                 is
                 any
                 further
                 ground
                 of
                 suspition
                 or
                 simulation
                 ,
                 there
                 must
                 be
                 a
                 clear
                 possession
                 ,
                 as
                 a
                 base
                 Infeftment
                 by
                 Fathers
                 to
                 their
                 Children
                 ,
                 was
                 not
                 sustained
                 by
                 the
                 Fathers
                 possession
                 ,
                 whose
                 Liferent
                 was
                 reserved
                 therein
                 ,
                 June
                 26.
                 1634.
                 
                 
                   Dury
                   contra
                   Bruce
                
                 .
                 But
                 a
                 posterior
                 base
                 Infeftment
                 to
                 the
                 Wife
                 was
                 preferred
                 in
                 this
                 case
                 ,
                 as
                 being
                 cled
                 with
                 the
                 Husbands
                 possession
                 ,
                 though
                 common
                 author
                 to
                 both
                 the
                 Son
                 and
                 Wife
                 .
                 The
                 like
                 of
                 a
                 base
                 Infeftment
                 granted
                 by
                 a
                 Goodsire
                 to
                 his
                 Oy
                 ,
                 reserving
                 the
                 Goodsires
                 Liferent
                 ,
                 July
                 3.
                 1624.
                 
                 Earl
                 of
                 
                   Annandale
                   contra
                   Johnstoun
                
                 .
                 And
                 an
                 Infeftment
                 by
                 a
                 Father
                 to
                 his
                 Son
                 ,
                 was
                 not
                 found
                 cled
                 with
                 possession
                 by
                 the
                 Fathers
                 possession
                 ,
                 though
                 he
                 had
                 a
                 Factory
                 from
                 the
                 Son
                 ;
                 but
                 it
                 was
                 not
                 alledged
                 that
                 the
                 Father
                 had
                 granted
                 Discharges
                 ,
                 expresly
                 relating
                 to
                 the
                 Factory
                 ,
                 July
                 10.
                 1669.
                 
                 
                   Gardner
                   contra
                   Colvil
                
                 .
                 Yet
                 in
                 the
                 competition
                 of
                 two
                 base
                 Infeftments
                 ,
                 the
                 former
                 being
                 granted
                 to
                 a
                 stranger
                 for
                 relief
                 of
                 Caution
                 ,
                 and
                 the
                 latter
                 granted
                 to
                 a
                 Son
                 and
                 appearand
                 Heir
                 for
                 relief
                 of
                 his
                 Caution
                 ,
                 exceeding
                 the
                 value
                 of
                 the
                 Lands
                 ,
                 the
                 Sons
                 base
                 Infeftment
                 ,
                 though
                 posterior
                 ,
                 having
                 first
                 attained
                 possession
                 ,
                 and
                 being
                 without
                 all
                 suspition
                 of
                 Simulation
                 ,
                 was
                 preferred
                 .
                 And
                 it
                 was
                 not
                 found
                 ,
                 that
                 Infeftments
                 for
                 relief
                 ,
                 were
                 in
                 the
                 same
                 case
                 with
                 Warrandice
                 Lands
                 ,
                 where
                 the
                 possession
                 of
                 the
                 principal
                 Lands
                 is
                 
                   fictione
                   juris
                
                 ,
                 a
                 possession
                 of
                 the
                 Warrandice
                 Lands
                 ;
                 These
                 Infeftments
                 being
                 less
                 subject
                 to
                 fraud
                 or
                 uncertainty
                 ,
                 then
                 Infeftments
                 for
                 relief
                 ,
                 which
                 relate
                 to
                 personal
                 debts
                 ,
                 and
                 oftimes
                 generally
                 to
                 all
                 debts
                 or
                 Cautionries
                 contracted
                 or
                 to
                 be
                 contracted
                 ,
                 which
                 debts
                 may
                 be
                 retired
                 and
                 keeped
                 up
                 ,
                 and
                 made
                 use
                 of
                 by
                 the
                 Infeftment
                 for
                 relief
                 ,
                 June
                 26.
                 1677.
                 
                 Mr.
                 
                   John
                   Inglis
                   contra
                
                 Tennents
                 of
                 Eastbarns
                 .
              
               
                 Infeftments
                 base
                 to
                 Wives
                 ,
                 not
                 being
                 upon
                 their
                 Contracts
                 of
                 Marriage
                 ,
                 or
                 in
                 place
                 thereof
                 ,
                 are
                 not
                 holden
                 as
                 cled
                 with
                 Possession
                 by
                 the
                 Husbands
                 Possession
                 .
              
               
               
                 28.
                 
                 Infeftments
                 by
                 Confirmation
                 ,
                 do
                 not
                 only
                 require
                 a
                 Charter
                 from
                 the
                 Disponer
                 ,
                 bearing
                 the
                 Lands
                 to
                 be
                 holden
                 of
                 the
                 Superiour
                 ,
                 and
                 Seasine
                 thereupon
                 ,
                 but
                 require
                 also
                 the
                 Superiours
                 Confirmation
                 ,
                 till
                 which
                 it
                 is
                 no
                 real
                 Right
                 ,
                 but
                 null
                 ;
                 but
                 whensoever
                 the
                 Confirmation
                 is
                 added
                 ,
                 the
                 Right
                 becomes
                 valid
                 from
                 the
                 date
                 of
                 the
                 Infeftment
                 Confirmed
                 ,
                 as
                 to
                 the
                 right
                 of
                 property
                 ,
                 and
                 as
                 to
                 the
                 Superiours
                 Casualities
                 ;
                 and
                 therefore
                 ,
                 an
                 Infeftment
                 ,
                 ase
                 ,
                 not
                 confirmed
                 ,
                 was
                 found
                 null
                 by
                 exception
                 ,
                 though
                 cled
                 with
                 some
                 years
                 possession
                 ,
                 December
                 4.
                 1623.
                 
                 
                   Patton
                   contra
                   Stuart
                
                 ,
                 and
                 found
                 null
                 ,
                 though
                 the
                 Confirmation
                 was
                 past
                 the
                 Privy
                 Seal
                 ,
                 Hope
                 ,
                 Confirmation
                 ,
                 
                   Hunter
                   contra
                   Dalgleish
                
                 .
                 And
                 also
                 found
                 null
                 in
                 an
                 Annualrent
                 ,
                 holden
                 from
                 the
                 Disponer
                 ,
                 not
                 Confirmed
                 ,
                 Hope
                 ,
                 Confirmation
                 ,
                 Lord
                 
                   Balmerino
                   contra
                   Coatfield
                
                 .
                 But
                 if
                 there
                 were
                 any
                 mid
                 impediment
                 betwixt
                 the
                 Charter
                 Confirmed
                 ,
                 and
                 the
                 Confirmation
                 ;
                 it
                 excludeth
                 the
                 Confirmation
                 and
                 whole
                 right
                 ,
                 as
                 an
                 Appryzing
                 and
                 Infeftment
                 .
                 But
                 Confirmation
                 of
                 a
                 right
                 ,
                 not
                 bearing
                 to
                 be
                 holden
                 of
                 the
                 Superiour
                 ,
                 but
                 of
                 the
                 Vastal
                 ,
                 makes
                 it
                 not
                 a
                 publick
                 Infeftment
                 ,
                 nor
                 takes
                 it
                 away
                 the
                 Superiours
                 ordinary
                 Casualities
                 ,
                 as
                 Ward
                 ,
                 but
                 only
                 Recognition
                 and
                 Forefaulture
                 ,
                 Hope
                 ,
                 Confirmation
                 ,
                 Lady
                 
                   Cathcart
                   contra
                
                 Vassals
                 of
                 
                   Cathcart
                   ,
                   November
                
                 17.
                 1627.
                 
                 Laird
                 of
                 
                   Clackmannan
                   contra
                   Balnamoon
                
                 .
                 Hence
                 it
                 is
                 ,
                 that
                 because
                 Confirmation
                 constitutes
                 Rights
                 holden
                 of
                 the
                 Superiour
                 ,
                 that
                 the
                 first
                 Confirmation
                 makes
                 the
                 first
                 Right
                 ,
                 though
                 it
                 confirm
                 a
                 posterior
                 Infeftment
                 from
                 the
                 Vassal
                 ,
                 as
                 is
                 clearly
                 determined
                 in
                 the
                 case
                 of
                 double
                 Confirmations
                 holden
                 of
                 the
                 King
                 ,
                 Par.
                 1578.
                 cap.
                 66.
                 which
                 is
                 not
                 introduced
                 ,
                 but
                 declared
                 by
                 that
                 Act
                 ,
                 and
                 holdeth
                 alike
                 in
                 other
                 Confirmations
                 .
              
               
                 It
                 doth
                 of
                 times
                 fall
                 to
                 be
                 doubtful
                 ,
                 whether
                 a
                 Confirmation
                 makes
                 an
                 Infeftment
                 publick
                 or
                 not
                 ,
                 when
                 Seasine
                 is
                 taken
                 upon
                 a
                 precept
                 of
                 Seasine
                 in
                 a
                 Disposition
                 ?
                 Which
                 Disposition
                 contains
                 obliegments
                 for
                 Infeftment
                 ,
                 
                   de
                   se
                   &
                   ase
                
                 ,
                 by
                 Confirmation
                 .
                 But
                 the
                 precept
                 of
                 Seasine
                 relates
                 not
                 specially
                 to
                 either
                 obliegement
                 ,
                 and
                 Seasine
                 is
                 taken
                 thereupon
                 ,
                 and
                 is
                 afterward
                 confirmed
                 :
                 The
                 question
                 comes
                 ,
                 whether
                 this
                 be
                 only
                 a
                 Confirmation
                 of
                 a
                 base
                 Infeftment
                 ,
                 to
                 exclude
                 Forefaulture
                 or
                 Recognition
                 ,
                 or
                 if
                 it
                 doth
                 make
                 the
                 Infeftment
                 publick
                 ?
                 it
                 is
                 generally
                 constructed
                 as
                 a
                 publick
                 Infeftment
                 ,
                 as
                 was
                 found
                 ,
                 July
                 5.
                 1680.
                 
                 Bishop
                 of
                 
                   Aberdeen
                   contra
                
                 Viscount
                 of
                 Kenmure
                 .
              
               
                 29.
                 
                 Infeftments
                 upon
                 Appryzing
                 or
                 Adjudication
                 ,
                 when
                 formally
                 perfected
                 ,
                 do
                 require
                 Charters
                 to
                 be
                 granted
                 by
                 the
                 Superiours
                 of
                 the
                 Appryzed
                 Lands
                 ,
                 or
                 other
                 real
                 Rights
                 ,
                 the
                 Tenor
                 whereof
                 is
                 already
                 set
                 down
                 in
                 this
                 Title
                 ,
                 and
                 Precepts
                 and
                 Seasines
                 thereupon
                 ,
                 which
                 have
                 little
                 peculiar
                 differing
                 from
                 other
                 Infeftments
                 ,
                 as
                 to
                 their
                 Tenors
                 and
                 Effects
                 ,
                 but
                 that
                 their
                 reddendo
                 is
                 ordinarly
                 general
                 ,
                 when
                 the
                 Appryzer
                 or
                 Adjudger
                 cannot
                 prove
                 or
                 instruct
                 the
                 Tenor
                 of
                 his
                 authors
                 Right
                 ;
                 and
                 therefore
                 ,
                 do
                 bear
                 such
                 duties
                 and
                 services
                 ,
                 as
                 were
                 contained
                 in
                 the
                 Authors
                 Rights
                 ,
                 which
                 the
                 Superiour
                 may
                 be
                 charged
                 to
                 renew
                 and
                 make
                 special
                 ,
                 so
                 soon
                 as
                 the
                 Authors
                 Rights
                 are
                 produced
                 ;
                 and
                 if
                 they
                 be
                 not
                 so
                 renewed
                 ,
                 they
                 are
                 understood
                 as
                 Ward-holdings
                 :
                 But
                 for
                 Renovation
                 thereof
                 ,
                 the
                 Appryzer
                 or
                 Adjudger
                 will
                 get
                 Letters
                 of
                 Horning
                 summarly
                 upon
                 the
                 allowance
                 of
                 the
                 Appryzing
                 or
                 Adjudication
                 ,
                 which
                 will
                 not
                 be
                 excluded
                 ,
                 although
                 the
                 Superiour
                 have
                 already
                 granted
                 Infeftments
                 in
                 general
                 terms
                 as
                 aforesaid
                 ,
                 but
                 he
                 must
                 renew
                 the
                 same
                 according
                 to
                 the
                 special
                 Tenor
                 of
                 the
                 Authors
                 Right
                 produced
                 ,
                 and
                 that
                 without
                 any
                 new
                 composition
                 ;
                 yea
                 ,
                 the
                 Appryzers
                 Heirs
                 upon
                 supplication
                 ,
                 will
                 obtain
                 Letters
                 of
                 Horning
                 summarly
                 for
                 renewing
                 the
                 same
                 ,
                 and
                 so
                 will
                 his
                 singular
                 Successors
                 ,
                 but
                 they
                 must
                 pay
                 a
                 years
                 Rent
                 for
                 their
                 Entry
                 ,
                 whether
                 their
                 Title
                 be
                 Appryzing
                 or
                 Adjudication
                 against
                 the
                 former
                 Appryzer
                 or
                 Adjudger
                 ;
                 in
                 wich
                 case
                 he
                 
                 may
                 make
                 use
                 of
                 Letters
                 of
                 Horning
                 ,
                 upon
                 the
                 allowance
                 of
                 his
                 own
                 Appryzing
                 ;
                 and
                 though
                 his
                 Title
                 be
                 a
                 voluntary
                 Disposition
                 ,
                 he
                 will
                 get
                 Letters
                 of
                 Horning
                 ,
                 as
                 succeeding
                 in
                 the
                 place
                 of
                 the
                 former
                 Appryzer
                 or
                 Adjudger
                 ,
                 to
                 renew
                 and
                 make
                 special
                 the
                 former
                 Infeftment
                 to
                 his
                 Author
                 upon
                 payment
                 of
                 a
                 years
                 duty
                 .
                 But
                 Appryzing
                 and
                 Adjudications
                 being
                 legal
                 Dispositions
                 ,
                 and
                 conveyances
                 of
                 the
                 Authors
                 Infeftment
                 ,
                 we
                 shall
                 say
                 no
                 further
                 of
                 them
                 in
                 this
                 place
                 ,
                 but
                 leave
                 them
                 to
                 the
                 Title
                 twenty
                 four
                 ,
                 where
                 they
                 are
                 considered
                 amongst
                 Dispositions
                 .
              
               
                 We
                 shall
                 only
                 add
                 here
                 ,
                 that
                 before
                 the
                 year
                 ,
                 1624.
                 
                 Appryzings
                 were
                 left
                 at
                 the
                 great
                 Seal
                 ,
                 by
                 warrant
                 from
                 the
                 Lords
                 ,
                 whence
                 Precepts
                 were
                 issued
                 thereupon
                 against
                 the
                 Superiours
                 to
                 Infeft
                 ;
                 which
                 if
                 they
                 obeyed
                 not
                 ,
                 Charters
                 were
                 granted
                 by
                 the
                 King
                 to
                 supply
                 their
                 Vice
                 ;
                 but
                 since
                 ,
                 they
                 are
                 retained
                 by
                 the
                 Appryzer
                 ,
                 and
                 he
                 may
                 have
                 Letters
                 of
                 Horning
                 summarly
                 Charging
                 the
                 Superiours
                 to
                 grant
                 Charters
                 and
                 Precepts
                 of
                 Seasine
                 ,
                 as
                 is
                 aforesaid
                 .
              
               
                 30.
                 
                 This
                 also
                 is
                 singular
                 in
                 Appryzings
                 and
                 Adjudications
                 ,
                 that
                 a
                 real
                 Right
                 of
                 Fee
                 is
                 constitute
                 thereby
                 ,
                 by
                 a
                 Charge
                 of
                 Horning
                 against
                 the
                 Superiour
                 ,
                 without
                 Charter
                 or
                 Seasine
                 :
                 For
                 such
                 Appryzings
                 or
                 Adjudications
                 are
                 declared
                 effectual
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 1661.
                 cap.
                 62.
                 ordering
                 the
                 payment
                 of
                 debts
                 betwixt
                 Creditor
                 and
                 Debitor
                 :
                 For
                 after
                 that
                 Charge
                 ,
                 no
                 Infeftment
                 upon
                 voluntary
                 Disposition
                 ,
                 or
                 upon
                 any
                 other
                 Appryzing
                 or
                 Adjudication
                 can
                 be
                 granted
                 by
                 the
                 Superiour
                 ,
                 prefering
                 any
                 other
                 Vassal
                 to
                 the
                 Appryzer
                 ,
                 or
                 Adjudger
                 ,
                 whom
                 he
                 hath
                 unwarrantably
                 refused
                 to
                 Enter
                 ,
                 if
                 the
                 Appryzer
                 or
                 Adjudger
                 insist
                 in
                 his
                 Appryzing
                 or
                 Adjudication
                 for
                 Possession
                 ;
                 but
                 he
                 may
                 forbear
                 to
                 make
                 use
                 of
                 the
                 Appryzing
                 or
                 Adjudication
                 ,
                 and
                 if
                 hely
                 long
                 out
                 without
                 further
                 diligence
                 ,
                 he
                 will
                 be
                 presumed
                 to
                 have
                 relinquished
                 his
                 Appryzing
                 or
                 Adjudication
                 ,
                 and
                 posterior
                 Rights
                 and
                 Diligences
                 will
                 be
                 preferred
                 :
                 But
                 if
                 he
                 enter
                 in
                 Possession
                 ,
                 no
                 posterior
                 Infeftment
                 or
                 Diligence
                 will
                 exclude
                 him
                 ,
                 although
                 he
                 insist
                 no
                 further
                 but
                 the
                 Charge
                 of
                 Horning
                 :
                 and
                 it
                 hath
                 not
                 occurred
                 to
                 be
                 determined
                 ,
                 how
                 long
                 that
                 Right
                 will
                 subsist
                 without
                 infeftment
                 ;
                 but
                 it
                 hath
                 been
                 found
                 ,
                 that
                 the
                 Superiour
                 will
                 not
                 be
                 excluded
                 from
                 the
                 Casualities
                 of
                 Superiority
                 by
                 his
                 former
                 Vassal
                 ,
                 if
                 he
                 have
                 not
                 been
                 in
                 the
                 fault
                 ,
                 in
                 refusing
                 to
                 Enter
                 when
                 the
                 Appryzer
                 or
                 Adjudger
                 offered
                 him
                 a
                 Charter
                 with
                 a
                 years
                 Rent
                 of
                 the
                 Land
                 ,
                 or
                 Annualrent
                 of
                 the
                 sum
                 adjudged
                 or
                 appryzed
                 ,
                 for
                 this
                 was
                 in
                 the
                 case
                 of
                 Ward
                 ,
                 February
                 9.
                 1669.
                 
                 
                   Black
                   contra
                   David
                   Trinch
                
                 .
                 Neither
                 was
                 a
                 Superiour
                 found
                 to
                 have
                 interest
                 to
                 exclude
                 an
                 Appryzer
                 from
                 Possession
                 ,
                 till
                 he
                 payed
                 a
                 years
                 Rent
                 ,
                 but
                 that
                 he
                 might
                 possess
                 during
                 the
                 legal
                 ,
                 if
                 he
                 insisted
                 not
                 for
                 infeftment
                 ,
                 which
                 insinuats
                 ,
                 that
                 after
                 expyring
                 of
                 the
                 legal
                 ,
                 the
                 Superiour
                 might
                 hinder
                 the
                 appryzer
                 or
                 adjudger
                 to
                 continue
                 in
                 possession
                 till
                 he
                 take
                 Infeftment
                 ,
                 and
                 pay
                 a
                 years
                 Rent
                 ;
                 but
                 during
                 the
                 legal
                 ,
                 the
                 appryzing
                 or
                 adjudication
                 is
                 but
                 as
                 a
                 legal
                 assignation
                 to
                 the
                 Mails
                 and
                 Duties
                 ,
                 so
                 that
                 the
                 appryzer
                 cannot
                 be
                 forced
                 to
                 take
                 Infeftment
                 ,
                 till
                 the
                 legal
                 expyre
                 ,
                 and
                 the
                 Land
                 become
                 irredeemably
                 his
                 own
                 ,
                 and
                 then
                 he
                 is
                 to
                 pay
                 a
                 years
                 Rent
                 ;
                 but
                 in
                 this
                 case
                 there
                 was
                 no
                 Charge
                 upon
                 the
                 appryzing
                 ,
                 December
                 3.
                 1672.
                 
                 Mr.
                 
                   Hendry
                   Hay
                   contra
                
                 Laird
                 of
                 Earlestoun
                 .
                 Albeit
                 in
                 the
                 case
                 of
                 
                   Johnstoun
                   contra
                
                 the
                 Tennants
                 of
                 
                   Auchincorse
                   ,
                   July
                
                 22.
                 1665.
                 the
                 appryzer
                 having
                 charged
                 the
                 Superiour
                 ,
                 though
                 he
                 did
                 not
                 then
                 obey
                 ;
                 yet
                 appearing
                 in
                 the
                 Process
                 of
                 Mails
                 and
                 Duties
                 ,
                 he
                 offered
                 now
                 to
                 receive
                 the
                 appryzer
                 ;
                 and
                 therefore
                 ,
                 the
                 appryzer
                 was
                 excluded
                 till
                 he
                 payed
                 the
                 years
                 rent
                 ,
                 which
                 being
                 under
                 consideration
                 of
                 the
                 Lords
                 ,
                 in
                 the
                 posterior
                 case
                 of
                 Mr.
                 
                   Henry
                   Hay
                
                 ,
                 they
                 resolved
                 to
                 give
                 the
                 apyryzer
                 his
                 option
                 within
                 the
                 legal
                 to
                 
                 take
                 Infeftment
                 or
                 not
                 ,
                 so
                 that
                 the
                 Charge
                 doth
                 only
                 hinder
                 others
                 to
                 preveen
                 ,
                 but
                 doth
                 not
                 exclude
                 the
                 Superiour
                 from
                 any
                 Casuality
                 of
                 the
                 Superiority
                 ,
                 falling
                 by
                 his
                 former
                 Vassal
                 ,
                 unless
                 he
                 had
                 been
                 
                   in
                   culpa
                
                 ,
                 refusing
                 the
                 appryzer
                 Entry
                 ,
                 insisting
                 orderly
                 to
                 be
                 Entered
                 ,
                 which
                 is
                 a
                 great
                 advantage
                 ,
                 both
                 to
                 debitors
                 and
                 creditors
                 ,
                 not
                 to
                 have
                 the
                 accession
                 of
                 a
                 years
                 rent
                 ,
                 till
                 the
                 ancient
                 Rights
                 may
                 be
                 discovered
                 ,
                 and
                 that
                 it
                 may
                 appear
                 whether
                 the
                 appryzing
                 becometh
                 an
                 absolute
                 Right
                 .
              
               
                 The
                 main
                 division
                 of
                 Infeftments
                 is
                 in
                 relation
                 to
                 the
                 holding
                 is
                 in
                 Ward
                 ,
                 Blench
                 ,
                 Feu
                 ,
                 Burgage
                 and
                 Mortification
                 .
              
               
                 31.
                 
                 An
                 Infeftment
                 Ward
                 hath
                 its
                 denomination
                 from
                 Ward
                 ,
                 which
                 is
                 the
                 chief
                 Casuality
                 befalling
                 to
                 the
                 Superiour
                 thereby
                 ,
                 it
                 is
                 the
                 most
                 proper
                 Feudal
                 Right
                 we
                 have
                 ;
                 and
                 therefore
                 ,
                 wherever
                 the
                 holding
                 appeareth
                 not
                 ,
                 or
                 is
                 unclear
                 ,
                 there
                 Ward-holding
                 is
                 understood
                 ;
                 it
                 is
                 ordinarly
                 expressed
                 by
                 
                   rendering
                   service
                   ,
                   used
                   and
                   wont
                   :
                
                 and
                 if
                 the
                 reddendo
                 be
                 not
                 express
                 in
                 name
                 of
                 blensh
                 ,
                 or
                 Feu
                 Ferm
                 ,
                 though
                 it
                 bear
                 payment
                 of
                 some
                 Duty
                 ,
                 yet
                 Ward
                 is
                 inferred
                 ,
                 as
                 by
                 a
                 Charter
                 ,
                 bearing
                 ,
                 
                   sex
                   dinarios
                   nomine
                   cana
                
                 ,
                 with
                 a
                 taxed
                 Marriage
                 :
                 So
                 also
                 it
                 was
                 inferred
                 by
                 a
                 reddendo
                 ,
                 bearing
                 a
                 particular
                 Duty
                 ,
                 payable
                 at
                 Whitsunday
                 and
                 
                   Martimass
                   ,
                   cum
                   servitiis
                   in
                   curiis
                   ,
                   nostris
                   &
                   alibi
                   debitis
                   ,
                   &
                   consuetis
                   ,
                   Hope
                   ,
                   de
                   feudi
                   renovatione
                   ,
                   Williamson
                   contra
                   Thomson
                   .
                
              
               
                 The
                 main
                 importance
                 of
                 a
                 Ward-holding
                 was
                 indefinite
                 service
                 to
                 be
                 performed
                 by
                 the
                 Vassal
                 to
                 his
                 Superiour
                 ,
                 and
                 especially
                 in
                 War
                 ;
                 but
                 that
                 being
                 now
                 little
                 in
                 use
                 ,
                 the
                 main
                 effect
                 of
                 it
                 is
                 ,
                 the
                 Ward
                 and
                 Marriage
                 of
                 the
                 Vassal
                 ,
                 of
                 which
                 hereafter
                 .
              
               
                 32.
                 
                 Ward
                 Lands
                 according
                 to
                 the
                 nature
                 of
                 proper
                 Feudal
                 Rights
                 ,
                 might
                 not
                 be
                 alienat
                 by
                 the
                 Vassals
                 ,
                 granting
                 any
                 subaltern
                 Infeftment
                 thereof
                 :
                 otherways
                 ,
                 not
                 only
                 the
                 subaltern
                 Infeftments
                 were
                 void
                 ,
                 but
                 the
                 Vassal
                 granter
                 thereof
                 ,
                 his
                 own
                 Infeftment
                 became
                 void
                 by
                 Recognition
                 ;
                 yet
                 by
                 Act
                 of
                 Parliament
                 ,
                 1457.
                 cap.
                 72.
                 all
                 Feus
                 to
                 be
                 granted
                 by
                 the
                 King
                 ,
                 Prelats
                 ,
                 Barons
                 ,
                 or
                 Free-holders
                 ,
                 are
                 allowed
                 and
                 declared
                 not
                 to
                 fall
                 in
                 Ward
                 ,
                 as
                 being
                 but
                 Heretable
                 assedations
                 ,
                 as
                 the
                 act
                 bears
                 ,
                 paying
                 to
                 the
                 Superiour
                 ,
                 during
                 the
                 Ward
                 ,
                 the
                 Feu-duty
                 ,
                 providing
                 the
                 Lands
                 be
                 set
                 to
                 a
                 competent
                 avail
                 ,
                 without
                 prejudice
                 to
                 the
                 King
                 ,
                 which
                 is
                 ordinarly
                 interpret
                 to
                 be
                 the
                 retoured
                 duty
                 ;
                 the
                 same
                 is
                 repeated
                 Par.
                 1503.
                 cap.
                 91.
                 and
                 extended
                 not
                 only
                 to
                 subaltern
                 Infeftments
                 Feu
                 ,
                 but
                 also
                 of
                 annualrents
                 ,
                 so
                 that
                 it
                 be
                 without
                 diminution
                 of
                 the
                 Rental
                 ,
                 which
                 in
                 Lands
                 holden
                 of
                 the
                 King
                 by
                 secular
                 men
                 ,
                 is
                 the
                 retoured
                 mail
                 ,
                 and
                 in
                 the
                 Kings
                 property
                 ,
                 and
                 in
                 Kirk-lands
                 is
                 the
                 full
                 rental
                 ,
                 they
                 should
                 happen
                 to
                 be
                 at
                 the
                 time
                 of
                 the
                 subaltern
                 Infeftments
                 ,
                 which
                 therefore
                 ,
                 the
                 Feus
                 may
                 not
                 diminish
                 ,
                 and
                 the
                 annualrent
                 may
                 not
                 be
                 so
                 great
                 as
                 to
                 exhaust
                 the
                 Land
                 ,
                 that
                 the
                 rental
                 remain
                 not
                 free
                 :
                 This
                 last
                 Act
                 was
                 temporal
                 for
                 that
                 Kings
                 life
                 ;
                 and
                 therefore
                 ,
                 the
                 extention
                 as
                 to
                 annualrents
                 ceaseth
                 ,
                 though
                 the
                 first
                 Act
                 expresseth
                 ,
                 that
                 the
                 King
                 will
                 ratifie
                 all
                 Feus
                 granted
                 by
                 the
                 Kings
                 immediat
                 Vassals
                 ;
                 yet
                 the
                 Act
                 bears
                 ,
                 
                   that
                   the
                   King
                   thereby
                   will
                   give
                   good
                   example
                   to
                   the
                   rest
                   ,
                
                 viz.
                 
                   to
                   other
                   Superiours
                
                 ;
                 and
                 therefore
                 ,
                 a
                 Feu
                 of
                 Ward-lands
                 granted
                 by
                 a
                 Vassal
                 ,
                 holding
                 Ward
                 of
                 a
                 Subject
                 ,
                 before
                 the
                 Act
                 of
                 Parliament
                 ,
                 1606.
                 was
                 found
                 valid
                 ,
                 though
                 without
                 the
                 Superiours
                 consent
                 ,
                 June
                 24.
                 1668.
                 
                 Stuart
                 of
                 
                   Torrence
                   contra
                
                 Feuars
                 of
                 Ernock
                 .
              
               
                 This
                 priviledge
                 was
                 taken
                 away
                 as
                 to
                 all
                 Superiours
                 and
                 their
                 Vassals
                 ,
                 except
                 the
                 Vassals
                 of
                 the
                 King
                 ,
                 who
                 only
                 might
                 grant
                 subaltern
                 Infeftments
                 of
                 
                 their
                 Ward
                 lands
                 ,
                 Par.
                 1606.
                 cap.
                 12.
                 whereby
                 all
                 such
                 subaltern
                 Infeftments
                 of
                 their
                 Ward-lands
                 ,
                 are
                 declared
                 null
                 by
                 exception
                 or
                 reply
                 ,
                 unless
                 the
                 Superiours
                 consent
                 were
                 obtained
                 ;
                 and
                 therefore
                 ,
                 the
                 Superiours
                 consenting
                 in
                 the
                 Disposition
                 by
                 a
                 Vassal
                 to
                 a
                 Sub-vassal
                 ,
                 was
                 found
                 to
                 exclude
                 the
                 Vassals
                 Ward
                 so
                 far
                 as
                 concerns
                 the
                 Sub-vassal
                 ,
                 though
                 it
                 was
                 a
                 redeemable
                 Feu
                 ,
                 July
                 2.
                 1672.
                 
                 Earl
                 of
                 
                   Eglintoun
                   contra
                
                 Laird
                 of
                 Greenock
                 .
                 The
                 same
                 was
                 extended
                 to
                 the
                 Vassals
                 of
                 the
                 King
                 and
                 Prince
                 ,
                 who
                 were
                 thereby
                 also
                 excluded
                 from
                 setting
                 of
                 Feus
                 of
                 Ward-lands
                 to
                 Sub-vassals
                 ,
                 Par.
                 1633.
                 cap.
                 16.
                 but
                 the
                 Vassals
                 of
                 the
                 King
                 and
                 Prince
                 were
                 restored
                 to
                 their
                 former
                 priviledge
                 ,
                 and
                 the
                 said
                 Act
                 1633.
                 wholly
                 repealed
                 ,
                 Parliament
                 1641.
                 cap.
                 58.
                 which
                 now
                 is
                 rescinded
                 ,
                 Par.
                 1661.
                 cap.
                 15.
                 
                 Yet
                 the
                 Lands
                 set
                 in
                 Feu
                 ,
                 during
                 the
                 time
                 of
                 these
                 several
                 Acts
                 now
                 repealed
                 ,
                 are
                 valid
                 .
                 So
                 Ward-lands
                 holden
                 of
                 the
                 King
                 or
                 Prince
                 ,
                 may
                 not
                 be
                 set
                 in
                 Feu
                 ,
                 nor
                 of
                 any
                 other
                 Superiours
                 ,
                 except
                 Bishops
                 and
                 their
                 Chapters
                 ;
                 for
                 these
                 might
                 set
                 Feus
                 for
                 a
                 Feu-duty
                 ,
                 equivalent
                 to
                 the
                 retour
                 ,
                 Par.
                 1621.
                 cap.
                 9.
                 
                 But
                 this
                 Act
                 was
                 only
                 temporary
                 for
                 three
                 years
                 ;
                 and
                 therefore
                 ,
                 subaltern
                 Infeftments
                 granted
                 by
                 Vassals
                 ,
                 if
                 of
                 the
                 most
                 part
                 of
                 the
                 Ward-lands
                 ,
                 infers
                 recognition
                 thereof
                 in
                 the
                 Superiours
                 hands
                 ,
                 but
                 if
                 within
                 the
                 half
                 ,
                 they
                 are
                 not
                 null
                 as
                 to
                 the
                 Vassal
                 ,
                 but
                 are
                 null
                 as
                 to
                 the
                 Superiour
                 ,
                 and
                 exclude
                 him
                 from
                 no
                 Casualities
                 of
                 his
                 Superiority
                 ,
                 as
                 Ward
                 ,
                 &c.
                 
                 But
                 as
                 the
                 half
                 may
                 be
                 sub-sett
                 ,
                 so
                 any
                 other
                 right
                 less
                 then
                 the
                 value
                 of
                 the
                 half
                 ,
                 is
                 sustained
                 as
                 an
                 Infeftment
                 of
                 warrandice
                 ,
                 March
                 6.
                 1611.
                 
                 
                   Cathcart
                   contra
                   Campbel
                
                 .
                 The
                 like
                 holds
                 of
                 Infeftments
                 of
                 Liferent
                 ,
                 but
                 if
                 the
                 Disposition
                 or
                 Infeftment
                 be
                 granted
                 to
                 the
                 Vassals
                 appearand
                 Heir
                 ,
                 
                   in
                   linea
                   recta
                
                 ,
                 it
                 infers
                 not
                 Recognition
                 ,
                 be-because
                 the
                 Superiour
                 is
                 not
                 prejudged
                 by
                 change
                 of
                 his
                 Vassal
                 ;
                 but
                 recognition
                 was
                 found
                 incurred
                 by
                 a
                 Disposition
                 and
                 Infeftment
                 to
                 the
                 Vassals
                 Brother
                 ,
                 though
                 his
                 appearand
                 Heir
                 for
                 the
                 time
                 ,
                 seing
                 there
                 remained
                 hope
                 of
                 issue
                 in
                 the
                 Disponer
                 ,
                 and
                 so
                 his
                 Brother
                 was
                 not
                 
                   alioqui
                   successurus
                   ,
                   Spots
                
                 .
                 recognition
                 ,
                 Advocat
                 and
                 his
                 Son
                 contra
                 the
                 Earl
                 of
                 Cassils
                 and
                 Collane
                 .
              
               
                 Feus
                 of
                 Ward-lands
                 granted
                 by
                 the
                 Kings
                 Ward-vassals
                 ,
                 after
                 the
                 Act
                 of
                 Parliament
                 ,
                 1457.
                 and
                 before
                 the
                 Act
                 of
                 Parliament
                 ,
                 1633.
                 were
                 found
                 not
                 only
                 to
                 be
                 free
                 from
                 the
                 ward-liferent-escheat
                 ,
                 or
                 recognition
                 of
                 the
                 Kings
                 Vassals
                 ;
                 but
                 also
                 that
                 the
                 Sub-vassals
                 Feu
                 did
                 not
                 fall
                 by
                 his
                 Superiour
                 the
                 Kings
                 Vassals
                 forefaulture
                 ,
                 because
                 the
                 Act
                 of
                 Parliament
                 expresseth
                 a
                 Confirmation
                 of
                 such
                 Feus
                 ,
                 which
                 therefore
                 needs
                 not
                 be
                 past
                 in
                 Exchequer
                 ,
                 without
                 which
                 there
                 is
                 no
                 doubt
                 but
                 Ward
                 and
                 Non-entry
                 are
                 excluded
                 :
                 And
                 by
                 a
                 Confirmation
                 in
                 Exchequer
                 ,
                 Forefaulture
                 would
                 be
                 excluded
                 without
                 question
                 ,
                 even
                 after
                 the
                 Act
                 of
                 Parliament
                 1633.
                 and
                 therefore
                 ,
                 the
                 ratification
                 and
                 approbation
                 of
                 Feus
                 by
                 the
                 Act
                 ,
                 1457.
                 when
                 it
                 was
                 in
                 vigour
                 ,
                 must
                 also
                 secure
                 against
                 Forefaulture
                 of
                 the
                 granter
                 of
                 the
                 Feu
                 ,
                 as
                 was
                 found
                 ,
                 February
                 12.
                 1674.
                 and
                 January
                 23.
                 1680.
                 
                 Marquess
                 of
                 
                   Huntly
                   contra
                   Gordoun
                
                 of
                 Cairnborrow
                 ,
                 whose
                 Feu
                 being
                 granted
                 after
                 the
                 Act
                 of
                 Parliament
                 ,
                 1457.
                 and
                 before
                 the
                 Act
                 1606.
                 was
                 sustained
                 against
                 a
                 Donatar
                 of
                 his
                 Superiours
                 Forefaulture
                 .
                 The
                 like
                 ,
                 though
                 the
                 Feu
                 was
                 renewed
                 upon
                 Resignation
                 ,
                 
                   in
                   favorem
                
                 ,
                 not
                 being
                 
                   ad
                   remanentiam
                   ,
                   November
                
                 16.
                 1680.
                 
                 Campbel
                 of
                 
                   Silver-craigs
                   contra
                
                 Laird
                 of
                 Achinbreck
                 and
                 Earl
                 of
                 Argyle
                 .
              
               
                 33.
                 
                 Infeftments
                 blensh
                 are
                 such
                 ,
                 whose
                 reddendo
                 is
                 a
                 small
                 elusory
                 Rent
                 ,
                 as
                 being
                 rather
                 an
                 acknowledgement
                 of
                 ,
                 then
                 prosite
                 to
                 ,
                 the
                 Superiour
                 ;
                 and
                 therefore
                 ,
                 ordinarily
                 it
                 beareth
                 ,
                 
                   si
                   petatur
                   tantum
                
                 ,
                 as
                 a
                 Rose
                 ,
                 penny
                 Money
                 or
                 the
                 like
                 ,
                 and
                 these
                 are
                 not
                 counted
                 blensh
                 Rights
                 ,
                 unless
                 they
                 bear
                 ,
                 
                   in
                   name
                   of
                   blensh
                   Ferm
                
                 ;
                 or
                 if
                 they
                 bear
                 not
                 ,
                 
                   si
                   petatur
                
                 ;
                 or
                 if
                 it
                 be
                 a
                 yearly
                 growth
                 or
                 service
                 ,
                 it
                 is
                 not
                 due
                 ,
                 and
                 may
                 not
                 be
                 demanded
                 at
                 any
                 time
                 ,
                 unless
                 it
                 be
                 demanded
                 
                 within
                 the
                 year
                 ,
                 at
                 the
                 Term
                 ,
                 as
                 a
                 Stone
                 of
                 Wax
                 ,
                 or
                 a
                 Pound
                 of
                 Pepper
                 ,
                 February
                 16.
                 1627.
                 
                 Lord
                 
                   Semple
                   contra
                   Blair
                
                 .
                 Where
                 the
                 like
                 is
                 observed
                 to
                 have
                 been
                 before
                 ,
                 June
                 18.
                 1611.
                 
                 Bishop
                 of
                 St.
                 
                   Andrews
                   contra
                   Galloway
                
                 .
                 The
                 like
                 found
                 ,
                 where
                 the
                 reddendo
                 bore
                 ,
                 
                   si
                   petatur
                   tantum
                   ,
                   June
                
                 15.
                 1611.
                 
                 Bishop
                 of
                 St.
                 
                   Andrews
                   contra
                   Tersons
                
                 .
                 So
                 Blensh
                 Duties
                 of
                 Lands
                 holden
                 of
                 the
                 King
                 or
                 Prince
                 ,
                 are
                 declared
                 only
                 due
                 ,
                 if
                 they
                 be
                 asked
                 yearly
                 ,
                 and
                 no
                 price
                 can
                 be
                 put
                 thereupon
                 by
                 the
                 Exchequer
                 ,
                 Parliament
                 1606.
                 cap.
                 14.
                 
                 Yet
                 seing
                 by
                 Act
                 of
                 Parliament
                 ,
                 the
                 King
                 is
                 not
                 to
                 be
                 prejudged
                 by
                 neglect
                 of
                 his
                 Officers
                 ,
                 who
                 ought
                 yearly
                 to
                 call
                 for
                 his
                 Blensh
                 Duties
                 ,
                 whereof
                 many
                 are
                 considerable
                 ;
                 therefore
                 the
                 Exchequer
                 continues
                 to
                 exact
                 the
                 Kings
                 Blensh
                 Duties
                 ,
                 though
                 not
                 demanded
                 within
                 the
                 year
                 .
                 There
                 is
                 another
                 part
                 of
                 the
                 Act
                 excluding
                 all
                 Liquidations
                 of
                 Blensh
                 Duties
                 
                   in
                   specie
                
                 ,
                 which
                 therefore
                 should
                 be
                 so
                 exacted
                 ,
                 though
                 not
                 within
                 the
                 year
                 ,
                 unless
                 the
                 Vassals
                 voluntarly
                 offer
                 a
                 price
                 ;
                 in
                 these
                 Blensh
                 Ferms
                 ,
                 there
                 is
                 no
                 ward
                 and
                 marriage
                 befalling
                 to
                 the
                 Superiour
                 ,
                 in
                 which
                 it
                 differs
                 mainly
                 from
                 ward
                 .
              
               
                 34.
                 
                 Infeftments
                 Feu
                 ,
                 are
                 like
                 to
                 the
                 Emphyteosis
                 in
                 the
                 Civil
                 Law
                 ,
                 which
                 was
                 a
                 kind
                 of
                 Location
                 ,
                 having
                 in
                 it
                 a
                 pension
                 ,
                 as
                 the
                 hyre
                 ,
                 with
                 a
                 condition
                 of
                 Planting
                 ,
                 and
                 Pollicy
                 ,
                 for
                 such
                 were
                 commonly
                 granted
                 of
                 Barren
                 Grounds
                 ;
                 and
                 therefore
                 ,
                 it
                 retains
                 still
                 that
                 name
                 also
                 ,
                 and
                 is
                 accounted
                 and
                 called
                 an
                 Assidation
                 or
                 Location
                 in
                 our
                 Law
                 :
                 But
                 because
                 such
                 cannot
                 be
                 Hereditary
                 and
                 perpetual
                 ,
                 all
                 Rentals
                 and
                 Tacks
                 necessarly
                 requiring
                 an
                 Ish
                 ;
                 therefore
                 ,
                 these
                 Feu-holdings
                 ,
                 partake
                 both
                 of
                 Infeftments
                 ,
                 as
                 passing
                 by
                 Seasing
                 to
                 Heirs
                 for
                 ever
                 ;
                 and
                 of
                 Locations
                 ,
                 as
                 having
                 a
                 Pension
                 or
                 Rent
                 for
                 their
                 reddendo
                 ,
                 and
                 are
                 allowed
                 to
                 be
                 perpetual
                 ,
                 for
                 the
                 increase
                 of
                 Planting
                 and
                 Pollicy
                 .
              
               
                 35.
                 
                 In
                 what
                 cases
                 Feus
                 are
                 allowed
                 of
                 Ward-lands
                 ,
                 hath
                 been
                 now
                 shown
                 ;
                 in
                 other
                 cases
                 ,
                 they
                 are
                 ordinarly
                 allowed
                 ,
                 where
                 they
                 are
                 not
                 prohibit
                 ;
                 so
                 we
                 shall
                 only
                 need
                 to
                 speak
                 of
                 cases
                 ,
                 wherein
                 they
                 are
                 prohibit
                 and
                 void
                 ;
                 and
                 that
                 is
                 ,
                 first
                 ,
                 In
                 the
                 Patrimony
                 of
                 the
                 Crown
                 ,
                 which
                 is
                 annexed
                 thereto
                 ,
                 and
                 cannot
                 be
                 set
                 Feu
                 by
                 the
                 King
                 ,
                 without
                 consent
                 of
                 Parliament
                 ,
                 by
                 their
                 Act
                 of
                 Dissolution
                 ,
                 bearing
                 ,
                 
                   great
                   ,
                   seen
                   and
                   reasonable
                   Causes
                   of
                   the
                   Realm
                   ,
                   by
                   Sentence
                   and
                   Decreet
                   of
                   the
                   whole
                   Parliament
                   .
                
                 But
                 Ratifications
                 ,
                 which
                 pass
                 of
                 course
                 in
                 Parliament
                 ,
                 without
                 report
                 from
                 the
                 Articles
                 ,
                 will
                 not
                 supply
                 the
                 dissolution
                 of
                 the
                 annexed
                 property
                 ,
                 or
                 validat
                 Infeftments
                 thereof
                 ,
                 even
                 though
                 the
                 Ratification
                 bear
                 ,
                 
                   a
                   Dissolution
                
                 :
                 Upon
                 which
                 ground
                 ,
                 the
                 Earl
                 of
                 Mortouns
                 Right
                 to
                 the
                 Earledome
                 of
                 Orkney
                 was
                 reduced
                 ,
                 February
                 25.
                 1670.
                 
                 Kings
                 Advocat
                 contra
                 Earl
                 of
                 Mortoun
                 .
                 Neither
                 can
                 the
                 annexed
                 property
                 be
                 disponed
                 by
                 the
                 King
                 ,
                 but
                 only
                 in
                 Feu
                 ,
                 after
                 the
                 Act
                 of
                 Parliament
                 ,
                 1597.
                 cap.
                 234.
                 
                 And
                 all
                 Infeftments
                 ,
                 Tacks
                 ,
                 Pensions
                 ,
                 Gifts
                 ,
                 Discharges
                 granted
                 before
                 lawful
                 Dissolution
                 in
                 Parliament
                 ,
                 or
                 after
                 Dissolution
                 ,
                 yet
                 contrary
                 to
                 any
                 of
                 the
                 conditions
                 of
                 the
                 same
                 ,
                 are
                 declared
                 null
                 of
                 the
                 Law
                 ,
                 by
                 Action
                 or
                 Exception
                 ,
                 as
                 well
                 as
                 to
                 by
                 gones
                 ,
                 as
                 in
                 time
                 coming
                 ,
                 Par.
                 1597.
                 cap.
                 236.
                 
                 Par.
                 1455.
                 cap.
                 41.
                 which
                 is
                 confirmed
                 and
                 extended
                 to
                 Feus
                 ,
                 not
                 only
                 to
                 be
                 granted
                 of
                 Lands
                 ,
                 but
                 to
                 Feus
                 granted
                 of
                 the
                 Feu-Ferm-Duties
                 ,
                 which
                 was
                 a
                 device
                 invented
                 ,
                 to
                 elude
                 the
                 Law
                 ,
                 Par.
                 1597.
                 cap.
                 239.
                 
              
               
                 36.
                 
                 Secondly
                 ,
                 Feus
                 of
                 the
                 annexed
                 property
                 ,
                 after
                 Dissolution
                 ,
                 may
                 not
                 be
                 set
                 with
                 diminution
                 of
                 the
                 Rental
                 ;
                 the
                 Feu-duty
                 not
                 being
                 within
                 the
                 new
                 retoured
                 Duty
                 ,
                 Par
                 ,
                 1584.
                 cap.
                 6.
                 
                 And
                 that
                 it
                 may
                 appear
                 whether
                 the
                 Rental
                 be
                 diminished
                 or
                 not
                 ,
                 before
                 they
                 pass
                 the
                 Seals
                 ,
                 they
                 must
                 be
                 presented
                 to
                 the
                 Thesaurer
                 and
                 Comptroller
                 ,
                 and
                 registrate
                 in
                 his
                 Register
                 ,
                 and
                 the
                 Signature
                 subscribed
                 by
                 him
                 ,
                 otherways
                 they
                 are
                 null
                 ,
                 Par.
                 1592.
                 cap.
                 127.
                 
                 And
                 such
                 Feus
                 
                 set
                 without
                 consent
                 of
                 the
                 Comptroller
                 ,
                 by
                 his
                 subscription
                 ,
                 Registrat
                 in
                 his
                 Register
                 ,
                 are
                 again
                 declared
                 null
                 ,
                 Par.
                 1593.
                 cap.
                 171.
                 
                 The
                 Comptrollers
                 Office
                 hath
                 been
                 of
                 a
                 long
                 time
                 adjoyned
                 to
                 ,
                 and
                 in
                 the
                 same
                 Commission
                 with
                 the
                 Thesaurers
                 Office
                 ,
                 or
                 Commission
                 of
                 the
                 Thesaury
                 .
              
               
                 What
                 Lands
                 and
                 others
                 are
                 annexed
                 to
                 the
                 Crown
                 ,
                 appeareth
                 by
                 the
                 several
                 Acts
                 of
                 Parliament
                 made
                 thereanent
                 ,
                 consisting
                 mainly
                 of
                 forefaulted
                 Estates
                 and
                 Kirklands
                 ,
                 after
                 the
                 abolishing
                 of
                 the
                 Popish
                 Clergy
                 ;
                 which
                 because
                 they
                 were
                 presumed
                 to
                 have
                 been
                 most
                 part
                 mortified
                 by
                 the
                 Kings
                 of
                 Scotland
                 ,
                 therefore
                 ,
                 the
                 intent
                 of
                 their
                 granting
                 ceassing
                 by
                 the
                 abolishing
                 of
                 Popery
                 ,
                 they
                 return
                 to
                 the
                 Crown
                 ,
                 as
                 the
                 Narrative
                 of
                 the
                 Act
                 of
                 annexation
                 of
                 the
                 temporality
                 of
                 Benefices
                 ,
                 Par.
                 1587.
                 cap.
                 29.
                 bears
                 ;
                 and
                 therefore
                 ,
                 Benefices
                 of
                 Laick
                 Patronage
                 ,
                 as
                 having
                 proceeded
                 from
                 these
                 Patrons
                 are
                 excepted
                 by
                 the
                 said
                 Act
                 :
                 and
                 though
                 after
                 the
                 restitution
                 of
                 Bishops
                 and
                 their
                 Chapters
                 ,
                 the
                 Act
                 of
                 Annexation
                 ,
                 in
                 so
                 far
                 as
                 concerned
                 their
                 Lands
                 ,
                 was
                 rescinded
                 ,
                 Par.
                 1606.
                 cap.
                 6.
                 
                 Yet
                 Bishops
                 being
                 abolished
                 ,
                 Par.
                 1640.
                 cap.
                 6.
                 their
                 Lands
                 were
                 again
                 annexed
                 to
                 the
                 Crown
                 ,
                 Par.
                 1649.
                 cap.
                 whereby
                 all
                 Erection
                 of
                 Kirk-lands
                 in
                 temporal
                 Barronies
                 or
                 Lordships
                 ,
                 by
                 which
                 the
                 King
                 interposeth
                 any
                 person
                 betwixt
                 himself
                 and
                 these
                 who
                 were
                 formerly
                 Vassals
                 of
                 Kirkmen
                 ,
                 are
                 prohibit
                 and
                 declared
                 null
                 ;
                 this
                 Act
                 is
                 rescinded
                 in
                 the
                 general
                 Act
                 rescissory
                 ,
                 1661.
                 cap.
                 15.
                 
                 The
                 annexed
                 property
                 after
                 Dissolution
                 ,
                 may
                 not
                 be
                 granted
                 in
                 ward
                 or
                 blensh
                 ,
                 except
                 upon
                 Excambion
                 ,
                 for
                 as
                 good
                 Lands
                 ,
                 Par.
                 1597.
                 cap.
                 234.
                 
              
               
                 37.
                 
                 Feus
                 of
                 Kirk
                 lands
                 by
                 Prelats
                 ,
                 or
                 other
                 beneficed
                 persons
                 being
                 granted
                 by
                 consent
                 of
                 their
                 Chapters
                 ,
                 with
                 all
                 requisite
                 Solemnities
                 ,
                 were
                 esteemed
                 Legal
                 Securities
                 ,
                 without
                 any
                 particular
                 Confirmation
                 by
                 the
                 King
                 or
                 Pope
                 ,
                 there
                 being
                 no
                 Statute
                 nor
                 Constitution
                 obliging
                 the
                 Subjects
                 thereto
                 :
                 and
                 in
                 case
                 any
                 Confirmation
                 had
                 been
                 requisite
                 ,
                 the
                 consent
                 of
                 the
                 Prince
                 ,
                 under
                 his
                 proper
                 Seal
                 ,
                 and
                 Subscription
                 was
                 sufficient
                 ,
                 Par.
                 1593.
                 cap.
                 187.
                 
                 Yet
                 it
                 was
                 the
                 Custome
                 ,
                 that
                 the
                 Kings
                 ,
                 or
                 Popes
                 Authority
                 was
                 interposed
                 to
                 all
                 Feus
                 of
                 Kirk-lands
                 ,
                 therefore
                 ,
                 all
                 Feus
                 not
                 Confirmed
                 by
                 the
                 King
                 or
                 Pope
                 ;
                 before
                 the
                 8.
                 of
                 March
                 ,
                 1558.
                 or
                 being
                 thereafter
                 not
                 Confirmed
                 by
                 the
                 King
                 ,
                 are
                 declared
                 null
                 by
                 Exception
                 .
                 Par.
                 1584.
                 cap.
                 7.
                 
                 The
                 Reason
                 hereof
                 was
                 ,
                 because
                 in
                 March
                 ,
                 1558.
                 the
                 Reformation
                 of
                 Religion
                 began
                 to
                 be
                 publickly
                 professed
                 in
                 Scotland
                 ,
                 and
                 the
                 beneficed
                 persons
                 became
                 hopeless
                 to
                 preserve
                 their
                 rights
                 of
                 their
                 Kirk
                 Lands
                 ,
                 and
                 therefore
                 endeavoured
                 to
                 dilapidat
                 the
                 same
                 :
                 But
                 this
                 was
                 found
                 ,
                 not
                 to
                 extend
                 to
                 an
                 Infeftment
                 of
                 an
                 Office
                 ,
                 as
                 the
                 Office
                 of
                 Forrestrie
                 ,
                 though
                 it
                 had
                 Lands
                 annexed
                 thereto
                 ,
                 and
                 a
                 threave
                 of
                 Corn
                 out
                 of
                 every
                 Husband
                 Land
                 of
                 the
                 Abbacy
                 ,
                 seing
                 the
                 Statute
                 mentioned
                 only
                 Feus
                 of
                 Lands
                 .
                 And
                 this
                 was
                 but
                 like
                 a
                 Thirlage
                 ,
                 20.
                 of
                 Ianuary
                 ,
                 1666.
                 
                 Lord
                 
                   Renton
                   contra
                
                 Feuers
                 of
                 〈◊〉
                 .
                 It
                 is
                 also
                 declared
                 in
                 the
                 7.
                 
                 Act
                 Par.
                 1594.
                 that
                 the
                 old
                 Possessors
                 were
                 to
                 have
                 their
                 Confirmation
                 ,
                 for
                 payment
                 of
                 the
                 quadruple
                 of
                 their
                 silver
                 rent
                 ,
                 or
                 the
                 double
                 of
                 their
                 ferm
                 :
                 Providing
                 they
                 sought
                 the
                 same
                 within
                 a
                 Year
                 after
                 the
                 publication
                 of
                 that
                 Act
                 ;
                 otherwayes
                 they
                 were
                 to
                 pay
                 the
                 eight
                 fold
                 of
                 the
                 Silver
                 rent
                 ,
                 and
                 the
                 triple
                 of
                 the
                 Ferm
                 ,
                 and
                 the
                 King
                 was
                 thereby
                 obliged
                 to
                 grant
                 Confirmation
                 to
                 the
                 old
                 Possessors
                 upon
                 these
                 terms
                 ;
                 and
                 being
                 so
                 Confirmed
                 ,
                 the
                 same
                 could
                 not
                 be
                 questioned
                 upon
                 aleadged
                 Dimunition
                 of
                 the
                 Rental
                 ,
                 or
                 Conversion
                 in
                 monie
                 ,
                 or
                 any
                 other
                 cause
                 of
                 Nullity
                 ,
                 Invalidity
                 or
                 Lesion
                 ,
                 or
                 by
                 any
                 Law
                 ,
                 Canon
                 ,
                 or
                 Statute
                 ,
                 except
                 Improbation
                 only
                 .
                 And
                 it
                 was
                 declared
                 ,
                 that
                 Confirmations
                 by
                 the
                 King
                 ,
                 of
                 Posterior
                 
                 Feus
                 should
                 not
                 perjudge
                 the
                 Anterior
                 Feus
                 granted
                 by
                 Prelates
                 ,
                 and
                 their
                 Convents
                 ,
                 with
                 their
                 common
                 Seals
                 ,
                 and
                 Subscriptions
                 at
                 any
                 time
                 ,
                 being
                 granted
                 with
                 consent
                 of
                 the
                 Kings
                 Predecessors
                 ,
                 under
                 their
                 Privy
                 Seal
                 ,
                 though
                 without
                 farder
                 Confirmation
                 by
                 the
                 Kings
                 or
                 Popes
                 ,
                 Par.
                 1593.
                 cap.
                 187.
                 
                 The
                 Reason
                 hereof
                 was
                 ,
                 because
                 in
                 the
                 time
                 of
                 the
                 Reformation
                 ,
                 most
                 of
                 the
                 Evidents
                 of
                 Kirk
                 Lands
                 were
                 destroyed
                 :
                 And
                 therefore
                 the
                 Ancient
                 Possessors
                 ,
                 were
                 presumed
                 by
                 their
                 very
                 Possessions
                 to
                 have
                 Right
                 :
                 And
                 for
                 clearing
                 who
                 were
                 the
                 Ancient
                 Possessors
                 ,
                 and
                 what
                 were
                 Kirk
                 Lands
                 ,
                 it
                 is
                 declared
                 by
                 Act
                 of
                 Sederunt
                 ,
                 16.
                 of
                 December
                 1612.
                 that
                 ten
                 years
                 Possossion
                 before
                 the
                 Reformation
                 ,
                 or
                 thirty
                 years
                 Possession
                 thereafter
                 ,
                 but
                 interruption
                 ,
                 should
                 be
                 sufficient
                 to
                 stand
                 for
                 a
                 Right
                 of
                 Kirk-lands
                 ,
                 the
                 same
                 being
                 possest
                 as
                 such
                 ;
                 and
                 Feu
                 dutie
                 being
                 payed
                 to
                 Kirkmen
                 ,
                 before
                 the
                 Reformation
                 or
                 to
                 the
                 King
                 ,
                 or
                 others
                 having
                 Right
                 from
                 them
                 ,
                 after
                 the
                 Reformation
                 therefore
                 ,
                 it
                 was
                 so
                 decided
                 ,
                 5.
                 of
                 July
                 ,
                 1626.
                 
                 Laird
                 of
                 
                   Kerse
                   contra
                
                 Minister
                 of
                 Alva
                 ,
                 though
                 much
                 stronger
                 probation
                 ,
                 of
                 being
                 part
                 of
                 a
                 temporal
                 Barronie
                 ,
                 for
                 longer
                 time
                 was
                 alledged
                 in
                 the
                 contrary
                 ,
                 Hope
                 ,
                 Earl
                 of
                 
                   Home
                   contra
                
                 Earl
                 of
                 
                   Balcleugh
                   ,
                   Spots
                   .
                   Kirkmen
                
                 .
                 Mr.
                 
                   John
                   Hamiltone
                
                 Minister
                 at
                 
                   Linton
                   contra
                   John
                   Tweedie
                
                 .
                 Secondly
                 ,
                 Feus
                 granted
                 by
                 Prelats
                 were
                 null
                 ,
                 Except
                 they
                 were
                 expede
                 by
                 the
                 consent
                 of
                 their
                 Chapters
                 ,
                 or
                 Convents
                 ,
                 Par.
                 1593.
                 cap.
                 187.
                 
                 Thirdly
                 ,
                 Feus
                 granted
                 by
                 the
                 beneficed
                 Persons
                 ,
                 as
                 of
                 themselves
                 they
                 ought
                 to
                 have
                 been
                 without
                 diminution
                 of
                 the
                 Rental
                 ,
                 seeing
                 the
                 Property
                 thereof
                 was
                 mortified
                 to
                 the
                 Kirk
                 ,
                 and
                 the
                 incumbents
                 were
                 but
                 as
                 Liferenters
                 ,
                 Administrators
                 and
                 Tutors
                 ,
                 it
                 was
                 also
                 expresly
                 declared
                 ,
                 and
                 statute
                 ,
                 that
                 any
                 diminution
                 of
                 the
                 Rental
                 ,
                 or
                 change
                 of
                 Victual
                 for
                 Money
                 ,
                 or
                 any
                 other
                 Disposition
                 ,
                 making
                 the
                 Benefice
                 in
                 a
                 worse
                 Estate
                 then
                 at
                 the
                 Kirk-mens
                 entrie
                 ,
                 should
                 be
                 null
                 ,
                 Par.
                 1585.
                 cap.
                 11.
                 
              
               
                 38.
                 
                 Infeftments
                 in
                 Burgages
                 ,
                 are
                 these
                 which
                 are
                 granted
                 to
                 the
                 Burghs
                 ,
                 by
                 the
                 King
                 ,
                 as
                 the
                 common
                 Lands
                 ,
                 or
                 other
                 rights
                 of
                 the
                 Incorporation
                 ,
                 and
                 that
                 for
                 Burgal
                 Service
                 ,
                 in
                 Watching
                 and
                 Warding
                 within
                 their
                 Burghs
                 ,
                 &c.
                 
                 These
                 can
                 have
                 no
                 Casualities
                 ,
                 because
                 Incorporations
                 die
                 not
                 ,
                 and
                 so
                 their
                 Land
                 can
                 never
                 fall
                 in
                 Ward
                 ,
                 or
                 in
                 Non-entrie
                 .
                 These
                 Infeftments
                 in
                 Burgage
                 are
                 held
                 by
                 the
                 Incorporation
                 ,
                 immediately
                 of
                 the
                 King
                 for
                 Burgal
                 service
                 ,
                 Watching
                 and
                 Warding
                 within
                 Burgh
                 ,
                 &c.
                 
                 And
                 the
                 particular
                 persons
                 Infeft
                 ,
                 are
                 the
                 Kings
                 immediate
                 Vassals
                 ,
                 and
                 the
                 Bailies
                 of
                 the
                 Burgh
                 are
                 the
                 Kings
                 Bailies
                 :
                 And
                 to
                 the
                 effect
                 that
                 such
                 Infeftments
                 may
                 be
                 known
                 ,
                 it
                 is
                 declared
                 ,
                 that
                 all
                 Seasines
                 of
                 Burgage
                 Lands
                 shall
                 only
                 be
                 given
                 by
                 the
                 Bailzie
                 ,
                 and
                 common
                 Clerk
                 thereof
                 ;
                 otherwayes
                 the
                 famine
                 is
                 declared
                 null
                 ,
                 (
                 which
                 seems
                 to
                 have
                 given
                 the
                 rise
                 to
                 the
                 exception
                 in
                 the
                 Act
                 of
                 Parliament
                 ,
                 anent
                 Registration
                 of
                 Seasins
                 ,
                 that
                 it
                 should
                 not
                 extend
                 to
                 Seasins
                 within
                 Burgh
                 )
                 Par.
                 1567.
                 cap.
                 27.
                 
              
               
                 39.
                 
                 Infeftments
                 of
                 mortisied
                 Lands
                 are
                 these
                 which
                 are
                 granted
                 to
                 the
                 Kirk
                 ,
                 or
                 other
                 Incorporation
                 having
                 no
                 other
                 Reddendo
                 ,
                 then
                 Prayers
                 and
                 Supplications
                 ,
                 and
                 the
                 like
                 :
                 Such
                 were
                 the
                 Mortifications
                 of
                 the
                 Kirk-lands
                 ,
                 granted
                 by
                 the
                 King
                 to
                 Kirk-men
                 ,
                 or
                 granted
                 by
                 other
                 privat
                 men
                 to
                 the
                 Provost
                 ,
                 and
                 Prebendars
                 of
                 Colledge
                 Kirks
                 founded
                 for
                 Singing
                 ;
                 Or
                 to
                 Chaplains
                 ,
                 Preceptors
                 or
                 Alterages
                 ,
                 in
                 which
                 the
                 Patronage
                 remained
                 in
                 the
                 Mortifiers
                 .
              
               
                 40.
                 
                 Of
                 all
                 these
                 Mortifications
                 there
                 remains
                 nothing
                 now
                 ,
                 except
                 the
                 Benefices
                 of
                 Bishops
                 ,
                 Deans
                 ,
                 and
                 Chapters
                 ,
                 and
                 the
                 Manses
                 and
                 Gleibs
                 of
                 Ministers
                 ,
                 which
                 are
                 rather
                 Allodial
                 then
                 Feudal
                 ;
                 having
                 no
                 holding
                 Reddendo
                 ,
                 
                 or
                 Renovatione
                 ;
                 Yet
                 are
                 esteemed
                 as
                 holden
                 of
                 the
                 King
                 in
                 Mortification
                 :
                 And
                 therefore
                 ,
                 the
                 Liferent
                 of
                 the
                 Incumbent
                 ,
                 by
                 being
                 year
                 and
                 day
                 at
                 the
                 Horn
                 ,
                 falls
                 to
                 the
                 King.
                 
              
               
                 Manses
                 ,
                 and
                 Gleibs
                 ,
                 did
                 belong
                 to
                 Parsons
                 ,
                 Viccars
                 ,
                 and
                 other
                 Kirk-men
                 before
                 the
                 Reformation
                 ,
                 after
                 which
                 they
                 were
                 prohibited
                 to
                 set
                 the
                 same
                 Feu
                 ,
                 or
                 in
                 long
                 Tack
                 ,
                 without
                 the
                 Royall
                 assent
                 ,
                 and
                 the
                 Ministers
                 were
                 ordained
                 to
                 have
                 the
                 principall
                 Manse
                 of
                 the
                 Parson
                 ,
                 or
                 Viccar
                 ,
                 or
                 so
                 much
                 thereof
                 as
                 should
                 be
                 found
                 sufficient
                 .
                 Whither
                 the
                 saids
                 Gleibs
                 were
                 set
                 in
                 Feu
                 ,
                 or
                 long
                 Tack
                 before
                 or
                 not
                 ,
                 unlesse
                 a
                 sufficient
                 Manse
                 be
                 builded
                 ,
                 by
                 these
                 who
                 have
                 right
                 to
                 the
                 Few
                 ,
                 or
                 long
                 Tack
                 ,
                 Par.
                 1563.
                 cap.
                 72.
                 
                 Which
                 was
                 explained
                 ,
                 Par.
                 1672.
                 cap.
                 48.
                 
                 That
                 the
                 Manse
                 ,
                 either
                 pertaining
                 to
                 the
                 Parson
                 ,
                 or
                 Viccar
                 ,
                 most
                 ewest
                 to
                 the
                 Kirk
                 ,
                 shall
                 belong
                 to
                 the
                 Minister
                 ,
                 and
                 four
                 Aikers
                 of
                 Land
                 lying
                 most
                 Ewest
                 to
                 the
                 said
                 Manse
                 ,
                 to
                 be
                 designed
                 by
                 the
                 Bishop
                 ,
                 or
                 Superintendent
                 at
                 the
                 Visitation
                 ,
                 by
                 advice
                 of
                 any
                 two
                 of
                 the
                 most
                 honest
                 ,
                 and
                 godly
                 of
                 the
                 Parochioners
                 :
                 For
                 want
                 of
                 this
                 Solemnity
                 ,
                 a
                 designation
                 was
                 found
                 null
                 ,
                 because
                 it
                 bore
                 not
                 two
                 honestmen
                 by
                 name
                 ,
                 required
                 to
                 joyn
                 with
                 the
                 Presbytery
                 ,
                 or
                 their
                 Commissionersthough
                 it
                 bore
                 ,
                 that
                 all
                 the
                 Elders
                 of
                 the
                 Paroch
                 were
                 present
                 ,
                 and
                 consented
                 ,
                 but
                 named
                 none
                 .
                 Spots
                 .
                 Kirk-men
                 ,
                 Minister
                 of
                 
                   Lamingtoun
                   contra
                   Tweedie
                
                 ,
                 though
                 Parsons
                 ,
                 or
                 Viccars
                 Manses
                 may
                 be
                 designed
                 to
                 be
                 the
                 Manse
                 of
                 a
                 Minister
                 ,
                 yet
                 no
                 other
                 house
                 can
                 be
                 designed
                 ,
                 though
                 it
                 were
                 in
                 an
                 Abbay
                 ,
                 but
                 the
                 Parochioners
                 must
                 build
                 one
                 ,
                 11.
                 of
                 February
                 ,
                 1631.
                 
                 Minister
                 of
                 
                   Innerkeithing
                   contra
                   John
                   Kerr
                
                 .
              
               
                 If
                 there
                 be
                 no
                 Manse
                 ,
                 nor
                 Gleib
                 of
                 old
                 extending
                 to
                 four
                 Aikers
                 of
                 Land
                 ,
                 then
                 the
                 designation
                 is
                 to
                 be
                 made
                 of
                 Parsons
                 ,
                 Viccars
                 ,
                 Abbots
                 ,
                 or
                 Priors
                 Land
                 ,
                 and
                 failing
                 thereof
                 ,
                 of
                 Bishops
                 Lands
                 ,
                 Friers
                 Lands
                 ,
                 or
                 any
                 other
                 Kirk-lands
                 within
                 the
                 Paroch
                 ;
                 aye
                 and
                 while
                 the
                 four
                 Aikers
                 be
                 compleat
                 ,
                 with
                 freedom
                 of
                 foggage
                 ,
                 pasturage
                 ,
                 fewel
                 ,
                 feal
                 and
                 divet
                 ,
                 Par.
                 1593.
                 cap.
                 161.
                 
                 By
                 which
                 there
                 is
                 a
                 clear
                 order
                 of
                 designation
                 ;
                 First
                 ,
                 of
                 Viccars
                 and
                 Parsons
                 Manses
                 most
                 ewest
                 ,
                 and
                 failing
                 thereof
                 ,
                 of
                 Parsons
                 or
                 Viccars
                 lands
                 ;
                 Failing
                 these
                 ,
                 Bishops
                 Lands
                 ,
                 Frier
                 Lands
                 ,
                 or
                 any
                 other
                 Kirk-lands
                 ,
                 as
                 Chaplanries
                 ,
                 Prebendaries
                 :
                 Which
                 order
                 was
                 so
                 found
                 to
                 be
                 observed
                 ,
                 13.
                 of
                 July
                 ,
                 1636.
                 
                 
                   Thomas
                   Halyburton
                
                 Minister
                 ,
                 
                   contra
                   John
                   Paterson
                
                 .
                 And
                 therefore
                 a
                 designation
                 of
                 a
                 Manse
                 ,
                 or
                 Gleib
                 out
                 of
                 Abbots
                 Lands
                 was
                 annulled
                 ,
                 because
                 there
                 were
                 Parsons
                 Lands
                 in
                 the
                 paroch
                 ,
                 though
                 they
                 were
                 builded
                 with
                 houses
                 ,
                 and
                 feued
                 ,
                 for
                 which
                 the
                 Feuers
                 were
                 obliged
                 to
                 acquire
                 a
                 Gleib
                 ,
                 24.
                 
                 July
                 ,
                 1629.
                 
                 Mr.
                 
                   James
                   Nairn
                   ,
                   contra
                
                 Mr.
                 
                   James
                   Boswell
                
                 :
                 The
                 like
                 ,
                 though
                 the
                 Lands
                 were
                 fewed
                 all
                 before
                 the
                 Act
                 of
                 Parliament
                 ,
                 25.
                 of
                 January
                 ,
                 1665.
                 
                 Parson
                 of
                 
                   Dysart
                   contra
                   Watson
                
                 .
                 Yet
                 Bishops
                 Lands
                 were
                 ordained
                 to
                 be
                 designed
                 before
                 Abbots
                 Lands
                 ,
                 though
                 they
                 be
                 named
                 after
                 ,
                 in
                 respect
                 of
                 their
                 greater
                 interest
                 in
                 the
                 Cure.
                 
                   Nicol.
                   de
                   sacro
                   sancta
                   Ecclesia
                
                 ,
                 2.
                 of
                 July
                 ,
                 1622.
                 
                 
                   Nicolson
                   contra
                   Porteous
                
                 :
                 Where
                 there
                 is
                 not
                 arable
                 Land
                 near
                 the
                 Kirk
                 ,
                 the
                 Geib
                 is
                 to
                 be
                 designed
                 of
                 pasture
                 lands
                 ,
                 sufficient
                 for
                 16
                 soums
                 most
                 ewest
                 to
                 the
                 Kirk
                 ,
                 Par.
                 1621.
                 cap.
                 19.
                 
                 The
                 designation
                 of
                 Manses
                 and
                 Gleibs
                 ,
                 where
                 they
                 are
                 not
                 designed
                 ,
                 or
                 not
                 a
                 full
                 quantity
                 ,
                 or
                 are
                 become
                 unprofitable
                 by
                 Inundation
                 ,
                 or
                 other
                 extraordinary
                 accident
                 ,
                 are
                 ordained
                 to
                 be
                 out
                 of
                 the
                 Kirk-lands
                 most
                 ewest
                 to
                 the
                 Kirk
                 ,
                 according
                 to
                 the
                 order
                 in
                 the
                 Act.
                 1593.
                 
                 Burrowstoun
                 Kirks
                 being
                 always
                 excepted
                 ;
                 yet
                 a
                 Gleib
                 was
                 found
                 competent
                 to
                 a
                 Minister
                 of
                 a
                 Burgh
                 ,
                 having
                 a
                 Land-ward
                 part
                 of
                 his
                 Parochin
                 ,
                 Spots
                 .
                 Kirk-men
                 ,
                 Mr.
                 
                   Robert
                   Ruch
                
                 .
                 The
                 Designation
                 of
                 Gleibs
                 was
                 committed
                 to
                 Presbyteries
                 ,
                 Par.
                 1644.
                 cap.
                 31.
                 which
                 is
                 declared
                 to
                 be
                 by
                 three
                 Ministers
                 and
                 three
                 Elders
                 ,
                 Par.
                 1649.
                 cap.
                 31.
                 
                 Revived
                 ,
                 Par.
                 1663.
                 cap.
                 20.
                 whereby
                 
                 Designations
                 are
                 referred
                 to
                 the
                 Bishop
                 ,
                 or
                 such
                 Ministers
                 as
                 he
                 shall
                 appoint
                 ,
                 with
                 two
                 or
                 three
                 of
                 the
                 most
                 knowing
                 in
                 the
                 Paroch
                 :
                 In
                 which
                 Acts
                 the
                 power
                 of
                 Designation
                 is
                 extended
                 ,
                 not
                 only
                 to
                 Kirk-lands
                 ,
                 but
                 where
                 these
                 are
                 not
                 ,
                 to
                 other
                 Lands
                 arable
                 ,
                 or
                 Grass
                 ,
                 ewest
                 to
                 the
                 Kirk
                 ,
                 provided
                 that
                 the
                 Heretor
                 thereof
                 may
                 offer
                 other
                 sufficient
                 Lands
                 and
                 Grass
                 ,
                 within
                 half
                 a
                 myle
                 of
                 the
                 Kirk
                 and
                 Manse
                 :
                 And
                 by
                 the
                 said
                 Act
                 ,
                 1649.
                 there
                 is
                 added
                 to
                 the
                 Gleib
                 pasturage
                 for
                 a
                 Horse
                 and
                 two
                 Cows
                 ,
                 which
                 is
                 found
                 to
                 be
                 regulat
                 as
                 the
                 Gleib
                 before
                 ,
                 which
                 is
                 also
                 revived
                 ,
                 Par.
                 1663.
                 cap.
                 20.
                 with
                 this
                 alteration
                 ,
                 that
                 if
                 there
                 be
                 not
                 Kirk-lands
                 near
                 the
                 Manse
                 ,
                 or
                 are
                 not
                 Arable
                 Lands
                 ,
                 the
                 Heretors
                 shall
                 be
                 lyable
                 to
                 pay
                 yearly
                 to
                 the
                 Minister
                 ,
                 twenty
                 Pounds
                 Scots
                 ,
                 for
                 his
                 Horse
                 and
                 Kines
                 Grass
                 ,
                 and
                 this
                 Act
                 is
                 declared
                 to
                 be
                 as
                 if
                 it
                 had
                 been
                 made
                 in
                 March
                 1649.
                 as
                 to
                 designations
                 ,
                 after
                 1649.
                 that
                 Parliam
                 .
                 being
                 rescinded
                 without
                 reservation
                 contained
                 in
                 the
                 Act
                 rescissory
                 (
                 as
                 is
                 in
                 the
                 Act
                 Rescissory
                 of
                 the
                 other
                 Parliaments
                 )
                 saving
                 all
                 privat
                 rights
                 done
                 thereby
                 ;
                 but
                 there
                 is
                 no
                 warrand
                 in
                 any
                 of
                 these
                 Acts
                 to
                 design
                 temporal
                 Lands
                 ,
                 where
                 there
                 are
                 any
                 Church
                 lands
                 ;
                 and
                 therefore
                 ,
                 a
                 Designation
                 was
                 reduced
                 ,
                 because
                 temporal
                 Lands
                 were
                 designed
                 ,
                 and
                 Kirk-lands
                 past
                 by
                 ,
                 albeit
                 the
                 Minister
                 had
                 been
                 possessor
                 ,
                 
                   decennalis
                   &
                   triennalis
                
                 ,
                 which
                 gave
                 him
                 a
                 presumptive
                 Title
                 ,
                 because
                 his
                 Designation
                 which
                 was
                 the
                 true
                 Title
                 ,
                 was
                 produced
                 ,
                 February
                 6.
                 1678.
                 
                 Lord
                 
                   Forret
                   contra
                
                 Mr.
                 
                   John
                   Maters
                
                 .
              
               
                 A
                 Gleib
                 designed
                 ,
                 was
                 found
                 to
                 carry
                 a
                 proportional
                 part
                 of
                 the
                 common
                 pasturage
                 following
                 to
                 the
                 Lands
                 designed
                 ,
                 February
                 2.
                 1630.
                 
                 
                   Hamiltoun
                   contra
                   Tweedie
                
                 .
                 Designation
                 of
                 a
                 Gleib
                 was
                 sustained
                 ,
                 though
                 it
                 bore
                 not
                 the
                 same
                 to
                 have
                 been
                 four
                 Aikers
                 measured
                 ,
                 in
                 respect
                 it
                 bore
                 ,
                 
                   that
                   the
                   possessors
                   servants
                   hindered
                   the
                   measuring
                
                 ;
                 and
                 therefore
                 ,
                 it
                 was
                 designed
                 according
                 to
                 the
                 common
                 estimat
                 ,
                 July
                 5.
                 1626.
                 
                 
                   Kers
                   contra
                
                 Minister
                 of
                 Alloway
                 .
                 And
                 also
                 sustained
                 ,
                 though
                 there
                 were
                 Lands
                 nearer
                 the
                 Kirk
                 and
                 Manse
                 ,
                 which
                 were
                 Bishops
                 Lands
                 ,
                 seing
                 they
                 were
                 inclosed
                 as
                 a
                 part
                 of
                 the
                 Kings
                 Park
                 ,
                 February
                 13.
                 1629.
                 
                 Lady
                 
                   Dumfermling
                   contra
                
                 Minister
                 of
                 Dumfermling
                 .
                 Bat
                 a
                 Designation
                 was
                 annulled
                 ,
                 because
                 there
                 was
                 an
                 old
                 Gleib
                 possest
                 long
                 by
                 the
                 incumbent
                 ,
                 being
                 four
                 Aikers
                 ,
                 
                   Nicol.
                   de
                   sacro
                   sanct
                   .
                   Eccles.
                
                 Minister
                 of
                 
                   Aberdour
                   contra
                   Brown
                
                 and
                 Ramsay
                 .
                 A
                 Designation
                 was
                 sustained
                 ,
                 though
                 there
                 was
                 only
                 a
                 Nottars
                 Instrument
                 without
                 the
                 subscription
                 ,
                 of
                 three
                 Ministers
                 Designers
                 ,
                 December
                 17.
                 1664.
                 
                 Mr.
                 
                   Thomas
                   Paterson
                   contra
                   Watson
                
                 :
                 Here
                 the
                 Ministers
                 Designers
                 ,
                 their
                 Testificat
                 under
                 their
                 hand
                 ,
                 was
                 ordained
                 to
                 be
                 produced
                 before
                 extract
                 .
                 A
                 Gleib
                 being
                 designed
                 was
                 sustained
                 ,
                 though
                 it
                 was
                 an
                 united
                 Kirk
                 ,
                 the
                 other
                 Kirk
                 having
                 a
                 Gleib
                 ,
                 January
                 22
                 :
                 1631
                 :
                 Ministers
                 of
                 
                   Innerkeithing
                   contra
                   John
                   Keir
                
                 .
                 A
                 Designation
                 was
                 also
                 sustained
                 ,
                 though
                 it
                 proceeded
                 upon
                 warning
                 out
                 of
                 the
                 Pulpit
                 ,
                 or
                 at
                 the
                 Kirk-door
                 ,
                 after
                 Divine
                 Service
                 ,
                 in
                 respect
                 of
                 the
                 custom
                 so
                 to
                 do
                 ,
                 though
                 some
                 of
                 the
                 most
                 considerable
                 Heretors
                 were
                 out
                 of
                 the
                 Countrey
                 ,
                 January
                 28
                 :
                 1668
                 :
                 Ministers
                 of
                 
                   Hassanden
                   contra
                
                 the
                 Duke
                 of
                 Bukcleugh
                 .
                 It
                 was
                 also
                 sustained
                 ,
                 though
                 done
                 but
                 by
                 two
                 of
                 the
                 three
                 Ministers
                 ,
                 named
                 by
                 the
                 Bishop
                 ,
                 without
                 a
                 quorum
                 ,
                 unless
                 weighty
                 reasons
                 upon
                 the
                 matter
                 ,
                 were
                 shown
                 to
                 the
                 contrary
                 ,
                 February
                 7
                 :
                 1668
                 :
                 Minister
                 of
                 
                   Cockburnspeth
                   contra
                
                 his
                 Parochioners
                 .
                 Manses
                 &
                 Gleibs
                 being
                 designed
                 as
                 said
                 is
                 ,
                 the
                 Feuars
                 ,
                 Possessors
                 and
                 Tacksmen
                 have
                 relief
                 of
                 the
                 remnant
                 Parochioners
                 ,
                 having
                 Kirk-lands
                 ,
                 
                   pro
                   rata
                   ,
                   Par
                
                 :
                 1594
                 :
                 cap
                 :
                 199
                 :
                 which
                 was
                 extended
                 to
                 a
                 〈◊〉
                 Manse
                 being
                 Designed
                 ;
                 and
                 the
                 other
                 Kirk-lands
                 ,
                 a
                 part
                 where
                 of
                 were
                 mortified
                 to
                 ,
                 and
                 holden
                 of
                 a
                 Colledge
                 ,
                 did
                 bear
                 burden
                 ,
                 February
                 12
                 :
                 1635
                 :
                 
                   John
                   Cock
                   contra
                
                 Parochioners
                 of
                 Auchtergivan
                 .
                 But
                 where
                 old
                 Gleibs
                 are
                 designed
                 ,
                 there
                 is
                 no
                 relief
                 by
                 other
                 Kirk-lands
                 except
                 these
                 who
                 had
                 
                 Feus
                 of
                 other
                 parts
                 of
                 the
                 same
                 Gleib
                 ,
                 seing
                 by
                 the
                 foresaids
                 Statutes
                 ,
                 the
                 Feuars
                 of
                 old
                 Manses
                 or
                 Gleibs
                 ,
                 are
                 to
                 suffer
                 Designation
                 ,
                 or
                 to
                 purchase
                 new
                 Manses
                 and
                 Gleibs
                 ;
                 so
                 that
                 these
                 old
                 Manses
                 and
                 Gleibs
                 do
                 not
                 infer
                 relief
                 :
                 This
                 relief
                 is
                 not
                 
                   debitum
                   fundi
                
                 ,
                 affecting
                 singular
                 successors
                 ,
                 as
                 was
                 found
                 ,
                 June
                 1675
                 :
                 
                   Schaw
                   contra
                   Hamiltoun
                
                 of
                 Munckland
                 .
                 But
                 when
                 the
                 Designation
                 is
                 of
                 Temporal
                 Lands
                 ,
                 the
                 whole
                 Heretors
                 of
                 Temporal
                 Lands
                 are
                 to
                 contribute
                 for
                 a
                 recompense
                 thereof
                 proportionally
                 ,
                 Par
                 :
                 1649
                 :
                 cap
                 :
                 131
                 :
                 revived
                 ,
                 Par
                 :
                 1663
                 :
                 Session
                 3.
                 cap.
                 20.
                 
                 Gleibs
                 are
                 Teind-free
                 ,
                 Parl.
                 1578.
                 cap.
                 62.
                 
                 The
                 like
                 ,
                 where
                 they
                 are
                 Arable
                 or
                 Grass
                 ,
                 Par.
                 121.
                 cap.
                 10.
                 
                 And
                 a
                 Gleib
                 was
                 found
                 Teind-free
                 ,
                 though
                 lately
                 mortified
                 ,
                 voluntarly
                 without
                 Designation
                 or
                 Process
                 ;
                 and
                 though
                 not
                 mortified
                 to
                 a
                 Paroch
                 Church
                 ,
                 but
                 a
                 Chappel
                 ,
                 seing
                 Divine
                 Worship
                 was
                 accustomed
                 to
                 be
                 therein
                 ,
                 June
                 9.
                 1676.
                 
                 
                   Alexander
                   Burnet
                   contra
                   William
                   Gibb
                
                 .
              
               
                 41.
                 
                 There
                 is
                 another
                 division
                 of
                 Infeftments
                 ,
                 into
                 these
                 which
                 are
                 granted
                 to
                 one
                 Person
                 and
                 his
                 Heirs
                 ,
                 and
                 to
                 more
                 Persons
                 and
                 their
                 Heirs
                 ,
                 which
                 are
                 of
                 diverse
                 sorts
                 ;
                 sometimes
                 as
                 Conjunct-infeftments
                 ,
                 and
                 sometimes
                 conceived
                 in
                 favours
                 of
                 Fathers
                 ,
                 and
                 after
                 their
                 decease
                 ,
                 to
                 Children
                 or
                 relations
                 therein
                 nominat
                 .
              
               
                 Conjunct-infeftments
                 are
                 called
                 Conjunct-Fees
                 ,
                 whereby
                 the
                 Fee
                 is
                 disponed
                 joyntly
                 to
                 more
                 persons
                 and
                 their
                 Heirs
                 ,
                 which
                 may
                 be
                 to
                 three
                 or
                 more
                 persons
                 ,
                 who
                 by
                 the
                 Infeftment
                 ,
                 become
                 all
                 Fiars
                 joyntly
                 and
                 equally
                 ;
                 whence
                 there
                 ariseth
                 a
                 Communion
                 by
                 which
                 they
                 do
                 possess
                 the
                 Fee
                 ,
                 
                   pro
                   indiviso
                
                 ,
                 until
                 division
                 thereof
                 be
                 made
                 ,
                 which
                 doth
                 not
                 comprehend
                 an
                 Infeftment
                 to
                 an
                 Incorporation
                 ,
                 as
                 to
                 a
                 Town
                 or
                 Colledge
                 ,
                 or
                 to
                 the
                 use
                 of
                 the
                 Poor
                 ,
                 who
                 do
                 not
                 thereby
                 become
                 joynt
                 Fiars
                 ,
                 but
                 have
                 only
                 a
                 share
                 of
                 the
                 benefite
                 ,
                 according
                 to
                 the
                 distribution
                 appointed
                 .
                 These
                 Infeftments
                 are
                 not
                 conceived
                 to
                 Heirs
                 ,
                 seing
                 Incorporations
                 are
                 perpetual
                 and
                 die
                 not
                 ,
                 neither
                 doth
                 the
                 publick
                 use
                 fail
                 ;
                 therefore
                 ,
                 such
                 Infeftments
                 require
                 no
                 renovation
                 .
              
               
                 Superiours
                 will
                 not
                 easily
                 be
                 induced
                 to
                 accept
                 Resignations
                 from
                 their
                 Vassals
                 in
                 favours
                 of
                 Incorporations
                 and
                 publick
                 uses
                 ,
                 by
                 which
                 all
                 the
                 Casualities
                 of
                 their
                 Superiority
                 cease
                 ;
                 or
                 to
                 grant
                 Confirmations
                 thereof
                 ,
                 having
                 the
                 same
                 effect
                 :
                 Nor
                 can
                 they
                 be
                 compelled
                 to
                 grant
                 such
                 Infeftments
                 upon
                 the
                 Vassals
                 Bonds
                 ,
                 granted
                 of
                 purpose
                 ,
                 that
                 Adjudication
                 may
                 be
                 used
                 thereupon
                 ,
                 that
                 thereby
                 the
                 Superiour
                 may
                 be
                 compelled
                 to
                 receive
                 the
                 Incorporation
                 ;
                 yea
                 ,
                 though
                 without
                 design
                 ,
                 an
                 Incorporation
                 should
                 become
                 Creditor
                 to
                 a
                 Vassal
                 in
                 a
                 debt
                 truly
                 borrowed
                 ,
                 either
                 from
                 the
                 Incorporation
                 or
                 their
                 Cedent
                 ;
                 The
                 question
                 is
                 ,
                 whether
                 an
                 Adjudication
                 thereupon
                 might
                 force
                 the
                 Superiour
                 to
                 receive
                 the
                 Incorporation
                 for
                 a
                 years
                 Rent
                 .
                 Craigs
                 opinion
                 is
                 in
                 the
                 Negative
                 ;
                 and
                 I
                 have
                 not
                 heard
                 such
                 a
                 case
                 come
                 to
                 be
                 debated
                 .
                 And
                 though
                 Custom
                 hath
                 oblieged
                 Superiours
                 to
                 receive
                 man
                 and
                 Wife
                 in
                 Conjunct-Fee
                 ,
                 which
                 abate
                 their
                 Casualities
                 ,
                 during
                 the
                 life
                 of
                 two
                 persons
                 ,
                 the
                 consequence
                 would
                 not
                 be
                 good
                 ,
                 to
                 reach
                 to
                 an
                 Incorporation
                 that
                 never
                 dies
                 ,
                 though
                 the
                 Act
                 of
                 Parliament
                 introducing
                 Appryzings
                 and
                 Adjudications
                 ,
                 be
                 generally
                 in
                 favours
                 of
                 all
                 Creditors
                 :
                 It
                 were
                 more
                 just
                 ,
                 that
                 Incorporations
                 should
                 pitch
                 upon
                 a
                 person
                 ,
                 and
                 assign
                 their
                 debt
                 to
                 him
                 expresly
                 ,
                 to
                 the
                 effect
                 ,
                 that
                 the
                 Lands
                 might
                 be
                 adjudged
                 to
                 him
                 and
                 his
                 Heirs
                 ,
                 for
                 the
                 use
                 and
                 behove
                 of
                 the
                 Incorporation
                 ,
                 or
                 such
                 other
                 uses
                 as
                 were
                 designed
                 ,
                 which
                 would
                 be
                 effectual
                 against
                 all
                 singular
                 Successors
                 ,
                 especially
                 ,
                 if
                 the
                 Trust
                 were
                 exprest
                 in
                 the
                 Seasine
                 ;
                 but
                 the
                 Superiour
                 would
                 have
                 all
                 his
                 Casualities
                 by
                 the
                 death
                 ,
                 neglect
                 or
                 delinquence
                 
                 of
                 the
                 Trustee
                 and
                 his
                 Heirs
                 .
                 I
                 shall
                 not
                 pre-determine
                 my self
                 or
                 others
                 in
                 the
                 case
                 ,
                 but
                 leave
                 it
                 to
                 publick
                 determination
                 .
              
               
                 Conjunct-Fees
                 ,
                 by
                 the
                 Custom
                 of
                 England
                 ,
                 are
                 always
                 so
                 understood
                 ,
                 that
                 the
                 survivers
                 have
                 the
                 whole
                 benefite
                 ,
                 so
                 long
                 as
                 any
                 of
                 them
                 are
                 alive
                 ;
                 but
                 we
                 do
                 only
                 extend
                 this
                 survivancy
                 to
                 Conjunct-infeftments
                 to
                 Husband
                 and
                 Wife
                 ,
                 which
                 bears
                 ordinarly
                 to
                 the
                 longest
                 liver
                 :
                 But
                 though
                 that
                 were
                 not
                 exprest
                 ,
                 it
                 would
                 be
                 understood
                 as
                 implyed
                 ,
                 and
                 generally
                 ,
                 it
                 resolves
                 in
                 the
                 Wife
                 but
                 as
                 a
                 Liferent
                 ;
                 and
                 the
                 Husband
                 is
                 understood
                 to
                 be
                 Fiar
                 ,
                 unless
                 it
                 be
                 evident
                 ,
                 that
                 the
                 Right
                 was
                 originally
                 the
                 Wifes
                 ,
                 and
                 a
                 Liferent
                 only
                 designed
                 for
                 the
                 Husband
                 ;
                 and
                 therefore
                 ,
                 if
                 no
                 Heirs
                 be
                 exprest
                 ,
                 or
                 only
                 generally
                 their
                 Heirs
                 ,
                 the
                 Husbands
                 Heir
                 is
                 understood
                 in
                 Heretable
                 Rights
                 ,
                 
                   Nam
                   potior
                   est
                   conditio
                   masculi
                
                 ;
                 and
                 the
                 Wife
                 is
                 only
                 Liferenter
                 ,
                 but
                 with
                 greater
                 power
                 then
                 by
                 a
                 separate
                 Liferent
                 ,
                 June
                 24.
                 1663.
                 
                 
                   Elizabeth
                   Scrymzour
                   contra
                   Murrays
                
                 .
                 And
                 a
                 Wife
                 having
                 charged
                 ,
                 upon
                 a
                 Bond
                 granted
                 to
                 her
                 Husband
                 and
                 her
                 ,
                 and
                 the
                 longest
                 liver
                 ,
                 was
                 found
                 not
                 to
                 have
                 right
                 to
                 uplift
                 the
                 sum
                 ,
                 or
                 to
                 insist
                 therefore
                 ,
                 without
                 concurse
                 of
                 the
                 mans
                 Heir
                 ,
                 or
                 he
                 being
                 called
                 ,
                 that
                 if
                 the
                 sum
                 were
                 insecure
                 ,
                 it
                 might
                 be
                 consigned
                 to
                 be
                 re-imployed
                 to
                 the
                 wife
                 in
                 Liferent
                 ,
                 and
                 to
                 the
                 Heir
                 in
                 Fee
                 ,
                 December
                 10.
                 1671.
                 
                 
                   Katharine
                   Ross
                   contra
                
                 Laird
                 of
                 Hunthill
                 .
                 Yea
                 ,
                 a
                 Clause
                 in
                 a
                 Bond
                 ,
                 bearing
                 ,
                 
                   a
                   sum
                   borrowed
                   from
                   a
                   Husband
                   and
                   wife
                   ,
                   and
                   payable
                   to
                   the
                   longest
                   liver
                   of
                   them
                   two
                   in
                   Coniunct-fee
                   ,
                   and
                   to
                   the
                   Heirs
                   betwixt
                   them
                   and
                   their
                   Assigneys
                   ,
                   whilks
                   failing
                   ,
                   to
                   the
                   Heirs
                   and
                   Assigneys
                   of
                   the
                   last
                   liver
                   ,
                
                 was
                 found
                 to
                 constitute
                 the
                 Husband
                 Fiar
                 ,
                 and
                 the
                 Wife
                 Liferenter
                 ,
                 albeit
                 she
                 was
                 last
                 liver
                 ,
                 whereby
                 her
                 Heirs
                 of
                 Line
                 (
                 failing
                 Heirs
                 of
                 the
                 Marriage
                 )
                 became
                 Heirs
                 of
                 provision
                 to
                 the
                 Husband
                 ,
                 and
                 lyable
                 to
                 his
                 debts
                 ,
                 January
                 29.
                 1669.
                 
                 
                   Graham
                   contra
                   Park
                
                 and
                 
                   Gerdan
                   .
                   January
                
                 23.
                 1668.
                 
                 
                   John
                   Justice
                   contra
                   Mary
                   Barcley
                
                 his
                 Spouse
                 .
                 And
                 a
                 Clause
                 in
                 a
                 Contract
                 of
                 Marriage
                 ,
                 oblieging
                 the
                 Husband
                 to
                 take
                 the
                 Conquest
                 to
                 him
                 and
                 his
                 future
                 Spouse
                 ,
                 and
                 the
                 Heirs
                 betwixt
                 them
                 ;
                 whilks
                 failing
                 ,
                 the
                 Heirs
                 of
                 the
                 Mans
                 Body
                 ;
                 whilks
                 failing
                 ,
                 the
                 Wifes
                 Heirs
                 whatsomever
                 ,
                 was
                 found
                 not
                 to
                 constitute
                 the
                 Wife
                 Fiar
                 ,
                 but
                 Liferenter
                 ,
                 and
                 the
                 Husband
                 Fiar
                 ;
                 whereby
                 failing
                 Heirs
                 of
                 the
                 Marriage
                 and
                 of
                 the
                 Mans
                 Body
                 ,
                 the
                 Wifes
                 Heirs
                 of
                 Line
                 ,
                 were
                 Heirs
                 of
                 provision
                 to
                 the
                 Man
                 ,
                 February
                 20.
                 1667.
                 
                 
                   Cranstoun
                   contra
                   Wilkison
                
                 ;
                 For
                 by
                 this
                 Clause
                 of
                 Conquest
                 ,
                 it
                 is
                 evident
                 ,
                 the
                 means
                 were
                 to
                 come
                 by
                 the
                 Man
                 ;
                 yet
                 an
                 Obliegement
                 by
                 a
                 Man
                 ,
                 bearing
                 ,
                 
                   that
                   whatsoever
                   Lands
                   or
                   sums
                   of
                   Money
                   he
                   should
                   purchase
                   ,
                   during
                   the
                   life
                   of
                   him
                   and
                   his
                   future
                   Spouse
                   (
                   their
                   present
                   debts
                   being
                   first
                   payed
                   )
                   that
                   the
                   wife
                   should
                   be
                   secured
                   therein
                   in
                   Conjunct-fee
                   ;
                   and
                   in
                   case
                   of
                   no
                   Issue
                   ,
                   or
                   Children
                   ,
                   the
                   one
                   half
                   thereof
                   to
                   be
                   disponed
                   as
                   the
                   Wife
                   should
                   think
                   fit
                   ,
                
                 was
                 found
                 to
                 make
                 the
                 Conquest
                 divide
                 betwixt
                 the
                 Heirs
                 of
                 the
                 Man
                 and
                 the
                 Wife
                 ,
                 and
                 that
                 her
                 power
                 to
                 dispone
                 the
                 half
                 ,
                 was
                 not
                 a
                 personal
                 Faculty
                 ,
                 but
                 did
                 make
                 her
                 Fiar
                 in
                 that
                 half
                 ,
                 and
                 took
                 off
                 the
                 presumption
                 of
                 the
                 preference
                 of
                 the
                 Husband
                 ,
                 seing
                 no
                 mention
                 was
                 made
                 of
                 the
                 Heirs
                 of
                 either
                 party
                 ,
                 June
                 27.
                 and
                 28.
                 1676.
                 
                 Earl
                 of
                 
                   Dumfermling
                   contra
                
                 Earl
                 of
                 Callender
                 .
                 Conjunct-Fees
                 to
                 Husband
                 and
                 Wife
                 ,
                 and
                 the
                 Heirs
                 of
                 the
                 Marriage
                 ,
                 do
                 imply
                 a
                 restriction
                 upon
                 the
                 Man
                 ,
                 not
                 to
                 alter
                 the
                 succession
                 ,
                 without
                 a
                 necessary
                 or
                 just
                 consideration
                 ,
                 and
                 so
                 do
                 exclude
                 deeds
                 fraudulent
                 ,
                 or
                 meerly
                 gratuitous
                 ,
                 which
                 might
                 evacuat
                 the
                 effect
                 ,
                 as
                 to
                 the
                 heirs
                 of
                 the
                 Marriage
                 ;
                 so
                 that
                 if
                 there
                 were
                 heirs
                 of
                 the
                 Marriage
                 ,
                 and
                 also
                 heirs
                 of
                 another
                 Marriage
                 ,
                 the
                 Father
                 could
                 not
                 alter
                 the
                 Succession
                 ,
                 in
                 favours
                 of
                 the
                 heirs
                 of
                 another
                 Marriage
                 ,
                 because
                 of
                 the
                 interest
                 of
                 the
                 Wife
                 ,
                 and
                 the
                 Tocher
                 she-brings
                 :
                 But
                 it
                 doth
                 not
                 hinder
                 the
                 Father
                 to
                 give
                 competent
                 portions
                 to
                 the
                 Bairns
                 of
                 another
                 Marriage
                 ,
                 June
                 19
                 ,
                 1677.
                 
                 
                   Murrays
                   contra
                   Murrays
                
                 .
                 Neither
                 did
                 such
                 a
                 Clause
                 of
                 Conquest
                 during
                 the
                 Marriage
                 ,
                 exclude
                 a
                 competent
                 Liferent
                 ,
                 constitute
                 to
                 Wife
                 of
                 a
                 subsequent
                 
                 
                 
                 Marriage
                 ,
                 albeit
                 there
                 were
                 Bairns
                 of
                 the
                 first
                 Marriage
                 ,
                 June
                 16.
                 1676.
                 
                 
                   Katherine
                   Mitehel
                   contra
                
                 Children
                 of
                 
                   Thomas
                   Littlujohn
                
                 .
                 Yet
                 where
                 there
                 survived
                 no
                 heirs
                 of
                 the
                 Marriage
                 ,
                 a
                 provision
                 in
                 a
                 Contract
                 of
                 Marriage
                 ,
                 that
                 such
                 a
                 sum
                 ,
                 the
                 future
                 Spouse
                 then
                 had
                 ,
                 and
                 all
                 they
                 should
                 acquire
                 during
                 the
                 Marriage
                 ,
                 should
                 be
                 taken
                 to
                 themselves
                 in
                 Conjunct-Fee
                 ,
                 and
                 to
                 the
                 heirs
                 of
                 the
                 Marriage
                 ,
                 whilks
                 failzing
                 ,
                 the
                 one
                 half
                 to
                 the
                 Mans
                 heirs
                 ,
                 and
                 the
                 other
                 half
                 to
                 the
                 Womans
                 heirs
                 ,
                 found
                 to
                 constitute
                 the
                 Man
                 Fiar
                 of
                 the
                 whole
                 ,
                 and
                 that
                 he
                 might
                 provide
                 both
                 the
                 first
                 Stock
                 and
                 all
                 the
                 Conquestro
                 his
                 Children
                 of
                 a
                 posterior
                 Marriage
                 ,
                 which
                 was
                 found
                 no
                 fraudulent
                 〈◊〉
                 meerly
                 gratuitous
                 deed
                 ,
                 December
                 1.
                 and
                 21.
                 1680.
                 
                 
                   Alexander
                   Anderson
                   contra
                   Androw
                   Bruce
                
                 .
              
               
                 42.
                 
                 Infeftments
                 to
                 more
                 persons
                 subordinat
                 ,
                 are
                 such
                 as
                 are
                 taken
                 to
                 Parents
                 ,
                 and
                 after
                 their
                 decease
                 to
                 such
                 Children
                 and
                 other
                 persons
                 named
                 ,
                 whereby
                 the
                 Parent
                 is
                 understood
                 to
                 be
                 Fiar
                 and
                 not
                 Liferenter
                 ,
                 and
                 the
                 Children
                 or
                 others
                 to
                 be
                 Heirs
                 substitute
                 ,
                 albeit
                 both
                 the
                 Father
                 and
                 the
                 Bairns
                 named
                 ,
                 were
                 Infeft
                 ,
                 July
                 23.
                 1675.
                 
                 Laird
                 of
                 
                   Lambingtoun
                   contra
                   〈◊〉
                
                 of
                 Annistain
                 .
                 But
                 where
                 the
                 Band
                 did
                 bear
                 ,
                 
                   a
                   sum
                   lent
                   by
                   a
                   Father
                   for
                   himself
                   ,
                   and
                   as
                   Administrator
                   for
                   his
                   Son
                   ,
                   and
                   that
                   the
                   Money
                   was
                   the
                   Sons
                   ,
                   and
                   payable
                   to
                   the
                   Father
                   ,
                   and
                   after
                   his
                   decease
                   to
                   the
                   Son
                   ,
                
                 was
                 found
                 to
                 constitute
                 the
                 Son
                 〈◊〉
                 ,
                 and
                 the
                 Father
                 only
                 life-renter
                 ,
                 February
                 14.
                 1667.
                 
                 
                   Campbel
                   contra
                   Constantine
                
                 .
              
               
                 43.
                 
                 The
                 third
                 division
                 of
                 Infeftments
                 ,
                 is
                 in
                 respect
                 of
                 the
                 succession
                 ,
                 and
                 they
                 are
                 either
                 simple
                 or
                 Tailzied
                 :
                 Simple
                 Infeftments
                 are
                 these
                 which
                 are
                 taken
                 to
                 Heirs
                 whatsomever
                 ;
                 for
                 by
                 that
                 expression
                 we
                 express
                 the
                 lineal
                 Heirs
                 ,
                 who
                 according
                 to
                 Law
                 ,
                 would
                 succeed
                 in
                 any
                 Heretable
                 Right
                 :
                 But
                 Tailzied
                 Infeftments
                 are
                 ,
                 where
                 the
                 Lands
                 are
                 provided
                 to
                 any
                 other
                 then
                 the
                 Heirs
                 of
                 Line
                 ,
                 as
                 when
                 it
                 is
                 provided
                 to
                 Heirs
                 Male
                 ,
                 or
                 Heirs
                 Male
                 of
                 the
                 Fiars
                 own
                 Body
                 ,
                 or
                 to
                 the
                 Heirs
                 of
                 such
                 a
                 Marriage
                 ,
                 or
                 to
                 the
                 Heirs
                 of
                 Titius
                 ,
                 whilks
                 failzing
                 ,
                 to
                 the
                 Heirs
                 of
                 Seius
                 ,
                 &c.
                 
                 Of
                 these
                 Tailzies
                 ,
                 there
                 are
                 many
                 several
                 ways
                 as
                 the
                 Fiar
                 pleaseth
                 to
                 invent
                 ,
                 and
                 ordinarily
                 in
                 them
                 all
                 ,
                 the
                 last
                 Member
                 or
                 Termination
                 is
                 the
                 Heirs
                 whatsomever
                 ,
                 of
                 the
                 last
                 Branch
                 or
                 Person
                 substitute
                 ,
                 or
                 the
                 Disponer
                 ,
                 and
                 when
                 that
                 takes
                 effect
                 by
                 succession
                 ,
                 the
                 Fee
                 which
                 before
                 was
                 Tailzied
                 ,
                 becomes
                 simple
                 .
              
               
                 A
                 Tailzie
                 must
                 necessarly
                 be
                 a
                 part
                 of
                 the
                 Infeftment
                 ,
                 for
                 no
                 write
                 apart
                 can
                 constitute
                 a
                 Tailzie
                 ,
                 though
                 Bonds
                 or
                 Contracts
                 of
                 Tailzie
                 as
                 personal
                 or
                 incompleat
                 Rights
                 ,
                 may
                 force
                 the
                 Contracter
                 or
                 his
                 Heirs
                 to
                 perfect
                 the
                 same
                 .
                 They
                 must
                 also
                 be
                 constitute
                 by
                 the
                 Superiour
                 ,
                 being
                 a
                 part
                 of
                 the
                 Infeftment
                 granted
                 by
                 him
                 ,
                 either
                 originally
                 in
                 the
                 first
                 Constitution
                 of
                 the
                 Fee
                 ,
                 or
                 thereafter
                 by
                 Resignation
                 or
                 Confirmation
                 ;
                 and
                 as
                 a
                 Superiour
                 is
                 not
                 oblieged
                 to
                 alter
                 the
                 Tenor
                 of
                 the
                 first
                 Investiture
                 ,
                 or
                 to
                 accept
                 a
                 Resignation
                 ,
                 or
                 grant
                 a
                 Confirmation
                 in
                 any
                 case
                 ,
                 except
                 where
                 it
                 is
                 provided
                 by
                 Law
                 ,
                 whereby
                 he
                 is
                 necessitat
                 to
                 receive
                 Appryzers
                 and
                 Adjudgers
                 :
                 So
                 neither
                 in
                 that
                 case
                 is
                 he
                 oblieged
                 to
                 constitute
                 a
                 Tailzie
                 ,
                 but
                 only
                 to
                 receive
                 the
                 Appryzer
                 or
                 the
                 Adjudger
                 ,
                 their
                 heirs
                 whatsomever
                 ,
                 unless
                 the
                 Debt
                 and
                 Decreet
                 ,
                 whereupon
                 the
                 same
                 proceeded
                 ,
                 be
                 conceived
                 in
                 favours
                 of
                 Heirs
                 of
                 Tailzie
                 ;
                 in
                 which
                 case
                 ,
                 the
                 Appryzing
                 or
                 Adjudication
                 ,
                 and
                 Infeftment
                 thereupon
                 ,
                 must
                 be
                 conform
                 ,
                 unless
                 it
                 be
                 otherways
                 by
                 consent
                 of
                 parties
                 .
              
               
                 Tailzies
                 also
                 being
                 Constitute
                 ,
                 are
                 broken
                 or
                 changed
                 by
                 consent
                 of
                 the
                 Superiour
                 ,
                 accepting
                 Resignation
                 in
                 favours
                 of
                 other
                 Heirs
                 ,
                 whether
                 the
                 resigner
                 resign
                 in
                 favours
                 of
                 himself
                 ,
                 or
                 his
                 heirs
                 whatsomever
                 ;
                 or
                 in
                 favours
                 of
                 any
                 other
                 
                 and
                 their
                 heirs
                 :
                 But
                 most
                 ordinarly
                 by
                 Appryzings
                 or
                 Adjudications
                 ,
                 whereby
                 the
                 Superiour
                 is
                 necessitat
                 to
                 receive
                 another
                 Vassal
                 and
                 his
                 heirs
                 ,
                 though
                 perhaps
                 he
                 be
                 substitute
                 himself
                 as
                 an
                 heir
                 of
                 Tailzie
                 ,
                 as
                 if
                 it
                 be
                 provided
                 ,
                 that
                 failzing
                 other
                 heirs
                 there
                 mentioned
                 ,
                 the
                 Fee
                 return
                 to
                 himself
                 .
                 But
                 Infeftments
                 holden
                 of
                 the
                 King
                 ,
                 have
                 this
                 priviledge
                 ,
                 that
                 they
                 are
                 not
                 refused
                 ,
                 either
                 upon
                 Resignation
                 or
                 Confirmation
                 ,
                 as
                 the
                 Fiar
                 Purchaser
                 pleaseth
                 :
                 Yea
                 ,
                 it
                 is
                 declared
                 by
                 several
                 〈◊〉
                 of
                 the
                 Privy
                 Council
                 ,
                 that
                 the
                 King
                 or
                 his
                 Commissioners
                 ought
                 not
                 to
                 deny
                 his
                 Confirmation
                 upon
                 the
                 reasonable
                 expenses
                 of
                 the
                 party
                 ;
                 which
                 Ordinances
                 are
                 repeated
                 in
                 the
                 Act
                 of
                 Parliament
                 ;
                 and
                 though
                 the
                 design
                 thereof
                 gives
                 not
                 occasion
                 to
                 ratifie
                 the
                 same
                 ,
                 yet
                 they
                 are
                 contained
                 in
                 the
                 Narrative
                 ,
                 as
                 Motives
                 of
                 that
                 Statute
                 ;
                 and
                 therefore
                 ,
                 are
                 not
                 derogat
                 ,
                 but
                 rather
                 approven
                 ,
                 Parl.
                 1578.
                 cap.
                 66.
                 
                 And
                 though
                 several
                 Kings
                 have
                 revocked
                 Infeftments
                 granted
                 by
                 them
                 ,
                 from
                 heirs
                 of
                 Line
                 ,
                 to
                 heirs
                 Male
                 and
                 of
                 Tailzie
                 ;
                 yet
                 the
                 effect
                 of
                 such
                 Revocations
                 hath
                 never
                 been
                 tryed
                 by
                 Suite
                 or
                 Decision
                 .
              
               
                 Conjunct-infeftments
                 to
                 Husband
                 and
                 Wife
                 and
                 their
                 heirs
                 ,
                 are
                 also
                 Tailzied
                 ,
                 and
                 though
                 ,
                 if
                 the
                 heirs
                 of
                 that
                 Marriage
                 be
                 a
                 Son
                 ,
                 and
                 of
                 a
                 first
                 Marriage
                 ,
                 he
                 may
                 be
                 both
                 heir
                 of
                 Line
                 ,
                 and
                 heir
                 of
                 the
                 Marriage
                 ,
                 yet
                 may
                 he
                 enter
                 as
                 heir
                 of
                 the
                 Marriage
                 ;
                 and
                 if
                 the
                 Defunct
                 had
                 other
                 Lands
                 provided
                 to
                 heirs
                 whatsomever
                 ,
                 he
                 may
                 renunce
                 to
                 be
                 heir
                 in
                 these
                 Lands
                 ,
                 to
                 the
                 effect
                 ,
                 they
                 may
                 be
                 first
                 burdened
                 with
                 his
                 Fathers
                 Debt
                 ,
                 and
                 he
                 or
                 his
                 Lands
                 provided
                 to
                 the
                 heir
                 of
                 the
                 Marriage
                 ,
                 can
                 be
                 but
                 burdened
                 in
                 the
                 second
                 place
                 ,
                 
                   in
                   subsidium
                
                 ,
                 of
                 what
                 is
                 wanting
                 by
                 the
                 Executors
                 ,
                 or
                 Heretage
                 befalling
                 to
                 heirs
                 whatsoever
                 ;
                 much
                 more
                 are
                 Infeftments
                 Tailzied
                 ,
                 which
                 are
                 granted
                 to
                 Husband
                 and
                 Wife
                 ,
                 and
                 to
                 the
                 Bairns
                 of
                 the
                 Marriage
                 ,
                 whereby
                 Male
                 and
                 Female
                 come
                 in
                 
                   pari
                   passu
                
                 .
              
               
                 Bonds
                 taken
                 to
                 Parents
                 ,
                 and
                 after
                 their
                 decease
                 to
                 such
                 a
                 Child
                 ,
                 nominatim
                 ,
                 whereupon
                 Infeftment
                 followed
                 ,
                 makes
                 a
                 Tailzied
                 Fee
                 ;
                 but
                 these
                 are
                 rather
                 called
                 heirs
                 of
                 provision
                 ,
                 and
                 these
                 are
                 most
                 properly
                 called
                 Tailzied
                 Fees
                 ,
                 where
                 several
                 Branches
                 are
                 specially
                 substitute
                 ,
                 one
                 failzing
                 another
                 .
                 But
                 seing
                 heirs
                 of
                 Tailzie
                 fall
                 under
                 consideration
                 in
                 the
                 transmission
                 of
                 Rights
                 by
                 Succession
                 ,
                 we
                 shall
                 insist
                 no
                 further
                 thereon
                 in
                 this
                 place
                 ,
                 but
                 shall
                 proceed
                 to
                 consider
                 the
                 Clauses
                 which
                 are
                 adjected
                 in
                 Infeftments
                 ,
                 not
                 being
                 of
                 the
                 Substantials
                 or
                 Solemnities
                 thereof
                 ,
                 and
                 how
                 far
                 such
                 come
                 in
                 as
                 parts
                 of
                 the
                 real
                 Right
                 ,
                 affecting
                 singular
                 Successors
                 ,
                 and
                 how
                 far
                 they
                 are
                 only
                 personal
                 ,
                 affecting
                 alone
                 the
                 heirs
                 of
                 the
                 Superiour
                 or
                 Vassal
                 :
                 And
                 last
                 ,
                 we
                 shall
                 consider
                 the
                 effects
                 of
                 Infeftments
                 themselves
                 .
              
               
                 As
                 to
                 the
                 first
                 ,
                 beside
                 the
                 Solemnities
                 requisite
                 in
                 Infeftments
                 ,
                 there
                 uses
                 to
                 be
                 many
                 Clauses
                 insert
                 therein
                 ,
                 all
                 which
                 ,
                 we
                 cannot
                 follow
                 ,
                 but
                 shall
                 insist
                 in
                 the
                 most
                 ordinar
                 and
                 and
                 important
                 ;
                 These
                 are
                 Union
                 ,
                 Erection
                 ,
                 Warrandice
                 ,
                 Reservations
                 ,
                 Provisions
                 ,
                 Conditions
                 ,
                 and
                 Clauses
                 irritant
                 .
              
               
                 44.
                 
                 Union
                 is
                 the
                 Conjunction
                 ,
                 or
                 Incorporation
                 of
                 Lands
                 or
                 Tenements
                 ,
                 lying
                 discontigue
                 ,
                 or
                 several
                 kindes
                 unto
                 one
                 Tenement
                 ,
                 that
                 one
                 Seasine
                 may
                 suffice
                 for
                 them
                 all
                 ;
                 in
                 which
                 there
                 is
                 sometimes
                 exprest
                 a
                 special
                 place
                 where
                 Seasine
                 should
                 be
                 taken
                 ;
                 and
                 when
                 that
                 is
                 not
                 ,
                 Seasine
                 upon
                 any
                 part
                 is
                 sufficient
                 ;
                 for
                 the
                 whole
                 Lands
                 lying
                 contiguous
                 are
                 naturally
                 Unite
                 ,
                 and
                 needs
                 no
                 Union
                 ,
                 so
                 that
                 Seasine
                 taken
                 upon
                 any
                 of
                 them
                 ,
                 extendeth
                 to
                 the
                 whole
                 :
                 But
                 where
                 they
                 ly
                 discontiguous
                 ,
                 other
                 Tenements
                 being
                 interjected
                 ,
                 there
                 must
                 be
                 Seasine
                 taken
                 upon
                 every
                 discontiguous
                 Tenement
                 ,
                 which
                 must
                 be
                 all
                 particularly
                 so
                 exprest
                 
                 in
                 the
                 Instrument
                 of
                 Seasin
                 ,
                 whereof
                 one
                 will
                 serve
                 for
                 all
                 the
                 Tenements
                 ;
                 or
                 otherways
                 ,
                 when
                 they
                 are
                 Tenements
                 of
                 several
                 kinds
                 ,
                 as
                 Lands
                 ,
                 Milns
                 ,
                 Fortalices
                 and
                 Fishing
                 ;
                 all
                 which
                 are
                 several
                 kinds
                 of
                 Tenements
                 ,
                 and
                 require
                 several
                 Seasines
                 ,
                 and
                 pass
                 by
                 several
                 symbols
                 or
                 tokens
                 ,
                 as
                 Lands
                 ,
                 by
                 Earth
                 and
                 Stone
                 ,
                 Milns
                 by
                 the
                 Clap
                 ,
                 Fortalices
                 by
                 the
                 Entry
                 at
                 the
                 Gates
                 ,
                 and
                 inclosing
                 the
                 person
                 possest
                 ,
                 and
                 excluding
                 the
                 granter
                 of
                 the
                 Possession
                 solemnly
                 ,
                 conform
                 to
                 the
                 Charter
                 or
                 Precept
                 .
              
               
                 Union
                 can
                 be
                 Constitute
                 originally
                 by
                 no
                 other
                 then
                 the
                 Soveraign
                 Authority
                 ,
                 conceding
                 the
                 same
                 ,
                 January
                 16.
                 1623.
                 
                 Mr.
                 
                   Hendry
                   Aikin
                   contra
                   Greenlaw
                
                 .
                 Or
                 Confirming
                 the
                 same
                 ,
                 January
                 16.
                 1623.
                 
                 
                   Aikin
                   contra
                   Stuart
                
                 .
                 And
                 therefore
                 ,
                 Union
                 being
                 Constitute
                 by
                 a
                 Subject
                 ,
                 not
                 having
                 the
                 same
                 from
                 the
                 King
                 ,
                 was
                 found
                 null
                 by
                 Exception
                 ,
                 at
                 the
                 instance
                 of
                 the
                 Possessors
                 ,
                 though
                 pretending
                 no
                 Right
                 ,
                 December
                 16.
                 1628.
                 
                 Lady
                 
                   Borthwick
                   contra
                   Scot
                
                 of
                 Goldylands
                 .
                 And
                 when
                 there
                 is
                 a
                 place
                 for
                 the
                 Seasine
                 of
                 the
                 Union
                 ,
                 a
                 Seasine
                 taken
                 elsewhere
                 ,
                 reacheth
                 none
                 of
                 the
                 Lands
                 lying
                 
                   discontigue
                   ,
                   March
                
                 19.
                 1636.
                 
                 Lady
                 
                   Dunipace
                   contra
                
                 Laird
                 of
                 But
                 if
                 the
                 Lands
                 united
                 by
                 the
                 King
                 be
                 Disponed
                 wholly
                 together
                 by
                 the
                 Vassal
                 to
                 others
                 Subalternly
                 Infeft
                 ,
                 the
                 Union
                 stands
                 valid
                 ,
                 July
                 12.
                 1626.
                 
                 Stuart
                 and
                 
                   Dowglas
                   contra
                   Cranstoun
                   Home
                
                 ;
                 repeated
                 ,
                 Jan.
                 5.
                 1627.
                 which
                 for
                 the
                 same
                 reason
                 ought
                 to
                 be
                 extended
                 to
                 Subaltern
                 Infeftments
                 of
                 an
                 annualrent
                 of
                 a
                 Barrony
                 or
                 United
                 Tenement
                 ,
                 which
                 was
                 found
                 to
                 extend
                 to
                 a
                 Miln
                 ,
                 and
                 to
                 Lands
                 lying
                 discontigue
                 ,
                 though
                 not
                 taken
                 in
                 the
                 place
                 designed
                 in
                 the
                 Union
                 ,
                 Spots
                 .
                 Executors
                 ,
                 Lady
                 
                   Ednem
                   contra
                
                 Tennents
                 of
                 Ednem
                 .
              
               
                 45.
                 
                 Erection
                 is
                 ,
                 when
                 Lands
                 are
                 not
                 only
                 Unite
                 in
                 one
                 Tenement
                 ,
                 but
                 are
                 Erected
                 into
                 the
                 dignity
                 of
                 a
                 Barrony
                 ,
                 which
                 comprehendeth
                 ,
                 Lordship
                 ,
                 Earldom
                 ,
                 &c.
                 
                 All
                 which
                 are
                 more
                 noble
                 Titles
                 of
                 a
                 Barrony
                 ,
                 having
                 the
                 like
                 seudal
                 Effects
                 ;
                 and
                 whensoever
                 the
                 Tenements
                 are
                 granted
                 as
                 a
                 Barrony
                 ,
                 Union
                 is
                 comprehended
                 as
                 the
                 lesser
                 Degree
                 ,
                 though
                 not
                 exprest
                 ;
                 and
                 therefore
                 ,
                 one
                 Seasine
                 carryeth
                 the
                 whole
                 Barrony
                 ,
                 and
                 all
                 Milns
                 and
                 Fortalices
                 thereupon
                 ,
                 and
                 fishing
                 adjacent
                 thereto
                 .
              
               
                 Erections
                 can
                 be
                 only
                 granted
                 by
                 the
                 Soveraign
                 Authority
                 ,
                 and
                 are
                 not
                 Communicable
                 by
                 the
                 Subaltern
                 Infeftments
                 ,
                 though
                 the
                 Union
                 implyed
                 therein
                 may
                 be
                 Communicat
                 .
                 Erection
                 was
                 found
                 to
                 be
                 instructed
                 by
                 the
                 Kings
                 Confirmation
                 of
                 a
                 Charter
                 ,
                 Designing
                 the
                 Lands
                 a
                 Barrony
                 ,
                 though
                 it
                 was
                 not
                 a
                 Barrony
                 before
                 ,
                 but
                 the
                 half
                 of
                 a
                 Barrony
                 ,
                 wherein
                 the
                 Barron
                 Infeft
                 his
                 Son
                 ,
                 
                   in
                   Libera
                   Baronia
                
                 ;
                 which
                 Infeftment
                 being
                 Confirmed
                 by
                 the
                 King
                 ,
                 did
                 Constitute
                 it
                 a
                 full
                 Barrony
                 ,
                 whereby
                 an
                 Infeftment
                 of
                 annualrent
                 taken
                 upon
                 a
                 part
                 of
                 the
                 Land
                 ,
                 affected
                 the
                 whole
                 ,
                 November
                 16.
                 1630.
                 
                 Laird
                 of
                 
                   Clackmanan
                   contra
                   Alardice
                
                 .
              
               
                 Erections
                 of
                 Kirklands
                 in
                 Temporal
                 Barronies
                 or
                 Lordships
                 ,
                 whereby
                 the
                 Lords
                 of
                 Erection
                 were
                 interjected
                 betwixt
                 the
                 King
                 and
                 the
                 Feuars
                 ,
                 are
                 prohibite
                 ,
                 Par.
                 1592.
                 cap.
                 119.
                 and
                 Par.
                 1594.
                 cap.
                 195.
                 for
                 all
                 these
                 Lands
                 are
                 annexed
                 to
                 the
                 Crown
                 ,
                 Par.
                 1587.
                 cap.
                 29.
                 and
                 Par.
                 1633.
                 cap.
                 10.
                 
                 The
                 Reason
                 whereof
                 is
                 evident
                 ,
                 that
                 such
                 Erections
                 are
                 prejudicial
                 ,
                 both
                 to
                 the
                 King
                 ,
                 who
                 loseth
                 his
                 Casualities
                 of
                 the
                 Feuars
                 ,
                 and
                 to
                 the
                 People
                 ,
                 who
                 must
                 accept
                 another
                 Superiour
                 in
                 stead
                 of
                 the
                 King
                 ;
                 and
                 though
                 they
                 had
                 formerly
                 but
                 Subjects
                 to
                 their
                 Superiours
                 ,
                 yet
                 Church-men
                 were
                 much
                 more
                 easy
                 then
                 secular
                 persons
                 ,
                 as
                 requiring
                 little
                 service
                 ,
                 and
                 being
                 ashamed
                 to
                 demand
                 rigorous
                 Rates
                 ;
                 but
                 any
                 man
                 may
                 obtain
                 the
                 Lands
                 he
                 hath
                 in
                 property
                 ,
                 holden
                 
                 mediatly
                 of
                 the
                 King
                 ,
                 which
                 were
                 Kirk-lands
                 ,
                 Erected
                 in
                 any
                 dignity
                 the
                 King
                 pleaseth
                 to
                 grant
                 .
              
               
                 There
                 are
                 many
                 exceptions
                 in
                 the
                 Acts
                 of
                 Annexation
                 of
                 the
                 Temporality
                 of
                 Kirk-lands
                 ,
                 and
                 in
                 the
                 Acts
                 against
                 Erections
                 ,
                 by
                 which
                 the
                 Kirk-land
                 excepted
                 ,
                 are
                 validly
                 Erected
                 ;
                 and
                 all
                 the
                 Erections
                 are
                 so
                 far
                 allowed
                 ,
                 as
                 to
                 give
                 the
                 Lords
                 of
                 Erection
                 right
                 to
                 the
                 feu-duties
                 ,
                 or
                 fruits
                 of
                 the
                 property
                 of
                 Kirk-lands
                 ,
                 feued
                 till
                 they
                 be
                 redeemed
                 by
                 payment
                 of
                 ten
                 
                   per
                   cent
                
                 .
                 and
                 the
                 Infeftments
                 granted
                 to
                 the
                 Vassals
                 ,
                 
                   medio
                   tempore
                
                 ,
                 are
                 valid
                 ;
                 but
                 the
                 Casualities
                 ought
                 still
                 to
                 belong
                 to
                 the
                 King.
                 It
                 hath
                 been
                 sometimes
                 questioned
                 ,
                 whether
                 the
                 Union
                 and
                 Erection
                 of
                 Lands
                 be
                 dissolved
                 ,
                 and
                 lost
                 by
                 an
                 Infeftment
                 of
                 a
                 part
                 thereof
                 ,
                 from
                 the
                 Vassal
                 holden
                 of
                 the
                 Superiour
                 by
                 Resignation
                 or
                 Confirmation
                 ,
                 
                   Craig
                   ,
                   l.
                
                 2.
                 
                 Dieges
                 .
                 7.
                 is
                 for
                 the
                 affirmative
                 ,
                 confirmed
                 by
                 the
                 resemblance
                 of
                 a
                 Sheaf
                 of
                 Arrows
                 ,
                 bound
                 with
                 one
                 Ligament
                 ,
                 for
                 if
                 one
                 Arrow
                 be
                 pulled
                 out
                 ,
                 all
                 become
                 louse
                 ,
                 and
                 so
                 the
                 Union
                 of
                 the
                 whole
                 is
                 dissolved
                 ,
                 unless
                 the
                 Superiour
                 give
                 the
                 new
                 Infeftment
                 ,
                 but
                 prejudice
                 of
                 the
                 rest
                 .
                 But
                 though
                 such
                 cases
                 frequently
                 occur
                 ,
                 whereby
                 Infeftments
                 of
                 discontiguous
                 Lands
                 would
                 only
                 be
                 valid
                 ,
                 as
                 to
                 the
                 contiguous
                 Lands
                 upon
                 which
                 they
                 were
                 taken
                 ;
                 yet
                 in
                 no
                 competition
                 or
                 other
                 Process
                 ,
                 hath
                 it
                 been
                 observed
                 by
                 any
                 to
                 be
                 drawn
                 in
                 question
                 or
                 decided
                 .
                 so
                 that
                 we
                 have
                 ever
                 rested
                 in
                 the
                 Negative
                 ,
                 and
                 the
                 consequence
                 from
                 that
                 resemblance
                 is
                 not
                 sufficient
                 ;
                 But
                 on
                 the
                 contrary
                 ,
                 he
                 who
                 unites
                 many
                 Discontiguous
                 Lands
                 ,
                 unites
                 every
                 part
                 of
                 them
                 to
                 every
                 part
                 ,
                 so
                 that
                 the
                 taking
                 off
                 of
                 one
                 part
                 dissolves
                 only
                 it self
                 ,
                 the
                 rest
                 remaining
                 unite
                 .
                 But
                 Union
                 or
                 Erection
                 doth
                 not
                 change
                 the
                 Jurisdiction
                 of
                 the
                 Lands
                 unite
                 ,
                 as
                 to
                 the
                 Shires
                 and
                 Bailziries
                 where
                 they
                 naturally
                 ly
                 ,
                 
                   Vide
                   Tit.
                   Confiscatione
                   ,
                   §
                   .
                   Horning
                   .
                
              
               
                 Barronies
                 and
                 United
                 Tenements
                 ,
                 when
                 they
                 are
                 originally
                 granted
                 ,
                 ought
                 to
                 express
                 the
                 several
                 Tenements
                 ,
                 according
                 to
                 their
                 proper
                 Designations
                 ,
                 and
                 so
                 expresly
                 Unite
                 them
                 :
                 But
                 when
                 these
                 are
                 acknowledged
                 to
                 have
                 been
                 Baronies
                 ,
                 or
                 otherways
                 Unite
                 ,
                 or
                 are
                 named
                 ,
                 or
                 defigned
                 as
                 such
                 by
                 these
                 who
                 have
                 power
                 to
                 Unite
                 ,
                 then
                 the
                 common
                 Name
                 of
                 the
                 United
                 Barony
                 or
                 Tenement
                 ,
                 is
                 sufficient
                 to
                 carry
                 all
                 that
                 is
                 holden
                 and
                 repute
                 ,
                 as
                 part
                 and
                 pertinents
                 thereof
                 ;
                 which
                 was
                 extended
                 to
                 Lands
                 ,
                 as
                 parts
                 of
                 a
                 common
                 Designation
                 ,
                 though
                 some
                 particulars
                 were
                 named
                 ,
                 and
                 the
                 Lands
                 in
                 question
                 had
                 also
                 proper
                 names
                 ,
                 and
                 were
                 exprest
                 in
                 the
                 ancient
                 Infeftments
                 ,
                 the
                 right
                 in
                 question
                 being
                 an
                 Appryzing
                 ,
                 March
                 23.
                 1622.
                 
                 
                   Gallowsheils
                   contra
                
                 Lord
                 Borthwick
                 .
                 Union
                 and
                 Erection
                 are
                 as
                 qualities
                 of
                 the
                 real
                 Right
                 ,
                 and
                 pass
                 unto
                 singular
                 Successors
                 ,
                 as
                 is
                 before
                 exprest
                 .
              
               
                 46.
                 
                 Warrandice
                 is
                 either
                 real
                 ,
                 when
                 Infeftments
                 is
                 given
                 of
                 one
                 Tenement
                 in
                 security
                 of
                 another
                 ,
                 or
                 personal
                 ,
                 when
                 the
                 Superiour
                 obliegeth
                 himself
                 to
                 warrand
                 the
                 Infeftment
                 ;
                 as
                 to
                 the
                 warrandice
                 by
                 Disposition
                 and
                 Resignation
                 ,
                 it
                 is
                 unquestionably
                 personal
                 ,
                 and
                 cometh
                 not
                 within
                 the
                 Infeftment
                 ;
                 but
                 though
                 it
                 be
                 granted
                 by
                 the
                 Superiour
                 in
                 the
                 Infeftment
                 ,
                 yet
                 it
                 is
                 but
                 a
                 personal
                 obligation
                 ,
                 no
                 ways
                 co-hering
                 ,
                 nor
                 carried
                 with
                 the
                 real
                 Right
                 ;
                 and
                 therefore
                 ,
                 the
                 singular
                 Successor
                 of
                 the
                 Superiour
                 or
                 Author
                 ,
                 is
                 not
                 oblieged
                 in
                 the
                 Warrandice
                 ,
                 neither
                 doth
                 the
                 Disposition
                 or
                 Infeftment
                 from
                 the
                 Vassal
                 ,
                 carry
                 to
                 his
                 singular
                 Successor
                 ,
                 the
                 right
                 of
                 the
                 Warrandice
                 ,
                 unless
                 it
                 be
                 assigned
                 specially
                 ,
                 or
                 generally
                 in
                 the
                 Assignation
                 of
                 the
                 Rights
                 and
                 Evidents
                 .
              
               
                 Warrandice
                 is
                 a
                 common
                 obliegement
                 ,
                 both
                 in
                 Infeftments
                 and
                 other
                 Rights
                 ,
                 
                 and
                 it
                 is
                 sometimes
                 exprest
                 ,
                 and
                 then
                 it
                 is
                 regulat
                 according
                 to
                 the
                 Tenor
                 of
                 it
                 ,
                 whether
                 it
                 be
                 absolute
                 Warrandice
                 ,
                 or
                 from
                 fact
                 and
                 deed
                 ,
                 or
                 from
                 future
                 or
                 voluntary
                 fact
                 and
                 deed
                 .
                 But
                 oftimes
                 when
                 Warrandice
                 is
                 not
                 exprest
                 ,
                 it
                 is
                 implyed
                 as
                 Rights
                 are
                 to
                 be
                 warranted
                 ,
                 which
                 are
                 granted
                 for
                 an
                 Equivalent
                 Cause
                 onerous
                 :
                 But
                 in
                 that
                 Case
                 ,
                 where
                 the
                 Disposition
                 was
                 only
                 of
                 all
                 right
                 the
                 Disponer
                 had
                 ,
                 the
                 Clause
                 inferred
                 not
                 absolute
                 Warrandice
                 ,
                 but
                 only
                 from
                 the
                 Disponers
                 future
                 voluntary
                 Deed
                 ,
                 Hope
                 ,
                 Warrandice
                 ,
                 Lord
                 
                   Sinclar
                   contra
                   Creighton
                
                 .
                 Absolute
                 Warrandice
                 is
                 also
                 implyed
                 ,
                 where
                 the
                 Disposition
                 or
                 Infeftment
                 bears
                 (
                 Vendidit
                 )
                 because
                 that
                 imports
                 an
                 equivalent
                 Price
                 ,
                 Spotss
                 .
                 Warrandice
                 ,
                 
                   John
                   Stewart
                   contra
                   Fivie
                
                 .
                 But
                 not
                 so
                 ,
                 if
                 it
                 were
                 exprest
                 under
                 the
                 terms
                 of
                 Alienation
                 ,
                 which
                 is
                 common
                 to
                 both
                 gratuitous
                 and
                 onerous
                 Dispositions
                 .
              
               
                 Warrandice
                 from
                 the
                 future
                 fact
                 and
                 deed
                 of
                 the
                 Disponer
                 and
                 his
                 Heirs
                 ,
                 is
                 implyed
                 in
                 pure
                 Donations
                 ,
                 Hope
                 ,
                 Warrandice
                 ,
                 
                   Veatch
                   contra
                   Dauling
                
                 ,
                 Mr.
                 
                   Partrick
                   Schaw
                   contra
                
                 Sir
                 
                   James
                   Durham
                
                 ,
                 and
                 was
                 extended
                 to
                 a
                 Legacy
                 
                   rei
                   alienae
                   scienter
                   legatae
                   ,
                   June
                
                 16.
                 1664.
                 
                 
                   Murray
                   contra
                
                 the
                 Executors
                 of
                 Rutherfoord
                 :
                 But
                 ought
                 not
                 to
                 be
                 extended
                 to
                 future
                 necessar
                 deeds
                 ,
                 preceeding
                 the
                 gratuitous
                 Disposition
                 ,
                 which
                 the
                 Disponer
                 is
                 ,
                 or
                 may
                 be
                 ,
                 compelled
                 to
                 fulfil
                 ;
                 neither
                 upon
                 any
                 anterior
                 deed
                 ,
                 because
                 ,
                 he
                 who
                 disponeth
                 freely
                 ,
                 is
                 presumed
                 but
                 to
                 dispone
                 such
                 right
                 as
                 he
                 hath
                 ,
                 but
                 posterior
                 deeds
                 are
                 fraudulent
                 .
                 It
                 is
                 Craig's
                 opinion
                 in
                 the
                 forecited
                 place
                 ,
                 that
                 though
                 Warrandice
                 from
                 fact
                 and
                 deed
                 be
                 exprest
                 ,
                 that
                 it
                 doth
                 not
                 extend
                 to
                 prior
                 deeds
                 :
                 And
                 that
                 in
                 any
                 Case
                 ,
                 if
                 the
                 Cause
                 of
                 the
                 Disposition
                 be
                 for
                 service
                 done
                 ,
                 for
                 gratitude
                 ,
                 or
                 merit
                 ,
                 that
                 Warrandice
                 is
                 implyed
                 ;
                 much
                 more
                 ,
                 if
                 for
                 future
                 Service
                 ,
                 or
                 for
                 a
                 feu
                 Duty
                 ,
                 or
                 Rent
                 :
                 Yet
                 ,
                 if
                 beside
                 these
                 ,
                 there
                 be
                 not
                 an
                 Anterior
                 Cause
                 in
                 Money
                 ,
                 or
                 Value
                 ,
                 such
                 Dispositions
                 cannot
                 be
                 accounted
                 onerous
                 ;
                 for
                 former
                 merit
                 or
                 gratitude
                 ,
                 infer
                 no
                 civil
                 Obligation
                 ,
                 and
                 so
                 no
                 burden
                 which
                 could
                 receive
                 Legal
                 compulsion
                 .
                 And
                 as
                 to
                 annual
                 Prestation
                 in
                 Services
                 ,
                 Feu-duties
                 ,
                 or
                 Tack-duties
                 ,
                 if
                 they
                 bear
                 no
                 Money
                 received
                 ,
                 or
                 equivalent
                 Value
                 ,
                 they
                 are
                 presumed
                 to
                 be
                 gratuitous
                 in
                 favours
                 of
                 the
                 receiver
                 ,
                 who
                 may
                 reject
                 or
                 renounce
                 them
                 when
                 he
                 pleaseth
                 ,
                 if
                 they
                 be
                 not
                 by
                 mutual
                 Contract
                 :
                 And
                 when
                 they
                 are
                 evicted
                 ,
                 the
                 Vassal
                 is
                 free
                 of
                 these
                 Duties
                 ,
                 and
                 hath
                 no
                 loss
                 ;
                 and
                 therefore
                 they
                 ought
                 to
                 import
                 no
                 more
                 Warrandice
                 ,
                 but
                 from
                 future
                 voluntary
                 fact
                 and
                 deed
                 ;
                 But
                 whatever
                 Warrandice
                 be
                 exprest
                 ,
                 must
                 be
                 accordingly
                 observed
                 :
                 But
                 Craig's
                 opinion
                 being
                 ,
                 that
                 naked
                 Pactions
                 were
                 not
                 effectual
                 with
                 us
                 ,
                 and
                 that
                 a
                 Charter
                 was
                 but
                 a
                 naked
                 Paction
                 ;
                 so
                 Warrandice
                 in
                 an
                 Innominat
                 Contract
                 ,
                 such
                 as
                 a
                 Fee
                 ,
                 could
                 be
                 but
                 a
                 naked
                 Paction
                 ,
                 importing
                 no
                 further
                 then
                 what
                 would
                 arise
                 from
                 the
                 nature
                 of
                 the
                 Right
                 .
                 But
                 our
                 constant
                 Custome
                 allowing
                 all
                 Pactions
                 and
                 Promises
                 to
                 be
                 effectual
                 ,
                 doth
                 both
                 make
                 Charters
                 without
                 Seasine
                 effectual
                 against
                 the
                 granter
                 ,
                 and
                 likewise
                 Warrandice
                 ,
                 and
                 all
                 other
                 Clauses-therein
                 ;
                 yea
                 ,
                 the
                 paction
                 ,
                 that
                 nothing
                 should
                 be
                 demanded
                 in
                 case
                 of
                 Eviction
                 ,
                 is
                 for
                 the
                 same
                 Cause
                 effectual
                 ,
                 that
                 the
                 Money
                 payed
                 for
                 the
                 Right
                 evicted
                 ,
                 cannot
                 be
                 recovered
                 :
                 Yet
                 Craig
                 doth
                 there
                 report
                 a
                 Decision
                 of
                 the
                 Lords
                 ,
                 betwixt
                 
                   Samuel
                   Cockburn
                
                 and
                 Sandielands
                 of
                 Calder
                 ,
                 that
                 a
                 Charter
                 without
                 Seasine
                 ,
                 and
                 not
                 delivered
                 in
                 the
                 Granters
                 Life
                 ,
                 but
                 recovered
                 out
                 of
                 the
                 Charter-chest
                 of
                 Torphichen
                 ,
                 was
                 found
                 effectual
                 to
                 make
                 the
                 Granters
                 Heir
                 perfite
                 the
                 same
                 with
                 Seasine
                 ;
                 but
                 it
                 did
                 not
                 remain
                 in
                 the
                 hands
                 of
                 the
                 Granter
                 ,
                 and
                 thereby
                 it
                 appears
                 ,
                 that
                 the
                 Lords
                 did
                 not
                 then
                 look
                 upon
                 Charters
                 as
                 naked
                 Pactions
                 .
              
               
                 The
                 Effect
                 of
                 Warrandice
                 is
                 ,
                 the
                 upmaking
                 of
                 what
                 is
                 warranted
                 ,
                 in
                 so
                 far
                 
                 as
                 it
                 is
                 evicted
                 ,
                 and
                 the
                 ordinar
                 procedure
                 in
                 it
                 is
                 ,
                 when
                 any
                 Sute
                 is
                 moved
                 ,
                 whereon
                 Eviction
                 may
                 follow
                 ,
                 Intimation
                 is
                 made
                 to
                 the
                 Warrand
                 of
                 the
                 Plea
                 that
                 he
                 may
                 defend
                 :
                 And
                 if
                 Eviction
                 follow
                 ,
                 and
                 distress
                 thereby
                 ,
                 Declarator
                 of
                 distress
                 ,
                 and
                 action
                 of
                 Warrandice
                 for
                 relief
                 is
                 competent
                 .
                 Also
                 it
                 is
                 effectual
                 for
                 decerning
                 the
                 Warrand
                 to
                 free
                 the
                 thing
                 warranted
                 of
                 that
                 which
                 will
                 undoubtedly
                 infer
                 a
                 distress
                 ,
                 though
                 it
                 hath
                 not
                 actually
                 done
                 it
                 .
                 In
                 this
                 case
                 Execution
                 was
                 superceeded
                 for
                 a
                 time
                 ,
                 that
                 therein
                 the
                 ground
                 of
                 the
                 distress
                 might
                 be
                 purged
                 ,
                 July
                 1.
                 1624.
                 
                 Laird
                 of
                 
                   Frendraught
                   contra
                   Balvenie
                
                 .
                 The
                 like
                 upon
                 a
                 Production
                 of
                 a
                 Seasine
                 of
                 the
                 Lands
                 warranted
                 ,
                 granted
                 by
                 the
                 warrands
                 Author
                 before
                 the
                 Right
                 and
                 Inhibition
                 ,
                 though
                 there
                 was
                 no
                 distress
                 ,
                 
                   Nicol.
                   de
                   evictione
                   ,
                   Fisher
                   contra
                   Fleeming
                   .
                
                 The
                 like
                 ,
                 July
                 17.
                 1666.
                 
                 
                   Alexander
                   Burnet
                   contra
                   Johnstoun
                   .
                   February
                
                 17.
                 1672.
                 
                 Smith
                 of
                 
                   Braco
                   contra
                   Ross
                
                 of
                 Balnagoun
                 .
                 Warrandice
                 had
                 also
                 effect
                 upon
                 production
                 of
                 a
                 Decreet
                 of
                 removing
                 against
                 the
                 Buyer
                 and
                 Seller
                 ,
                 
                   Nicol.
                   de
                   evictione
                   ,
                   Johnstoun
                   contra
                   Johnstoun
                   .
                
                 Yea
                 Warrandice
                 will
                 take
                 effect
                 where
                 there
                 is
                 an
                 unquestionable
                 ground
                 of
                 distress
                 ,
                 though
                 the
                 Fiar
                 transacted
                 voluntarly
                 to
                 prevent
                 the
                 distress
                 .
                 Intimation
                 of
                 a
                 Plea
                 is
                 sufficient
                 without
                 an
                 Instrument
                 ,
                 it
                 being
                 proven
                 by
                 the
                 Warrands
                 Oath
                 ,
                 that
                 the
                 copy
                 of
                 the
                 Citation
                 was
                 delivered
                 to
                 him
                 as
                 an
                 Intimation
                 ,
                 
                   Nicol.
                   de
                   evictione
                   ,
                   Lyme
                   contra
                   Dunlop
                   .
                
                 But
                 though
                 no
                 Intimation
                 be
                 made
                 ,
                 yet
                 the
                 Warrandice
                 taketh
                 effect
                 ,
                 unless
                 the
                 Warrand
                 had
                 a
                 relevant
                 defence
                 and
                 could
                 instruct
                 the
                 same
                 ,
                 
                   Nicol.
                   de
                   evictione
                   ,
                   Boyd
                   contra
                   Stark
                   .
                
                 But
                 in
                 that
                 case
                 ,
                 the
                 Warrandice
                 hath
                 no
                 effect
                 ,
                 
                   ibidem
                   ,
                   Cairncorss
                   contra
                   Murray
                   .
                   Glendinning
                   contra
                   Gordon
                   .
                
              
               
                 Warrandice
                 hath
                 no
                 further
                 effect
                 then
                 what
                 the
                 Party
                 warranted
                 trulie
                 payed
                 for
                 the
                 Right
                 ,
                 whereby
                 he
                 was
                 ,
                 or
                 might
                 be
                 distrest
                 ,
                 though
                 less
                 then
                 the
                 value
                 of
                 the
                 Right
                 warranted
                 ,
                 July
                 1.
                 1634.
                 
                 
                   Robert
                   Glendinning
                   contra
                   Barnbarroch
                
                 .
                 The
                 like
                 upon
                 repayment
                 of
                 the
                 sum
                 given
                 out
                 ,
                 and
                 the
                 Annulrent
                 thereof
                 ,
                 Hope
                 ,
                 Warrandice
                 ,
                 Laird
                 of
                 
                   Craicklaw
                   contra
                
                 Lord
                 
                   Herris
                   .
                   January
                
                 26.
                 1669.
                 
                 Boil
                 of
                 
                   Kelburn
                   contra
                
                 Mr.
                 
                   John
                   Wilkie
                   .
                   February
                
                 28.
                 1672.
                 
                 Earl
                 of
                 
                   Argyl
                   contra
                
                 Laird
                 of
                 Aitoun
                 .
                 This
                 will
                 not
                 hold
                 in
                 Warrandice
                 of
                 Lands
                 ,
                 as
                 to
                 which
                 Lands
                 of
                 equal
                 value
                 ,
                 or
                 the
                 whole
                 worth
                 of
                 what
                 is
                 evicted
                 ,
                 as
                 it
                 is
                 the
                 time
                 of
                 the
                 Eviction
                 is
                 inferred
                 ;
                 because
                 the
                 Buyer
                 had
                 the
                 Lands
                 with
                 the
                 hazard
                 of
                 becoming
                 better
                 or
                 worse
                 ,
                 or
                 the
                 rising
                 or
                 falling
                 of
                 Rates
                 ,
                 and
                 therefore
                 is
                 not
                 oblieged
                 to
                 take
                 the
                 Price
                 he
                 gave
                 .
                 Neither
                 is
                 Warrandice
                 a
                 full
                 security
                 ,
                 being
                 but
                 a
                 personal
                 Obliegment
                 ;
                 and
                 many
                 times
                 the
                 Price
                 is
                 not
                 known
                 .
                 And
                 if
                 the
                 Warrandice
                 be
                 not
                 absolute
                 ,
                 the
                 Purchasers
                 hazard
                 was
                 the
                 greater
                 :
                 But
                 in
                 Warrandice
                 of
                 personal
                 or
                 redeemable
                 Rights
                 ,
                 the
                 matter
                 is
                 ordinarly
                 liquid
                 ,
                 and
                 there
                 is
                 no
                 design
                 of
                 hazard
                 but
                 an
                 absolute
                 relief
                 .
                 But
                 Warrandice
                 hath
                 no
                 effect
                 where
                 there
                 is
                 Collusion
                 ,
                 by
                 being
                 holden
                 as
                 confest
                 ,
                 
                   Nicol
                   ,
                   de
                   evictione
                   ,
                   Aikenhead
                   contra
                   Blackwood
                   .
                
                 The
                 like
                 was
                 found
                 by
                 suppressing
                 the
                 Warranders
                 Right
                 ,
                 and
                 receiving
                 considerable
                 Sums
                 therefore
                 :
                 whereby
                 the
                 Right
                 warranted
                 fell
                 in
                 consequence
                 ,
                 February
                 18.
                 1679.
                 
                 Laird
                 of
                 
                   Wedderburn
                   contra
                
                 Sir
                 
                   Robert
                   Sinclar
                   .
                   March
                
                 3.
                 1629.
                 
                 
                   Murray
                   contra
                
                 Lord
                 Yester
                 .
                 Neither
                 where
                 Eviction
                 falls
                 through
                 default
                 of
                 the
                 party
                 warranted
                 ,
                 when
                 having
                 a
                 Disposition
                 of
                 Ward-lands
                 ,
                 with
                 double
                 Infeftment
                 he
                 infeft
                 himself
                 ,
                 base
                 without
                 the
                 Superiors
                 consent
                 ,
                 and
                 thereby
                 the
                 Lands
                 recognosced
                 ,
                 February
                 1.
                 1610.
                 
                 
                   Maxwel
                   contra
                   Mowbrey
                
                 .
                 Neither
                 inferred
                 by
                 the
                 Forefaulture
                 of
                 the
                 Disponers
                 apparent
                 Heir
                 ,
                 seeing
                 the
                 Fiar
                 omitted
                 to
                 obtain
                 the
                 Kings
                 Confirmation
                 ,
                 which
                 would
                 have
                 excluded
                 the
                 Forefaulture
                 ,
                 Hope
                 ,
                 Warrandice
                 ,
                 
                   Hamilton
                   contra
                
                 Laird
                 of
                 Nidderie
                 .
                 It
                 is
                 not
                 so
                 clear
                 either
                 in
                 Reason
                 or
                 Practice
                 ,
                 whether
                 Warrandice
                 takeseffect
                 upon
                 any
                 other
                 ground
                 then
                 what
                 is
                 ,
                 or
                 may
                 be
                 ,
                 a
                 
                 ground
                 of
                 Eviction
                 ,
                 to
                 take
                 away
                 the
                 Right
                 of
                 the
                 Party
                 by
                 whom
                 the
                 Warrandice
                 is
                 graunted
                 judicially
                 ;
                 as
                 when
                 Lands
                 are
                 taken
                 away
                 by
                 Innundation
                 ,
                 or
                 are
                 become
                 barren
                 :
                 Or
                 when
                 a
                 Right
                 assigned
                 with
                 Warrndice
                 becomes
                 ineffectual
                 ,
                 because
                 the
                 Debitor
                 is
                 not
                 solvendo
                 ;
                 or
                 when
                 any
                 accidental
                 or
                 extrujudicial
                 distress
                 or
                 damnage
                 befalleth
                 to
                 the
                 party
                 warranted
                 ,
                 through
                 occasion
                 of
                 the
                 ground
                 of
                 Warrandice
                 ,
                 though
                 not
                 by
                 legal
                 Eviction
                 ,
                 Secondly
                 .
                 Whether
                 Warrandice
                 takes
                 place
                 ,
                 when
                 the
                 Right
                 warranted
                 is
                 taken
                 away
                 ,
                 or
                 burdened
                 by
                 a
                 subsequent
                 Law.
                 Thirdly
                 ,
                 Whether
                 Warrandice
                 in
                 general
                 will
                 extend
                 toward
                 Releef
                 ,
                 and
                 it
                 Or
                 to
                 Forefaulture
                 of
                 the
                 warrands
                 own
                 Superior
                 .
              
               
                 As
                 to
                 the
                 First
                 ,
                 Warrandice
                 relates
                 to
                 the
                 point
                 of
                 Right
                 ,
                 and
                 not
                 to
                 the
                 Matter
                 of
                 Fact
                 ,
                 and
                 therefore
                 will
                 not
                 reach
                 to
                 Accidents
                 ,
                 the
                 hazard
                 whereof
                 lies
                 alwayes
                 upon
                 the
                 Acquirer
                 and
                 the
                 Propriatar
                 :
                 Yea
                 ,
                 a
                 Clause
                 of
                 Warrandice
                 that
                 Lands
                 should
                 be
                 worth
                 so
                 much
                 yearly
                 Rent
                 ,
                 was
                 not
                 extended
                 to
                 Desolation
                 ,
                 by
                 
                   famine
                   ,
                   March
                
                 10.
                 1636.
                 
                 Lady
                 
                   Dunipace
                   contra
                
                 Laird
                 of
                 Rouiston
                 .
                 It
                 was
                 also
                 〈◊〉
                 that
                 a
                 Cautioner
                 being
                 conveened
                 ,
                 and
                 through
                 occasion
                 of
                 Compearance
                 was
                 made
                 Prisoner
                 in
                 a
                 Ship
                 taken
                 prize
                 ;
                 had
                 thereby
                 no
                 interest
                 upon
                 the
                 Clause
                 of
                 Warrandice
                 to
                 distress
                 the
                 Principal
                 for
                 this
                 accidental
                 Damnage
                 ,
                 
                   James
                   Maxwel
                   contra
                   James
                   Nisbit
                
                 of
                 Ladytoun
                 .
                 So
                 that
                 unless
                 some
                 what
                 more
                 be
                 concurring
                 then
                 the
                 naked
                 Warrandice
                 ,
                 either
                 by
                 the
                 value
                 of
                 the
                 onerous
                 Cause
                 ,
                 for
                 which
                 the
                 Right
                 is
                 granted
                 ,
                 or
                 Tenor
                 of
                 the
                 Assignation
                 ,
                 it
                 reacheth
                 not
                 the
                 sufficiency
                 of
                 the
                 Debitor
                 or
                 the
                 like
                 points
                 of
                 Fact
                 ,
                 as
                 is
                 Spotswoods
                 opinion
                 ,
                 Tit.
                 Assignation
                 .
                 And
                 it
                 was
                 lately
                 found
                 ,
                 that
                 where
                 a
                 Creditor
                 had
                 given
                 a
                 blank
                 Assignation
                 to
                 a
                 Cautioner
                 ,
                 who
                 had
                 payed
                 him
                 with
                 absolute
                 Warrandice
                 ,
                 that
                 as
                 to
                 the
                 Cautioner
                 ,
                 to
                 whom
                 it
                 was
                 gratuitous
                 for
                 the
                 Creditor
                 to
                 give
                 such
                 a
                 Warrandice
                 ,
                 importeth
                 not
                 the
                 sufficiency
                 of
                 the
                 Debitor
                 ,
                 July
                 16.
                 1663.
                 
                 
                   William
                   Hay
                   contra
                   Nicolson
                
                 and
                 Mitchel
                 .
                 It
                 was
                 also
                 found
                 ,
                 that
                 absolute
                 Warrandice
                 in
                 an
                 Asignation
                 ,
                 bearing
                 that
                 the
                 samine
                 should
                 be
                 good
                 ,
                 valid
                 and
                 effectual
                 ,
                 was
                 not
                 found
                 to
                 extend
                 to
                 the
                 Solvency
                 of
                 the
                 Debitor
                 ;
                 but
                 only
                 that
                 the
                 Debt
                 could
                 not
                 be
                 excluded
                 by
                 any
                 legal
                 Exception
                 ,
                 either
                 from
                 the
                 cedents
                 deed
                 or
                 otherwise
                 ;
                 as
                 if
                 the
                 write
                 Assigned
                 had
                 been
                 false
                 ,
                 the
                 cedent
                 not
                 being
                 accessory
                 ,
                 null
                 ,
                 or
                 declared
                 a
                 publick
                 Debt
                 ,
                 November
                 24.
                 1671.
                 
                 Sir
                 
                   Rober
                   Barclay
                
                 of
                 
                   Pearstoun
                   contra
                   Robert
                   Liddel
                
                 ,
                 which
                 quadrats
                 with
                 lib.
                 4.
                 
                   ff
                   .
                   de
                   haereditate
                   et
                   actione
                   vendita
                   ,
                   Venditore
                   nominis
                   tenetur
                   prestare
                   debitum
                   subesse
                   ,
                   Debitorem
                   vero
                   Locupletem
                   esse
                   non
                   tenetur
                   prestare
                   .
                
                 As
                 to
                 the
                 distress
                 by
                 subsequent
                 Laws
                 when
                 these
                 are
                 by
                 way
                 of
                 Declarator
                 of
                 an
                 anticedent
                 Right
                 ,
                 it
                 is
                 equivalent
                 to
                 a
                 Judicial
                 Eviction
                 .
                 But
                 when
                 the
                 Law
                 is
                 Statutory
                 introducing
                 a
                 new
                 burden
                 ,
                 as
                 Taxes
                 ,
                 Augmentations
                 of
                 Ministers
                 Stipends
                 ,
                 &c.
                 
                 It
                 was
                 Craigs
                 opinion
                 
                   dieges
                   ,
                   de
                   evictione
                
                 .
                 §
                 .
                 6.
                 
                 Which
                 he
                 reports
                 as
                 the
                 Judgement
                 of
                 the
                 Session
                 ,
                 that
                 in
                 such
                 Cases
                 ,
                 the
                 Warrand
                 should
                 be
                 lyable
                 
                   in
                   quantum
                   lucratus
                   est
                
                 .
              
               
                 But
                 Custome
                 since
                 hath
                 cleared
                 the
                 contrary
                 ,
                 that
                 Warrandice
                 is
                 never
                 extended
                 to
                 subsequent
                 Statutory
                 Laws
                 ,
                 but
                 that
                 these
                 are
                 alwayes
                 upon
                 the
                 Purchasers
                 hazard
                 :
                 And
                 therefore
                 a
                 general
                 Clause
                 of
                 absolute
                 Warrandice
                 was
                 not
                 extended
                 ,
                 to
                 a
                 burden
                 imposed
                 by
                 a
                 subsequent
                 Law
                 ,
                 though
                 there
                 was
                 an
                 Anterior
                 abrogat
                 Law
                 to
                 that
                 same
                 effect
                 ,
                 July
                 12.
                 1667.
                 
                 
                   Watson
                   contra
                   Law.
                
                 Neither
                 was
                 extended
                 to
                 the
                 making
                 up
                 of
                 a
                 Gleib
                 ,
                 though
                 it
                 was
                 by
                 vertue
                 of
                 a
                 Prior
                 Law
                 ;
                 but
                 the
                 Designation
                 was
                 after
                 the
                 Disposition
                 ,
                 July
                 1.
                 1676.
                 
                 Laird
                 of
                 
                   Auchintcul
                   contra
                
                 Laird
                 of
                 Innes
                 .
                 Yea
                 ,
                 absolute
                 Warrandice
                 
                 in
                 a
                 Ladies
                 Liferent
                 ,
                 which
                 is
                 most
                 favourable
                 was
                 found
                 not
                 to
                 extend
                 to
                 an
                 Augmentation
                 of
                 a
                 Ministers
                 Stipend
                 thereafter
                 ,
                 though
                 grounded
                 upon
                 a
                 Prior
                 Law
                 ,
                 March
                 27.
                 1634.
                 
                 Lady
                 
                   Dumfermling
                   contra
                
                 her
                 Son.
                 But
                 where
                 a
                 Clause
                 of
                 Warrandice
                 did
                 bear
                 ,
                 that
                 a
                 Rental
                 of
                 a
                 Ladies
                 Liferent
                 should
                 be
                 so
                 much
                 worth
                 yearly
                 ;
                 it
                 was
                 found
                 effectual
                 to
                 make
                 up
                 an
                 Abatment
                 of
                 the
                 Rental
                 by
                 a
                 Ministers
                 Stipend
                 ;
                 modified
                 thereafter
                 ,
                 July
                 28.
                 1635.
                 
                 Lady
                 
                   Cardross
                   contra
                
                 her
                 Son.
                 Or
                 to
                 the
                 making
                 up
                 a
                 Readers
                 Stipend
                 imposed
                 by
                 a
                 Posterior
                 Law
                 :
                 For
                 in
                 these
                 Cases
                 it
                 was
                 the
                 special
                 tenor
                 of
                 the
                 Clause
                 to
                 uphold
                 the
                 Rental
                 ,
                 which
                 would
                 have
                 been
                 effectual
                 not
                 only
                 as
                 to
                 Eviction
                 
                   in
                   Jure
                
                 ,
                 but
                 as
                 to
                 distress
                 
                   in
                   facto
                
                 by
                 Inundation
                 ,
                 Devastation
                 ,
                 or
                 the
                 like
                 .
              
               
                 The
                 intent
                 of
                 Absolute
                 Warrandice
                 being
                 only
                 against
                 legal
                 eviction
                 ,
                 it
                 doth
                 not
                 extend
                 to
                 every
                 burden
                 that
                 may
                 affect
                 the
                 Land
                 ,
                 as
                 to
                 a
                 servitude
                 of
                 Pasturage
                 ,
                 Fewel
                 ,
                 Feal
                 or
                 Divet
                 ,
                 Or
                 to
                 a
                 Thirlage
                 of
                 the
                 Land
                 to
                 the
                 Miln
                 of
                 the
                 Barrony
                 ,
                 paying
                 the
                 ninteetnh
                 Corn
                 ,
                 June
                 21.
                 1672.
                 
                 
                   Sandelands
                   contra
                
                 Earl
                 of
                 Haddingtoun
                 .
              
               
                 Absolute
                 Warrandice
                 is
                 sometimes
                 general
                 ,
                 and
                 sometimes
                 special
                 ,
                 against
                 Ward
                 ,
                 Relief
                 and
                 Non-entry
                 ,
                 &c.
                 with
                 a
                 general
                 Clause
                 ,
                 and
                 all
                 other
                 dangers
                 ,
                 perils
                 and
                 inconveniences
                 whatsoever
                 ,
                 as
                 well
                 not
                 named
                 ,
                 as
                 named
                 ,
                 &c.
                 as
                 to
                 which
                 ,
                 the
                 general
                 Clause
                 is
                 not
                 to
                 be
                 extended
                 above
                 the
                 greatest
                 of
                 the
                 special
                 .
                 But
                 the
                 question
                 ariseth
                 ,
                 if
                 such
                 Clauses
                 will
                 reach
                 subsequent
                 Wards
                 or
                 Marriages
                 of
                 the
                 Superiour
                 ,
                 or
                 to
                 future
                 Porefaultures
                 ,
                 or
                 Recognitions
                 ,
                 Non-entries
                 ,
                 Liferent-escheats
                 ,
                 &c.
                 ,
                 It
                 is
                 certain
                 that
                 whatever
                 of
                 these
                 burdens
                 besal
                 by
                 the
                 fault
                 of
                 the
                 Warrand
                 ,
                 he
                 must
                 be
                 lyable
                 therefore
                 .
              
               
                 Absolute
                 Warrandice
                 being
                 much
                 stronger
                 then
                 Warrandice
                 from
                 Fact
                 and
                 Deed
                 ,
                 which
                 reacheth
                 not
                 only
                 to
                 Facts
                 of
                 Commission
                 ,
                 but
                 even
                 to
                 ommission
                 of
                 Duties
                 ;
                 and
                 therefore
                 ,
                 if
                 the
                 Warrandice
                 be
                 but
                 by
                 the
                 Authour
                 ,
                 and
                 not
                 by
                 the
                 Superiour
                 ,
                 these
                 subsequent
                 distresses
                 will
                 not
                 reach
                 the
                 Author
                 ,
                 unless
                 the
                 Clause
                 bear
                 expresly
                 ,
                 
                   such
                   distresses
                   past
                   ,
                   present
                   or
                   to
                   come
                
                 ;
                 and
                 so
                 though
                 the
                 fee
                 were
                 extinct
                 by
                 the
                 Forefaulture
                 or
                 Recognition
                 of
                 the
                 Superiour
                 ,
                 or
                 burdened
                 by
                 his
                 Non-entry
                 ,
                 or
                 remaining
                 at
                 the
                 Horn
                 ,
                 these
                 occurring
                 after
                 the
                 Disposition
                 will
                 be
                 upon
                 the
                 hazard
                 of
                 the
                 Acquirer
                 ,
                 and
                 not
                 the
                 Authour
                 Disponer
                 :
                 But
                 if
                 the
                 Warrandice
                 be
                 in
                 the
                 Superiours
                 Charter
                 ,
                 burdening
                 himself
                 ,
                 it
                 will
                 be
                 extended
                 to
                 all
                 subsequent
                 Distresses
                 through
                 his
                 fault
                 ,
                 and
                 so
                 to
                 Recognition
                 ,
                 Liferent-escheat
                 or
                 Non-entry
                 ,
                 but
                 it
                 will
                 not
                 extend
                 to
                 the
                 Forefaulture
                 ,
                 or
                 Recognition
                 ,
                 or
                 other
                 fault
                 of
                 the
                 Superiours
                 Superiour
                 :
                 Neither
                 will
                 it
                 extend
                 to
                 the
                 Ward
                 or
                 the
                 avail
                 of
                 the
                 Marriage
                 of
                 the
                 Superiour
                 bound
                 in
                 Warrandice
                 ,
                 failing
                 thereafter
                 ,
                 unless
                 it
                 be
                 so
                 exprest
                 ;
                 for
                 no
                 provident
                 man
                 is
                 presumed
                 to
                 guard
                 against
                 these
                 ,
                 unless
                 it
                 be
                 so
                 exprest
                 ;
                 and
                 therefore
                 ,
                 there
                 is
                 little
                 advantage
                 by
                 special
                 Clauses
                 of
                 Warrandice
                 :
                 For
                 the
                 general
                 Clauses
                 reaches
                 all
                 Evictions
                 from
                 anteriour
                 Causes
                 ,
                 yea
                 ,
                 the
                 effect
                 is
                 the
                 same
                 ,
                 though
                 there
                 were
                 no
                 Clause
                 of
                 Warrandice
                 exprest
                 ,
                 if
                 the
                 Right
                 warranted
                 be
                 for
                 Causes
                 onerous
                 ,
                 viz.
                 sums
                 of
                 Money
                 ,
                 or
                 equivalent
                 value
                 ,
                 unless
                 by
                 the
                 special
                 Warrandice
                 ,
                 future
                 deeds
                 inferring
                 eviction
                 ,
                 or
                 which
                 would
                 not
                 infer
                 ,
                 it
                 
                   ex
                   natura
                   rei
                
                 ,
                 be
                 exprest
                 .
              
               
                 Warrandice
                 is
                 never
                 inferred
                 from
                 Infeftments
                 from
                 the
                 King
                 ,
                 as
                 Supream
                 Superiour
                 ,
                 and
                 though
                 they
                 were
                 exprest
                 ,
                 would
                 have
                 no
                 effect
                 ;
                 neither
                 are
                 the
                 Warrandices
                 of
                 Infeftments
                 by
                 Church-men
                 effectual
                 against
                 their
                 Successors
                 in
                 Office
                 ;
                 yea
                 express
                 Warrandices
                 of
                 Feus
                 or
                 Tacks
                 of
                 Kirk-lands
                 thereafter
                 
                 annexed
                 to
                 the
                 Crown
                 ,
                 after
                 the
                 said
                 Warrandice
                 ,
                 doth
                 neither
                 reach
                 the
                 granters
                 thereof
                 nor
                 their
                 Successors
                 ,
                 Par.
                 1587.
                 cap.
                 29.
                 and
                 cap.
                 110.
                 
                 The
                 reason
                 whereof
                 is
                 there
                 rendered
                 ,
                 because
                 the
                 Church-lands
                 were
                 annexed
                 to
                 the
                 Crown
                 by
                 subsequent
                 Laws
                 .
              
               
                 Infeftments
                 do
                 frequently
                 bear
                 
                   Conditions
                   ,
                   Reservations
                   ,
                   Provisions
                   and
                   Exceptions
                   ,
                
                 which
                 give
                 great
                 ground
                 of
                 debate
                 ,
                 which
                 therefore
                 must
                 here
                 be
                 cleared
                 .
              
               
                 There
                 is
                 no
                 question
                 but
                 Infeftments
                 may
                 either
                 be
                 pure
                 or
                 conditional
                 ,
                 some
                 conditions
                 are
                 implyed
                 from
                 the
                 Nature
                 of
                 the
                 Right
                 ,
                 and
                 are
                 effectual
                 ,
                 though
                 they
                 be
                 not
                 exprest
                 .
              
               
                 47.
                 
                 As
                 in
                 Ward-holdings
                 ,
                 the
                 Vassal
                 cannot
                 alienate
                 without
                 his
                 Superiours
                 is
                 consent
                 which
                 ,
                 an
                 effectual
                 resolutive
                 condition
                 ,
                 whereby
                 if
                 the
                 major
                 part
                 of
                 the
                 fee
                 be
                 alienate
                 ,
                 the
                 whole
                 becomes
                 extinct
                 &
                 returns
                 to
                 the
                 Superiour
                 as
                 he
                 gave
                 it
                 .
              
               
                 48.
                 
                 Infeftments
                 of
                 Warrandice
                 imply
                 this
                 condition
                 ,
                 that
                 they
                 should
                 take
                 no
                 effect
                 ,
                 but
                 in
                 the
                 case
                 of
                 Eviction
                 of
                 the
                 principal
                 Lands
                 .
                 Infeftments
                 for
                 relief
                 of
                 Cautionry
                 ,
                 implys
                 this
                 condition
                 ,
                 that
                 they
                 shal
                 have
                 no
                 effect
                 till
                 distress
                 ,
                 and
                 that
                 they
                 shall
                 ceass
                 by
                 relief
                 .
                 Infeftments
                 for
                 satisfaction
                 of
                 sums
                 imply
                 this
                 condition
                 ,
                 that
                 the
                 sums
                 being
                 satisfied
                 ,
                 they
                 are
                 extinct
                 ,
                 and
                 the
                 Authors
                 Infeftment
                 revives
                 and
                 stands
                 valid
                 without
                 necessity
                 of
                 Renovation
                 .
              
               
                 49.
                 
                 Infeftment
                 given
                 for
                 a
                 particular
                 Office
                 ,
                 and
                 bear
                 not
                 Assigneys
                 ,
                 or
                 Substitutes
                 ,
                 as
                 to
                 be
                 an
                 Ensign-bearer
                 ,
                 Advocat
                 ,
                 or
                 Chaplain
                 ,
                 with
                 Lands
                 and
                 Annual
                 rents
                 annexed
                 ,
                 does
                 imply
                 this
                 condition
                 ,
                 that
                 the
                 Heir
                 be
                 capable
                 to
                 exerce
                 these
                 Offices
                 ;
                 and
                 therefore
                 ,
                 by
                 his
                 inability
                 they
                 ceass
                 ,
                 unless
                 they
                 be
                 granted
                 to
                 Assigneys
                 ,
                 with
                 power
                 of
                 substitution
                 ,
                 in
                 which
                 case
                 they
                 may
                 be
                 performed
                 by
                 another
                 .
              
               
                 50.
                 
                 Infeftments
                 by
                 Excambion
                 do
                 imply
                 this
                 tacit
                 condition
                 ,
                 that
                 if
                 the
                 one
                 Tenement
                 Excambed
                 be
                 evicted
                 ,
                 there
                 is
                 recourse
                 to
                 the
                 other
                 Tenement
                 with
                 which
                 it
                 was
                 Excambed
                 ,
                 for
                 therein
                 Excambion
                 or
                 Permutation
                 differs
                 from
                 Sale
                 ;
                 this
                 recourse
                 is
                 effectual
                 ,
                 not
                 only
                 to
                 the
                 Heirs
                 ,
                 but
                 to
                 the
                 singular
                 Successors
                 of
                 both
                 parties
                 ,
                 whether
                 by
                 voluntar
                 or
                 Judicial
                 Rights
                 ;
                 and
                 therefore
                 ,
                 regress
                 was
                 sustained
                 against
                 an
                 Appryzing
                 ,
                 prior
                 to
                 the
                 Eviction
                 ,
                 without
                 necessity
                 to
                 instruct
                 that
                 the
                 Excamber
                 had
                 right
                 when
                 he
                 changed
                 ,
                 it
                 being
                 presumed
                 that
                 he
                 delivered
                 his
                 Rights
                 to
                 the
                 other
                 party
                 ;
                 and
                 therefore
                 an
                 old
                 Charter
                 from
                 the
                 King
                 ,
                 bearing
                 ,
                 
                   the
                   Lands
                   to
                   have
                   been
                   Disponed
                   in
                   Excambion
                   for
                   the
                   other
                   parties
                   Lands
                   ,
                
                 and
                 expressing
                 Regress
                 ,
                 but
                 without
                 mention
                 of
                 Assigneys
                 ,
                 yet
                 was
                 found
                 effectual
                 to
                 a
                 singular
                 Successor
                 ,
                 July
                 14.
                 1629.
                 
                 Laird
                 of
                 
                   Wairdess
                   contra
                
                 Laird
                 of
                 Balcomie
                 .
                 In
                 this
                 Process
                 it
                 was
                 found
                 ,
                 that
                 no
                 person
                 needed
                 to
                 be
                 cited
                 but
                 the
                 present
                 Proprietar
                 of
                 the
                 Lands
                 Excambed
                 ,
                 and
                 the
                 Heir
                 ,
                 or
                 appear
                 and
                 Heir
                 of
                 the
                 maker
                 of
                 the
                 Excambion
                 ,
                 July
                 2.
                 1629.
                 
                   inter
                   eosdem
                
                 ;
                 and
                 that
                 Regress
                 was
                 effectual
                 against
                 an
                 Appryzer
                 of
                 the
                 Excambed
                 Lands
                 ,
                 it
                 was
                 so
                 decided
                 ,
                 December
                 21.
                 1623.
                 
                 Earl
                 of
                 
                   Montrose
                   contra
                
                 Sir
                 
                   George
                   Ker.
                
                 
              
               
                 51.
                 
                 The
                 Law
                 doth
                 also
                 introduce
                 Conditions
                 in
                 Infeftments
                 ,
                 which
                 do
                 not
                 arise
                 from
                 their
                 Nature
                 ,
                 as
                 in
                 Feus
                 ,
                 by
                 the
                 common
                 Feudal
                 Law
                 ,
                 and
                 by
                 special
                 Statute
                 with
                 us
                 ,
                 whereby
                 if
                 the
                 Feu-duty
                 be
                 not
                 payed
                 by
                 the
                 space
                 of
                 two
                 years
                 hail
                 and
                 together
                 ,
                 that
                 the
                 Feu
                 shall
                 be
                 extinct
                 and
                 lost
                 ,
                 Parl.
                 1597.
                 cap.
                 〈◊〉
                 .
              
               
               
                 It
                 is
                 therefore
                 beyond
                 doubt
                 ,
                 that
                 such
                 Clauses
                 are
                 effectual
                 ,
                 whether
                 exprest
                 or
                 not
                 exprest
                 in
                 the
                 Infeftment
                 .
              
               
                 52.
                 
                 It
                 is
                 also
                 incontroverted
                 ,
                 that
                 Liferents
                 one
                 or
                 more
                 may
                 be
                 effectually
                 reserved
                 in
                 Infeftments
                 ,
                 which
                 will
                 pass
                 therewith
                 as
                 a
                 real
                 burden
                 to
                 all
                 singular
                 Successors
                 ,
                 and
                 needs
                 no
                 other
                 Infeftment
                 .
              
               
                 53.
                 
                 Infeftments
                 are
                 also
                 sometimes
                 burdened
                 with
                 the
                 Exception
                 of
                 other
                 Infeftments
                 ,
                 which
                 Exceptions
                 ,
                 if
                 they
                 be
                 in
                 the
                 Dispositive
                 Clause
                 ,
                 as
                 a
                 burden
                 upon
                 the
                 Infeftment
                 ,
                 they
                 are
                 effectual
                 against
                 singular
                 Successors
                 .
              
               
                 54.
                 
                 Infeftments
                 are
                 also
                 frequently
                 burdened
                 with
                 Faculties
                 or
                 Powers
                 to
                 affect
                 or
                 burden
                 the
                 Lands
                 ,
                 or
                 others
                 Disponed
                 ,
                 and
                 that
                 either
                 absolutely
                 at
                 the
                 Disponers
                 pleasure
                 ,
                 for
                 such
                 sums
                 to
                 Children
                 or
                 Creditors
                 ;
                 which
                 Clauses
                 are
                 frequent
                 in
                 the
                 Dispositions
                 by
                 Fathers
                 to
                 their
                 eldest
                 Son
                 ,
                 and
                 are
                 very
                 amply
                 Interpret
                 against
                 them
                 and
                 their
                 Heirs
                 ,
                 though
                 the
                 way
                 of
                 burdening
                 might
                 have
                 been
                 defective
                 ,
                 as
                 by
                 a
                 base
                 Infeftment
                 ,
                 not
                 cled
                 with
                 Possession
                 ,
                 or
                 by
                 Bonds
                 of
                 Provision
                 ,
                 though
                 no
                 Infeftment
                 follow
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 the
                 Relict
                 of
                 Robert
                 Earl
                 of
                 
                   Carnwath
                   contra
                   Gavin
                
                 Earl
                 of
                 Carnwath
                 .
                 And
                 a
                 Disposition
                 by
                 a
                 Father
                 to
                 his
                 Son
                 ,
                 witha
                 power
                 to
                 burden
                 with
                 such
                 a
                 sum
                 ,
                 a
                 Bond
                 granted
                 thereafter
                 to
                 his
                 Daughter
                 ,
                 without
                 mention
                 of
                 that
                 power
                 was
                 found
                 effectual
                 against
                 the
                 Son
                 ,
                 in
                 so
                 far
                 as
                 was
                 not
                 satisfied
                 with
                 the
                 Fathers
                 Moveables
                 ,
                 June
                 24.
                 1677.
                 
                 
                   Margaret
                   Hopringle
                   contra
                   George
                   Hopringle
                
                 ,
                 though
                 these
                 might
                 be
                 more
                 strictly
                 Interpret
                 in
                 the
                 case
                 of
                 singular
                 Successors
                 ,
                 acquiring
                 for
                 onerous
                 Causes
                 .
                 And
                 in
                 the
                 case
                 of
                 the
                 Creditors
                 of
                 
                   Mouswal
                   contra
                
                 the
                 Children
                 of
                 Mouswal
                 ,
                 who
                 having
                 Disponed
                 his
                 estate
                 to
                 his
                 eldest
                 Son
                 by
                 his
                 Contract
                 of
                 Marriage
                 ,
                 reserving
                 a
                 power
                 to
                 himself
                 to
                 burden
                 it
                 with
                 such
                 a
                 sum
                 to
                 his
                 Bairns
                 ,
                 having
                 given
                 them
                 Bonds
                 of
                 Provision
                 with
                 a
                 base
                 Infeftment
                 ,
                 the
                 same
                 was
                 preferred
                 without
                 Possession
                 ,
                 by
                 vertue
                 of
                 the
                 reservation
                 to
                 the
                 posterior
                 publick
                 Infeftments
                 of
                 the
                 Creditors
                 for
                 prior
                 Debts
                 ,
                 seing
                 he
                 had
                 then
                 an
                 Estate
                 sufficient
                 for
                 all
                 his
                 Debts
                 ,
                 and
                 his
                 Bairns
                 Portions
                 .
              
               
                 It
                 is
                 no
                 less
                 certain
                 that
                 all
                 the
                 Clauses
                 contained
                 in
                 Infeftments
                 are
                 not
                 real
                 burdens
                 ,
                 affecting
                 singular
                 Successors
                 ,
                 such
                 as
                 Warrandice
                 ,
                 which
                 only
                 obliegeth
                 the
                 Warrand
                 and
                 his
                 Heirs
                 ,
                 and
                 is
                 meerly
                 personal
                 ;
                 so
                 then
                 the
                 difficulty
                 remains
                 ,
                 what
                 Clauses
                 insert
                 in
                 Infeftments
                 are
                 real
                 burdens
                 ,
                 effectual
                 against
                 singular
                 Successors
                 ;
                 First
                 then
                 ,
                 If
                 the
                 Infeftment
                 bear
                 a
                 provision
                 that
                 the
                 person
                 Infeft
                 shall
                 pay
                 such
                 a
                 sum
                 or
                 do
                 such
                 deeds
                 to
                 a
                 third
                 party
                 ,
                 this
                 will
                 import
                 but
                 a
                 personal
                 obliegement
                 ,
                 and
                 will
                 not
                 affect
                 singular
                 Successors
                 .
              
               
                 55.
                 
                 But
                 if
                 the
                 Dispositive
                 Clause
                 be
                 expresly
                 burdened
                 with
                 payment
                 of
                 such
                 a
                 sum
                 to
                 the
                 Author
                 ,
                 or
                 bear
                 ,
                 
                   that
                   upon
                   that
                   condition
                   the
                   Infeftment
                   is
                   granted
                   ,
                   and
                   no
                   otherwaies
                   ,
                
                 such
                 a
                 Clause
                 was
                 found
                 effectual
                 against
                 a
                 Singular
                 Successor
                 ,
                 bearing
                 only
                 a
                 Provision
                 in
                 the
                 Dispositive
                 Words
                 ,
                 
                   that
                   the
                   Lands
                   should
                   be
                   affected
                   with
                   such
                   a
                   sum
                   ,
                   and
                   was
                   sustained
                   against
                   an
                   Apprizer
                   ,
                   November
                
                 7.
                 1676.
                 
                 
                   Caucham
                   contra
                   Adamson
                
                 ,
                 here
                 there
                 was
                 a
                 Clause
                 irritant
                 in
                 the
                 Disposition
                 ,
                 but
                 was
                 not
                 in
                 the
                 Charter
                 .
              
               
                 56.
                 
                 Provisions
                 or
                 Conditions
                 in
                 Infeftments
                 ,
                 impossible
                 or
                 unlawful
                 ,
                 if
                 they
                 be
                 conceived
                 as
                 suspensive
                 Clauses
                 annexed
                 to
                 the
                 Disposition
                 ,
                 they
                 annul
                 the
                 same
                 :
                 But
                 if
                 there
                 be
                 Provisions
                 otherways
                 adjected
                 ,
                 though
                 they
                 be
                 in
                 the
                 Terms
                 of
                 a
                 Clause
                 irritant
                 or
                 resolutive
                 ,
                 they
                 are
                 void
                 as
                 not
                 adjected
                 .
              
               
               
                 57.
                 
                 Provisions
                 also
                 inconsistant
                 with
                 the
                 Nature
                 of
                 the
                 Right
                 ,
                 are
                 ineffectual
                 ,
                 as
                 if
                 it
                 were
                 provided
                 that
                 the
                 Vassal
                 should
                 not
                 owe
                 fidelity
                 to
                 his
                 Superiour
                 ,
                 or
                 that
                 the
                 Right
                 should
                 be
                 valid
                 by
                 the
                 Charter
                 without
                 Seasine
                 ,
                 these
                 Provisions
                 are
                 inconsistent
                 and
                 null
                 .
              
               
                 58.
                 
                 It
                 is
                 much
                 debated
                 amongst
                 the
                 Feudists
                 ,
                 whither
                 Clauses
                 ,
                 
                   de
                   non
                   alienando
                
                 ,
                 with
                 an
                 irritancy
                 or
                 resolutive
                 Clause
                 ,
                 or
                 that
                 the
                 Fiars
                 should
                 contract
                 no
                 Debt
                 ,
                 by
                 which
                 the
                 Fee
                 might
                 be
                 alienat
                 ,
                 or
                 the
                 Tailzie
                 changed
                 ;
                 and
                 they
                 are
                 generally
                 for
                 the
                 Negative
                 ,
                 that
                 a
                 Clause
                 prohibiting
                 contracting
                 of
                 Debt
                 ,
                 or
                 simply
                 not
                 to
                 alienat
                 ,
                 are
                 inconsistent
                 with
                 Property
                 ,
                 albeit
                 they
                 may
                 be
                 effectual
                 if
                 so
                 qualified
                 .
                 That
                 no
                 alienation
                 be
                 made
                 ,
                 or
                 debt
                 contracted
                 to
                 affect
                 the
                 Fee
                 ,
                 or
                 alter
                 the
                 succession
                 without
                 consent
                 of
                 the
                 superiour
                 ,
                 or
                 such
                 other
                 persons
                 ;
                 but
                 that
                 being
                 absolute
                 ,
                 they
                 cannot
                 be
                 effectual
                 against
                 singular
                 Successors
                 ,
                 whereas
                 these
                 limited
                 prohibitions
                 resolve
                 but
                 in
                 Interdictions
                 ,
                 and
                 being
                 contained
                 in
                 the
                 Seasines
                 registrate
                 ,
                 they
                 are
                 equivalent
                 to
                 Interdictions
                 ,
                 published
                 and
                 Registrate
                 ,
                 though
                 many
                 such
                 Clauses
                 have
                 been
                 in
                 Tailzied
                 Infeftments
                 ,
                 yet
                 none
                 of
                 them
                 have
                 come
                 to
                 be
                 debated
                 ,
                 but
                 that
                 which
                 was
                 in
                 the
                 Tailzie
                 of
                 the
                 Estate
                 of
                 Stormont
                 ,
                 Tailzied
                 to
                 Annandails
                 Heirs
                 Male
                 of
                 his
                 Body
                 ,
                 whilks
                 failing
                 ,
                 to
                 Balvaird
                 and
                 his
                 Heirs
                 ,
                 with
                 a
                 Clause
                 not
                 to
                 annalzie
                 or
                 to
                 contract
                 any
                 debt
                 ,
                 or
                 do
                 any
                 deed
                 whereby
                 the
                 Lands
                 might
                 be
                 taken
                 from
                 the
                 Heirs
                 of
                 Talzie
                 ,
                 otherwise
                 the
                 Contraveener
                 should
                 
                   ipso
                   facto
                
                 ,
                 loose
                 his
                 Right
                 ;
                 and
                 the
                 next
                 person
                 who
                 would
                 be
                 Heir
                 ,
                 should
                 have
                 Right
                 ,
                 which
                 being
                 at
                 length
                 contained
                 in
                 the
                 original
                 Seasine
                 ,
                 and
                 all
                 the
                 subsequent
                 Seasines
                 was
                 found
                 effectual
                 to
                 annual
                 the
                 Right
                 of
                 James
                 Earl
                 of
                 Annandail
                 ,
                 who
                 contraveened
                 ,
                 and
                 of
                 all
                 his
                 Creditors
                 who
                 apprized
                 for
                 his
                 debt
                 ,
                 Febru
                 .
                 26.
                 1662.
                 
                 Viscount
                 of
                 
                   Stormont
                   contra
                
                 Creditors
                 of
                 Annandail
                 .
              
               
                 Other
                 Clauses
                 irritant
                 ,
                 consisting
                 with
                 the
                 nature
                 of
                 the
                 Right
                 ,
                 are
                 effectual
                 against
                 singular
                 Successors
                 ,
                 as
                 the
                 taking
                 the
                 Name
                 and
                 Arms
                 of
                 a
                 Family
                 .
              
               
                 And
                 generally
                 ,
                 all
                 real
                 burdens
                 of
                 Lands
                 contained
                 in
                 Infeftments
                 ,
                 though
                 they
                 give
                 no
                 present
                 Right
                 to
                 these
                 in
                 whose
                 favours
                 they
                 are
                 conceived
                 ,
                 nor
                 cannot
                 give
                 them
                 any
                 Fee
                 of
                 the
                 Lands
                 ,
                 yet
                 they
                 are
                 real
                 burdens
                 ,
                 passing
                 with
                 the
                 Lands
                 to
                 singular
                 Successors
                 ,
                 though
                 they
                 bind
                 them
                 not
                 personally
                 ,
                 but
                 the
                 Ground
                 of
                 the
                 Land
                 by
                 Appryzing
                 or
                 Adjudication
                 ,
                 as
                 if
                 Lands
                 be
                 disponed
                 with
                 the
                 burden
                 of
                 an
                 Annualrent
                 furth
                 thereof
                 ,
                 to
                 such
                 a
                 person
                 and
                 his
                 Heirs
                 ,
                 this
                 will
                 not
                 constitute
                 the
                 annualrent
                 ,
                 but
                 may
                 be
                 a
                 ground
                 of
                 adjudging
                 an
                 Annualrent
                 out
                 of
                 the
                 Lands
                 .
              
               
                 In
                 all
                 these
                 cases
                 ,
                 Purchasers
                 by
                 voluntary
                 Disposition
                 ,
                 are
                 presumed
                 and
                 ought
                 to
                 see
                 their
                 Authors
                 Rights
                 ,
                 at
                 least
                 a
                 progress
                 of
                 fourty
                 years
                 ,
                 whereby
                 they
                 may
                 know
                 such
                 Clauses
                 and
                 consider
                 them
                 in
                 the
                 price
                 ,
                 or
                 otherways
                 secure
                 themselves
                 against
                 them
                 .
              
               
                 But
                 in
                 the
                 only
                 Decision
                 of
                 this
                 matter
                 concerning
                 the
                 Tailzie
                 of
                 the
                 Estate
                 of
                 Stormount
                 which
                 did
                 pass
                 with
                 great
                 difficulty
                 ,
                 the
                 Lords
                 being
                 near
                 equally
                 divided
                 ,
                 special
                 consideration
                 was
                 had
                 ,
                 that
                 the
                 Clause
                 irritant
                 ;
                 
                   de
                   non
                   alienando
                
                 ,
                 was
                 expresly
                 set
                 down
                 in
                 the
                 first
                 and
                 subsequent
                 Seasines
                 of
                 Heirs
                 ,
                 whereby
                 Creditors
                 were
                 certiorat
                 of
                 their
                 hazard
                 ,
                 if
                 they
                 should
                 lend
                 their
                 money
                 ,
                 that
                 they
                 could
                 expect
                 no
                 security
                 threfore
                 by
                 that
                 Estate
                 ,
                 seing
                 thereby
                 the
                 borrowers
                 Right
                 became
                 void
                 ;
                 and
                 therefore
                 ,
                 such
                 Clauses
                 or
                 any
                 other
                 
                 Clauses
                 irritant
                 ,
                 or
                 conditions
                 that
                 might
                 evacuat
                 infeftments
                 ,
                 or
                 deeply
                 burden
                 the
                 same
                 ,
                 when
                 they
                 are
                 not
                 particularly
                 exprest
                 in
                 the
                 Seasine
                 ,
                 may
                 not
                 only
                 be
                 quarrelled
                 by
                 anterior
                 Creditors
                 ,
                 but
                 also
                 by
                 posterior
                 Creditors
                 ,
                 as
                 latent
                 and
                 fraudulent
                 Clauses
                 to
                 insnare
                 Creditors
                 ,
                 who
                 having
                 no
                 mean
                 to
                 know
                 such
                 Clauses
                 ,
                 do
                 contract
                 and
                 lend
                 sums
                 of
                 Money
                 to
                 persons
                 whom
                 they
                 see
                 standing
                 Infeft
                 in
                 considerable
                 Estates
                 of
                 Land.
                 
              
               
                 Clauses
                 
                   de
                   non
                   alienando
                
                 ,
                 or
                 
                   non
                   contrahendo
                   debitum
                
                 ,
                 are
                 most
                 infavourable
                 and
                 inconvenient
                 ,
                 specially
                 when
                 absolute
                 ;
                 for
                 first
                 Commerce
                 is
                 thereby
                 hindered
                 ,
                 which
                 is
                 the
                 common
                 interest
                 of
                 Mankind
                 .
                 Secondly
                 ,
                 the
                 Natural
                 Obligations
                 of
                 providing
                 Wives
                 and
                 Children
                 are
                 thereby
                 hindered
                 ,
                 which
                 cannot
                 lawfully
                 be
                 omitted
                 .
                 Thirdly
                 ,
                 It
                 is
                 unreasonable
                 so
                 to
                 clog
                 Estates
                 ,
                 descending
                 from
                 Predecessors
                 ,
                 and
                 not
                 to
                 leave
                 our
                 Successors
                 in
                 the
                 same
                 freedom
                 that
                 our
                 Predicessors
                 left
                 us
                 ,
                 whereby
                 ,
                 though
                 they
                 have
                 the
                 shadow
                 of
                 an
                 Estate
                 ,
                 yet
                 they
                 may
                 become
                 miserable
                 ,
                 as
                 if
                 they
                 should
                 happen
                 to
                 fall
                 into
                 Captivity
                 ,
                 or
                 in
                 any
                 Transgression
                 that
                 would
                 infer
                 a
                 considerable
                 fine
                 ,
                 against
                 which
                 no
                 such
                 Clause
                 can
                 secure
                 ,
                 then
                 being
                 disabled
                 to
                 borrow
                 ,
                 they
                 behoved
                 to
                 be
                 denunced
                 to
                 the
                 Horn
                 ,
                 and
                 thereby
                 their
                 Liferent
                 Escheat
                 fall
                 to
                 their
                 Superiour
                 ,
                 which
                 no
                 such
                 Clause
                 can
                 prevent
                 ;
                 and
                 therefore
                 ,
                 if
                 any
                 man
                 have
                 ground
                 to
                 suspect
                 the
                 frugality
                 of
                 his
                 Successor
                 ,
                 he
                 may
                 provide
                 a
                 part
                 of
                 his
                 Estate
                 by
                 a
                 Tailzie
                 ,
                 disabling
                 that
                 Successor
                 to
                 contract
                 debt
                 without
                 the
                 consent
                 of
                 such
                 persons
                 in
                 which
                 he
                 confides
                 ,
                 leaving
                 some
                 part
                 of
                 his
                 Estate
                 to
                 his
                 diseretion
                 .
              
               
                 For
                 such
                 a
                 Clause
                 irritant
                 being
                 in
                 the
                 Seasine
                 published
                 by
                 Registration
                 ,
                 may
                 be
                 sustained
                 as
                 equivalent
                 to
                 an
                 Interdiction
                 ;
                 such
                 Clauses
                 are
                 also
                 much
                 more
                 tollerable
                 in
                 Lands
                 acquired
                 by
                 the
                 Fiars
                 own
                 industry
                 ,
                 wherein
                 if
                 there
                 be
                 insert
                 a
                 Tailzie
                 with
                 a
                 Clause
                 ,
                 
                   de
                   non
                   alienando
                
                 ,
                 to
                 be
                 insert
                 in
                 the
                 Original
                 ,
                 and
                 all
                 subsequent
                 Seasines
                 ,
                 and
                 bearing
                 
                   Provisions
                   for
                   the
                   Wives
                   of
                   Successours
                   ,
                   not
                   exceeding
                   such
                   proportion
                   of
                   the
                   Fee
                   ,
                   and
                   for
                   Children
                   only
                   to
                   affect
                   such
                   a
                   proportion
                   of
                   the
                   Free
                   Rent
                   :
                
                 Or
                 if
                 persons
                 having
                 no
                 near
                 relations
                 of
                 value
                 ,
                 prefer
                 others
                 of
                 their
                 Name
                 or
                 Kin
                 to
                 their
                 Estates
                 :
                 Or
                 in
                 case
                 of
                 mutual
                 Tailzies
                 ,
                 such
                 Clauses
                 limited
                 as
                 aforesaid
                 ,
                 may
                 be
                 much
                 more
                 tolerate
                 .
              
               
                 But
                 Clauses
                 of
                 that
                 nature
                 have
                 never
                 been
                 attempted
                 ,
                 but
                 in
                 proper
                 Tailzies
                 where
                 they
                 are
                 diverse
                 nominat
                 Branches
                 ,
                 which
                 are
                 neither
                 Heirs
                 of
                 Line
                 ,
                 nor
                 Heirs
                 Male
                 to
                 one
                 another
                 ;
                 and
                 where
                 the
                 main
                 design
                 is
                 to
                 preserve
                 the
                 Tailzie
                 ,
                 for
                 when
                 all
                 the
                 Branches
                 are
                 of
                 far
                 relation
                 ,
                 the
                 preference
                 of
                 the
                 first
                 is
                 not
                 much
                 above
                 the
                 rest
                 ;
                 and
                 therefore
                 ,
                 the
                 other
                 Branches
                 have
                 by
                 such
                 Clauses
                 ,
                 
                   jus
                   acquisitum
                
                 ,
                 and
                 are
                 not
                 simply
                 Heirs
                 ,
                 but
                 partly
                 Creditors
                 to
                 the
                 first
                 Branch
                 ;
                 and
                 therefore
                 ,
                 though
                 there
                 were
                 no
                 Clause
                 irritant
                 ,
                 they
                 might
                 reduce
                 alienations
                 meerly
                 gratuitous
                 or
                 fraudulent
                 ,
                 especially
                 when
                 done
                 not
                 by
                 the
                 Heirs
                 of
                 Line
                 or
                 Heirs
                 Male
                 of
                 him
                 who
                 constitute
                 the
                 Tailzie
                 ,
                 for
                 these
                 are
                 always
                 in
                 every
                 Tailzie
                 in
                 the
                 first
                 place
                 ,
                 and
                 while
                 the
                 Fee
                 continues
                 in
                 them
                 ,
                 it
                 is
                 rather
                 a
                 simple
                 Fee
                 then
                 Tailzied
                 ,
                 as
                 it
                 becomes
                 again
                 ,
                 when
                 all
                 the
                 Branches
                 of
                 the
                 Tailzie
                 fail
                 .
              
               
                 The
                 perpetuities
                 of
                 Estates
                 where
                 they
                 have
                 been
                 long
                 accustomed
                 ,
                 have
                 〈◊〉
                 〈◊〉
                 their
                 Inconvenience
                 ;
                 &
                 therefore
                 ,
                 divices
                 have
                 been
                 found
                 out
                 ,
                 to
                 〈◊〉
                 them
                 ineffectual
                 :
                 Only
                 the
                 Majoratus
                 of
                 Spain
                 hath
                 been
                 most
                 〈◊〉
                 〈◊〉
                 and
                 〈◊〉
                 ,
                 that
                 the
                 King
                 Nobilitating
                 a
                 Person
                 of
                 Merit
                 and
                 〈◊〉
                 ,
                 either
                 by
                 the
                 Kings
                 Gift
                 ,
                 or
                 his
                 own
                 Right
                 ,
                 that
                 Estate
                 can
                 neither
                 be
                 
                 
                 
                 alienate
                 or
                 burdened
                 ,
                 but
                 remains
                 alimentary
                 for
                 preservation
                 of
                 the
                 Dignity
                 of
                 that
                 Family
                 .
              
               
                 But
                 these
                 perpetuities
                 in
                 England
                 are
                 now
                 easily
                 evacuat
                 ;
                 First
                 ,
                 by
                 Warrands
                 to
                 sell
                 ,
                 purchased
                 in
                 Parliament
                 ,
                 which
                 pass
                 without
                 much
                 difficulty
                 ;
                 and
                 if
                 they
                 become
                 frequent
                 with
                 us
                 ,
                 it
                 is
                 like
                 we
                 will
                 find
                 the
                 same
                 remeid
                 :
                 they
                 are
                 also
                 evacuat
                 by
                 a
                 simulat
                 Action
                 of
                 fine
                 and
                 recovery
                 ,
                 whereby
                 the
                 purchaser
                 pretends
                 that
                 he
                 is
                 unwarrantably
                 dispossest
                 of
                 such
                 Lands
                 by
                 the
                 present
                 Fiar
                 ,
                 who
                 coludes
                 and
                 is
                 silent
                 ,
                 having
                 received
                 a
                 Price
                 or
                 other
                 consideration
                 ,
                 so
                 that
                 these
                 Sentences
                 ,
                 though
                 Collusive
                 ,
                 must
                 be
                 irrevocable
                 .
              
               
                 In
                 Tailzies
                 ,
                 the
                 Heirs
                 Male
                 or
                 Heirs
                 of
                 Line
                 of
                 every
                 Branch
                 ,
                 being
                 the
                 Issue
                 of
                 the
                 Stipes
                 of
                 that
                 Branch
                 ,
                 do
                 succeed
                 ;
                 and
                 therefore
                 ,
                 there
                 is
                 a
                 good
                 Caution
                 by
                 the
                 Law
                 of
                 England
                 ,
                 that
                 after
                 the
                 possibility
                 of
                 Issue
                 is
                 extinct
                 ,
                 the
                 present
                 Fiar
                 ,
                 can
                 do
                 no
                 more
                 as
                 to
                 the
                 Fee
                 ,
                 but
                 what
                 a
                 Liferenter
                 could
                 do
                 .
                 The
                 next
                 Branch
                 being
                 ordinarly
                 altogether
                 strangers
                 to
                 that
                 Fiar
                 ,
                 little
                 care
                 will
                 be
                 taken
                 to
                 preserve
                 the
                 Fee.
                 
              
               
                 In
                 the
                 Tailzie
                 of
                 Stormount
                 ,
                 the
                 whole
                 Estate
                 was
                 not
                 comprehended
                 ,
                 and
                 it
                 was
                 distinctly
                 provided
                 ,
                 that
                 in
                 case
                 any
                 of
                 the
                 Heirs
                 of
                 Tailzie
                 for
                 the
                 time
                 should
                 contraveen
                 ,
                 that
                 the
                 Right
                 should
                 be
                 divolved
                 on
                 that
                 person
                 who
                 would
                 succeed
                 ,
                 if
                 the
                 contraveener
                 were
                 dead
                 :
                 But
                 in
                 such
                 Tailzies
                 ,
                 formerly
                 it
                 was
                 not
                 so
                 clearly
                 ordered
                 ,
                 being
                 only
                 provided
                 ,
                 that
                 the
                 contraveener
                 should
                 lose
                 his
                 Right
                 ,
                 and
                 the
                 next
                 Heir
                 of
                 Tailzie
                 should
                 have
                 place
                 ,
                 whereby
                 it
                 remained
                 dubious
                 ,
                 whether
                 the
                 next
                 Branch
                 of
                 the
                 Tailzie
                 were
                 meaned
                 ,
                 so
                 that
                 the
                 contraveener
                 losed
                 his
                 own
                 Interest
                 ,
                 and
                 all
                 descending
                 of
                 him
                 :
                 Or
                 whether
                 he
                 losed
                 the
                 Interest
                 of
                 all
                 descending
                 of
                 that
                 Branch
                 :
                 Or
                 whether
                 he
                 losed
                 only
                 his
                 own
                 personal
                 Interest
                 ,
                 wherein
                 the
                 design
                 of
                 the
                 Constituter
                 of
                 the
                 Tailzie
                 might
                 be
                 dubious
                 enough
                 .
              
               
                 59.
                 
                 To
                 sum
                 up
                 this
                 important
                 Subject
                 of
                 Tailzies
                 ,
                 let
                 us
                 consider
                 the
                 effects
                 thereof
                 ,
                 according
                 to
                 the
                 several
                 ordinary
                 Tenors
                 of
                 the
                 same
                 ,
                 and
                 how
                 far
                 the
                 Fiar
                 or
                 his
                 Heirs
                 of
                 tailzie
                 is
                 bound
                 up
                 thereby
                 ;
                 we
                 must
                 then
                 distinguish
                 betwixt
                 Tailzies
                 having
                 Clauses
                 not
                 to
                 alter
                 ,
                 burden
                 or
                 alienat
                 :
                 And
                 these
                 that
                 are
                 simple
                 without
                 any
                 express
                 restrictive
                 Clause
                 .
                 Secondly
                 ,
                 Betwixt
                 Tailzies
                 made
                 freely
                 ,
                 and
                 these
                 that
                 are
                 made
                 for
                 onerous
                 Causes
                 .
                 Thirdly
                 ,
                 Betwixt
                 these
                 that
                 have
                 Clauses
                 resolutive
                 or
                 irritant
                 ,
                 and
                 these
                 that
                 have
                 only
                 such
                 Clauses
                 by
                 way
                 of
                 Obligation
                 ,
                 Provision
                 or
                 Condition
                 .
              
               
                 As
                 to
                 the
                 first
                 Case
                 ,
                 It
                 is
                 a
                 general
                 Rule
                 ,
                 that
                 
                   quisque
                   est
                   rei
                   suae
                   moderator
                   &
                   arbiter
                   ,
                
                 every
                 man
                 may
                 dispose
                 of
                 his
                 own
                 at
                 his
                 pleasure
                 ,
                 either
                 to
                 take
                 effect
                 in
                 his
                 life
                 ,
                 or
                 after
                 his
                 death
                 ,
                 and
                 so
                 may
                 provide
                 his
                 Lands
                 to
                 what
                 Heirs
                 he
                 pleaseth
                 ,
                 and
                 may
                 change
                 the
                 Succession
                 as
                 oft
                 as
                 he
                 will
                 ,
                 which
                 will
                 be
                 compleated
                 by
                 Resigning
                 from
                 himself
                 and
                 his
                 Heirs
                 in
                 the
                 Fee
                 in
                 favours
                 of
                 himself
                 ,
                 and
                 such
                 other
                 Heirs
                 as
                 he
                 pleaseth
                 to
                 name
                 in
                 the
                 Procuratory
                 ,
                 whereupon
                 Resignation
                 being
                 accepted
                 by
                 a
                 Superiour
                 ,
                 and
                 new
                 Infeftment
                 granted
                 accordingly
                 ,
                 the
                 Succession
                 is
                 effectually
                 altered
                 ;
                 yea
                 any
                 obliegement
                 to
                 take
                 his
                 Lands
                 so
                 holden
                 ,
                 will
                 obliege
                 the
                 former
                 heirs
                 to
                 enter
                 ,
                 and
                 to
                 denude
                 themselves
                 for
                 Implement
                 of
                 that
                 obliegement
                 ,
                 in
                 favours
                 of
                 the
                 heirs
                 therein
                 exprest
                 ;
                 and
                 if
                 the
                 Superiour
                 refuse
                 to
                 accept
                 the
                 Resignation
                 ,
                 altering
                 the
                 Succession
                 ,
                 a
                 Bond
                 of
                 borrowed
                 Money
                 ,
                 though
                 granted
                 only
                 upon
                 design
                 to
                 alter
                 the
                 Succession
                 ,
                 will
                 be
                 the
                 ground
                 of
                 Adjudication
                 of
                 the
                 Land
                 ,
                 and
                 being
                 assigned
                 to
                 the
                 Fiar
                 himself
                 ,
                 and
                 to
                 such
                 heirs
                 as
                 he
                 pleaseth
                 ,
                 the
                 Superiour
                 will
                 
                 be
                 forced
                 to
                 receive
                 him
                 accordingly
                 ;
                 so
                 that
                 the
                 first
                 constituter
                 of
                 a
                 Tailzie
                 ,
                 or
                 any
                 heir
                 succeeding
                 to
                 him
                 may
                 change
                 it
                 at
                 their
                 pleasure
                 ,
                 unless
                 the
                 Tailzie
                 be
                 for
                 an
                 onerous
                 Cause
                 ,
                 as
                 when
                 Tailzies
                 are
                 mutual
                 ,
                 then
                 the
                 first
                 constitutors
                 of
                 the
                 mutual
                 Tailzies
                 cannot
                 alter
                 the
                 same
                 ,
                 although
                 their
                 Debts
                 may
                 affect
                 the
                 same
                 ;
                 yet
                 no
                 fraudulent
                 or
                 gratuitous
                 deed
                 can
                 alter
                 or
                 evacuat
                 such
                 Tailzies
                 ;
                 and
                 therefore
                 ,
                 a
                 mutual
                 Contract
                 betwixt
                 two
                 brethren
                 ,
                 oblieging
                 them
                 ,
                 that
                 what
                 Lands
                 they
                 should
                 succeed
                 to
                 ,
                 or
                 acquire
                 ,
                 should
                 be
                 taken
                 to
                 the
                 Heirs
                 of
                 their
                 body
                 ,
                 whilks
                 failzing
                 ,
                 to
                 the
                 Brother
                 and
                 the
                 heirs
                 of
                 his
                 Body
                 ,
                 &c.
                 though
                 thereafter
                 either
                 Brother
                 took
                 their
                 Lands
                 ,
                 otherways
                 to
                 their
                 heirs
                 whatsomever
                 ,
                 whereby
                 Sisters
                 having
                 succeeded
                 to
                 one
                 of
                 these
                 brothers
                 ,
                 they
                 were
                 decerned
                 to
                 denude
                 themselves
                 in
                 favours
                 of
                 the
                 other
                 Brother
                 ,
                 January
                 14.
                 1631.
                 
                 Mr.
                 
                   John
                   Sharp
                   contra
                   Helen
                   Sharp
                
                 .
              
               
                 But
                 if
                 the
                 Cause
                 onerous
                 be
                 of
                 less
                 import
                 ,
                 then
                 to
                 grant
                 and
                 continue
                 a
                 Tailzie
                 ,
                 it
                 will
                 import
                 no
                 more
                 then
                 once
                 perfecting
                 the
                 Infeftment
                 by
                 such
                 a
                 Tailzie
                 ,
                 whereby
                 the
                 hope
                 of
                 Succession
                 ariseth
                 to
                 these
                 parties
                 in
                 whose
                 favours
                 the
                 fiar
                 is
                 oblieged
                 to
                 take
                 the
                 Tailzy
                 ,
                 but
                 he
                 was
                 not
                 found
                 oblieged
                 to
                 continue
                 the
                 same
                 ,
                 but
                 that
                 he
                 might
                 alter
                 it
                 thereafter
                 ,
                 without
                 refounding
                 the
                 Money
                 he
                 got
                 for
                 granting
                 it
                 ,
                 being
                 but
                 of
                 that
                 value
                 ,
                 as
                 was
                 equal
                 only
                 to
                 the
                 hope
                 of
                 Succession
                 ,
                 which
                 behoved
                 to
                 be
                 understood
                 of
                 alteration
                 ,
                 
                   sine
                   dolo
                   ,
                   July
                
                 15.
                 1636.
                 
                 Mr.
                 
                   David
                   Drummond
                   contra
                   Drummond
                
                 .
              
               
                 Heirs
                 of
                 Provision
                 by
                 Contracts
                 of
                 Marriage
                 ,
                 are
                 in
                 part
                 ouerous
                 ,
                 being
                 granted
                 for
                 a
                 Tocher
                 ,
                 and
                 the
                 interest
                 of
                 the
                 Wife
                 concerned
                 ;
                 therefore
                 ,
                 they
                 cannot
                 be
                 alterred
                 by
                 the
                 Husband
                 at
                 his
                 pleasure
                 ,
                 but
                 do
                 exclude
                 all
                 fraudulent
                 ,
                 or
                 meerly
                 gratuitous
                 alterations
                 ,
                 as
                 hath
                 been
                 shown
                 ,
                 Section
                 fourty
                 three
                 .
              
               
                 But
                 if
                 there
                 bean
                 express
                 Obliegement
                 not
                 to
                 alter
                 the
                 Tailzie
                 ,
                 albeit
                 that
                 will
                 not
                 give
                 Title
                 to
                 the
                 Heirs
                 of
                 Blood
                 of
                 the
                 present
                 Fiar
                 ,
                 to
                 quarrel
                 his
                 deed
                 or
                 alteration
                 ;
                 yet
                 it
                 will
                 give
                 interest
                 to
                 any
                 other
                 Branch
                 of
                 the
                 Tailzie
                 ,
                 whether
                 to
                 the
                 person
                 nominat
                 or
                 his
                 heirs
                 ,
                 to
                 quarrel
                 and
                 reduce
                 such
                 alterations
                 ,
                 though
                 it
                 will
                 not
                 exclude
                 alterations
                 by
                 Appryzing
                 or
                 Adjudication
                 ,
                 for
                 debts
                 truly
                 borrowed
                 by
                 the
                 Fiar
                 ;
                 and
                 therefore
                 ,
                 a
                 Tailzie
                 of
                 a
                 sum
                 of
                 Money
                 ,
                 lent
                 in
                 thir
                 terms
                 ,
                 to
                 be
                 payed
                 to
                 the
                 Creditor
                 and
                 the
                 heirs
                 of
                 his
                 Body
                 ;
                 whilks
                 failing
                 ,
                 to
                 the
                 Father
                 and
                 the
                 heirs
                 of
                 hsi
                 Body
                 ;
                 whilks
                 failing
                 ,
                 to
                 a
                 person
                 named
                 and
                 his
                 heirs
                 and
                 assigneys
                 whatsomever
                 ,
                 with
                 a
                 provision
                 ,
                 that
                 the
                 Creditor
                 and
                 his
                 heirs
                 should
                 do
                 no
                 deed
                 hurtful
                 to
                 the
                 Tailzie
                 ,
                 nor
                 the
                 Debitor
                 should
                 not
                 pay
                 without
                 consent
                 of
                 the
                 heir
                 of
                 Tailzie
                 named
                 ,
                 was
                 found
                 to
                 give
                 interest
                 to
                 that
                 person
                 as
                 heir
                 of
                 Tailzie
                 ,
                 to
                 declare
                 that
                 the
                 sum
                 was
                 unwarrantably
                 uplifted
                 ,
                 or
                 payed
                 without
                 his
                 consent
                 or
                 order
                 of
                 Law
                 ,
                 by
                 consigning
                 it
                 to
                 be
                 imployed
                 in
                 the
                 same
                 terms
                 ,
                 and
                 that
                 though
                 he
                 was
                 heir
                 of
                 Tailzie
                 to
                 the
                 uplifter
                 ,
                 that
                 he
                 was
                 not
                 oblieged
                 to
                 fulfil
                 his
                 deed
                 or
                 warrand
                 his
                 Discharge
                 ,
                 being
                 contrair
                 to
                 the
                 terms
                 of
                 the
                 Tailzie
                 ;
                 as
                 to
                 which
                 terms
                 he
                 was
                 Creditor
                 ,
                 reserving
                 always
                 to
                 lawful
                 Creditors
                 ,
                 how
                 far
                 they
                 could
                 affect
                 the
                 sum
                 for
                 the
                 Fiars
                 Debt
                 ,
                 February
                 3.
                 1674.
                 
                 
                   Drummond
                   contra
                   Drummond
                
                 .
                 And
                 a
                 Clause
                 in
                 a
                 Bond
                 ,
                 whereby
                 a
                 Woman
                 oblieged
                 her self
                 to
                 resign
                 Lands
                 in
                 favours
                 of
                 her self
                 and
                 the
                 heirs
                 of
                 her
                 Body
                 ,
                 whilks
                 failing
                 ,
                 to
                 the
                 heirs
                 of
                 her
                 Father
                 ,
                 and
                 oblieging
                 her self
                 to
                 do
                 nothing
                 contrary
                 to
                 that
                 succession
                 ,
                 whereupon
                 Inhibition
                 was
                 used
                 before
                 her
                 Marriage
                 ,
                 was
                 found
                 effectual
                 against
                 her
                 and
                 her
                 Husband
                 whom
                 she
                 Married
                 thereafter
                 ,
                 and
                 Disponed
                 the
                 Lands
                 to
                 him
                 and
                 his
                 heirs
                 ,
                 asbeing
                 a
                 voluntary
                 deed
                 ,
                 without
                 an
                 equivalent
                 
                 cause
                 onerous
                 ,
                 albeit
                 the
                 Fathers
                 heirs
                 behoved
                 to
                 be
                 the
                 Womans
                 heir
                 of
                 Tailzie
                 ,
                 January
                 28.
                 1668.
                 
                 
                   Alexander
                   Binnie
                   contra
                   Margaret
                   Binnie
                
                 .
              
               
                 Yet
                 these
                 restricting
                 Clauses
                 without
                 irritancy
                 ,
                 though
                 conceived
                 as
                 Provisions
                 or
                 Conditions
                 ,
                 if
                 they
                 be
                 not
                 in
                 the
                 Investiture
                 ,
                 albeit
                 they
                 be
                 in
                 prior
                 Obligations
                 ,
                 Dispositions
                 or
                 Contracts
                 ,
                 there
                 is
                 no
                 pretence
                 thence
                 to
                 affect
                 the
                 Fee
                 as
                 a
                 real
                 burden
                 ,
                 and
                 even
                 though
                 they
                 be
                 contained
                 in
                 the
                 Investiture
                 ,
                 seing
                 Clauses
                 irritant
                 uses
                 to
                 be
                 added
                 thereto
                 ,
                 they
                 are
                 understood
                 to
                 be
                 but
                 personal
                 Obliegements
                 ,
                 whereupon
                 no
                 diligence
                 having
                 followed
                 ,
                 they
                 cannot
                 be
                 effectual
                 against
                 singular
                 Successors
                 ,
                 whether
                 by
                 Legal
                 or
                 Voluntary
                 Dispositions
                 :
                 And
                 as
                 to
                 such
                 restrictions
                 with
                 Clauses
                 irritant
                 ,
                 we
                 shall
                 add
                 no
                 more
                 thereunto
                 ,
                 then
                 what
                 hath
                 been
                 said
                 .
              
               
                 Property
                 being
                 thus
                 Constitute
                 by
                 Infeftment
                 ,
                 it
                 is
                 to
                 be
                 considered
                 what
                 are
                 the
                 particulars
                 it
                 comprehends
                 and
                 implys
                 ,
                 though
                 not
                 exprest
                 ,
                 wherein
                 this
                 is
                 a
                 general
                 Rule
                 ,
                 that
                 Lands
                 being
                 Disponed
                 with
                 part
                 and
                 pertinent
                 ,
                 all
                 is
                 carried
                 thereby
                 that
                 falls
                 under
                 the
                 Denomination
                 of
                 the
                 Lands
                 Disponed
                 ,
                 
                   a
                   caelo
                   ad
                   centrum
                
                 ,
                 and
                 all
                 that
                 in
                 the
                 time
                 of
                 the
                 Disposition
                 was
                 accustomed
                 to
                 follow
                 it
                 ,
                 not
                 only
                 as
                 servitudes
                 ,
                 but
                 even
                 discontiguous
                 parcels
                 of
                 Land
                 which
                 were
                 not
                 known
                 ,
                 as
                 
                   distincta
                   tenementa
                
                 ,
                 or
                 parts
                 of
                 any
                 other
                 Tenement
                 ,
                 except
                 what
                 the
                 Law
                 reserves
                 ,
                 or
                 the
                 express
                 provision
                 of
                 the
                 Superiour
                 .
              
               
                 60.
                 
                 The
                 Law
                 reserves
                 all
                 these
                 things
                 which
                 are
                 called
                 regalia
                 ,
                 or
                 
                   Jura
                   publica
                
                 ,
                 which
                 the
                 Law
                 appropriateth
                 to
                 Princes
                 and
                 States
                 ,
                 and
                 exempeth
                 from
                 privat
                 use
                 ,
                 unless
                 the
                 same
                 be
                 expresly
                 granted
                 and
                 Disponed
                 by
                 the
                 King
                 ;
                 and
                 if
                 the
                 Superiour
                 be
                 a
                 Subject
                 ,
                 if
                 he
                 have
                 any
                 of
                 these
                 Regalia
                 from
                 the
                 King
                 ,
                 they
                 remain
                 with
                 his
                 Superiority
                 ,
                 unless
                 he
                 expresly
                 Dispone
                 them
                 to
                 his
                 Vassal
                 ,
                 the
                 Superiour
                 may
                 have
                 them
                 from
                 the
                 King
                 ,
                 either
                 expresly
                 in
                 any
                 Tenement
                 holden
                 of
                 the
                 King
                 ,
                 or
                 tacitly
                 ,
                 when
                 Lands
                 are
                 erected
                 by
                 the
                 King
                 ,
                 to
                 him
                 in
                 a
                 Barrony
                 ,
                 or
                 any
                 higher
                 Dignity
                 ,
                 whereby
                 many
                 of
                 these
                 regalia
                 ,
                 are
                 comprehended
                 .
                 Barronia
                 being
                 
                   nomen
                   Universitatis
                
                 ,
                 yet
                 that
                 will
                 not
                 comprehend
                 ,
              
               
                 First
                 ,
                 Mines
                 and
                 Minerals
                 of
                 Gold
                 or
                 Silver
                 ,
                 or
                 Lead
                 of
                 that
                 fineness
                 ,
                 that
                 three
                 half-pennies
                 of
                 Silver
                 may
                 be
                 fined
                 out
                 of
                 the
                 pound
                 of
                 Lead
                 ,
                 which
                 Mines
                 are
                 declared
                 to
                 belong
                 to
                 the
                 King
                 ,
                 wherever
                 they
                 can
                 be
                 found
                 ,
                 Par.
                 1424.
                 cap.
                 12.
                 
                 But
                 Mines
                 of
                 Iron
                 ,
                 Copper
                 and
                 Lead
                 of
                 less
                 fineness
                 ,
                 belong
                 to
                 the
                 Proprietar
                 ,
                 and
                 are
                 not
                 accounted
                 with
                 us
                 Regalia
                 ,
                 though
                 in
                 some
                 other
                 Countreys
                 they
                 be
                 .
              
               
                 Secondly
                 ,
                 Neither
                 do
                 Treasures
                 found
                 in
                 the
                 Ground
                 belong
                 to
                 the
                 Kings
                 Vassals
                 ,
                 though
                 their
                 Lands
                 be
                 erected
                 in
                 Barronies
                 ,
                 unless
                 they
                 were
                 exprest
                 .
                 A
                 Treasure
                 is
                 Money
                 hid
                 in
                 the
                 Ground
                 ,
                 the
                 owner
                 whereof
                 is
                 not
                 known
                 .
              
               
                 Thirdly
                 ,
                 Though
                 all
                 Proprietars
                 have
                 the
                 priviledge
                 of
                 Fowling
                 within
                 their
                 own
                 Ground
                 ,
                 yet
                 Swans
                 are
                 peculiarly
                 reserved
                 to
                 the
                 King
                 ;
                 and
                 therefore
                 ,
                 the
                 priviledge
                 to
                 kill
                 Swans
                 ,
                 is
                 not
                 carryed
                 under
                 the
                 name
                 of
                 Barrony
                 ,
                 unless
                 they
                 were
                 particularly
                 exprest
                 .
              
               
                 Fourthly
                 ,
                 Confiscat
                 Goods
                 are
                 not
                 carried
                 ,
                 even
                 under
                 the
                 name
                 of
                 Barrony
                 ,
                 unless
                 they
                 be
                 exprest
                 .
              
               
                 61.
                 
                 Yet
                 there
                 are
                 other
                 regalia
                 ,
                 which
                 are
                 carried
                 under
                 the
                 name
                 of
                 Barrony
                 ,
                 though
                 not
                 exprest
                 ,
                 as
                 Jurisdictions
                 and
                 Courts
                 ,
                 Fortalices
                 ,
                 Salmond
                 Fishing
                 ,
                 Forrests
                 ,
                 
                 and
                 Hunting
                 of
                 Deer
                 ;
                 and
                 Ports
                 with
                 their
                 pettie
                 Customs
                 ,
                 established
                 by
                 the
                 Kings
                 grant
                 ,
                 or
                 long
                 Possession
                 ,
                 for
                 repairing
                 and
                 upholding
                 these
                 Ports
                 ;
                 which
                 therein
                 differ
                 from
                 Creiks
                 or
                 Stations
                 ,
                 which
                 are
                 natural
                 ;
                 but
                 Ports
                 are
                 builded
                 artificially
                 ,
                 and
                 need
                 reparation
                 .
              
               
                 62.
                 
                 Jurisdiction
                 and
                 Courts
                 are
                 comprehended
                 in
                 Barrony
                 ,
                 in
                 so
                 far
                 as
                 concerns
                 Civil
                 Jurisdiction
                 and
                 Blood-wits
                 ,
                 or
                 lesser
                 Crimes
                 ,
                 but
                 will
                 not
                 reach
                 to
                 Capital
                 Punishment
                 ,
                 unless
                 the
                 same
                 be
                 exprest
                 ,
                 as
                 it
                 uses
                 to
                 be
                 when
                 the
                 Priviledge
                 of
                 Pit
                 and
                 Gallows
                 are
                 exprest
                 ,
                 or
                 Out-sang
                 and
                 In-sang
                 Thief
                 ,
                 which
                 seems
                 to
                 extend
                 to
                 the
                 punishing
                 of
                 no
                 more
                 Crimes
                 but
                 Theft
                 ;
                 and
                 these
                 who
                 have
                 only
                 In-sang
                 Theft
                 ,
                 can
                 only
                 punish
                 Thieves
                 taken
                 in
                 the
                 Fact.
                 
              
               
                 Though
                 Courts
                 be
                 exprest
                 ,
                 they
                 will
                 extend
                 to
                 nothing
                 Criminal
                 ,
                 no
                 not
                 to
                 Blood-wits
                 ,
                 unless
                 these
                 be
                 exprest
                 ;
                 but
                 only
                 to
                 Civil
                 Debates
                 requisite
                 for
                 the
                 Propriatar
                 ,
                 as
                 to
                 determine
                 differences
                 amongst
                 his
                 Tenents
                 ,
                 Neighbourhead
                 ,
                 Multars
                 and
                 smaller
                 Matters
                 ;
                 or
                 to
                 constitute
                 a
                 Baily
                 ,
                 who
                 may
                 judge
                 betwixt
                 the
                 Propriatar
                 and
                 his
                 Tenents
                 ,
                 as
                 to
                 his
                 Rents
                 ,
                 Duties
                 and
                 Services
                 ;
                 and
                 also
                 may
                 determine
                 differences
                 amongst
                 his
                 Tenents
                 .
              
               
                 But
                 all
                 Jurisdiction
                 is
                 Cumulative
                 with
                 ,
                 and
                 not
                 Exclusive
                 of
                 the
                 Superiors
                 Jurisdiction
                 ,
                 so
                 that
                 there
                 is
                 place
                 of
                 Prevention
                 .
                 The
                 first
                 Atatcher
                 ,
                 if
                 he
                 proceed
                 is
                 preferred
                 :
                 and
                 if
                 the
                 Superior
                 and
                 Vassall
                 atatch
                 together
                 ,
                 the
                 Superior
                 is
                 preferred
                 .
              
               
                 63.
                 
                 The
                 Courts
                 of
                 Vassals
                 ,
                 though
                 they
                 be
                 Barrons
                 ,
                 and
                 have
                 the
                 Priviledge
                 of
                 Capital
                 Punishment
                 ,
                 are
                 not
                 of
                 the
                 same
                 Extent
                 and
                 Importance
                 ,
                 as
                 the
                 Sentence
                 of
                 the
                 Judges
                 ordinary
                 of
                 the
                 Kingdom
                 ;
                 such
                 as
                 Sheriffs
                 ,
                 Stewarts
                 ,
                 Bailiffs
                 of
                 Royaltie
                 ,
                 Regality
                 and
                 Burghs
                 .
                 For
                 first
                 ,
                 The
                 extent
                 of
                 their
                 Jurisdiction
                 is
                 not
                 so
                 ample
                 .
                 Secondly
                 ,
                 The
                 Jurisdiction
                 of
                 all
                 Barrons
                 and
                 Free
                 holders
                 ,
                 was
                 of
                 old
                 subordinat
                 to
                 the
                 Sheriffs
                 and
                 other
                 Judges
                 ordinary
                 ,
                 within
                 whose
                 Jurisdiction
                 the
                 Lands
                 lay
                 ,
                 Par.
                 1503.
                 cap.
                 95.
                 
                 And
                 then
                 there
                 was
                 place
                 for
                 falsing
                 of
                 Doom
                 ,
                 or
                 appeal
                 to
                 the
                 Sheriff-court
                 ,
                 who
                 was
                 to
                 warn
                 the
                 Parties
                 upon
                 fifteen
                 days
                 ,
                 and
                 make
                 the
                 Suiters
                 of
                 the
                 Sheriffdom
                 Ward
                 thereupon
                 .
                 Whereby
                 it
                 appears
                 ,
                 that
                 the
                 Free-holders
                 of
                 the
                 King
                 ,
                 who
                 owed
                 Suit
                 to
                 the
                 Sheriff-court
                 ;
                 at
                 least
                 an
                 Inquest
                 of
                 them
                 were
                 to
                 concur
                 with
                 the
                 Sheriff
                 in
                 discussing
                 the
                 appeal
                 from
                 the
                 Baron
                 or
                 Free-holder
                 :
                 But
                 now
                 these
                 Appeals
                 or
                 falsing
                 of
                 Dooms
                 from
                 any
                 Court
                 to
                 another
                 ,
                 have
                 been
                 antiquated
                 ,
                 and
                 wholly
                 in
                 desuetude
                 since
                 the
                 Introduction
                 of
                 Advocati
                 ons
                 ,
                 which
                 is
                 a
                 far
                 more
                 excellent
                 remeed
                 ;
                 for
                 thereby
                 Causes
                 are
                 not
                 stopped
                 at
                 the
                 choice
                 or
                 humor
                 of
                 parties
                 :
                 But
                 the
                 reasons
                 of
                 Advocation
                 are
                 specially
                 considered
                 by
                 the
                 Lords
                 ,
                 whether
                 they
                 be
                 relevant
                 ,
                 and
                 have
                 such
                 Instructions
                 as
                 can
                 be
                 expected
                 before
                 discussing
                 ;
                 and
                 the
                 Subjects
                 are
                 further
                 secured
                 by
                 the
                 late
                 Act
                 of
                 Parliament
                 ,
                 that
                 poinding
                 cannot
                 proceed
                 without
                 a
                 charge
                 be
                 given
                 and
                 expired
                 ,
                 which
                 in
                 all
                 Decreets
                 ,
                 proceeding
                 upon
                 Citation
                 ,
                 requires
                 fifteen
                 days
                 :
                 In
                 which
                 ,
                 address
                 may
                 bemade
                 to
                 the
                 Lords
                 .
                 Thirdly
                 ,
                 Decreets
                 of
                 Barons
                 have
                 no
                 Execution
                 by
                 Horning
                 ,
                 which
                 goeth
                 of
                 course
                 upon
                 the
                 Decreets
                 ,
                 Precepts
                 and
                 Executions
                 of
                 other
                 Judges
                 ordinary
                 ;
                 so
                 that
                 all
                 the
                 Execution
                 upon
                 their
                 Sentences
                 ,
                 is
                 only
                 poinding
                 ,
                 or
                 corporal
                 Punishment
                 .
                 As
                 to
                 which
                 ,
                 if
                 there
                 be
                 any
                 process
                 for
                 Capital
                 Punishment
                 ,
                 the
                 Lords
                 will
                 very
                 easily
                 grant
                 Advocation
                 ,
                 as
                 they
                 do
                 advocat
                 Causes
                 from
                 Inferiour
                 Judges
                 ,
                 not
                 only
                 upon
                 Incompotency
                 ,
                 but
                 upon
                 Intricacy
                 and
                 Importance
                 :
                 So
                 there
                 being
                 nothing
                 more
                 Important
                 then
                 the
                 life
                 of
                 Man
                 ,
                 they
                 would
                 easily
                 advocat
                 such
                 Processe
                 ,
                 wherein
                 
                 
                 
                 Barons
                 should
                 not
                 proceed
                 summarily
                 to
                 Execution
                 .
                 But
                 both
                 they
                 and
                 other
                 Inferiour
                 Judges
                 ordinary
                 ,
                 should
                 after
                 Sentence
                 at
                 least
                 abide
                 Terms
                 of
                 Law
                 by
                 the
                 space
                 of
                 fifteen
                 days
                 ,
                 that
                 the
                 Lords
                 may
                 give
                 remeed
                 by
                 Advocation
                 or
                 Suspension
                 of
                 Execution
                 :
                 For
                 though
                 the
                 Lords
                 have
                 not
                 Criminal
                 Jurisdiction
                 ,
                 they
                 do
                 ordinarly
                 advocat
                 ,
                 and
                 by
                 the
                 same
                 reason
                 may
                 suspend
                 Criminal
                 Processe
                 ,
                 to
                 the
                 effect
                 the
                 same
                 may
                 be
                 remitted
                 to
                 competent
                 and
                 unsuspect
                 Judges
                 ;
                 so
                 that
                 if
                 there
                 were
                 any
                 doubtfulness
                 in
                 the
                 case
                 ,
                 the
                 Lords
                 would
                 remit
                 the
                 Cause
                 to
                 the
                 Justices
                 .
                 Fourthly
                 ,
                 The
                 Courts
                 of
                 Barons
                 or
                 Free-holders
                 are
                 not
                 Courts
                 of
                 record
                 ,
                 in
                 which
                 writes
                 use
                 to
                 be
                 registrat
                 .
              
               
                 64.
                 
                 As
                 the
                 Courts
                 of
                 Barons
                 and
                 Free-holders
                 have
                 these
                 Restrictions
                 more
                 then
                 the
                 Inferiour
                 Judges
                 ,
                 so
                 they
                 have
                 this
                 advantage
                 ordinarly
                 ,
                 that
                 all
                 the
                 Profits
                 and
                 Issues
                 of
                 their
                 Courts
                 belong
                 to
                 themselves
                 ;
                 whereas
                 ,
                 Sheriffs
                 ,
                 Stewarts
                 and
                 Baliffes
                 of
                 Royalty
                 are
                 countable
                 to
                 the
                 King
                 ,
                 seeing
                 these
                 are
                 the
                 Kings
                 Courts
                 :
                 But
                 Baliffes
                 of
                 Regality
                 are
                 not
                 countable
                 ,
                 because
                 though
                 they
                 be
                 the
                 Kings
                 Courts
                 ,
                 yet
                 the
                 King
                 hath
                 gifted
                 the
                 Profites
                 of
                 the
                 Court
                 by
                 the
                 Erection
                 of
                 the
                 Regality
                 .
                 If
                 then
                 an
                 Infeftment
                 contain
                 Courts
                 ,
                 the
                 Profites
                 thereof
                 are
                 carried
                 therewith
                 ,
                 though
                 not
                 exprest
                 ;
                 but
                 ordinarly
                 they
                 bear
                 
                   cum
                   curiis
                   earumque
                   exitibus
                
                 .
                 And
                 therefore
                 the
                 Amerciaments
                 of
                 Courts
                 ,
                 or
                 there
                 other
                 Issues
                 ,
                 or
                 there
                 Priviledge
                 on
                 the
                 breakers
                 of
                 Arreeistments
                 ,
                 loosing
                 their
                 Tacks
                 to
                 their
                 Masters
                 within
                 their
                 Barronies
                 are
                 not
                 comprehended
                 within
                 publick
                 Confiscations
                 reserved
                 to
                 the
                 King.
                 
              
               
                 65.
                 
                 Fortalices
                 are
                 also
                 
                   inter
                   regalia
                
                 ,
                 and
                 are
                 not
                 carried
                 by
                 the
                 Fee
                 ,
                 unless
                 exprest
                 ,
                 or
                 at
                 least
                 the
                 Lands
                 be
                 erected
                 in
                 Barrony
                 .
                 By
                 Fortalices
                 are
                 understood
                 ,
                 all
                 Strengths
                 built
                 for
                 publick
                 Defence
                 ;
                 whether
                 that
                 appear
                 by
                 common
                 Fame
                 ,
                 or
                 Reputation
                 ,
                 such
                 as
                 all
                 the
                 Kings
                 Castles
                 ,
                 whereof
                 many
                 are
                 now
                 in
                 privat
                 hands
                 ,
                 as
                 Proprietars
                 ,
                 or
                 Heretable
                 Keepers
                 thereof
                 ,
                 or
                 Constables
                 of
                 the
                 same
                 ;
                 such
                 are
                 the
                 Castles
                 of
                 
                   Dunstafnage
                   ,
                   Carrick
                   ,
                   Skipnes
                
                 ,
                 and
                 others
                 belonging
                 to
                 the
                 Earl
                 of
                 Argyl
                 ;
                 the
                 Constabulary
                 of
                 Forfar
                 ,
                 belonging
                 to
                 the
                 Earl
                 of
                 Strathmore
                 ;
                 the
                 Constabulary
                 of
                 Dundie
                 ,
                 now
                 belonging
                 to
                 the
                 Lord
                 Hattoun
                 :
                 And
                 when
                 these
                 Castles
                 are
                 disponed
                 ,
                 either
                 in
                 Property
                 or
                 custody
                 ,
                 the
                 Infeftments
                 thereof
                 carry
                 therewith
                 ,
                 not
                 only
                 the
                 Bounds
                 of
                 the
                 Castle
                 ,
                 but
                 the
                 Dependencies
                 thereof
                 ,
                 as
                 Gardens
                 ,
                 Orchards
                 ,
                 Parkes
                 ,
                 Meadows
                 ,
                 and
                 other
                 ground
                 possest
                 by
                 the
                 King
                 or
                 Keeper
                 for
                 the
                 use
                 of
                 the
                 Castle
                 ,
                 and
                 all
                 Rents
                 ,
                 Annuities
                 ,
                 Jurisdictions
                 and
                 Priviledges
                 thereunto
                 belonging
                 ;
                 which
                 may
                 be
                 instructed
                 by
                 their
                 Charters
                 ,
                 their
                 Court-books
                 ,
                 or
                 other
                 Writes
                 or
                 Instruments
                 ,
                 and
                 even
                 by
                 Witnesses
                 ,
                 proving
                 long
                 Possession
                 ;
                 albeit
                 the
                 Infeftments
                 of
                 Constabulary
                 ,
                 bear
                 only
                 in
                 general
                 ,
                 
                   Officium
                   constabularii
                   cum
                   feodis
                   &
                   divoriis
                   ejusdem
                   ,
                
                 which
                 was
                 found
                 to
                 extend
                 to
                 the
                 proclaiming
                 and
                 riding
                 of
                 Fairs
                 ,
                 anterior
                 to
                 the
                 Constitution
                 of
                 the
                 Office
                 ,
                 and
                 exercing
                 Criminal
                 Jurisdiction
                 in
                 the
                 Town
                 where
                 the
                 Fairs
                 were
                 held
                 ,
                 during
                 these
                 Fairs
                 ,
                 but
                 not
                 to
                 extend
                 to
                 other
                 Fairs
                 recently
                 granted
                 by
                 the
                 King
                 ,
                 or
                 to
                 Jurisdiction
                 at
                 other
                 times
                 ,
                 July
                 18.
                 1676.
                 
                 Earl
                 of
                 
                   Kinghorn
                   contra
                
                 Town
                 of
                 Forfar
                 .
                 The
                 like
                 was
                 done
                 in
                 the
                 Process
                 ,
                 betwixt
                 Hattoun
                 and
                 the
                 Town
                 of
                 Dundie
                 ,
                 in
                 anno
                 1679.
                 wherein
                 multitudes
                 of
                 Witnesses
                 were
                 examined
                 upon
                 either
                 part
                 .
                 And
                 the
                 Emoluments
                 ,
                 Priviledges
                 ,
                 and
                 Jurisdiction
                 of
                 the
                 Constabulary
                 ,
                 were
                 decerned
                 according
                 to
                 the
                 Probation
                 ;
                 and
                 Particularly
                 ,
                 20
                 shillings
                 Sterling
                 yearly
                 ,
                 for
                 which
                 the
                 Town
                 of
                 Dundie
                 counted
                 in
                 Exchequer
                 ,
                 as
                 belonging
                 to
                 the
                 Constable
                 ,
                 which
                 was
                 found
                 to
                 belong
                 to
                 the
                 Office
                 ,
                 albeit
                 there
                 was
                 a
                 Discharge
                 thereof
                 granted
                 to
                 the
                 Town
                 by
                 Scrymzour
                 ,
                 Constable
                 of
                 Dundie
                 ,
                 which
                 
                 was
                 not
                 found
                 effectual
                 against
                 Hattoun
                 ,
                 his
                 singular
                 Successor
                 in
                 the
                 Office
                 by
                 Apprysing
                 ,
                 December
                 9.
                 1679.
                 
                   inter
                   eosdem
                
                 .
              
               
                 66.
                 
                 The
                 Case
                 is
                 more
                 doubtful
                 as
                 to
                 other
                 Fortalices
                 ,
                 which
                 are
                 not
                 repute
                 to
                 have
                 been
                 the
                 Kings
                 Castles
                 .
                 Craig's
                 opinion
                 is
                 ,
                 that
                 all
                 strong
                 holds
                 are
                 presumed
                 to
                 have
                 been
                 builded
                 for
                 publick
                 Defence
                 ,
                 and
                 not
                 for
                 privat
                 Safetie
                 :
                 wherein
                 
                   turris
                   pinnata
                
                 is
                 comprehended
                 ,
                 having
                 Turrets
                 or
                 Rounds
                 upon
                 the
                 Angles
                 ;
                 from
                 whence
                 ,
                 Shot
                 may
                 be
                 directed
                 alongst
                 all
                 the
                 Walls
                 .
                 And
                 therefore
                 much
                 more
                 may
                 Castles
                 with
                 Bartizens
                 or
                 Bands
                 ,
                 that
                 is
                 strong
                 and
                 high
                 Walls
                 surrounding
                 the
                 Castle
                 :
                 Or
                 if
                 the
                 Castle
                 be
                 built
                 upon
                 a
                 place
                 naturally
                 strong
                 ,
                 which
                 may
                 give
                 suspition
                 to
                 the
                 King
                 to
                 be
                 an
                 occasion
                 of
                 Rebellion
                 ,
                 and
                 not
                 to
                 be
                 patent
                 and
                 accessible
                 at
                 his
                 pleasure
                 ;
                 and
                 most
                 of
                 all
                 ,
                 if
                 there
                 were
                 regular
                 Fortifications
                 of
                 Stone
                 or
                 Earth
                 .
                 Certainly
                 such
                 Fortresses
                 or
                 Fortifications
                 ,
                 whereby
                 places
                 are
                 made
                 of
                 that
                 strength
                 ,
                 which
                 is
                 accustomed
                 to
                 secure
                 against
                 publick
                 Enemies
                 in
                 War
                 ,
                 may
                 not
                 be
                 builded
                 without
                 the
                 King's
                 Warrand
                 ;
                 and
                 if
                 otherwise
                 built
                 ,
                 may
                 be
                 demolished
                 ,
                 and
                 the
                 Builder
                 punished
                 :
                 but
                 long
                 possession
                 presumes
                 a
                 Warrand
                 .
                 And
                 as
                 such
                 Fortalices
                 may
                 be
                 presumed
                 to
                 have
                 been
                 at
                 first
                 the
                 Kings
                 ,
                 from
                 the
                 very
                 Inspection
                 of
                 the
                 Fortalice
                 and
                 its
                 proper
                 use
                 ,
                 so
                 long
                 Possession
                 may
                 take
                 off
                 that
                 Presumption
                 :
                 and
                 that
                 they
                 have
                 been
                 built
                 mainly
                 for
                 privat
                 use
                 in
                 times
                 of
                 trouble
                 ,
                 with
                 the
                 Kings
                 consent
                 .
                 But
                 we
                 need
                 not
                 insist
                 in
                 these
                 Questions
                 ,
                 seeing
                 Towrs
                 and
                 Fortalices
                 do
                 now
                 pass
                 in
                 course
                 in
                 Charters
                 :
                 Yet
                 ,
                 though
                 these
                 were
                 exprest
                 ,
                 if
                 it
                 appear
                 the
                 Fortress
                 hath
                 belonged
                 to
                 the
                 King
                 ,
                 and
                 can
                 be
                 comprehended
                 in
                 the
                 annexed
                 Property
                 ,
                 the
                 Right
                 of
                 them
                 will
                 only
                 resolve
                 into
                 an
                 heretable
                 keeping
                 :
                 so
                 that
                 the
                 King
                 in
                 time
                 of
                 War
                 or
                 Insurrections
                 ,
                 may
                 make
                 use
                 of
                 such
                 strong
                 holds
                 ,
                 and
                 put
                 Garisons
                 therein
                 ,
                 seeing
                 keeping
                 doth
                 not
                 exclude
                 the
                 Kings
                 own
                 necessary
                 use
                 :
                 neither
                 will
                 the
                 expressing
                 of
                 Fortalices
                 generally
                 ,
                 impower
                 the
                 Vassal
                 to
                 build
                 such
                 Strengths
                 as
                 are
                 proper
                 for
                 publick
                 War
                 ;
                 because
                 the
                 Clause
                 can
                 only
                 import
                 such
                 Fortalices
                 as
                 then
                 were
                 built
                 .
              
               
                 But
                 I
                 see
                 no
                 ground
                 to
                 extend
                 Fortalices
                 to
                 all
                 houses
                 ,
                 with
                 Batlements
                 ,
                 or
                 with
                 Turrets
                 ,
                 or
                 Rounds
                 ,
                 which
                 can
                 only
                 infer
                 private
                 safety
                 against
                 Robbers
                 ,
                 Plunderers
                 ,
                 or
                 flying
                 Parties
                 ;
                 but
                 nothing
                 proper
                 for
                 a
                 Seige
                 ,
                 or
                 publick
                 Defence
                 of
                 a
                 Kingdom
                 :
                 and
                 therefore
                 these
                 may
                 pass
                 as
                 Houses
                 or
                 Pertinents
                 .
              
               
                 And
                 as
                 to
                 that
                 ground
                 Craig
                 adduces
                 ,
                 That
                 it
                 is
                 Treason
                 to
                 hold
                 any
                 Fortalice
                 against
                 the
                 King
                 ,
                 or
                 to
                 deny
                 Him
                 ,
                 or
                 these
                 commissioned
                 by
                 Him
                 access
                 by
                 armed
                 force
                 :
                 and
                 yet
                 delivery
                 of
                 any
                 other
                 privat
                 Right
                 may
                 be
                 refused
                 to
                 the
                 King
                 without
                 hazard
                 .
                 Whence
                 he
                 inferreth
                 ,
                 that
                 the
                 King
                 must
                 have
                 greater
                 Right
                 and
                 Interest
                 in
                 all
                 such
                 Fortalices
                 than
                 in
                 other
                 things
                 .
                 This
                 consequence
                 is
                 not
                 good
                 ;
                 for
                 that
                 which
                 infers
                 Treason
                 ,
                 is
                 the
                 holding
                 out
                 of
                 the
                 House
                 ,
                 and
                 denying
                 access
                 to
                 the
                 King
                 by
                 armed
                 Force
                 ,
                 which
                 will
                 be
                 treasonable
                 in
                 any
                 House
                 ,
                 whether
                 it
                 have
                 Battlements
                 or
                 Turrets
                 or
                 not
                 ;
                 but
                 cannot
                 infer
                 that
                 all
                 Houses
                 with
                 Battlements
                 or
                 Turrets
                 ,
                 were
                 built
                 for
                 publick
                 defence
                 ,
                 and
                 did
                 once
                 belong
                 to
                 the
                 King
                 ;
                 which
                 recent
                 Custom
                 doth
                 further
                 clear
                 ,
                 there
                 being
                 nothing
                 more
                 ordinary
                 ,
                 then
                 to
                 build
                 Houses
                 with
                 Turrets
                 or
                 Rounds
                 upon
                 the
                 Angles
                 ,
                 without
                 Warrand
                 ,
                 Quarrel
                 ,
                 or
                 Suspition
                 ;
                 these
                 being
                 rather
                 for
                 Ornament
                 then
                 for
                 Strength
                 .
              
               
                 67.
                 
                 Forrests
                 are
                 likewise
                 
                   inter
                   Regalia
                
                 ,
                 being
                 places
                 destinat
                 for
                 Deer
                 for
                 the
                 Kings
                 use
                 and
                 pleasure
                 in
                 Hunting
                 ,
                 which
                 cannot
                 be
                 extended
                 generally
                 
                 to
                 Woods
                 ,
                 but
                 only
                 to
                 such
                 where
                 Deer
                 have
                 been
                 keeped
                 :
                 for
                 certainly
                 ,
                 Woods
                 are
                 
                   partes
                   fundi
                   privati
                
                 ,
                 and
                 are
                 not
                 
                   inter
                   Regalia
                
                 ,
                 in
                 any
                 Nation
                 ,
                 but
                 Forrests
                 for
                 keeping
                 of
                 Deer
                 ,
                 remain
                 
                   inteir
                   Regalia
                
                 ,
                 altho
                 the
                 Wood
                 should
                 fail
                 :
                 And
                 wherever
                 Deer
                 are
                 keeped
                 as
                 proper
                 ,
                 and
                 others
                 debarred
                 from
                 Hunting
                 there
                 ,
                 it
                 is
                 presumed
                 to
                 have
                 been
                 a
                 Forrest
                 proper
                 to
                 the
                 King.
                 And
                 though
                 the
                 Lands
                 being
                 in
                 Baronia
                 ,
                 may
                 carry
                 the
                 Priviledge
                 and
                 Office
                 of
                 Forrestry
                 ,
                 which
                 gives
                 the
                 Baron
                 right
                 to
                 hunt
                 ,
                 kill
                 ,
                 and
                 make
                 use
                 of
                 the
                 Deer
                 :
                 Yet
                 he
                 will
                 be
                 but
                 held
                 as
                 Keeper
                 ,
                 or
                 Forrester
                 ,
                 which
                 will
                 not
                 exclude
                 the
                 King
                 to
                 hunt
                 and
                 kill
                 the
                 Deer
                 for
                 his
                 own
                 proper
                 use
                 ;
                 for
                 the
                 property
                 of
                 the
                 Forrest
                 will
                 never
                 be
                 understood
                 ,
                 if
                 it
                 be
                 not
                 very
                 expresly
                 granted
                 .
              
               
                 Forrests
                 have
                 great
                 Priviledges
                 ,
                 and
                 peculiar
                 Customs
                 ;
                 for
                 whereas
                 no
                 man
                 is
                 oblieged
                 to
                 herd
                 his
                 Cattel
                 off
                 other
                 mens
                 ground
                 or
                 Corns
                 ,
                 or
                 to
                 be
                 answerable
                 for
                 the
                 Skaith
                 they
                 do
                 ,
                 longer
                 then
                 in
                 hayning
                 time
                 ,
                 while
                 the
                 Corns
                 are
                 upon
                 the
                 Ground
                 :
                 And
                 if
                 any
                 man
                 have
                 a
                 minde
                 to
                 keep
                 his
                 neighbours
                 goods
                 off
                 his
                 Ground
                 ,
                 he
                 may
                 do
                 it
                 ;
                 But
                 he
                 must
                 herd
                 his
                 Ground
                 ,
                 and
                 may
                 turn
                 off
                 his
                 neighbours
                 Goods
                 without
                 wronging
                 them
                 ,
                 but
                 cannot
                 put
                 them
                 in
                 Pondfold
                 .
                 Yet
                 if
                 any
                 mans
                 Goods
                 be
                 found
                 in
                 Forrests
                 ,
                 they
                 become
                 escheat
                 ,
                 and
                 are
                 confiscat
                 ;
                 two
                 thirds
                 to
                 the
                 King
                 ,
                 and
                 one
                 third
                 to
                 the
                 Forrester
                 :
                 And
                 if
                 any
                 Baron
                 or
                 Landed-man
                 ,
                 have
                 hained
                 Woods
                 ,
                 or
                 Forrests
                 of
                 their
                 own
                 ,
                 they
                 may
                 escheat
                 all
                 Goods
                 that
                 bees
                 found
                 therein
                 to
                 their
                 own
                 use
                 ,
                 Par.
                 1535.
                 cap.
                 12.
                 
                 Where
                 privat
                 Forrests
                 of
                 Subjects
                 ,
                 are
                 only
                 understood
                 such
                 as
                 are
                 inclosed
                 with
                 a
                 sufficient
                 Dyke
                 :
                 The
                 words
                 of
                 the
                 Statute
                 bears
                 ,
                 
                   Hained
                   Woods
                   or
                   Forrests
                
                 ,
                 which
                 cannot
                 be
                 hained
                 without
                 inclosure
                 ;
                 but
                 the
                 Kings
                 Forrests
                 are
                 large
                 tracts
                 of
                 Ground
                 ,
                 which
                 neither
                 have
                 been
                 ,
                 nor
                 can
                 be
                 inclosed
                 :
                 and
                 therefore
                 all
                 the
                 neighbouring
                 Heretors
                 and
                 Possessors
                 ,
                 must
                 either
                 herd
                 their
                 Goods
                 off
                 these
                 Forrests
                 ,
                 or
                 loss
                 them
                 .
                 Upon
                 this
                 account
                 it
                 was
                 ,
                 that
                 the
                 King
                 having
                 by
                 a
                 Signature
                 under
                 his
                 hand
                 ,
                 grantend
                 a
                 Forrestry
                 to
                 the
                 Laird
                 of
                 Fascally
                 ;
                 the
                 Exchequer
                 ,
                 before
                 passing
                 thereof
                 ,
                 desired
                 the
                 Lords
                 of
                 Session
                 to
                 consider
                 and
                 report
                 what
                 by
                 Law
                 was
                 the
                 Priviledge
                 ,
                 Conveniency
                 ,
                 or
                 Inconveniency
                 of
                 Forrests
                 :
                 and
                 they
                 having
                 heard
                 the
                 Obtainer
                 of
                 the
                 Forrest
                 ,
                 and
                 the
                 neighbouring
                 Heretors
                 ,
                 did
                 declare
                 the
                 Priviledge
                 of
                 a
                 Forrest
                 to
                 be
                 as
                 aforesaid
                 ,
                 June
                 21.
                 1680.
                 
                 Whereupon
                 the
                 Exchequer
                 did
                 represent
                 to
                 the
                 King
                 ,
                 the
                 Inconveniency
                 to
                 grant
                 new
                 Forrests
                 .
              
               
                 The
                 Comptroller
                 had
                 the
                 Inspection
                 of
                 the
                 Kings
                 Parks
                 and
                 Forrests
                 ;
                 and
                 it
                 was
                 lawful
                 to
                 the
                 Comptroller
                 ,
                 or
                 any
                 having
                 the
                 Kings
                 Warand
                 ,
                 to
                 intromet
                 with
                 all
                 Goods
                 in
                 the
                 Kings
                 Forrest
                 ,
                 not
                 put
                 in
                 by
                 the
                 Comptroler
                 ,
                 or
                 these
                 having
                 power
                 from
                 him
                 ,
                 and
                 to
                 apply
                 the
                 whole
                 to
                 the
                 Kings
                 use
                 ,
                 Par.
                 1592.
                 cap.
                 198.
                 
                 And
                 by
                 the
                 former
                 Statute
                 ,
                 the
                 Forrester
                 or
                 Keeper
                 is
                 prohibite
                 to
                 put
                 any
                 Cattel
                 in
                 the
                 Forrest
                 belonging
                 to
                 himself
                 :
                 So
                 that
                 if
                 the
                 Keeper
                 first
                 seize
                 upon
                 Goods
                 in
                 the
                 Forrest
                 ,
                 he
                 hath
                 the
                 third
                 ;
                 but
                 if
                 the
                 Comptroller
                 ,
                 or
                 these
                 having
                 Warrand
                 from
                 the
                 King
                 ,
                 does
                 〈◊〉
                 seize
                 ,
                 the
                 Keeper
                 hath
                 no
                 share
                 .
              
               
                 There
                 are
                 many
                 more
                 Customes
                 and
                 Priviledges
                 of
                 the
                 Kings
                 Forrests
                 and
                 Chaces
                 in
                 England
                 ,
                 where
                 the
                 Forrester
                 or
                 Keeper
                 hath
                 only
                 the
                 Branches
                 of
                 Trees
                 ,
                 and
                 the
                 Bark
                 thereof
                 ,
                 and
                 such
                 as
                 are
                 fallen
                 or
                 decayed
                 :
                 and
                 as
                 Skeen
                 observes
                 ,
                 that
                 he
                 may
                 take
                 a
                 Tree
                 as
                 high
                 as
                 his
                 head
                 ;
                 but
                 our
                 heretable
                 Keepers
                 have
                 much
                 more
                 Priviledge
                 ,
                 and
                 may
                 make
                 use
                 of
                 the
                 Wood
                 and
                 Deer
                 ,
                 so
                 as
                 not
                 to
                 destroy
                 either
                 ,
                 and
                 with
                 a
                 reservation
                 for
                 the
                 Kings
                 proper
                 use
                 .
              
               
               
                 68
                 The
                 hunting
                 or
                 killing
                 of
                 Deer
                 seems
                 to
                 be
                 
                   inter
                   Regalia
                
                 with
                 us
                 ,
                 except
                 these
                 who
                 have
                 them
                 within
                 proper
                 inclosures
                 ,
                 for
                 otherways
                 the
                 Kings
                 Forrest
                 having
                 no
                 inclosure
                 ,
                 the
                 Dear
                 by
                 straying
                 abroad
                 ,
                 would
                 easily
                 be
                 destroyed
                 ;
                 and
                 therefore
                 ,
                 though
                 every
                 man
                 may
                 hunt
                 them
                 off
                 his
                 Ground
                 ,
                 by
                 which
                 they
                 will
                 be
                 forced
                 back
                 to
                 some
                 Forrest
                 ,
                 yet
                 they
                 may
                 not
                 kill
                 them
                 .
              
               
                 69.
                 
                 Salmond
                 Fishing
                 is
                 also
                 
                   inter
                   regalia
                
                 ;
                 and
                 therefore
                 ,
                 passeth
                 not
                 ordinarly
                 as
                 pertinent
                 ,
                 and
                 ought
                 to
                 be
                 exprest
                 in
                 the
                 Infeftment
                 ;
                 yet
                 in
                 some
                 cases
                 Salmond-fishing
                 hath
                 been
                 found
                 constitute
                 without
                 special
                 expression
                 ,
                 but
                 only
                 by
                 the
                 common
                 Clause
                 ,
                 
                   cum
                   piscationibus
                
                 ,
                 and
                 long
                 Possession
                 ,
                 June
                 29.
                 1593.
                 
                 Lesly
                 of
                 
                   Creik
                   contra
                   Forbes
                
                 of
                 Thainstoun
                 ;
                 in
                 which
                 case
                 it
                 was
                 found
                 ,
                 that
                 Salmond-fishing
                 is
                 only
                 
                   inter
                   regalia
                
                 ,
                 as
                 it
                 is
                 a
                 Casuality
                 ,
                 
                   fluminis
                   publici
                
                 ,
                 such
                 as
                 are
                 Navigable
                 Rivers
                 ,
                 wherein
                 there
                 is
                 a
                 common
                 use
                 of
                 Passage
                 and
                 Transportation
                 ,
                 in
                 like
                 manner
                 ,
                 where
                 Lands
                 are
                 Erected
                 in
                 a
                 Barrony
                 ,
                 or
                 any
                 other
                 dignity
                 ,
                 Salmond-fishing
                 may
                 be
                 carryed
                 by
                 the
                 the
                 common
                 clause
                 ,
                 
                   cum
                   piscationibus
                
                 ,
                 as
                 when
                 it
                 bears
                 Fishing
                 in
                 salt
                 and
                 fresh
                 water
                 ,
                 though
                 without
                 mention
                 of
                 Salmond-fishing
                 ,
                 Hope
                 ,
                 Fshing
                 ,
                 Laird
                 of
                 
                   Glenurchy
                   contra
                   Alexander
                   Cambel
                
                 .
                 So
                 an
                 Infeftment
                 to
                 a
                 Burgh-royal
                 ,
                 bearing
                 ,
                 
                   cum
                   piscationibus
                   &
                   piscariis
                
                 ,
                 with
                 immemorial
                 Possession
                 ,
                 was
                 found
                 to
                 give
                 them
                 right
                 to
                 Salmond-fishing
                 and
                 Cruives
                 ,
                 though
                 none
                 of
                 them
                 were
                 exprest
                 ,
                 January
                 26.
                 1665.
                 
                 Heretors
                 of
                 
                   Don
                   contra
                
                 the
                 Town
                 of
                 
                   Aberdene
                   .
                   January
                
                 13.
                 1681.
                 
                 Brown
                 of
                 
                   Nuntoun
                   contra
                
                 the
                 Town
                 of
                 Kirkcudbright
                 .
                 It
                 was
                 also
                 found
                 constitute
                 by
                 the
                 Infeftment
                 of
                 a
                 Sheriffship
                 ,
                 and
                 fourty
                 years
                 Possession
                 ,
                 though
                 the
                 Infeftments
                 bore
                 only
                 
                   Emoluments
                   in
                   general
                   ,
                   December
                
                 13.
                 1677.
                 
                 Earl
                 of
                 
                   Murray
                   contra
                
                 the
                 Feuers
                 upon
                 the
                 Water
                 of
                 Ness
                 ,
                 Marquess
                 of
                 Huntly
                 and
                 Town
                 of
                 Inverness
                 .
                 It
                 was
                 also
                 found
                 Constitute
                 by
                 a
                 Bishops
                 Charter
                 of
                 Londs
                 ,
                 
                   cum
                   piscariis
                
                 ,
                 bearing
                 a
                 reeddendo
                 of
                 Salmond
                 ,
                 though
                 th
                 Bishops
                 right
                 from
                 the
                 King
                 ,
                 was
                 not
                 produced
                 ,
                 but
                 presumed
                 ,
                 and
                 being
                 a
                 Dignity
                 prefected
                 by
                 long
                 Possession
                 of
                 his
                 Vassal
                 ,
                 January
                 13.
                 1680.
                 
                 Brown
                 of
                 
                   Nuntoun
                   contra
                
                 the
                 Town
                 of
                 Kirkcudbright
                 .
                 And
                 likewise
                 ,
                 long
                 Possession
                 by
                 the
                 space
                 of
                 fourty
                 years
                 ,
                 was
                 found
                 to
                 give
                 right
                 to
                 a
                 Salmond-fishing
                 upon
                 both
                 sides
                 of
                 the
                 Water
                 ,
                 and
                 drawing
                 the
                 same
                 upon
                 both
                 sides
                 ,
                 though
                 the
                 Infeftment
                 bore
                 ,
                 
                   but
                   fishing
                   upon
                   one
                   side
                   ,
                   Hope
                   ,
                
                 fishing
                 ,
                 Lady
                 
                   Monymusk
                   contra
                   Forbes
                
                 of
                 Barns
                 .
                 A
                 Clause
                 ,
                 
                   cum
                   piscationibus
                
                 ,
                 was
                 found
                 to
                 be
                 a
                 Title
                 for
                 Prescription
                 
                   in
                   Baronia
                
                 ,
                 and
                 that
                 fourty
                 years
                 uninterrupted
                 possession
                 constitutes
                 the
                 right
                 of
                 Salmond-fishing
                 ,
                 February
                 7.
                 1672.
                 
                 
                   Fullurtoun
                   contra
                
                 Earl
                 of
                 Eglintoun
                 :
                 It
                 is
                 more
                 dubious
                 what
                 the
                 meaning
                 of
                 the
                 Clause
                 ,
                 
                   cum
                   piscationibus
                
                 ,
                 simply
                 or
                 of
                 fishing
                 in
                 salt
                 Water
                 can
                 Import
                 ,
                 seing
                 there
                 are
                 common
                 freedoms
                 of
                 every
                 Nation
                 to
                 Fish
                 into
                 the
                 Sea
                 ,
                 or
                 into
                 Brooks
                 or
                 Rivers
                 for
                 common
                 fishes
                 ;
                 and
                 therefore
                 ,
                 needs
                 no
                 special
                 Concession
                 from
                 the
                 King
                 or
                 other
                 Superiour
                 ,
                 but
                 the
                 use
                 thereof
                 may
                 be
                 first
                 ;
                 that
                 it
                 may
                 be
                 the
                 Title
                 or
                 foundation
                 of
                 prescription
                 of
                 Salmond-fishing
                 ,
                 not
                 only
                 in
                 fresh-water
                 ,
                 but
                 in
                 the
                 Sea
                 ,
                 at
                 the
                 Water-mouth
                 where
                 they
                 are
                 frequently
                 taken
                 :
                 And
                 also
                 ,
                 that
                 in
                 other
                 fishings
                 ,
                 if
                 a
                 prescription
                 run
                 of
                 interrupting
                 and
                 hindering
                 others
                 to
                 fish
                 whatsoever
                 sort
                 of
                 fish
                 ,
                 it
                 will
                 constitute
                 a
                 property
                 thereof
                 ,
                 which
                 could
                 not
                 consist
                 without
                 this
                 clause
                 or
                 the
                 like
                 ,
                 as
                 a
                 Title
                 ;
                 neither
                 could
                 it
                 be
                 comprehended
                 as
                 Annex
                 ,
                 or
                 Connex
                 of
                 Lands
                 ,
                 or
                 as
                 a
                 Servitude
                 ,
                 being
                 a
                 distinct
                 right
                 ,
                 having
                 so
                 little
                 respect
                 to
                 Land.
                 
              
               
                 70.
                 
                 There
                 is
                 a
                 special
                 way
                 of
                 fishing
                 by
                 Cruives
                 or
                 Zaires
                 ,
                 both
                 in
                 fresh
                 water
                 and
                 salt
                 ,
                 all
                 such
                 Cruives
                 are
                 absolutely
                 prohibite
                 to
                 be
                 set
                 within
                 Rivers
                 ,
                 in
                 so
                 far
                 as
                 the
                 Tide
                 flowes
                 ,
                 as
                 being
                 destructive
                 to
                 the
                 frey
                 of
                 all
                 fishes
                 .
                 Parliament
                 
                 
                 
                 1424.
                 cap.
                 11.
                 renewed
                 Par.
                 1477.
                 cap.
                 73.
                 
                 Par.
                 1581.
                 cap.
                 111.
                 
                 And
                 as
                 to
                 other
                 Cruives
                 in
                 fresh
                 water
                 ,
                 they
                 are
                 also
                 prohibite
                 by
                 the
                 said
                 last
                 Statute
                 ,
                 except
                 such
                 as
                 are
                 Infeft
                 in
                 Cruives
                 ,
                 Lynes
                 ,
                 or
                 Loups
                 ,
                 within
                 fresh
                 water
                 ,
                 who
                 are
                 to
                 enjoy
                 the
                 same
                 according
                 to
                 their
                 Rights
                 ,
                 keeping
                 Saturdays
                 Slop
                 ,
                 and
                 the
                 due
                 distance
                 betwixt
                 the
                 Hecks
                 ,
                 the
                 distance
                 of
                 the
                 Hecks
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 1477.
                 cap.
                 73.
                 is
                 exprest
                 to
                 be
                 three
                 inches
                 conform
                 to
                 the
                 Statute
                 made
                 by
                 King
                 David
                 ;
                 but
                 the
                 Act
                 of
                 Parliament
                 1489.
                 cap.
                 15.
                 expresseth
                 the
                 distance
                 to
                 be
                 five
                 inches
                 ,
                 conform
                 to
                 King
                 Davids
                 Act
                 :
                 And
                 in
                 both
                 these
                 Statutes
                 ,
                 besides
                 the
                 distances
                 aforesaids
                 ,
                 Saturdays
                 Slop
                 is
                 appointed
                 ,
                 and
                 likewise
                 ,
                 that
                 the
                 mid-stream
                 by
                 the
                 space
                 of
                 five
                 foot
                 be
                 always
                 free
                 ;
                 and
                 that
                 no
                 Cruives
                 be
                 made
                 use
                 of
                 in
                 forbidden
                 time
                 of
                 year
                 ,
                 when
                 Salmond
                 may
                 not
                 be
                 taken
                 ,
                 which
                 is
                 declared
                 to
                 be
                 from
                 the
                 Feast
                 of
                 the
                 Assumption
                 of
                 the
                 Virgin
                 Mary
                 ,
                 unto
                 the
                 Feast
                 of
                 Saint
                 Andrews
                 in
                 Winter
                 ,
                 Parliament
                 1424.
                 cap.
                 35.
                 
              
               
                 Few
                 debates
                 have
                 occurred
                 concerning
                 Cruives
                 ,
                 notwithstanding
                 the
                 great
                 notice
                 thereof
                 by
                 so
                 many
                 of
                 our
                 Kings
                 ,
                 One
                 did
                 lately
                 occur
                 ,
                 and
                 was
                 fully
                 debated
                 ,
                 
                   in
                   presentia
                
                 ,
                 betwixt
                 the
                 Heretors
                 of
                 the
                 Water
                 of
                 Don
                 and
                 the
                 Town
                 of
                 Aberdene
                 ,
                 which
                 was
                 mainly
                 decided
                 on
                 January
                 26.
                 1665.
                 
                 The
                 case
                 was
                 thus
                 ,
                 The
                 Town
                 of
                 Aberdene
                 having
                 changed
                 a
                 Cruive-dyke
                 to
                 another
                 place
                 within
                 their
                 own
                 bounds
                 ,
                 and
                 built
                 the
                 same
                 there
                 again
                 of
                 new
                 ,
                 whereupon
                 the
                 Heretors
                 who
                 had
                 right
                 to
                 the
                 Salmond-fishing
                 upon
                 the
                 Water
                 of
                 Don
                 ,
                 above
                 these
                 Cruives
                 ,
                 raised
                 a
                 Declarator
                 against
                 them
                 ,
                 wherein
                 ,
                 after
                 large
                 disputes
                 concerning
                 Saturdays
                 Slop
                 ,
                 and
                 the
                 mid-stream
                 ,
                 and
                 the
                 distance
                 of
                 the
                 Hecks
                 ,
                 and
                 the
                 height
                 of
                 the
                 Cruive-dyke
                 ,
                 and
                 whether
                 it
                 ought
                 to
                 be
                 built
                 sloping
                 or
                 perpendicular
                 ,
                 and
                 whether
                 it
                 might
                 be
                 changed
                 to
                 the
                 prejudice
                 of
                 the
                 Heretors
                 ;
                 The
                 Lords
                 found
                 ,
                 that
                 the
                 Town
                 of
                 Aberdene
                 might
                 change
                 the
                 Cruive-Dyke
                 ,
                 keeping
                 it
                 within
                 their
                 own
                 bounds
                 ,
                 and
                 having
                 no
                 more
                 Dykes
                 but
                 one
                 ;
                 but
                 found
                 ,
                 that
                 seing
                 they
                 had
                 a
                 Cruive
                 past
                 memory
                 without
                 interruption
                 ,
                 which
                 had
                 determined
                 the
                 height
                 and
                 frame
                 thereof
                 ,
                 they
                 found
                 that
                 the
                 new
                 Dyke
                 behoved
                 to
                 be
                 built
                 in
                 all
                 things
                 conform
                 to
                 the
                 old
                 ,
                 and
                 with
                 no
                 more
                 detriment
                 to
                 the
                 saids
                 Heretors
                 fishing
                 ,
                 then
                 was
                 formerly
                 before
                 the
                 water
                 had
                 pooled
                 at
                 the
                 old
                 Dike
                 ;
                 and
                 so
                 it
                 was
                 not
                 determined
                 how
                 high
                 a
                 Cruive-dyke
                 might
                 be
                 ,
                 or
                 whether
                 it
                 behoved
                 to
                 be
                 sloping
                 or
                 not
                 ,
                 where
                 prescription
                 had
                 not
                 determined
                 ,
                 which
                 is
                 very
                 seldom
                 :
                 It
                 was
                 also
                 found
                 ,
                 that
                 the
                 distance
                 of
                 the
                 Hecks
                 ought
                 to
                 be
                 three
                 inches
                 ,
                 conform
                 to
                 the
                 Act
                 of
                 King
                 James
                 the
                 third
                 ,
                 Par.
                 1477.
                 cap.
                 73.
                 and
                 not
                 five
                 inches
                 ,
                 according
                 to
                 the
                 Act
                 of
                 King
                 James
                 the
                 fourth
                 ,
                 Par.
                 1489.
                 cap.
                 15.
                 which
                 mentions
                 five
                 inches
                 ,
                 which
                 the
                 Lords
                 found
                 to
                 be
                 a
                 mistake
                 in
                 the
                 Transcribing
                 ,
                 or
                 Printing
                 of
                 the
                 Act
                 of
                 Parliament
                 ,
                 in
                 respect
                 that
                 both
                 this
                 and
                 the
                 former
                 Act
                 relates
                 to
                 the
                 Statute
                 of
                 King
                 David
                 as
                 the
                 pattern
                 thereof
                 ,
                 which
                 mentions
                 but
                 three
                 inches
                 ,
                 and
                 that
                 Hecks
                 of
                 five
                 inches
                 wide
                 will
                 be
                 of
                 no
                 use
                 ,
                 nor
                 hold
                 in
                 any
                 Salmond
                 ;
                 The
                 Lords
                 also
                 found
                 ,
                 that
                 the
                 Saturdays
                 Slop
                 behoved
                 to
                 be
                 observed
                 ,
                 not
                 only
                 in
                 one
                 Cruive
                 ,
                 but
                 in
                 all
                 the
                 Cruives
                 of
                 the
                 Dyke
                 ,
                 and
                 that
                 by
                 pulling
                 up
                 the
                 Hecks
                 of
                 each
                 Cruive
                 by
                 the
                 breadth
                 of
                 an
                 ell
                 ,
                 to
                 continue
                 from
                 Saturday
                 at
                 six
                 a
                 Clok
                 ,
                 till
                 Monday
                 at
                 Sunrising
                 ;
                 and
                 the
                 Lords
                 found
                 ,
                 that
                 part
                 of
                 the
                 Statute
                 concerning
                 the
                 mid-stream
                 ,
                 to
                 be
                 indeed
                 distinct
                 from
                 Saturdays
                 Slop
                 ,
                 but
                 they
                 found
                 that
                 part
                 of
                 the
                 Statute
                 concerning
                 the
                 mid-stream
                 to
                 be
                 in
                 desuetude
                 ,
                 in
                 all
                 the
                 Cruives
                 of
                 the
                 Kingdom
                 ,
                 and
                 that
                 it
                 is
                 not
                 repeated
                 by
                 the
                 Act
                 of
                 King
                 James
                 the
                 sixth
                 ,
                 Par.
                 1584.
                 cap.
                 111.
                 and
                 therefore
                 ,
                 found
                 the
                 same
                 not
                 obligatory
                 ,
                 notwithstanding
                 that
                 in
                 the
                 late
                 Act
                 of
                 Parliament
                 ,
                 1661.
                 there
                 is
                 an
                 Act
                 Ratifying
                 all
                 the
                 old
                 Statutes
                 concerning
                 Cruives
                 ,
                 which
                 was
                 alledged
                 to
                 revive
                 that
                 point
                 of
                 the
                 mid-stream
                 ,
                 which
                 the
                 Lords
                 did
                 not
                 respect
                 
                 as
                 a
                 general
                 Law
                 ,
                 albeit
                 the
                 Confirmation
                 did
                 run
                 in
                 these
                 terms
                 ,
                 because
                 it
                 past
                 the
                 Parliament
                 without
                 notice
                 ,
                 as
                 an
                 ordinary
                 Confirmation
                 ,
                 at
                 the
                 impetration
                 of
                 their
                 pursuers
                 ,
                 and
                 did
                 not
                 pass
                 the
                 Articles
                 ,
                 and
                 was
                 not
                 appointed
                 to
                 be
                 Printed
                 as
                 a
                 publick
                 Law.
                 
              
               
                 71.
                 
                 Milns
                 are
                 not
                 carried
                 as
                 part
                 and
                 pertinent
                 ,
                 because
                 they
                 are
                 esteemed
                 as
                 
                   separata
                   tenementa
                
                 ,
                 requiring
                 a
                 special
                 Seasine
                 ,
                 unless
                 the
                 Lands
                 be
                 
                   in
                   Barronia
                
                 ,
                 for
                 then
                 Infeftment
                 in
                 the
                 Land
                 ,
                 carries
                 the
                 Milns
                 thereon
                 ;
                 yet
                 a
                 Miln
                 being
                 built
                 upon
                 a
                 Liferenters
                 Land
                 ,
                 after
                 her
                 Infeftment
                 ,
                 bearing
                 ,
                 
                   cum
                   molendinis
                
                 ,
                 was
                 found
                 to
                 belong
                 to
                 the
                 Relict
                 ,
                 though
                 Milns
                 was
                 not
                 in
                 the
                 Dispositive
                 Clause
                 ;
                 Nor
                 was
                 she
                 in
                 Conjunct-fee
                 of
                 a
                 Barrony
                 ;
                 but
                 she
                 was
                 not
                 found
                 to
                 have
                 right
                 to
                 the
                 astricted
                 Multures
                 of
                 any
                 Lands
                 ,
                 but
                 her
                 Liferent
                 Lands
                 ,
                 February
                 16.
                 1666.
                 
                 Lady
                 
                   Otter
                   contra
                
                 Laird
                 of
                 Otter
                 .
              
               
                 72.
                 
                 The
                 Priviledge
                 of
                 Brewing
                 being
                 designed
                 for
                 publick
                 use
                 ,
                 for
                 common
                 Hostlaries
                 ,
                 the
                 inspection
                 whereof
                 is
                 committed
                 to
                 the
                 Judges
                 ordinary
                 ,
                 Magistrates
                 of
                 Burghs
                 ,
                 Sheriffs
                 ,
                 Bailies
                 and
                 Barrons
                 ,
                 who
                 are
                 appointed
                 to
                 settle
                 Hostlaries
                 in
                 convenient
                 places
                 ,
                 and
                 to
                 visite
                 their
                 measures
                 if
                 they
                 be
                 sufficient
                 ,
                 and
                 the
                 goodness
                 of
                 their
                 Ale
                 ,
                 Par.
                 1535.
                 cap.
                 17.
                 
                 And
                 the
                 saids
                 Magistrates
                 to
                 Burgh
                 or
                 Landward
                 ,
                 are
                 ordained
                 to
                 see
                 reasonable
                 prices
                 for
                 Meat
                 and
                 Drink
                 in
                 Hostlaries
                 ,
                 with
                 power
                 to
                 deprive
                 them
                 of
                 their
                 priviledge
                 ,
                 if
                 they
                 transgress
                 ,
                 so
                 that
                 a
                 Barrony
                 carries
                 that
                 priviledge
                 ,
                 though
                 not
                 exprest
                 ;
                 but
                 Infeftments
                 of
                 other
                 Tenements
                 carry
                 it
                 not
                 ,
                 unless
                 it
                 be
                 expresly
                 granted
                 by
                 the
                 King
                 immediatly
                 or
                 by
                 progress
                 ,
                 that
                 is
                 ,
                 that
                 all
                 the
                 Superiours
                 interveening
                 betwixt
                 and
                 the
                 King
                 ,
                 have
                 that
                 priviledge
                 ,
                 July
                 25.
                 1626.
                 
                 
                   Stuart
                   contra
                
                 Brewers
                 ;
                 but
                 
                   in
                   possessorio
                
                 ,
                 the
                 Proprietars
                 Infeftment
                 bearing
                 ,
                 
                   cum
                   brueriis
                
                 ,
                 will
                 be
                 sufficient
                 ,
                 and
                 presume
                 the
                 progress
                 ,
                 unless
                 that
                 priviledge
                 be
                 craved
                 to
                 be
                 reduced
                 ,
                 wherein
                 the
                 Superiours
                 must
                 be
                 called
                 .
              
               
                 73.
                 
                 All
                 other
                 interest
                 of
                 Fees
                 are
                 carried
                 as
                 part
                 and
                 pertinent
                 ,
                 though
                 they
                 be
                 not
                 exprest
                 ;
                 and
                 albeit
                 Woods
                 and
                 Lochs
                 ,
                 use
                 oft
                 to
                 be
                 exprest
                 ,
                 yet
                 they
                 are
                 comprehended
                 under
                 parts
                 and
                 pertinents
                 ;
                 and
                 therefore
                 ,
                 the
                 Master
                 of
                 the
                 Ground
                 hath
                 not
                 only
                 right
                 to
                 the
                 Water
                 in
                 Lochs
                 ,
                 but
                 to
                 the
                 Ground
                 thereof
                 ,
                 and
                 may
                 Drain
                 the
                 same
                 ,
                 unless
                 servitudes
                 be
                 fixed
                 to
                 Water-gangs
                 of
                 Milns
                 ,
                 or
                 other
                 Works
                 ,
                 and
                 the
                 Ground
                 of
                 the
                 Loch
                 ,
                 and
                 all
                 that
                 is
                 upon
                 it
                 ,
                 or
                 under
                 it
                 ,
                 is
                 a
                 part
                 of
                 the
                 Fee
                 :
                 But
                 if
                 the
                 Loch
                 be
                 not
                 wholly
                 within
                 the
                 Fee
                 ,
                 but
                 partly
                 within
                 or
                 adjacent
                 to
                 the
                 Fee
                 of
                 another
                 ,
                 then
                 unless
                 the
                 Loch
                 be
                 exprest
                 ,
                 it
                 will
                 be
                 divided
                 amongst
                 the
                 Fiars
                 whose
                 Lands
                 front
                 therupon
                 .
              
               
                 The
                 parts
                 of
                 Fees
                 are
                 only
                 exprest
                 in
                 bounding
                 Charters
                 ,
                 but
                 in
                 all
                 others
                 the
                 parts
                 are
                 only
                 known
                 by
                 the
                 common
                 reputation
                 of
                 the
                 Neighbour-hood
                 ,
                 what
                 they
                 comprehend
                 under
                 the
                 Designations
                 exprest
                 in
                 the
                 Infeftments
                 ,
                 and
                 by
                 Possession
                 ,
                 as
                 part
                 and
                 pertinent
                 of
                 the
                 Lands
                 Designed
                 in
                 the
                 Infeftment
                 ,
                 whether
                 they
                 have
                 but
                 one
                 common
                 Designation
                 ,
                 as
                 such
                 a
                 Barrony
                 or
                 Tenement
                 ,
                 or
                 if
                 there
                 be
                 an
                 enumeration
                 of
                 their
                 parts
                 ,
                 by
                 distinct
                 Names
                 ,
                 which
                 doth
                 not
                 exclude
                 other
                 parts
                 ,
                 though
                 belonging
                 to
                 none
                 of
                 the
                 parts
                 enumerat
                 ;
                 there
                 is
                 only
                 this
                 difference
                 ,
                 that
                 expresse
                 Infeftments
                 are
                 preferable
                 to
                 these
                 which
                 alledge
                 but
                 part
                 and
                 pertinent
                 ,
                 much
                 more
                 if
                 it
                 be
                 alledged
                 to
                 be
                 
                   separatum
                   tenementum
                
                 ,
                 requiring
                 a
                 distinct
                 Infeftment
                 ;
                 and
                 yet
                 prescription
                 ,
                 as
                 part
                 and
                 pertinent
                 ,
                 will
                 exclude
                 an
                 Infeftment
                 as
                 a
                 separat
                 Tenement
                 :
                 But
                 where
                 there
                 are
                 March-stones
                 set
                 ,
                 it
                 is
                 a
                 great
                 convenience
                 to
                 preserve
                 peaceable
                 Possession
                 ;
                 and
                 though
                 it
                 cannot
                 be
                 proven
                 when
                 these
                 Marchs
                 were
                 set
                 ,
                 yet
                 
                 their
                 being
                 repute
                 as
                 March-stones
                 ,
                 will
                 be
                 sufficient
                 to
                 defend
                 at
                 any
                 time
                 ,
                 within
                 prescription
                 :
                 But
                 Lands
                 are
                 oftimes
                 so
                 large
                 ,
                 comprehending
                 Mures
                 and
                 Mountains
                 ,
                 that
                 March-stones
                 cannot
                 be
                 set
                 ;
                 for
                 remeid
                 whereof
                 ,
                 the
                 Lords
                 of
                 Session
                 by
                 an
                 Act
                 of
                 Sederunt
                 ,
                 1580.
                 
                 Ratified
                 in
                 Par.
                 1587.
                 cap.
                 42.
                 
                 
                   Ordained
                   all
                   Molestations
                   in
                   Property
                   or
                   Commonty
                   ,
                
                 in
                 possessorso
                 ,
                 
                   to
                   be
                   before
                   Sheriffs
                   ,
                   Bailies
                   of
                   Regalitie
                   ,
                   and
                   other
                   inferior
                   ordinar
                   Judges
                   where
                   the
                   Lands
                   ly
                   ,
                   and
                   for
                   that
                   effect
                   ,
                   the
                   Lords
                   will
                   direct
                   Letters
                   of
                   Cognition
                   to
                   proceed
                   upon
                   fifteen
                   days
                   warning
                   ,
                   by
                   an
                   Inquest
                   of
                   persons
                   who
                   best
                   know
                   the
                   Matter
                   ,
                   the
                   most
                   part
                   thereof
                   being
                   Landed-men
                   ,
                   having
                   at
                   least
                   ,
                   four
                   Ploughs
                   of
                   Land
                   ,
                   or
                   three
                   hundred
                   merks
                   of
                   irredeemable
                   Rent
                   ,
                   and
                   the
                   rest
                   substantious
                   famous
                   Zeamans
                   of
                   the
                   same
                   Paroch
                   ,
                   and
                   failing
                   thereof
                   ,
                   of
                   the
                   Paroch
                   nearest
                   adjacent
                   ;
                   and
                   if
                   both
                   parties
                   have
                   Cognitions
                   raised
                   before
                   Litiscontestation
                   on
                   either
                   ,
                   the
                   half
                   of
                   the
                   Assyzers
                   shall
                   be
                   taken
                   of
                   these
                   summoned
                   for
                   either
                   party
                   ;
                   or
                   in
                   case
                   there
                   be
                   not
                   a
                   sufficient
                   number
                   of
                   them
                
                 habile
                 ,
                 
                   the
                   Judge
                   shall
                   supplie
                   the
                   same
                   ,
                   and
                   the
                   odd
                   man
                   to
                   be
                   chosen
                   by
                   lot
                   :
                   which
                   Inquest
                   shall
                   visit
                   the
                   ground
                   ,
                   and
                   shall
                   return
                   their
                   verdict
                   upon
                   oath
                   ,
                   both
                   upon
                   the
                   Clames
                   and
                   exceptions
                   of
                   the
                   parties
                   ;
                   and
                   in
                   case
                   the
                   Judge
                   ordinar
                   be
                   suspect
                   ,
                   or
                   that
                   the
                   Lands
                   ly
                   in
                   divers
                   Jurisdictions
                   ,
                   the
                   Lords
                   are
                   to
                   appoint
                   unsuspect
                   Judges
                   to
                   be
                   past
                   under
                   the
                   quarter
                   Seal
                
                 There
                 are
                 only
                 excepted
                 the
                 actions
                 belonging
                 to
                 the
                 members
                 of
                 the
                 Colledge
                 of
                 Justice
                 ,
                 which
                 are
                 to
                 be
                 before
                 the
                 Lords
                 ;
                 yet
                 the
                 Lords
                 are
                 accustomed
                 to
                 grant
                 Commissions
                 to
                 some
                 of
                 their
                 own
                 number
                 ,
                 where
                 questions
                 arise
                 concerning
                 the
                 parts
                 or
                 Marches
                 of
                 Tenements
                 ,
                 to
                 visit
                 the
                 Ground
                 ,
                 and
                 there
                 to
                 receive
                 witnesses
                 ,
                 
                   hinc
                   inde
                
                 ,
                 both
                 as
                 to
                 Possession
                 and
                 Interruption
                 ,
                 which
                 the
                 Lords
                 do
                 advise
                 ,
                 and
                 determine
                 without
                 an
                 Inquest
                 .
              
               
                 Parts
                 of
                 Tenements
                 
                   in
                   possessorio
                
                 ,
                 are
                 sustained
                 by
                 the
                 present
                 peaceable
                 Possession
                 for
                 some
                 time
                 ;
                 for
                 seven
                 years
                 peaceable
                 Possession
                 will
                 sustain
                 the
                 Right
                 of
                 the
                 whole
                 till
                 Reduction
                 :
                 And
                 fourty
                 years
                 Possession
                 as
                 part
                 and
                 pertinent
                 ,
                 is
                 sufficient
                 ,
                 
                   in
                   petitorio
                
                 ,
                 for
                 the
                 point
                 of
                 Right
                 ,
                 and
                 will
                 exclude
                 an
                 Infeftment
                 express
                 ,
                 yea
                 ,
                 though
                 it
                 be
                 an
                 Infeftment
                 ,
                 as
                 
                   distinctum
                   tenementum
                   ,
                   November
                
                 14.
                 1671.
                 
                 
                   Walter
                   Young
                   contra
                   William
                   Carmichael
                
                 :
                 But
                 if
                 there
                 be
                 interruptions
                 ,
                 and
                 that
                 either
                 party
                 hath
                 had
                 some
                 Possession
                 ,
                 the
                 express
                 Infeftment
                 will
                 be
                 preferable
                 ,
                 and
                 any
                 lawful
                 Interruption
                 will
                 preserve
                 an
                 Infeftment
                 of
                 a
                 separate
                 Tenement
                 ;
                 but
                 if
                 neither
                 party
                 be
                 expresly
                 Infeft
                 in
                 the
                 Lands
                 in
                 question
                 ,
                 interruption
                 by
                 either
                 party
                 will
                 not
                 exclude
                 prescription
                 ,
                 because
                 there
                 is
                 not
                 a
                 prior
                 special
                 Right
                 ,
                 valid
                 of
                 it self
                 ,
                 without
                 Possession
                 ;
                 and
                 therefore
                 ,
                 if
                 both
                 parties
                 have
                 had
                 mutual
                 or
                 promiscuous
                 Possession
                 ,
                 each
                 Possessing
                 when
                 they
                 could
                 ,
                 and
                 turning
                 off
                 the
                 other
                 ,
                 that
                 part
                 of
                 the
                 Land
                 so
                 possest
                 ,
                 will
                 continue
                 as
                 a
                 promiscuous
                 Commonty
                 ,
                 which
                 frequently
                 falls
                 out
                 about
                 the
                 Marches
                 of
                 large
                 Tenements
                 ,
                 and
                 was
                 so
                 determined
                 betwixt
                 the
                 Lord
                 Strathoord
                 and
                 Sir
                 
                   Thomas
                   Stuart
                
                 of
                 Gairntully
                 ;
                 if
                 neither
                 party
                 have
                 an
                 express
                 or
                 several
                 Infeftment
                 ,
                 Discontiguity
                 will
                 not
                 exclude
                 part
                 and
                 pertinent
                 ,
                 though
                 ,
                 if
                 the
                 question
                 be
                 with
                 him
                 ,
                 to
                 whom
                 the
                 Land
                 is
                 Contiguous
                 ,
                 less
                 Probation
                 will
                 prefer
                 him
                 ,
                 
                   Craig
                   l.
                
                 2.
                 
                 Dieges
                 .
                 3.
                 relates
                 a
                 case
                 in
                 his
                 time
                 betwixt
                 the
                 Earl
                 of
                 Angus
                 and
                 Hoom
                 of
                 Polwart
                 ,
                 where
                 Discontiguity
                 did
                 not
                 exclude
                 part
                 and
                 pertinent
                 ,
                 not
                 being
                 known
                 as
                 a
                 distinct
                 Tenement
                 .
              
               
                 Pertinents
                 comprehends
                 all
                 the
                 Natural
                 Fruits
                 ,
                 for
                 Corns
                 are
                 accounted
                 as
                 Moveable
                 ,
                 and
                 as
                 no
                 part
                 of
                 the
                 Ground
                 ,
                 as
                 hath
                 been
                 shown
                 in
                 the
                 former
                 Title
                 ,
                 Section
                 second
                 .
                 And
                 also
                 all
                 servitudes
                 ;
                 so
                 a
                 servitude
                 of
                 a
                 Pasturage
                 ,
                 in
                 another
                 Heretors
                 Wood
                 ,
                 was
                 sustained
                 as
                 a
                 Pertinent
                 by
                 long
                 Possession
                 ,
                 Spots
                 .
                 Servitude
                 ,
                 Laird
                 of
                 
                   Knockdolian
                   contra
                
                 Tennents
                 of
                 Partick
                 .
                 And
                 Part
                 and
                 Pertinent
                 being
                 exprest
                 in
                 a
                 minute
                 of
                 Sale
                 ,
                 it
                 was
                 found
                 to
                 carry
                 common
                 
                 Pasturage
                 in
                 a
                 Mure
                 ,
                 which
                 was
                 a
                 Commonty
                 to
                 a
                 Barrony
                 ,
                 whereof
                 the
                 Lands
                 sold
                 was
                 a
                 part
                 ,
                 February
                 14.
                 1668.
                 
                 
                   William
                   Borthwick
                   contra
                
                 Lord
                 Borthwick
                 .
                 And
                 in
                 the
                 case
                 betwixt
                 the
                 Laird
                 of
                 Haining
                 and
                 Town
                 of
                 Selkirk
                 ,
                 decided
                 February
                 15.
                 1668.
                 
                 A
                 Barrony
                 of
                 the
                 Kings
                 ,
                 
                   cum
                   pertinentibus
                   &
                   cum
                   pascuis
                   &
                   pasturis
                   ,
                
                 was
                 found
                 to
                 carry
                 common
                 Pasturage
                 in
                 the
                 Mure
                 of
                 the
                 Barrony
                 ,
                 and
                 that
                 the
                 last
                 fourty
                 years
                 Possession
                 did
                 presume
                 the
                 like
                 Possession
                 in
                 the
                 Feuars
                 ,
                 from
                 the
                 obtaining
                 their
                 Feues
                 ;
                 and
                 that
                 interruptions
                 by
                 the
                 Town
                 whose
                 Infeftment
                 was
                 but
                 general
                 ,
                 
                   cum
                   communiis
                
                 ,
                 did
                 not
                 exclude
                 the
                 Pasturage
                 of
                 the
                 Feuers
                 ,
                 who
                 had
                 also
                 made
                 interruptions
                 against
                 the
                 Town
                 .
              
               
                 74.
                 
                 
                   Craig
                   ,
                   l.
                
                 2.
                 
                 Dieges
                 .
                 8.
                 
                 Debates
                 this
                 question
                 ,
                 whether
                 Wood
                 and
                 Coal
                 be
                 parts
                 of
                 the
                 Ground
                 ,
                 or
                 only
                 Pertinent
                 as
                 Fruit
                 thereof
                 ,
                 for
                 if
                 these
                 be
                 parts
                 of
                 the
                 Ground
                 ,
                 Conjunct-feers
                 or
                 Liferenters
                 will
                 have
                 no
                 share
                 thereof
                 ,
                 nor
                 Donatars
                 of
                 Ward
                 ,
                 Non-entry
                 ,
                 or
                 Liferent-escheat
                 ,
                 so
                 that
                 the
                 question
                 is
                 very
                 important
                 ,
                 wherein
                 he
                 relates
                 two
                 Decisions
                 ,
                 one
                 betwixt
                 the
                 Lord
                 Seatoun
                 and
                 his
                 Mother
                 ,
                 who
                 being
                 served
                 to
                 a
                 Terce
                 ,
                 was
                 found
                 to
                 have
                 right
                 to
                 the
                 third
                 of
                 a
                 Coal-work
                 ,
                 constantly
                 going
                 for
                 sale
                 in
                 the
                 Defuncts
                 time
                 ;
                 and
                 another
                 betwixt
                 Ramsay
                 of
                 Dalhousie
                 and
                 
                   Mary
                   Ballantine
                
                 his
                 Predecessors
                 Relict
                 ,
                 in
                 relation
                 to
                 a
                 Wood
                 which
                 the
                 Fiar
                 was
                 found
                 to
                 have
                 the
                 only
                 Right
                 to
                 Sell
                 ,
                 and
                 his
                 opinion
                 is
                 ,
                 
                   that
                   both
                   are
                   parts
                   of
                   the
                   Fee
                   ,
                   and
                   that
                   no
                   Conjunct-fiar
                   ,
                   Tercer
                   ,
                   Superiour
                   or
                   his
                   Donatar
                   hath
                   any
                   interest
                   therein
                   ,
                   as
                   being
                   no
                   part
                   of
                   the
                   Fruits
                
                 ;
                 he
                 pursues
                 the
                 same
                 question
                 as
                 to
                 Wodsetters
                 ,
                 who
                 are
                 Infeft
                 in
                 Fee
                 but
                 under
                 Reversion
                 ,
                 to
                 whom
                 he
                 attributes
                 a
                 greater
                 interest
                 ,
                 that
                 they
                 may
                 make
                 use
                 of
                 Coal
                 as
                 their
                 Authour
                 did
                 ,
                 yet
                 only
                 for
                 their
                 proper
                 uses
                 .
                 and
                 as
                 to
                 an
                 Appryzer
                 ,
                 he
                 relates
                 the
                 case
                 of
                 Sir
                 
                   James
                   Hamiltoun
                
                 ,
                 who
                 having
                 Appryzed
                 the
                 Estate
                 of
                 Camnethen
                 ,
                 and
                 cut
                 down
                 all
                 the
                 Woods
                 ,
                 he
                 was
                 found
                 to
                 have
                 no
                 Right
                 to
                 the
                 Woods
                 during
                 the
                 Legal
                 ,
                 for
                 then
                 Appryzing
                 were
                 not
                 satisfied
                 by
                 intromission
                 ,
                 so
                 that
                 during
                 the
                 Legal
                 ,
                 they
                 had
                 nothing
                 but
                 the
                 Fruits
                 ,
                 for
                 which
                 they
                 were
                 not
                 countable
                 :
                 Now
                 the
                 case
                 is
                 altered
                 by
                 the
                 Act
                 of
                 Parliament
                 1621.
                 whereby
                 the
                 Appryzers
                 Intromission
                 in
                 so
                 far
                 as
                 exceeds
                 his
                 annual
                 ,
                 is
                 imputed
                 to
                 the
                 principal
                 sum
                 ;
                 and
                 therefore
                 ,
                 he
                 may
                 continue
                 in
                 the
                 profite
                 of
                 Coals
                 and
                 Woods
                 ,
                 as
                 his
                 Debitor
                 was
                 accustomed
                 .
              
               
                 But
                 as
                 to
                 Liferenters
                 by
                 Terce
                 ,
                 or
                 by
                 distinct
                 Liferent
                 by
                 provision
                 ,
                 where
                 the
                 Husband
                 himself
                 did
                 not
                 preserve
                 the
                 Wood
                 ,
                 to
                 be
                 sold
                 together
                 ,
                 as
                 
                   Sylva
                   cedua
                
                 ,
                 but
                 cutted
                 parts
                 of
                 it
                 for
                 his
                 own
                 and
                 his
                 Tennents
                 use
                 ,
                 for
                 Reparation
                 of
                 their
                 Houses
                 ;
                 Liferenters
                 and
                 Tercers
                 may
                 do
                 the
                 same
                 .
                 And
                 where
                 Woods
                 are
                 divided
                 in
                 so
                 many
                 Haggs
                 ,
                 that
                 they
                 yeeld
                 a
                 yearly
                 profit
                 ,
                 in
                 that
                 case
                 the
                 Heretor
                 hath
                 rather
                 used
                 them
                 as
                 Fruits
                 ,
                 then
                 as
                 Parts
                 ;
                 so
                 that
                 Liferenters
                 ,
                 Tercers
                 and
                 Donatars
                 ,
                 many
                 claim
                 the
                 same
                 ;
                 yea
                 ,
                 if
                 a
                 Coal
                 be
                 a
                 constant
                 going
                 Coal
                 without
                 apparent
                 hazard
                 of
                 exhausting
                 ,
                 it
                 is
                 like
                 Conjunct-fiars
                 ,
                 Tercers
                 ,
                 or
                 Donatars
                 ,
                 will
                 not
                 be
                 excluded
                 therefrom
                 ,
                 not
                 exceeding
                 the
                 measure
                 and
                 method
                 accustomed
                 by
                 the
                 Fiar
                 :
                 But
                 otherways
                 ,
                 Coal
                 is
                 to
                 be
                 considered
                 only
                 as
                 a
                 part
                 ,
                 and
                 is
                 carried
                 as
                 a
                 part
                 ,
                 though
                 not
                 exprest
                 ,
                 nor
                 in
                 Barrony
                 ,
                 as
                 Craig
                 in
                 the
                 forecited
                 place
                 observeth
                 ,
                 to
                 have
                 been
                 decided
                 betwixt
                 the
                 Sheriff
                 of
                 Air
                 and
                 Chambers
                 of
                 Gadgirth
                 .
                 And
                 a
                 party
                 first
                 Infeft
                 in
                 Land
                 with
                 the
                 pertinents
                 ,
                 without
                 mention
                 of
                 Coal
                 ,
                 was
                 preferred
                 to
                 an
                 express
                 Infeftment
                 only
                 of
                 the
                 Coal-heughs
                 of
                 that
                 Land
                 ,
                 January
                 30.
                 1662.
                 
                 Lord
                 
                   Burley
                   contra
                   John
                   Sim.
                
                 
              
               
                 75.
                 
                 Let
                 us
                 now
                 express
                 the
                 meaning
                 of
                 the
                 Specialities
                 ,
                 ordinarly
                 insert
                 in
                 Infeftments
                 ,
                 
                   cum
                   domibus
                   aedificiis
                
                 ,
                 comprehends
                 all
                 Houses
                 and
                 Buildings
                 ,
                 as
                 
                 Dykes
                 of
                 Yards
                 or
                 Parks
                 ,
                 which
                 though
                 dry
                 ,
                 unsemented
                 Stone
                 cannot
                 be
                 altered
                 by
                 the
                 seller
                 ,
                 after
                 the
                 vendition
                 .
                 And
                 there
                 is
                 a
                 new
                 priviledge
                 for
                 incouragement
                 of
                 inclosing
                 ,
                 that
                 where
                 the
                 Inclosnr
                 falls
                 to
                 be
                 upon
                 the
                 March
                 of
                 any
                 other
                 Inheritance
                 ,
                 the
                 other
                 Heretor
                 ,
                 though
                 making
                 no
                 Inclosure
                 ,
                 shall
                 be
                 at
                 equal
                 expense
                 of
                 that
                 part
                 of
                 the
                 Dyke
                 which
                 Marcheth
                 both
                 ,
                 Par.
                 1661.
                 cap.
                 41.
                 which
                 was
                 sustained
                 ,
                 though
                 the
                 March
                 was
                 a
                 Stripe
                 of
                 Water
                 ,
                 being
                 sometimes
                 dry
                 ,
                 July
                 21.
                 1669.
                 
                 Earl
                 of
                 
                   Crawford
                   contra
                   Rig.
                
                 But
                 how
                 far
                 this
                 Clause
                 will
                 be
                 extended
                 to
                 Fortalices
                 ,
                 hath
                 been
                 now
                 showen
                 .
                 And
                 though
                 Charters
                 do
                 frequently
                 bear
                 ,
                 Mannor-Places
                 ,
                 yet
                 both
                 is
                 carried
                 under
                 the
                 name
                 of
                 part
                 and
                 pertinent
                 .
              
               
                 
                   Cum
                   mollendinis
                   multuris
                   &
                   eorum
                   sequelis
                   ,
                
                 Milns
                 and
                 Multures
                 have
                 been
                 spoken
                 to
                 already
                 :
                 But
                 as
                 to
                 Multures
                 ,
                 they
                 are
                 to
                 be
                 considered
                 amongst
                 Servitudes
                 real
                 ,
                 Title
                 17.
                 under
                 Thirlage
                 .
              
               
                 76.
                 
                 
                   Cum
                   aucupationibus
                   ,
                   venationibus
                   ,
                   piscationilius
                   ,
                
                 Signifie
                 Priviledges
                 ,
                 to
                 kill
                 Fowles
                 ,
                 Fishes
                 and
                 wild
                 Beasts
                 ,
                 upon
                 the
                 Fiars
                 own
                 Ground
                 ,
                 from
                 which
                 he
                 may
                 debar
                 others
                 ,
                 indirectly
                 by
                 hindering
                 them
                 to
                 come
                 upon
                 his
                 Ground
                 ,
                 except
                 upon
                 the
                 publick
                 high-wayes
                 ,
                 or
                 such
                 privat
                 ways
                 only
                 in
                 favours
                 of
                 those
                 to
                 whom
                 they
                 are
                 granted
                 ,
                 which
                 is
                 seldom
                 done
                 ,
                 but
                 ordinarly
                 permitted
                 ;
                 yet
                 if
                 Laborrows
                 were
                 used
                 ,
                 these
                 might
                 infer
                 a
                 contravention
                 ;
                 but
                 by
                 this
                 Clause
                 ,
                 the
                 Vassal
                 hath
                 no
                 Property
                 in
                 the
                 wild
                 Beasts
                 ,
                 Fowles
                 or
                 Fishes
                 ,
                 which
                 belong
                 to
                 none
                 ,
                 but
                 become
                 proper
                 to
                 these
                 who
                 take
                 them
                 ,
                 except
                 Fishes
                 inclosed
                 in
                 Ponds
                 ,
                 Deer
                 in
                 Parks
                 ,
                 or
                 Fowles
                 in
                 Vollaries
                 ,
                 for
                 these
                 are
                 proper
                 ,
                 only
                 by
                 excluding
                 of
                 others
                 to
                 come
                 upon
                 their
                 Ground
                 :
                 The
                 Vassal
                 hath
                 the
                 sole
                 occasion
                 of
                 taking
                 such
                 as
                 are
                 found
                 there
                 ;
                 neither
                 doth
                 this
                 Clause
                 extend
                 generally
                 ,
                 for
                 thereby
                 Swan
                 or
                 Deer
                 may
                 not
                 at
                 all
                 be
                 killed
                 or
                 taken
                 ,
                 nor
                 Salmond
                 ,
                 or
                 their
                 Fry
                 ,
                 unless
                 that
                 power
                 be
                 exprest
                 ,
                 or
                 that
                 the
                 Land
                 be
                 in
                 Barrony
                 :
                 Nor
                 can
                 Fowl
                 or
                 Hares
                 be
                 taken
                 in
                 the
                 time
                 or
                 manner
                 prohibit
                 by
                 Law
                 ,
                 and
                 albeit
                 some
                 do
                 adject
                 Fishing
                 in
                 salt
                 Water
                 ,
                 and
                 in
                 fresh
                 ,
                 yet
                 that
                 imports
                 nothing
                 ,
                 no
                 man
                 being
                 excluded
                 from
                 Sailing
                 and
                 Fishing
                 upon
                 the
                 Sea
                 ,
                 which
                 even
                 in
                 Lochs
                 and
                 Creiks
                 is
                 publick
                 to
                 all
                 that
                 Kingdom
                 or
                 Nation
                 ;
                 albeit
                 other
                 Nations
                 may
                 be
                 excluded
                 from
                 Fishing
                 ,
                 so
                 far
                 as
                 any
                 bound
                 can
                 be
                 perceived
                 in
                 the
                 Sea
                 ,
                 for
                 in
                 so
                 far
                 ,
                 Kingdoms
                 and
                 Nations
                 have
                 appropriat
                 the
                 Sea
                 ,
                 and
                 made
                 it
                 publick
                 peculiar
                 to
                 themselves
                 ,
                 as
                 to
                 Fishing
                 and
                 Profites
                 thence
                 arising
                 ,
                 though
                 passage
                 cannot
                 justly
                 be
                 denyed
                 upon
                 the
                 Land
                 ,
                 as
                 upon
                 the
                 Sea
                 ,
                 except
                 to
                 enemies
                 .
                 Yet
                 Salmond-fishing
                 in
                 salt
                 water
                 and
                 fresh
                 ,
                 gives
                 not
                 only
                 priviledges
                 within
                 Rivers
                 ,
                 but
                 at
                 Water-mouths
                 in
                 the
                 Sea.
                 
              
               
                 
                   Cum
                   petariis
                   ,
                   turbariis
                
                 ,
                 signifies
                 the
                 priviledge
                 of
                 Fewel
                 ,
                 by
                 Peats
                 and
                 Turss
                 in
                 Mosses
                 and
                 Mures
                 .
              
               
                 77.
                 
                 
                   Cuniculis
                   ,
                   cuniculariis
                
                 ,
                 Cunnings
                 and
                 Cunningares
                 ,
                 Craig
                 doubteth
                 ,
                 whether
                 these
                 may
                 be
                 made
                 indifferently
                 by
                 all
                 Vassals
                 ,
                 except
                 a
                 priviledge
                 be
                 derived
                 from
                 the
                 King
                 ,
                 because
                 of
                 the
                 great
                 damage
                 the
                 Cunnings
                 do
                 to
                 the
                 Neighbourhood
                 :
                 But
                 there
                 is
                 with
                 us
                 no
                 restraint
                 ,
                 but
                 upon
                 the
                 contrary
                 ,
                 a
                 Command
                 that
                 every
                 Lord
                 and
                 Laird
                 make
                 Cunningares
                 ,
                 Par.
                 1503.
                 cap.
                 74.
                 
              
               
                 78.
                 
                 
                   Cum
                   columbis
                   columbariis
                
                 ,
                 Doves
                 and
                 Dovecoats
                 ,
                 though
                 they
                 are
                 carried
                 as
                 Pertinents
                 ,
                 yet
                 are
                 they
                 restrained
                 by
                 Act
                 of
                 Parliament
                 ,
                 1617.
                 cap.
                 19.
                 to
                 such
                 as
                 have
                 two
                 Chalders
                 of
                 Victual
                 in
                 Rent
                 or
                 Teind
                 within
                 two
                 Miles
                 of
                 the
                 Dovecoat
                 .
              
               
               
                 
                   Cum
                   fabrilibus
                   Brasinis
                
                 ,
                 are
                 Smiddies
                 and
                 Kilnes
                 for
                 making
                 of
                 Mault
                 .
                 Genestis
                 ,
                 are
                 Whins
                 or
                 Broom
                 .
                 
                   Sylvis
                   nemoribus
                   ,
                   Virgultis
                   ,
                   Lignis
                   ,
                
                 are
                 several
                 kinds
                 of
                 Woods
                 or
                 Timber
                 .
              
               
                 
                   Cum
                   lapicidinis
                   lapide
                   &
                   calce
                
                 ,
                 are
                 all
                 kinds
                 of
                 Stone
                 ,
                 and
                 Quarries
                 thereof
                 .
              
               
                 Of
                 Courts
                 and
                 their
                 Issues
                 we
                 have
                 spoken
                 already
                 ,
                 and
                 likewise
                 of
                 Blood-wits
                 .
              
               
                 79.
                 
                 
                   Cum
                   libero
                   introitu
                   ,
                   &
                   exitu
                   ,
                
                 doth
                 not
                 only
                 signifie
                 the
                 passage
                 by
                 the
                 high-ways
                 ,
                 but
                 such
                 other
                 passages
                 as
                 are
                 necessary
                 and
                 convenient
                 for
                 the
                 Fiar
                 ,
                 through
                 the
                 ground
                 of
                 the
                 Superiour
                 ,
                 or
                 any
                 other
                 where
                 ways
                 are
                 Constitute
                 ,
                 by
                 Concession
                 or
                 Prescription
                 .
              
               
                 80.
                 
                 Herzelds
                 also
                 being
                 the
                 best
                 aught
                 ,
                 as
                 the
                 best
                 Horse
                 ,
                 Ox
                 or
                 Cow
                 of
                 the
                 Tennent
                 dying
                 upon
                 the
                 Ground
                 ,
                 is
                 introduced
                 by
                 custom
                 ,
                 derived
                 from
                 the
                 Germans
                 ,
                 as
                 the
                 word
                 of
                 their
                 Language
                 ,
                 expressing
                 the
                 same
                 evidenceth
                 ;
                 which
                 signifieth
                 the
                 gratuity
                 left
                 by
                 the
                 Labourers
                 of
                 the
                 Ground
                 to
                 their
                 Master
                 ,
                 and
                 which
                 is
                 due
                 by
                 custom
                 ,
                 whether
                 left
                 or
                 not
                 ;
                 and
                 therefore
                 ,
                 rather
                 from
                 custom
                 ,
                 then
                 from
                 the
                 nature
                 of
                 the
                 Fee.
                 And
                 we
                 have
                 neither
                 Rule
                 nor
                 Example
                 for
                 paying
                 it
                 by
                 any
                 ,
                 but
                 by
                 the
                 Labourers
                 of
                 the
                 Ground
                 ,
                 so
                 that
                 though
                 it
                 be
                 not
                 exprest
                 ,
                 it
                 is
                 not
                 reserved
                 to
                 the
                 Superiour
                 ,
                 but
                 belongs
                 to
                 the
                 Vassal
                 ,
                 as
                 Skeen
                 observeth
                 ;
                 but
                 whereas
                 he
                 seemeth
                 to
                 make
                 a
                 herzeld
                 due
                 by
                 Tennents
                 ,
                 possessing
                 four
                 Oxen-gang
                 of
                 Land
                 ,
                 to
                 their
                 Masters
                 going
                 to
                 the
                 War
                 ,
                 by
                 poor
                 Tennents
                 ,
                 possessing
                 only
                 four
                 ongat
                 of
                 Land
                 or
                 less
                 ,
                 such
                 not
                 being
                 able
                 by
                 reason
                 of
                 poverty
                 ,
                 to
                 go
                 in
                 person
                 with
                 him
                 ;
                 yet
                 the
                 constant
                 Custom
                 layeth
                 Herezelds
                 most
                 upon
                 Tennents
                 possessing
                 more
                 Lands
                 ,
                 and
                 generally
                 upon
                 all
                 who
                 are
                 not
                 Cottars
                 ,
                 not
                 paying
                 immediately
                 to
                 the
                 Master
                 ,
                 but
                 to
                 his
                 Tennent
                 dwelling
                 upon
                 the
                 Ground
                 ,
                 and
                 there
                 is
                 no
                 difference
                 whether
                 he
                 be
                 Mailer
                 or
                 Fermer
                 ,
                 only
                 due
                 at
                 the
                 Tennents
                 death
                 .
              
               
                 The
                 Herezeld
                 was
                 found
                 due
                 to
                 the
                 Lady
                 Liferenter
                 ,
                 though
                 the
                 Defunct
                 had
                 the
                 Room
                 in
                 Steelbow
                 ,
                 Hope
                 ,
                 Herezeld
                 ,
                 Lady
                 
                   Tockrig
                   contra
                   Oliver
                   Baird
                
                 .
                 But
                 not
                 where
                 the
                 Defunct
                 Tennent
                 was
                 warned
                 and
                 decerned
                 to
                 remove
                 ,
                 Hope
                 ,
                 Ibid.
                 
                   Walter
                   Callender
                   contra
                
                 his
                 Tennents
                 .
                 And
                 Craig
                 observeth
                 ,
                 lib.
                 2.
                 
                 Dieges
                 .
                 8.
                 
                 That
                 a
                 Herezeld
                 being
                 taken
                 ,
                 the
                 Tennents
                 Successor
                 is
                 not
                 to
                 be
                 removed
                 for
                 a
                 year
                 ,
                 so
                 it
                 was
                 found
                 ,
                 March
                 20.
                 1629.
                 
                 
                   Auchnacloich
                   contra
                   Mathie
                
                 .
              
               
                 81.
                 
                 Steelbow
                 Goods
                 set
                 with
                 Lands
                 upon
                 these
                 terms
                 ,
                 that
                 the
                 like
                 number
                 of
                 Goods
                 shall
                 be
                 restored
                 at
                 the
                 issue
                 of
                 the
                 Tack
                 ,
                 do
                 not
                 pass
                 by
                 Disposition
                 of
                 Lands
                 ,
                 as
                 pertinents
                 thereof
                 ,
                 unless
                 they
                 were
                 exprest
                 ,
                 but
                 do
                 remain
                 as
                 moveables
                 arrestable
                 ,
                 December
                 4.
                 1638.
                 
                 Lady
                 
                   Westmerland
                   contra
                
                 Earl
                 of
                 
                   Home
                   .
                   January
                
                 28.
                 1642.
                 
                 
                   〈◊〉
                   Dunda
                   ,
                   contra
                   George
                   Brown
                
                 ;
                 and
                 so
                 they
                 fall
                 under
                 single
                 Escheat
                 ,
                 and
                 cannot
                 be
                 taken
                 from
                 the
                 Tennent
                 till
                 his
                 Tack
                 run
                 out
                 ,
                 Decem.
                 6.
                 1628.
                 
                 
                   Lawson
                   contra
                
                 Lady
                 Boghal
                 .
              
               
                 Having
                 considered
                 the
                 nature
                 ,
                 tenor
                 ,
                 and
                 import
                 of
                 the
                 several
                 kinds
                 of
                 Feess
                 ,
                 it
                 is
                 now
                 proper
                 to
                 consider
                 the
                 legal
                 effects
                 thereof
                 ,
                 which
                 are
                 either
                 ,
                 
                   injudicio
                   possessorio
                
                 ,
                 or
                 petitorio
                 .
              
               
               
                 82.
                 
                 
                   In
                   Possessorio
                
                 ,
                 all
                 Infeftments
                 cled
                 with
                 lawful
                 Possession
                 ,
                 during
                 the
                 time
                 prescribed
                 by
                 Law
                 or
                 Custom
                 ,
                 are
                 valide
                 and
                 effectual
                 ,
                 either
                 in
                 pursuit
                 or
                 defence
                 ,
                 ay
                 and
                 while
                 they
                 be
                 reduced
                 ,
                 and
                 thereby
                 not
                 only
                 is
                 the
                 Fiar
                 ,
                 or
                 these
                 deriving
                 right
                 from
                 him
                 ,
                 secure
                 to
                 possess
                 ,
                 and
                 cannot
                 be
                 impeded
                 ,
                 or
                 disquicted
                 by
                 any
                 other
                 right
                 ,
                 though
                 it
                 would
                 be
                 a
                 prior
                 and
                 better
                 Right
                 ,
                 
                   in
                   petitorio
                
                 ;
                 but
                 thereupon
                 all
                 Possessory
                 Actions
                 ,
                 may
                 effectually
                 proceed
                 for
                 Mails
                 and
                 Duties
                 for
                 removings
                 of
                 Tennents
                 or
                 Possessors
                 ,
                 for
                 Perambulation
                 or
                 Cognition
                 of
                 Marches
                 ,
                 much
                 more
                 for
                 Intrusion
                 ,
                 succeeding
                 in
                 the
                 vice
                 of
                 removed
                 Tennents
                 ,
                 or
                 Ejection
                 ,
                 as
                 to
                 which
                 ,
                 Possession
                 alone
                 is
                 sufficient
                 .
              
               
                 The
                 motive
                 Introductory
                 of
                 this
                 Priviledge
                 in
                 possessory
                 Judgments
                 is
                 ,
                 because
                 Infeftments
                 are
                 ordinarly
                 granted
                 subalternly
                 ,
                 there
                 being
                 many
                 Superiors
                 betwixt
                 and
                 the
                 Supreme
                 ,
                 and
                 each
                 Superior
                 keepeth
                 his
                 own
                 Infeftments
                 ,
                 and
                 gives
                 to
                 his
                 Vassal
                 out
                 a
                 Charter
                 and
                 Seasine
                 holding
                 of
                 himself
                 :
                 and
                 therefore
                 no
                 perfect
                 right
                 of
                 the
                 Ground
                 can
                 be
                 instructed
                 ,
                 but
                 by
                 a
                 Deduction
                 from
                 the
                 King
                 the
                 suprem
                 Superior
                 ,
                 or
                 by
                 Prescription
                 ;
                 And
                 therefore
                 
                   in
                   Petitorio
                
                 ,
                 whereby
                 the
                 full
                 Validity
                 of
                 the
                 Right
                 is
                 declared
                 or
                 decerned
                 ,
                 before
                 a
                 full
                 Issue
                 ,
                 all
                 the
                 interveening
                 Superiors
                 must
                 be
                 called
                 to
                 produce
                 their
                 Rights
                 till
                 the
                 common
                 Superior
                 ,
                 from
                 whom
                 both
                 Parties
                 derive
                 right
                 ;
                 so
                 that
                 neither
                 Party
                 can
                 quarrel
                 his
                 〈◊〉
                 ,
                 which
                 requires
                 a
                 long
                 course
                 of
                 time
                 .
                 And
                 therefore
                 ,
                 he
                 who
                 by
                 Infeftment
                 is
                 suffered
                 to
                 possess
                 for
                 a
                 considerable
                 course
                 of
                 time
                 unquarrelled
                 ,
                 the
                 Law
                 presumes
                 his
                 Right
                 is
                 good
                 ,
                 and
                 he
                 is
                 not
                 only
                 secure
                 ,
                 not
                 to
                 be
                 comptable
                 for
                 the
                 Rents
                 and
                 profites
                 he
                 has
                 enjoyed
                 ,
                 which
                 require
                 no
                 course
                 of
                 time
                 ,
                 but
                 
                   bonae
                   fidei
                   ,
                   Possessor
                   facit
                   fructus
                   conjumptos
                   suos
                   ,
                
                 Of
                 which
                 in
                 the
                 former
                 Title
                 ,
                 §
                 .
                 28.
                 
                 But
                 he
                 is
                 even
                 secure
                 ,
                 for
                 all
                 that
                 he
                 shall
                 enjoy
                 ,
                 until
                 in
                 a
                 petitory
                 Judgement
                 by
                 a
                 Declarator
                 or
                 Reduction
                 ,
                 he
                 be
                 put
                 in
                 
                   mala
                   fide
                
                 by
                 the
                 Production
                 of
                 another
                 Right
                 ,
                 appearing
                 evidently
                 to
                 be
                 better
                 and
                 exclusive
                 of
                 his
                 ,
                 till
                 which
                 ,
                 he
                 is
                 not
                 to
                 doubt
                 of
                 his
                 own
                 Right
                 ,
                 but
                 may
                 safely
                 and
                 quietly
                 enjoy
                 and
                 spend
                 the
                 Fruits
                 .
                 The
                 time
                 required
                 by
                 Law
                 or
                 Custom
                 for
                 attaining
                 this
                 Priviledge
                 was
                 undetermined
                 ,
                 and
                 
                   in
                   arbitrio
                   judicis
                
                 at
                 first
                 ;
                 but
                 it
                 was
                 not
                 sustained
                 upon
                 two
                 years
                 possession
                 ,
                 July
                 17.
                 1610.
                 
                 
                   Auchterlony
                   contra
                   Annan
                
                 .
                 It
                 was
                 sustained
                 upon
                 fifeteen
                 years
                 possession
                 ordinarly
                 ;
                 and
                 then
                 upon
                 fourteen
                 years
                 possession
                 ,
                 July
                 16.
                 1623.
                 
                 
                   Sybald
                   contra
                   Stuart
                
                 And
                 upon
                 ten
                 years
                 possession
                 ,
                 November
                 19.
                 1623.
                 
                 
                   Hamilton
                   contra
                   Dick.
                   March
                
                 29.
                 1624.
                 
                 
                   Monnypenny
                   contra
                   Tenents
                
                 .
                 It
                 was
                 also
                 sustained
                 upon
                 seven
                 years
                 ,
                 possession
                 ,
                 Decemb.
                 10.
                 1623.
                 
                 
                   Irving
                   contra
                   Gordon
                   ,
                   Hope
                   ,
                   confirm
                   .
                
                 Earl
                 of
                 
                   Arran
                   contra
                   Tenents
                
                 of
                 Camely
                 ,
                 and
                 Earl
                 of
                 Seaforth
                 .
                 And
                 it
                 was
                 once
                 sustained
                 upon
                 six
                 years
                 possession
                 ,
                 March
                 13.
                 1627.
                 
                 
                   Feurd
                   contra
                   Stivenson
                
                 .
                 Yea
                 ,
                 once
                 upon
                 three
                 years
                 possession
                 ,
                 Hope
                 ,
                 Possession
                 ,
                 Murray
                 of
                 
                   Lochmaben
                   contra
                
                 his
                 Tennents
                 .
                 But
                 now
                 of
                 a
                 long
                 time
                 ,
                 it
                 hath
                 been
                 fixed
                 to
                 seven
                 years
                 possession
                 ;
                 and
                 it
                 was
                 not
                 only
                 sustained
                 as
                 to
                 Lands
                 ,
                 either
                 as
                 to
                 the
                 Fiars
                 or
                 Liferenters
                 ,
                 but
                 also
                 to
                 Multures
                 ,
                 where
                 the
                 Lands
                 and
                 Quantities
                 of
                 Multures
                 were
                 particularly
                 exprest
                 :
                 But
                 it
                 was
                 not
                 sustained
                 upon
                 an
                 Apprizing
                 without
                 Infeftment
                 or
                 Charge
                 ,
                 Feb.
                 6.
                 1668.
                 
                 Mr.
                 
                   George
                   Johnstoun
                   contra
                   Charles
                   Erskin
                
                 .
                 Neither
                 was
                 it
                 sustained
                 upon
                 obtaining
                 Decreets
                 ,
                 or
                 lifting
                 of
                 seven
                 years
                 Rent
                 together
                 ,
                 but
                 continuing
                 in
                 possession
                 by
                 the
                 space
                 of
                 seven
                 years
                 ,
                 by
                 labouring
                 or
                 uplifting
                 the
                 Rent
                 ,
                 January
                 25.
                 1672.
                 
                 
                   Harper
                   contra
                   Armour
                
                 .
                 Neither
                 upon
                 possession
                 as
                 part
                 and
                 pertinent
                 ,
                 the
                 possession
                 being
                 vitious
                 and
                 violent
                 ,
                 June
                 25.
                 1674.
                 
                 Mr.
                 
                   Heugh
                   Maxwel
                   contra
                   Ferguson
                
                 .
                 The
                 like
                 where
                 the
                 possession
                 was
                 interverted
                 ,
                 June
                 24.
                 1679.
                 
                 Menzies
                 of
                 
                   Sckian
                   contra
                   Campbel
                
                 of
                 Torerick
                 .
                 Neither
                 upon
                 Apprizing
                 and
                 Infeftment
                 ,
                 against
                 an
                 other
                 Apprizer
                 within
                 year
                 and
                 day
                 ,
                 July
                 17.
                 1675.
                 
                 Balie
                 
                   Baird
                   contra
                
                 Bailie
                 Justice
                 .
                 Neither
                 was
                 
                 it
                 sustained
                 against
                 an
                 Apprizing
                 ,
                 for
                 the
                 avail
                 of
                 a
                 Marriage
                 being
                 
                   debitum
                   sundi
                   ,
                   December
                
                 17.
                 1673.
                 
                 
                   Patrick
                   Hadden
                   contra
                   John
                   More
                
                 .
                 Neither
                 against
                 the
                 King
                 nor
                 His
                 Donatar
                 ,
                 seeing
                 the
                 King
                 needs
                 no
                 Reduction
                 ,
                 and
                 cannot
                 be
                 prejudged
                 by
                 the
                 neglect
                 of
                 His
                 Officers
                 not
                 pursuing
                 in
                 seven
                 years
                 ,
                 January
                 28.
                 1679.
                 
                 Laird
                 of
                 
                   Blair
                   contra
                
                 Lady
                 Heslehead
                 .
                 Neither
                 against
                 a
                 Liferenter
                 ,
                 unless
                 the
                 Possession
                 had
                 been
                 seven
                 years
                 after
                 her
                 Husband's
                 death
                 .
                 Neither
                 against
                 recourse
                 upon
                 Infeftment
                 of
                 Warrandice
                 after
                 Eviction
                 ,
                 which
                 requires
                 no
                 Reduction
                 ,
                 January
                 9.
                 1666.
                 
                 
                   Elizabeth
                   Broun
                   contra
                   John
                   Scot.
                
                 The
                 like
                 ,
                 unless
                 there
                 had
                 been
                 seven
                 years
                 possession
                 after
                 the
                 Eviction
                 ,
                 February
                 20.
                 1668.
                 
                 Mr.
                 
                   John
                   Forbes
                   contra
                   Innes
                
                 .
                 Neither
                 is
                 it
                 ever
                 sustained
                 against
                 Infeftments
                 of
                 Annualrents
                 ,
                 Feu-duties
                 ,
                 or
                 other
                 
                   debita
                   fundi
                   ,
                   June
                
                 29.
                 1662.
                 
                 
                   Adamsons
                   contra
                
                 Lord
                 Balmirrino
                 .
                 Neither
                 have
                 Annualrents
                 the
                 benefite
                 of
                 Possessory
                 Judgements
                 for
                 them
                 ,
                 more
                 then
                 against
                 them
                 .
                 But
                 it
                 was
                 not
                 found
                 relevant
                 to
                 exclude
                 a
                 Possessory
                 Judgement
                 ,
                 that
                 there
                 was
                 Interruption
                 by
                 Citation
                 ,
                 not
                 being
                 within
                 the
                 last
                 seven
                 years
                 ,
                 July
                 15.
                 1668.
                 
                 Earl
                 of
                 
                   Wintoun
                   contra
                   Gordon
                
                 of
                 Letterfary
                 .
                 Nor
                 because
                 the
                 matter
                 became
                 litigious
                 by
                 a
                 Denunciation
                 and
                 Apprising
                 ,
                 June
                 17.
                 1678.
                 
                 Sir
                 
                   William
                   Stuart
                
                 contra
                 Murrays
                 .
              
               
                 It
                 uses
                 to
                 be
                 contraverted
                 ,
                 whether
                 seven
                 years
                 possession
                 be
                 relevant
                 ,
                 against
                 an
                 Infeftment
                 cled
                 with
                 possession
                 immediatly
                 before
                 the
                 seven
                 years
                 :
                 As
                 to
                 which
                 ,
                 there
                 have
                 been
                 Decisions
                 upon
                 both
                 parts
                 ,
                 wherein
                 the
                 Reconciliation
                 may
                 be
                 ,
                 that
                 if
                 the
                 seven
                 years
                 possession
                 entered
                 not
                 by
                 order
                 of
                 Law
                 ,
                 or
                 by
                 consent
                 of
                 these
                 who
                 were
                 then
                 possessors
                 ,
                 but
                 entered
                 in
                 the
                 void
                 possession
                 ,
                 or
                 obtained
                 the
                 Rents
                 from
                 the
                 Tennents
                 of
                 consent
                 ;
                 such
                 possession
                 was
                 vicious
                 ,
                 because
                 the
                 former
                 possessor
                 continued
                 to
                 possess
                 animo
                 ;
                 but
                 if
                 the
                 former
                 possessor
                 had
                 long
                 forborn
                 to
                 possess
                 before
                 the
                 seven
                 years
                 ,
                 or
                 that
                 the
                 subsequent
                 possessor
                 entered
                 by
                 authority
                 of
                 Law
                 ,
                 or
                 consent
                 of
                 the
                 former
                 possessor
                 ,
                 there
                 is
                 no
                 reason
                 to
                 make
                 difference
                 ,
                 whether
                 his
                 Competitor
                 was
                 in
                 possession
                 before
                 or
                 not
                 .
              
               
                 83.
                 
                 Charter
                 and
                 Seasine
                 are
                 sufficient
                 ,
                 both
                 for
                 pursute
                 and
                 defence
                 ,
                 where
                 there
                 is
                 not
                 another
                 Infeftment
                 that
                 comes
                 in
                 competition
                 But
                 when
                 two
                 Infeftments
                 of
                 the
                 same
                 subject
                 compete
                 ,
                 if
                 neither
                 have
                 had
                 seven
                 years
                 lawful
                 and
                 peaceable
                 possession
                 ;
                 then
                 the
                 point
                 of
                 Right
                 comes
                 to
                 be
                 debated
                 without
                 Reduction
                 ,
                 and
                 either
                 party
                 must
                 propone
                 their
                 alledgeances
                 upon
                 their
                 Authors
                 Rights
                 ,
                 in
                 the
                 same
                 way
                 as
                 in
                 Declarators
                 of
                 Right
                 ;
                 and
                 whatsoever
                 points
                 are
                 found
                 relevant
                 for
                 either
                 party
                 ,
                 or
                 where
                 the
                 Rights
                 alledged
                 on
                 are
                 ordained
                 to
                 be
                 produced
                 before
                 the
                 relevancy
                 be
                 discust
                 ,
                 terms
                 will
                 be
                 assigned
                 to
                 either
                 party
                 ,
                 and
                 they
                 will
                 get
                 incident
                 diligences
                 by
                 Exhibition
                 against
                 their
                 Authors
                 to
                 produce
                 ,
                 and
                 ordinary
                 diligences
                 for
                 producing
                 their
                 own
                 or
                 their
                 predecessors
                 Rights
                 :
                 and
                 whatever
                 the
                 event
                 be
                 ,
                 either
                 party
                 will
                 be
                 secure
                 ,
                 as
                 to
                 the
                 by-gone
                 Fruits
                 consumed
                 ,
                 
                   bona
                   fide
                
                 .
              
               
                 The
                 effect
                 of
                 Infeftments
                 in
                 the
                 point
                 of
                 Right
                 is
                 ,
                 that
                 by
                 the
                 first
                 perfected
                 Infeftment
                 ,
                 with
                 the
                 several
                 requisites
                 aforesaid
                 ,
                 granted
                 by
                 him
                 who
                 had
                 power
                 ,
                 the
                 Property
                 is
                 established
                 ,
                 and
                 the
                 Proprietar
                 will
                 be
                 preferred
                 ,
                 at
                 least
                 
                   in
                   petitorio
                
                 to
                 all
                 posterior
                 Rights
                 ;
                 but
                 if
                 the
                 granter
                 have
                 no
                 power
                 ,
                 as
                 not
                 being
                 validly
                 insest
                 himself
                 ,
                 or
                 being
                 impeded
                 by
                 Inhibition
                 or
                 Interdiction
                 ,
                 or
                 by
                 anterior
                 diligence
                 making
                 the
                 matter
                 litigious
                 ,
                 he
                 cannot
                 validly
                 confer
                 a
                 Right
                 .
              
               
                 Concerning
                 Interdictions
                 we
                 have
                 spoken
                 before
                 ,
                 Tit.
                 6.
                 
                 Litigiousness
                 falleth
                 
                 in
                 amongst
                 the
                 effects
                 of
                 legal
                 diligence
                 .
                 But
                 it
                 will
                 be
                 proper
                 here
                 to
                 speak
                 of
                 Inhibitions
                 ,
                 seing
                 the
                 effect
                 thereof
                 reacheth
                 only
                 as
                 to
                 heretable
                 Rights
                 ,
                 and
                 cometh
                 not
                 so
                 properly
                 elsewhere
                 under
                 consideration
                 .
              
               
                 84.
                 
                 Inhibition
                 is
                 by
                 Letters
                 under
                 the
                 Signet
                 ,
                 prohibiting
                 the
                 party
                 inhibite
                 to
                 dilapidate
                 or
                 dispone
                 any
                 of
                 his
                 Lands
                 ,
                 Heretages
                 ,
                 &c.
                 
                 Which
                 is
                 understood
                 ,
                 till
                 the
                 cause
                 ,
                 for
                 which
                 the
                 Letters
                 were
                 direct
                 mentioned
                 therein
                 ,
                 be
                 satisfied
                 .
                 It
                 proceedeth
                 summarily
                 upon
                 Supplication
                 ,
                 and
                 production
                 of
                 any
                 ground
                 thereof
                 ,
                 whether
                 Obligation
                 or
                 Process
                 :
                 and
                 though
                 it
                 pass
                 of
                 course
                 ,
                 yet
                 sometimes
                 is
                 refused
                 ,
                 as
                 to
                 a
                 Wife
                 upon
                 the
                 Contract
                 against
                 her
                 Husband
                 ,
                 Jan.
                 11.
                 1625.
                 
                 Hamiltoun
                 Supplicant
                 .
                 And
                 to
                 an
                 appearand
                 Heir
                 ,
                 against
                 his
                 Father
                 upon
                 his
                 Fathers
                 Contract
                 of
                 Marriage
                 ,
                 whereby
                 it
                 was
                 provided
                 ,
                 that
                 his
                 Father
                 should
                 be
                 interdicted
                 to
                 certain
                 persons
                 then
                 dead
                 ,
                 January
                 16.
                 1622.
                 
                 Silvertoun-hill
                 Supplicant
                 ;
                 but
                 being
                 past
                 of
                 course
                 against
                 an
                 appearand
                 Heir
                 ,
                 it
                 was
                 found
                 valid
                 ,
                 because
                 he
                 was
                 entered
                 before
                 the
                 debate
                 thereupon
                 ,
                 July
                 5.
                 1623.
                 
                 
                   Kirkwood
                   contra
                   Belshes
                
                 .
                 It
                 was
                 refused
                 upon
                 the
                 warrandice
                 of
                 a
                 Discharge
                 from
                 the
                 dischargers
                 fact
                 and
                 deed
                 only
                 ,
                 unless
                 the
                 Supplicant
                 show
                 a
                 particular
                 hazard
                 ,
                 February
                 4.
                 1623.
                 
                 
                   Patrick
                   Forbes
                
                 contra
                 
                   William
                   Dick.
                
                 
              
               
                 The
                 effect
                 of
                 Inhibitions
                 reacheth
                 only
                 deeds
                 done
                 by
                 the
                 Persons
                 inhibite
                 after
                 the
                 Inhibition
                 ,
                 and
                 doth
                 not
                 reach
                 any
                 deeds
                 done
                 thereafter
                 by
                 his
                 Heirs
                 and
                 Successors
                 ;
                 but
                 these
                 must
                 be
                 of
                 new
                 Inhibite
                 ,
                 Hope
                 ,
                 Inhibition
                 ,
                 
                   John
                   Pirycon
                
                 .
                 Secondly
                 ,
                 it
                 hath
                 no
                 effect
                 against
                 moveables
                 ,
                 albeit
                 growing
                 upon
                 the
                 Ground
                 the
                 time
                 of
                 the
                 Execution
                 of
                 the
                 Inhibition
                 ,
                 though
                 the
                 Style
                 thereof
                 bear
                 not
                 
                   to
                   dilapidat
                   Lunds
                   ,
                   Heretages
                   ,
                   Goods
                   or
                   Geir
                   ,
                   March
                
                 22.
                 1623.
                 
                 Laird
                 of
                 
                   Braico
                   contra
                   Ogilvie
                   .
                   Hope
                
                 ,
                 Inhibition
                 ,
                 
                   Aikin
                   contra
                   Anderson
                
                 ;
                 yet
                 it
                 will
                 reduce
                 a
                 moveable
                 Bond
                 ,
                 in
                 so
                 far
                 as
                 it
                 is
                 the
                 ground
                 of
                 an
                 Appryzing
                 ,
                 but
                 prejudice
                 of
                 personal
                 Execution
                 ,
                 or
                 against
                 moveables
                 ,
                 July
                 2.
                 1630.
                 
                 
                   Dowglas
                   contra
                   Johnstoun
                
                 .
                 But
                 it
                 may
                 proceed
                 upon
                 a
                 moveable
                 Bond
                 ,
                 
                   Ibid.
                   July
                
                 2.
                 1625.
                 
                 
                   Porteous
                   contra
                   Elliot
                
                 ,
                 where
                 reduction
                 was
                 sustained
                 ,
                 to
                 the
                 effect
                 ,
                 Appryzing
                 may
                 proceed
                 upon
                 the
                 moveable
                 Bond
                 ,
                 though
                 no
                 Appryzing
                 or
                 other
                 real
                 right
                 had
                 then
                 followed
                 upon
                 the
                 said
                 Bond.
                 
              
               
                 Inhibition
                 is
                 only
                 effectual
                 against
                 posterior
                 voluntary
                 rights
                 ,
                 granted
                 by
                 the
                 person
                 Inhibite
                 ,
                 but
                 not
                 against
                 Appryzings
                 ,
                 Adjudications
                 and
                 Infeftments
                 thereupon
                 ,
                 though
                 posterior
                 to
                 the
                 Inhibition
                 ,
                 if
                 they
                 procced
                 upon
                 a
                 debt
                 prior
                 to
                 the
                 Inhibition
                 ;
                 yea
                 though
                 the
                 date
                 of
                 a
                 Disposition
                 was
                 prior
                 to
                 the
                 Inhibition
                 ,
                 yet
                 the
                 same
                 being
                 granted
                 to
                 the
                 Purchaser
                 for
                 himself
                 ,
                 and
                 to
                 the
                 behove
                 of
                 others
                 ;
                 That
                 Clause
                 being
                 filled
                 up
                 with
                 another
                 hand
                 ,
                 was
                 presumed
                 to
                 be
                 filled
                 up
                 after
                 the
                 Inhibition
                 ,
                 unless
                 the
                 contrary
                 were
                 proven
                 ,
                 to
                 have
                 been
                 filled
                 up
                 before
                 the
                 Inhibition
                 by
                 Witnesses
                 ,
                 above
                 exception
                 ,
                 Jan.
                 15.
                 1672.
                 
                 Lady
                 
                   Lucia
                   Hamiltoun
                   contra
                
                 the
                 Creditors
                 of
                 Monkcastle
                 .
                 Neither
                 will
                 it
                 be
                 effectual
                 against
                 an
                 Infeftment
                 after
                 the
                 Inhibition
                 ,
                 proceeding
                 upon
                 a
                 Disposition
                 prior
                 thereto
                 ,
                 or
                 upon
                 an
                 obliegement
                 to
                 grant
                 such
                 an
                 Insestment
                 ,
                 being
                 prior
                 to
                 the
                 Inhibition
                 ,
                 Hope
                 ,
                 Inhibition
                 ,
                 
                   Patrick
                   Stirling
                   contra
                
                 Tennents
                 of
                 Lethendy
                 :
                 Here
                 the
                 posterior
                 Infeftment
                 was
                 of
                 the
                 property
                 ;
                 and
                 the
                 prior
                 obliegement
                 was
                 to
                 grant
                 an
                 Annualrent
                 ,
                 which
                 was
                 to
                 exceed
                 the
                 value
                 of
                 the
                 property
                 :
                 But
                 where
                 the
                 prior
                 debt
                 bore
                 an
                 obliegement
                 
                   to
                   Infeft
                   in
                   an
                   Annualrent
                   generally
                   out
                   of
                   the
                   debitors
                   Lands
                   ,
                
                 the
                 disposition
                 of
                 the
                 property
                 was
                 reduced
                 as
                 posterior
                 ,
                 though
                 upon
                 a
                 debt
                 prior
                 ,
                 Jan.
                 21.
                 1629.
                 
                 
                   Scot
                   contra
                   Turnbul
                
                 .
                 And
                 an
                 Inhibition
                 was
                 found
                 not
                 effectual
                 against
                 a
                 postenor
                 Infeftment
                 ,
                 though
                 it
                 proceeded
                 upon
                 a
                 prior
                 Bond
                 ,
                 meerly
                 personal
                 ,
                 and
                 
                 bore
                 no
                 obliegement
                 to
                 Infeft
                 ,
                 Hope
                 ,
                 Inhibition
                 ,
                 Laird
                 of
                 
                   Tillibairn
                   contra
                
                 Laird
                 of
                 Clunic
                 .
                 Inhibition
                 was
                 not
                 found
                 effectual
                 against
                 Dispositions
                 posterior
                 ,
                 proceeding
                 upon
                 Bonds
                 prior
                 ,
                 bearing
                 
                   obliegements
                   to
                   Infeft
                   generally
                   or
                   particularly
                   ,
                   July
                
                 22.
                 1675.
                 
                 Sir
                 
                   George
                   Gordoun
                   con
                   .
                   Seaton
                   ,
                   Feb.
                
                 6.
                 1635
                 
                 
                   Ross
                   con
                   .
                   William
                   Dick.
                
                 But
                 Inhibitions
                 extend
                 not
                 to
                 posterior
                 Renunciations
                 of
                 Wodsets
                 ,
                 which
                 are
                 deeds
                 necessary
                 upon
                 payment
                 ,
                 though
                 the
                 Style
                 of
                 the
                 Inhibition
                 bore
                 ,
                 
                   renunciation
                   ,
                   July
                
                 16.
                 1667.
                 
                 Mr.
                 
                   John
                   Elleis
                   con
                   .
                   Keith
                
                 ,
                 whereby
                 Creditors
                 were
                 much
                 prejudged
                 ;
                 for
                 remeid
                 whereof
                 ,
                 the
                 Lords
                 by
                 Act
                 of
                 Sederunt
                 ,
                 of
                 the
                 19.
                 of
                 Feb.
                 1680.
                 did
                 declare
                 ,
                 
                   that
                   Creditors
                   using
                   〈◊〉
                   against
                   their
                   Debitors
                   Infeft
                   in
                   Wodset
                   ,
                   or
                   Annualrent
                   ,
                   if
                   they
                   shall
                   make
                   intintation
                   by
                   Instrument
                   of
                   a
                   Nottar
                   ,
                   to
                   the
                   persons
                   who
                   have
                   right
                   to
                   the
                   Reversions
                   of
                   the
                   saids
                   Wodsetts
                   or
                   Annualrents
                   ,
                   That
                   the
                   Wodsetter
                   or
                   Annualrenter
                   stands
                   Inhibit
                   at
                   their
                   Instance
                   ,
                   and
                   shall
                   produce
                   in
                   presence
                   of
                   the
                   party
                   and
                   Nottar
                   ,
                   the
                   Inhibition
                   duly
                   Registrate
                   ,
                   that
                   they
                   will
                   not
                   sustain
                   Renunciations
                   or
                   grants
                   of
                   Redemption
                   ,
                   although
                   upon
                   true
                   payment
                   ,
                   not
                   being
                   made
                
                 bona
                 fide
                 ;
                 
                   but
                   after
                   Intimation
                   ,
                   as
                   aforesaid
                   ,
                   unless
                   the
                   Redemption
                   proceed
                   by
                   Process
                   ,
                   whereunto
                   the
                   user
                   of
                   the
                   Inhibition
                   must
                   be
                   called
                   .
                
              
               
                 Inhibitions
                 must
                 be
                 execute
                 by
                 Messengers
                 (
                 as
                 the
                 Style
                 thereof
                 bears
                 )
                 
                   against
                   the
                   person
                   Inhibite
                   ,
                   personally
                   or
                   at
                   his
                   Dwelling-place
                   ,
                   and
                   against
                   the
                   Leiges
                   ,
                   at
                   the
                   Mercat-cross
                   of
                   the
                   Head-burgh
                   of
                   the
                   Shire
                   where
                   the
                   person
                   Inhibite
                   dwells
                   ,
                   Par.
                
                 1581.
                 cap.
                 118.
                 and
                 therefore
                 ,
                 an
                 Inhibition
                 was
                 found
                 null
                 ,
                 because
                 the
                 Executions
                 bore
                 not
                 
                   a
                   Copie
                   given
                   to
                   the
                   partie
                   Inhibite
                   ,
                
                 albeit
                 it
                 bore
                 ,
                 
                   a
                   Copie
                   affixed
                   upon
                   the
                   Cross
                
                 ;
                 though
                 the
                 Executions
                 were
                 mended
                 by
                 the
                 Messenger
                 upon
                 the
                 Margent
                 ,
                 bearing
                 
                   a
                   Coppie
                   given
                
                 ,
                 not
                 being
                 so
                 Registrate
                 ,
                 albeit
                 it
                 was
                 offered
                 to
                 be
                 proven
                 by
                 the
                 Witnesses
                 infert
                 ,
                 
                   that
                   a
                   Copie
                   was
                   trulie
                   given
                   ,
                   July
                
                 28.
                 1671.
                 
                 Sir
                 
                   John
                   Keith
                   contra
                
                 Sir
                 
                   George
                   Johnstoun
                
                 ;
                 and
                 the
                 Inhibition
                 with
                 the
                 Executions
                 ,
                 must
                 within
                 fourty
                 days
                 after
                 the
                 Execution
                 thereof
                 ,
                 be
                 Registrat
                 in
                 the
                 Register
                 of
                 Hornings
                 ,
                 where
                 the
                 Inhibite
                 resides
                 ,
                 or
                 where
                 the
                 most
                 part
                 of
                 his
                 Lands
                 lyes
                 ,
                 Act
                 aforesaid
                 ;
                 but
                 if
                 the
                 Inhibite
                 person
                 dwell
                 within
                 Stewartry
                 ,
                 or
                 Bailiery
                 of
                 Royalty
                 or
                 Regality
                 ,
                 the
                 Inhibition
                 must
                 be
                 execute
                 at
                 the
                 Mercat
                 Cross
                 thereof
                 ,
                 and
                 Registrate
                 in
                 the
                 Clerks
                 Books
                 there
                 :
                 Otherways
                 in
                 any
                 of
                 these
                 Cases
                 ,
                 if
                 the
                 saids
                 Acts
                 be
                 omitted
                 ,
                 the
                 Inhibition
                 is
                 null
                 ,
                 Par.
                 1597.
                 cap.
                 264.
                 
                 By
                 the
                 Act
                 265.
                 
                 Pa.
                 1597.
                 
                 Registration
                 of
                 Inhibitions
                 ,
                 Hornings
                 and
                 Relaxations
                 ,
                 are
                 ordained
                 ,
                 
                   to
                   be
                   either
                   Judiciallie
                   ,
                   or
                   before
                   a
                   Nottar
                   and
                   four
                   Witnesses
                   ,
                   beside
                   the
                   ordinarie
                   Clerk
                   ,
                   and
                   in
                   case
                   Registration
                   be
                   refused
                   ,
                   the
                   same
                   may
                   be
                   made
                   in
                   the
                   Books
                   of
                   the
                   next
                   Sheriff
                   or
                   Bailie
                   ,
                   or
                   Books
                   of
                   Council
                   .
                
                 But
                 by
                 the
                 13.
                 
                 
                   Act
                   ,
                   Pa.
                
                 1600.
                 the
                 foresaid
                 Act
                 is
                 rescinded
                 ,
                 and
                 the
                 registration
                 in
                 the
                 Sheriff
                 or
                 Bailies
                 Books
                 ,
                 or
                 by
                 the
                 Clerk-register
                 ,
                 or
                 his
                 Deputs
                 ,
                 in
                 the
                 Books
                 of
                 Council
                 ,
                 are
                 declared
                 sufficient
                 .
              
               
                 An
                 Inhibition
                 was
                 found
                 null
                 by
                 Exception
                 ,
                 because
                 the
                 Letters
                 bore
                 only
                 Warrand
                 
                   to
                   Charge
                   the
                   person
                   at
                   the
                   Mercat-Cross
                   ,
                   as
                   out
                   of
                   the
                   Countrie
                
                 ;
                 and
                 the
                 Execution
                 was
                 against
                 the
                 party
                 Inhibite
                 personally
                 ,
                 Jan.
                 24.
                 1627.
                 
                 
                   Erskin
                   contra
                   Erskin
                
                 ,
                 and
                 reduced
                 upon
                 the
                 same
                 ground
                 ;
                 because
                 the
                 Execution
                 against
                 the
                 person
                 Inhibite
                 ,
                 was
                 at
                 his
                 Dwelling-house
                 ,
                 and
                 the
                 Warrand
                 was
                 
                   to
                   have
                   been
                   at
                   the
                   Mercat-cross
                
                 ;
                 albeit
                 it
                 bore
                 ,
                 
                   to
                   Inhibite
                   at
                   the
                   Mercat-Cross
                   of
                
                 Edinburgh
                 ,
                 
                   and
                   Pear
                   and
                   Shoar
                   of
                
                 Leith
                 ,
                 
                   and
                   all
                   other
                   places
                   needful
                   ,
                   March
                
                 19.
                 1628.
                 
                 
                   James
                   Lamb
                   contra
                   Blackburn
                
                 ;
                 in
                 which
                 cases
                 ,
                 it
                 was
                 found
                 null
                 ,
                 unless
                 truly
                 execute
                 ,
                 both
                 against
                 the
                 Lieges
                 and
                 against
                 the
                 party
                 ,
                 and
                 that
                 the
                 Execution
                 at
                 the
                 Cross
                 served
                 not
                 both
                 ,
                 Hope
                 Inhibition
                 ,
                 
                   Sym
                   contra
                   Coldingknows
                   .
                   Hope
                
                 Inhibition
                 ,
                 
                   Lamb
                   contra
                   Blackburn
                
                 ;
                 and
                 also
                 found
                 null
                 ,
                 because
                 not
                 Execute
                 at
                 the
                 Head-burgh
                 of
                 the
                 Regality
                 ,
                 where
                 the
                 person
                 Inhibite
                 dwelt
                 ,
                 but
                 of
                 the
                 
                 Shyre
                 ;
                 and
                 that
                 not
                 only
                 as
                 to
                 Lands
                 within
                 the
                 Regality
                 ,
                 but
                 other
                 Lands
                 within
                 the
                 Shyre
                 ,
                 Jan.
                 30.
                 1629.
                 
                 
                   Stirling
                   contra
                   Panter
                
                 ;
                 and
                 found
                 null
                 ,
                 because
                 not
                 Registrat
                 in
                 the
                 Shyre
                 or
                 Regality
                 where
                 the
                 Lands
                 lay
                 ,
                 though
                 Registrat
                 in
                 the
                 Shyre
                 where
                 the
                 Inhibite
                 dwelt
                 ,
                 Ja.
                 20.
                 1632.
                 
                 
                   Halyburtoun
                   contra
                   Monteith
                
                 ;
                 but
                 sustained
                 ,
                 though
                 Execute
                 at
                 the
                 Cross
                 ,
                 where
                 the
                 Inhibite
                 dwelt
                 ;
                 &
                 Execute
                 a
                 year
                 thereafter
                 at
                 the
                 Cross
                 where
                 the
                 Lands
                 lay
                 ,
                 and
                 Registrate
                 in
                 both
                 ;
                 although
                 in
                 the
                 last
                 ,
                 there
                 was
                 no
                 Execution
                 against
                 the
                 party
                 Inhibite
                 ,
                 but
                 only
                 against
                 the
                 Leiges
                 ,
                 Spots
                 .
                 Inhibition
                 ,
                 Heirs
                 of
                 the
                 Laird
                 of
                 
                   Fairnie
                   contra
                
                 Laird
                 of
                 Aitoun
                 .
              
               
                 Seing
                 the
                 effect
                 of
                 Inhibition
                 is
                 only
                 for
                 satisfying
                 the
                 ground
                 ,
                 whereupon
                 it
                 proceeded
                 ;
                 therefore
                 Inhibition
                 raised
                 upon
                 a
                 Bond
                 ,
                 not
                 to
                 sell
                 a
                 Reversion
                 without
                 consent
                 of
                 the
                 Wodsetter
                 ,
                 was
                 found
                 not
                 to
                 reduce
                 a
                 posterior
                 Assignation
                 to
                 the
                 Reversion
                 simply
                 ,
                 but
                 only
                 so
                 far
                 as
                 the
                 Wodsetter
                 was
                 interessed
                 or
                 prejudged
                 ,
                 Hope
                 ,
                 Inhibition
                 ,
                 
                   Turnbul
                   contra
                   Scot.
                
                 Inhibition
                 doth
                 not
                 only
                 extend
                 to
                 the
                 Lands
                 that
                 the
                 Inhibited
                 persons
                 had
                 then
                 in
                 the
                 Jurisdiction
                 where
                 it
                 is
                 published
                 ,
                 but
                 to
                 these
                 acquired
                 after
                 ,
                 it
                 being
                 a
                 personal
                 prohibition
                 ,
                 December
                 15.
                 1665.
                 
                 Mr.
                 
                   John
                   Elleis
                   contra
                   Keith
                   .
                   February
                
                 27.
                 1667.
                 
                   inter
                   eosdem
                
                 .
                 Inhibition
                 extends
                 not
                 to
                 Lands
                 be
                 falling
                 to
                 the
                 person
                 Inhibit
                 in
                 other
                 Jurisdictions
                 ,
                 July
                 18.
                 1662.
                 
                 
                   William
                   Swintoun
                   contra
                
                 Inhibition
                 is
                 effectual
                 to
                 reduce
                 Rights
                 posterior
                 to
                 the
                 date
                 thereof
                 ,
                 by
                 the
                 executions
                 of
                 publication
                 ,
                 albeit
                 before
                 the
                 Registration
                 of
                 the
                 Inhibition
                 ,
                 the
                 Rights
                 in
                 question
                 were
                 granted
                 ,
                 July
                 22.
                 1675.
                 
                 Sir
                 
                   George
                   Gordoun
                   contra
                   Seatoun
                
                 .
                 An
                 Inhibition
                 was
                 found
                 null
                 ,
                 because
                 the
                 Execution
                 bore
                 not
                 
                   publick
                   Reading
                   ,
                   and
                   three
                   Oyesses
                   at
                   the
                   Mercat
                   Cross
                   ,
                
                 which
                 was
                 not
                 admitted
                 to
                 be
                 supplied
                 by
                 probation
                 of
                 the
                 witnesses
                 ,
                 July
                 11.
                 1676.
                 
                 
                   Stevinson
                   contra
                   James
                   Innes
                
                 .
                 But
                 where
                 the
                 Executions
                 bore
                 ,
                 
                   that
                   the
                   Messenger
                   made
                   lawful
                   Publication
                   ,
                   and
                   Reading
                   of
                   the
                   Letters
                
                 ;
                 the
                 Lords
                 upon
                 inspection
                 of
                 the
                 Registers
                 ,
                 finding
                 that
                 this
                 last
                 Style
                 was
                 frequent
                 ;
                 whereas
                 in
                 the
                 former
                 case
                 ,
                 the
                 Executions
                 bore
                 only
                 generally
                 ,
                 
                   that
                   the
                   Messenger
                   lawfully
                   Inhibite
                   without
                   Oyes
                   or
                   Reading
                   the
                   Letters
                   ,
                   and
                   that
                   there
                   was
                   no
                   such
                   Stile
                   of
                   Executions
                
                 ;
                 therefore
                 the
                 Lords
                 admitted
                 the
                 witnesses
                 insert
                 in
                 the
                 Executions
                 of
                 this
                 last
                 Inhibition
                 ,
                 to
                 prove
                 that
                 the
                 three
                 Oyesses
                 were
                 truly
                 made
                 immediatly
                 before
                 reading
                 of
                 the
                 Letters
                 ,
                 June
                 21.
                 1681.
                 
                 
                   Innes
                   contra
                   Trotter
                
                 .
                 And
                 Executions
                 of
                 Inhibition
                 at
                 the
                 Mercat
                 Cross
                 ,
                 are
                 declared
                 null
                 ,
                 if
                 there
                 were
                 not
                 a
                 Coppy
                 left
                 affixed
                 upon
                 the
                 Cross
                 ,
                 December
                 19.
                 1678.
                 
                 
                   Iohn
                   Inglis
                   contra
                   Haddoway
                
                 .
                 In
                 this
                 case
                 an
                 Inhibition
                 was
                 not
                 found
                 null
                 ,
                 because
                 the
                 Executions
                 bore
                 ,
                 
                   to
                   be
                   at
                   the
                   dwelling-house
                
                 ,
                 without
                 designing
                 the
                 same
                 ;
                 the
                 Defender
                 designing
                 the
                 dwelling-house
                 ,
                 and
                 byding
                 by
                 the
                 same
                 as
                 the
                 true
                 Dwelling-house
                 ,
                 December
                 22.
                 1676.
                 
                   inter
                   eosdem
                
                 .
                 The
                 like
                 ,
                 where
                 the
                 Designation
                 in
                 the
                 body
                 of
                 the
                 Inhibition
                 was
                 
                   Merchant
                   Burgess
                   of
                
                 Edinburgh
                 ,
                 which
                 was
                 presumed
                 his
                 Residence
                 ,
                 unless
                 the
                 contrary
                 were
                 proven
                 ,
                 July
                 7.
                 1676.
                 
                 
                   Quintine
                   Findlay
                   contra
                   Little
                   of
                   Libertoun
                   .
                
              
            
             
               
               
                 TITLE
                 XIV
                 .
                 Superiority
                 where
                 ,
                 of
                 its
                 Casualities
                 ,
                 Non-entry
                 ,
                 Relief
                 ,
                 Compositions
                 for
                 Entries
                 ,
                 Ward
                 ,
                 Marriage
                 and
                 Liferent
                 Escheat
                 .
              
               
                 
                   1.
                   
                   The
                   Superiours
                   
                     Dominium
                     directum
                  
                   .
                
                 
                   2.
                   
                   How
                   Property
                   is
                   established
                   in
                   the
                   King.
                   
                
                 
                   3.
                   
                   Superiours
                   may
                   exerce
                   all
                   acts
                   of
                   Property
                   ,
                   except
                   against
                   their
                   Vassals
                   .
                
                 
                   4.
                   
                   How
                   the
                   Properly
                   coming
                   in
                   the
                   person
                   of
                   the
                   Superiour
                   ,
                   is
                   established
                   .
                
                 
                   5.
                   
                   Superiours
                   cannot
                   interpose
                   betwixt
                   them
                   and
                   their
                   Vassals
                   .
                
                 
                   6.
                   
                   How
                   far
                   Superiours
                   need
                   to
                   instruct
                   their
                   Title
                   ?
                
                 
                   7.
                   
                   Superiours
                   have
                   personal
                   action
                   against
                   intromettors
                   with
                   the
                   Rent
                   of
                   the
                   Land
                   ,
                   for
                   their
                   reddendo
                
                 
                   8.
                   
                   They
                   have
                   also
                   real
                   action
                   for
                   the
                   same
                   ,
                   by
                   Painding
                   of
                   the
                   Ground
                   .
                
                 
                   9.
                   
                   Jurisdiction
                   of
                   Superiours
                   .
                
                 
                   10.
                   
                   Superiority
                   carrieth
                   to
                   Heirs
                   and
                   singular
                   Successor
                   ,
                   all
                   bygone
                   Casualities
                   not
                   separat
                   by
                   Gifts
                   or
                   Decreets
                   .
                
                 
                   11.
                   
                   Superiours
                   of
                   Kirk-lands
                   need
                   not
                   instruct
                   a
                   consent
                   to
                   the
                   surrender
                   .
                
                 
                   12.
                   
                   Superiours
                   must
                   receive
                   Appryzers
                   or
                   Adjudgers
                   ,
                   or
                   pay
                   the
                   Debt
                   .
                   
                     salvo
                     juresuo
                  
                   .
                
                 
                   
                   
                   
                   13.
                   
                   He
                   must
                   receive
                   the
                   Kings
                   Donatar
                   upon
                   presentation
                   Gratis
                   .
                
                 
                   14.
                   
                   He
                   must
                   receive
                   his
                   subvassal
                   ,
                   whom
                   his
                   immediat
                   Vassal
                   refused
                   to
                   enter
                   .
                
                 
                   15.
                   
                   How
                   far
                   Superiours
                   may
                   extend
                   gifts
                   of
                   their
                   own
                   Ward
                   against
                   their
                   Vassals
                   .
                
                 
                   16.
                   
                   Superiours
                   need
                   not
                   accept
                   Resignation
                   or
                   Confirmation
                   ,
                   and
                   if
                   they
                   do
                   ,
                   it
                   is
                   
                     salvo
                     jure
                     suo
                  
                   .
                
                 
                   17.
                   
                   Superiority
                   falling
                   to
                   more
                   persons
                   the
                   eldest
                   heir
                   or
                   greatest
                   interest
                   only
                   receives
                   the
                   Vassals
                   .
                
                 
                   18.
                   
                   Non-entry
                   falls
                   when
                   Inseftment
                   is
                   not
                   renewed
                   by
                   every
                   Vassals
                   heir
                   or
                   singular
                   successor
                   or
                   upon
                   Resignation
                   .
                
                 
                   19.
                   
                   Non-entry
                   falls
                   by
                   Reduction
                   or
                   nullity
                   of
                   Infeftments
                   ,
                   or
                   retours
                   .
                
                 
                   20.
                   
                   Burgage
                   falls
                   not
                   in
                   Non-entrie
                   ,
                   as
                   to
                   the
                   Burgh
                   or
                   particular
                   persons
                   .
                
                 
                   21.
                   
                   The
                   effect
                   of
                   the
                   general
                   Declarator
                   of
                   Non-entry
                   .
                
                 
                   22.
                   
                   The
                   effect
                   of
                   Non-entrie
                   ,
                   after
                   Citation
                   in
                   the
                   general
                   Declarator
                   .
                
                 
                   23.
                   
                   Exceptions
                   against
                   Non-entry
                   ,
                   as
                   to
                   the
                   Feu-dutie
                   or
                   retoured
                   mail
                   .
                
                 
                   24.
                   
                   Exceptions
                   against
                   Non-entrie
                   ,
                   as
                   to
                   the
                   full
                   Rent
                   .
                
                 
                   25.
                   
                   Whether
                   Non-entrie
                   after
                   Ward
                   ,
                   requires
                   Declarator
                   .
                
                 
                   26.
                   
                   The
                   Original
                   of
                   Relief
                   .
                
                 
                   27.
                   
                   The
                   Custom
                   of
                   England
                   and
                   France
                   ,
                   as
                   to
                   Relief
                   .
                
                 
                   28.
                   
                   The
                   quantitie
                   of
                   Relief
                   with
                   us
                   .
                
                 
                   29.
                   
                   Whether
                   Relief
                   be
                   due
                   during
                   Non-entrie
                   .
                
                 
                   30.
                   
                   Whether
                   Relief
                   is
                   due
                   when
                   the
                   heir
                   is
                   entered
                   ,
                   whether
                   the
                   Fee
                   be
                   burdened
                   with
                   Conjunct-fee
                   ,
                   or
                   Liferent
                   .
                
                 
                   31.
                   
                   Relief
                   stops
                   not
                   the
                   heirs
                   Seasine
                   .
                
                 
                   32.
                   
                   Compositions
                   for
                   the
                   Entrie
                   of
                   Appryzers
                   or
                   Adjudgers
                   .
                
                 
                   33.
                   
                   The
                   Original
                   of
                   Ward
                   .
                
                 
                   34.
                   
                   The
                   effect
                   of
                   Ward
                   as
                   to
                   the
                   heirs
                   person
                   .
                
                 
                   35.
                   
                   The
                   effect
                   of
                   Ward
                   as
                   to
                   the
                   fee.
                   
                
                 
                   36.
                   
                   The
                   restrictions
                   of
                   Ward
                   .
                
                 
                   37.
                   
                   The
                   value
                   of
                   the
                   Marriage
                   of
                   heirs
                   of
                   Ward-vassals
                   .
                
                 
                   38.
                   
                   The
                   true
                   interest
                   of
                   Superiours
                   in
                   the
                   Marriage
                   of
                   their
                   Vassals
                   .
                
                 
                   39.
                   
                   The
                   single
                   value
                   of
                   Marriage
                   ,
                   not
                   penal
                   but
                   favourable
                   .
                
                 
                   40.
                   
                   Double
                   value
                   penal
                   and
                   unfavourable
                   ,
                   with
                   the
                   exceptions
                   against
                   it
                   .
                
                 
                   41.
                   
                   Single
                   value
                   found
                   due
                   where
                   the
                   heir
                   was
                   Married
                   before
                   his
                   Predecessor
                   died
                   by
                   precipitation
                   .
                
                 
                   42.
                   
                   The
                   quantity
                   of
                   the
                   single
                   value
                   in
                   heirs
                   male
                   or
                   female
                   .
                
                 
                   43.
                   
                   Marriage
                   is
                   
                     debitum
                     fundi
                  
                   .
                
                 
                   44.
                   
                   It
                   belongs
                   to
                   the
                   eldest
                   Superiour
                   .
                
                 
                   45.
                   
                   The
                   Royal
                   Prerogative
                   prefers
                   the
                   King
                   to
                   all
                   others
                   ,
                   as
                   to
                   the
                   Marriage
                   ,
                   of
                   the
                   Vassal
                   .
                
                 
                   46.
                   
                   Marriage
                   is
                   due
                   by
                   the
                   heirs
                   of
                   Appryzers
                   .
                
                 
                   47.
                   
                   Exceptions
                   against
                   the
                   value
                   of
                   marriage
                   .
                
                 
                   48.
                   
                   The
                   rise
                   of
                   Liferent-escheat
                   .
                
                 
                   49.
                   
                   It
                   extends
                   to
                   all
                   kinds
                   of
                   Liferents
                   .
                
                 
                   50.
                   
                   Liferents
                   of
                   fees
                   not
                   having
                   Infeftment
                   ,
                   or
                   not
                   owing
                   fidelity
                   to
                   a
                   Subject
                   ,
                   belong
                   to
                   the
                   King.
                   
                
                 
                   51.
                   
                   Liferent
                   escheat
                   of
                   sub-vassals
                   ,
                   to
                   whom
                   they
                   belong
                   .
                
                 
                   52.
                   
                   Liferent
                   Escheat
                   is
                   not
                   excluded
                   by
                   voluntary
                   Infeftments
                   ,
                   after
                   Denunciation
                   ,
                   not
                   being
                   for
                   implement
                   of
                   a
                   special
                   Obliegement
                   ,
                   to
                   Infeft
                   before
                   Denunciation
                   .
                
                 
                   
                   53.
                   
                   Liferent
                   Escheat
                   is
                   excluded
                   by
                   Appryzing
                   for
                   debts
                   ,
                   anterior
                   to
                   the
                   Rebellion
                   ,
                   there
                   being
                   Infeftments
                   ,
                   or
                   Charge
                   ,
                   
                     in
                     cursu
                     rebellionis
                  
                   .
                
                 
                   54.
                   
                   Liferent
                   Esche
                   it
                   extends
                   not
                   to
                   Burgage
                   or
                   mortification
                   .
                
                 
                   55.
                   
                   But
                   extends
                   to
                   Ministers
                   Stipends
                   .
                
                 
                   56.
                   
                   Liferent
                   Escheat
                   is
                   made
                   Effectual
                   by
                   Declarator
                   .
                
              
               
                 HAVING
                 now
                 shown
                 what
                 is
                 the
                 interest
                 of
                 the
                 Vassal
                 in
                 the
                 Fee
                 ,
                 it
                 will
                 be
                 the
                 more
                 easie
                 to
                 find
                 out
                 what
                 the
                 Superiours
                 Right
                 of
                 the
                 Superiority
                 retaineth
                 ;
                 for
                 what
                 is
                 proper
                 to
                 the
                 Fee
                 ,
                 and
                 is
                 not
                 Disponed
                 to
                 the
                 Vassal
                 ,
                 is
                 reserved
                 to
                 the
                 Superiour
                 ,
                 and
                 it
                 is
                 either
                 Constitute
                 as
                 belonging
                 to
                 the
                 Superiour
                 constantly
                 ,
                 or
                 casually
                 .
              
               
                 1.
                 
                 The
                 constant
                 Right
                 of
                 the
                 Superiour
                 standeth
                 mainly
                 in
                 these
                 particulars
                 ;
                 First
                 ,
                 Superiority
                 it self
                 is
                 
                   dominium
                   directum
                
                 ,
                 as
                 the
                 Tenentry
                 is
                 but
                 
                   dominium
                   utile
                
                 (
                 as
                 before
                 is
                 shown
                 )
                 and
                 therefore
                 ,
                 the
                 Superiour
                 must
                 be
                 Infeft
                 ,
                 as
                 well
                 as
                 the
                 Vassal
                 ,
                 and
                 that
                 in
                 the
                 Lands
                 and
                 Tenement
                 it self
                 ,
                 without
                 mention
                 of
                 the
                 Superiority
                 which
                 followeth
                 ,
                 but
                 upon
                 the
                 Concession
                 of
                 the
                 Fee
                 in
                 Tenentry
                 ,
                 though
                 sometimes
                 through
                 the
                 ignorance
                 of
                 Writers
                 ,
                 Infeftments
                 bear
                 expresly
                 
                   to
                   be
                   of
                   the
                   Superiority
                
                 .
              
               
                 2.
                 
                 Only
                 the
                 Soveraign
                 Authority
                 ,
                 as
                 the
                 common
                 Fountain
                 of
                 all
                 Rights
                 of
                 the
                 Ground
                 ,
                 needs
                 no
                 Infeftment
                 ,
                 but
                 hath
                 his
                 Right
                 founded
                 
                   in
                   jure
                   communi
                
                 ,
                 and
                 is
                 not
                 Feudal
                 but
                 Allodial
                 ;
                 and
                 when
                 the
                 Right
                 of
                 Lands
                 fall
                 to
                 the
                 King
                 ,
                 by
                 the
                 Casuality
                 of
                 his
                 Superiority
                 ,
                 as
                 Forefaulture
                 ,
                 Recognition
                 ,
                 Bastardry
                 or
                 last
                 heir
                 ,
                 if
                 the
                 Lands
                 be
                 holden
                 immediatly
                 of
                 the
                 King
                 ,
                 they
                 are
                 
                   ipso
                   facto
                
                 ,
                 consolidat
                 with
                 the
                 Superiority
                 ,
                 and
                 the
                 Declarators
                 required
                 thereanent
                 ,
                 do
                 not
                 Constitute
                 ,
                 but
                 declare
                 the
                 Kings
                 Right
                 ,
                 without
                 prejudice
                 of
                 what
                 is
                 consumed
                 ,
                 
                   bona
                   fide
                
                 :
                 But
                 where
                 they
                 are
                 not
                 holden
                 immediatly
                 of
                 the
                 King
                 ,
                 the
                 Right
                 thereof
                 is
                 perfected
                 by
                 Gift
                 and
                 Presentation
                 ,
                 whereby
                 the
                 immediat
                 Superiour
                 is
                 oblieged
                 to
                 receive
                 the
                 Donatar
                 by
                 Infeftment
                 ,
                 like
                 to
                 that
                 of
                 his
                 former
                 Vassal
                 ;
                 yet
                 the
                 Kings
                 Right
                 by
                 the
                 Casuality
                 ,
                 though
                 it
                 be
                 not
                 perfected
                 ,
                 is
                 real
                 and
                 effectual
                 against
                 all
                 singular
                 Successours
                 ,
                 whereby
                 deeds
                 of
                 Treason
                 and
                 Recognition
                 ,
                 being
                 in
                 Facts
                 ordinarly
                 proven
                 by
                 Witnesses
                 :
                 Purchasers
                 cannot
                 be
                 secured
                 by
                 any
                 Register
                 ;
                 and
                 therefore
                 ,
                 must
                 secure
                 themselves
                 by
                 the
                 Kings
                 Confirmation
                 ,
                 &
                 
                   novo
                   damus
                
                 .
                 But
                 where
                 the
                 King
                 succeeds
                 in
                 any
                 Fee
                 to
                 a
                 Subject
                 ,
                 as
                 to
                 Property
                 or
                 Superiority
                 ,
                 before
                 he
                 can
                 alienat
                 the
                 same
                 ,
                 he
                 must
                 be
                 served
                 Heir
                 in
                 special
                 thereunto
                 ;
                 so
                 King
                 CHARLES
                 the
                 first
                 was
                 served
                 Heir
                 to
                 Queen
                 Ann
                 his
                 Mother
                 in
                 the
                 Lordship
                 
                 of
                 Dumfermling
                 ,
                 in
                 which
                 King
                 James
                 Infeft
                 her
                 in
                 Fee
                 ,
                 to
                 her
                 and
                 her
                 Heirs
                 ,
                 by
                 a
                 Morning-gift
                 ,
                 the
                 first
                 day
                 after
                 his
                 Marriage
                 with
                 her
                 ;
                 and
                 King
                 Charles
                 the
                 second
                 was
                 served
                 Heir
                 to
                 Charles
                 Duke
                 of
                 Lennox
                 in
                 the
                 Earldom
                 of
                 Lennox
                 :
                 In
                 which
                 Service
                 ,
                 the
                 Chancellour
                 and
                 fourteen
                 of
                 the
                 Lords
                 of
                 Session
                 ,
                 were
                 the
                 Inquest
                 ,
                 the
                 youngest
                 Lord
                 being
                 left
                 out
                 ,
                 because
                 there
                 could
                 be
                 no
                 more
                 but
                 fifteen
                 :
                 But
                 the
                 King
                 needs
                 no
                 Infeftment
                 upon
                 such
                 Retours
                 ;
                 but
                 if
                 he
                 acquire
                 any
                 Lands
                 holden
                 immediatly
                 of
                 himself
                 ,
                 the
                 Instrument
                 of
                 Resignation
                 must
                 be
                 Registrat
                 ;
                 and
                 if
                 holden
                 of
                 a
                 Subject
                 ,
                 there
                 ariseth
                 no
                 real
                 Right
                 to
                 a
                 Donatar
                 till
                 he
                 be
                 Infeft
                 upon
                 the
                 Kings
                 Presentation
                 ,
                 and
                 his
                 Seasine
                 Registrat
                 ;
                 by
                 both
                 which
                 ,
                 the
                 certainty
                 of
                 Land-rights
                 is
                 preserved
                 .
              
               
                 3.
                 
                 Secondly
                 ,
                 Superiority
                 carrieth
                 a
                 Right
                 to
                 all
                 Actions
                 following
                 the
                 Land
                 ,
                 against
                 any
                 other
                 then
                 the
                 Vassal
                 ;
                 for
                 seing
                 Superiours
                 are
                 Infeft
                 in
                 the
                 Lands
                 ,
                 they
                 can
                 only
                 be
                 repelled
                 from
                 such
                 Actions
                 ,
                 by
                 the
                 Rights
                 granted
                 to
                 their
                 Vassals
                 ,
                 but
                 by
                 no
                 others
                 ,
                 and
                 so
                 may
                 remove
                 Possessors
                 ,
                 who
                 can
                 show
                 no
                 Right
                 ;
                 this
                 was
                 found
                 ,
                 though
                 the
                 Superiours
                 Infeftment
                 ,
                 bore
                 him
                 only
                 
                   to
                   be
                   Infeft
                   in
                   the
                   Superiority
                   of
                   the
                   Lands
                   ,
                   November
                
                 19.
                 1624.
                 
                 
                   Lag
                   contra
                
                 his
                 Tennents
                 .
              
               
                 4.
                 
                 If
                 a
                 Superiour
                 become
                 Fiar
                 by
                 Succession
                 ,
                 or
                 Acquisition
                 ,
                 for
                 Establishing
                 the
                 Property
                 in
                 his
                 Person
                 ,
                 he
                 may
                 either
                 be
                 Infeft
                 upon
                 his
                 own
                 Precept
                 or
                 the
                 Kings
                 ,
                 November
                 26.
                 1668.
                 
                 Daughters
                 of
                 Mr.
                 
                   Robert
                   Mortoun
                
                 .
              
               
                 5.
                 
                 But
                 a
                 Superiour
                 cannot
                 interpose
                 betwixt
                 himself
                 and
                 his
                 Vassals
                 ,
                 by
                 Infefting
                 another
                 in
                 the
                 Lands
                 to
                 be
                 holden
                 of
                 himself
                 ,
                 Such
                 infeftment
                 was
                 found
                 null
                 by
                 Exception
                 ,
                 January
                 30.
                 1671.
                 
                 Dowglas
                 of
                 
                   Kelhead
                   contra
                
                 Vassals
                 .
              
               
                 Superiours
                 must
                 receive
                 and
                 Infeft
                 their
                 Sub-vassals
                 upon
                 the
                 refusal
                 ,
                 or
                 incapacity
                 of
                 the
                 Vassal
                 ,
                 and
                 may
                 at
                 any
                 time
                 after
                 ,
                 receive
                 the
                 immediat
                 Vassal
                 ,
                 or
                 his
                 Successour
                 ;
                 or
                 another
                 ,
                 if
                 the
                 immediat
                 Vassals
                 Right
                 be
                 extinct
                 ,
                 or
                 acquired
                 by
                 the
                 Superiour
                 ,
                 which
                 is
                 no
                 unwarrantable
                 Interposition
                 ,
                 which
                 is
                 repelled
                 as
                 contrary
                 to
                 the
                 Nature
                 of
                 the
                 Feudal
                 Contract
                 and
                 Right
                 ,
                 it
                 being
                 inconsistent
                 that
                 the
                 Superiour
                 should
                 both
                 give
                 his
                 Superiority
                 to
                 another
                 ,
                 and
                 claim
                 it
                 himself
                 ,
                 
                   Dans
                   &
                   retinens
                   nihil
                   dat
                
                 ;
                 And
                 if
                 that
                 were
                 allowed
                 ,
                 interposed
                 Vassals
                 might
                 be
                 infinitely
                 multiplied
                 ,
                 November
                 26.
                 1672.
                 
                 Earl
                 of
                 
                   Argyle
                   contra
                   Mcleod
                
                 ;
                 in
                 which
                 case
                 ,
                 the
                 late
                 Marquess
                 of
                 Argyle
                 being
                 forefault
                 ,
                 Mcleod
                 who
                 was
                 Argyles
                 Vassal
                 ,
                 was
                 retoured
                 and
                 Infeft
                 in
                 the
                 Lands
                 ,
                 as
                 holden
                 immediatly
                 of
                 the
                 King
                 ,
                 which
                 did
                 not
                 hinder
                 the
                 King
                 to
                 Interpose
                 this
                 Earl
                 of
                 Argile
                 as
                 Donatar
                 to
                 his
                 Fathers
                 forefaulture
                 ,
                 seing
                 the
                 King
                 had
                 done
                 no
                 deed
                 to
                 accept
                 Mcleod
                 as
                 his
                 immediat
                 Vassal
                 ;
                 but
                 that
                 he
                 was
                 Infeft
                 by
                 Precepts
                 out
                 of
                 the
                 Chanclery
                 ,
                 passing
                 of
                 course
                 .
              
               
                 6.
                 
                 Superiours
                 nor
                 their
                 donatars
                 need
                 not
                 instruct
                 the
                 Superiours
                 Right
                 ;
                 but
                 the
                 Vassal
                 must
                 acknowledge
                 it
                 ,
                 or
                 disclaim
                 him
                 upon
                 his
                 peril
                 ,
                 so
                 it
                 was
                 found
                 in
                 the
                 Casuality
                 of
                 Marriage
                 ,
                 February
                 25.
                 1662.
                 
                 
                   Arbuthnet
                   contra
                   Keiths
                
                 ,
                 which
                 will
                 not
                 hold
                 ,
                 if
                 the
                 Right
                 of
                 Superiority
                 be
                 newly
                 acquired
                 ,
                 and
                 no
                 Infeftment
                 given
                 to
                 the
                 Vassal
                 ,
                 or
                 his
                 Predecessors
                 by
                 vertue
                 thereof
                 .
              
               
                 The
                 Superiours
                 Infeftment
                 gives
                 him
                 interest
                 to
                 pursue
                 Reductions
                 and
                 Improbations
                 ,
                 against
                 all
                 parties
                 ,
                 even
                 against
                 his
                 own
                 Vassals
                 ,
                 who
                 will
                 be
                 forced
                 to
                 produce
                 their
                 rights
                 ,
                 under
                 the
                 Certification
                 ,
                 to
                 be
                 declared
                 null
                 ;
                 or
                 false
                 and
                 feigned
                 ,
                 though
                 ,
                 when
                 they
                 are
                 produced
                 ,
                 they
                 may
                 defend
                 them
                 .
              
               
               
                 7.
                 
                 Superiority
                 carrieth
                 a
                 right
                 to
                 the
                 Service
                 and
                 Duty
                 contained
                 in
                 the
                 Vassals
                 reddendo
                 ,
                 and
                 that
                 not
                 only
                 personally
                 against
                 the
                 Vassal
                 ,
                 upon
                 any
                 personal
                 Obligation
                 ,
                 or
                 Contract
                 in
                 Write
                 ;
                 but
                 also
                 by
                 vertue
                 of
                 Intromission
                 ,
                 in
                 meddling
                 with
                 the
                 Fruits
                 and
                 Profits
                 of
                 the
                 Land
                 ,
                 for
                 all
                 such
                 intromettors
                 may
                 be
                 pursued
                 ,
                 and
                 distressed
                 personally
                 for
                 the
                 Duties
                 contained
                 in
                 the
                 reddendo
                 ,
                 which
                 being
                 granted
                 to
                 Masters
                 of
                 the
                 Ground
                 ,
                 for
                 their
                 Tack
                 Duty
                 against
                 Tennents
                 ,
                 and
                 all
                 intromettors
                 with
                 the
                 rents
                 ,
                 is
                 much
                 more
                 competent
                 to
                 the
                 Superiour
                 ,
                 for
                 his
                 Feu-duty
                 or
                 other
                 Service
                 in
                 kind
                 ;
                 how
                 far
                 this
                 will
                 be
                 extended
                 to
                 Blensh-duty
                 ,
                 hath
                 been
                 shown
                 in
                 the
                 former
                 Title
                 .
                 And
                 as
                 to
                 Services
                 which
                 are
                 annual
                 ,
                 as
                 winning
                 and
                 leading
                 of
                 Peats
                 ,
                 &c.
                 these
                 are
                 not
                 due
                 ,
                 if
                 they
                 be
                 not
                 required
                 yearly
                 in
                 due
                 time
                 ,
                 whether
                 they
                 be
                 due
                 by
                 Vassals
                 to
                 the
                 Superiour
                 ,
                 or
                 Tennents
                 to
                 their
                 Master
                 .
                 
                   January
                   penult
                
                 .
                 1624.
                 
                 
                   Carnowsie
                   contra
                   Keith
                
                 .
                 So
                 Service
                 of
                 Harrage
                 and
                 Carriage
                 in
                 a
                 Feu-duty
                 ,
                 was
                 found
                 not
                 due
                 ,
                 but
                 when
                 demanded
                 within
                 the
                 year
                 ,
                 June
                 27.
                 1662.
                 
                 Mr.
                 
                   David
                   Watson
                   contra
                
                 Mr.
                 
                   James
                   Elleis
                
                 .
              
               
                 8.
                 
                 But
                 also
                 the
                 Superiority
                 carrieth
                 the
                 right
                 to
                 the
                 duty
                 of
                 the
                 reddendo
                 ,
                 really
                 against
                 the
                 ground
                 of
                 the
                 Fee
                 ,
                 for
                 which
                 he
                 hath
                 Action
                 of
                 Poinding
                 of
                 the
                 Ground
                 ,
                 against
                 the
                 Vassal
                 and
                 all
                 singular
                 Successors
                 to
                 him
                 ,
                 whereby
                 he
                 may
                 appryze
                 the
                 Goods
                 upon
                 the
                 Ground
                 ,
                 or
                 the
                 Ground-right
                 and
                 Property
                 of
                 the
                 Lands
                 ,
                 the
                 saids
                 Duties
                 being
                 liquidat
                 ,
                 upon
                 repayment
                 whereof
                 ,
                 the
                 Lands
                 are
                 redeemable
                 as
                 in
                 other
                 Appryzings
                 .
              
               
                 9.
                 
                 Superiority
                 carrieth
                 the
                 Right
                 of
                 Jurisdiction
                 over
                 the
                 Vassals
                 Lands
                 and
                 Inhabitants
                 thereof
                 ,
                 if
                 the
                 same
                 be
                 granted
                 to
                 the
                 Superiour
                 in
                 his
                 own
                 Infeftment
                 ,
                 either
                 implicitely
                 as
                 being
                 a
                 Barrony
                 ,
                 Lordship
                 or
                 Earldom
                 ,
                 or
                 expresly
                 ,
                 having
                 the
                 power
                 of
                 Courts
                 and
                 their
                 Issues
                 ;
                 and
                 though
                 the
                 Superiour
                 grant
                 the
                 same
                 to
                 the
                 Vassal
                 ,
                 yet
                 that
                 is
                 not
                 exclusive
                 of
                 his
                 own
                 right
                 ,
                 but
                 cumulative
                 therewith
                 ;
                 how
                 far
                 Superiority
                 carrieth
                 the
                 right
                 of
                 Thirlage
                 of
                 the
                 Vassals
                 Lands
                 to
                 their
                 Superiours
                 Milns
                 ,
                 when
                 the
                 Vassals
                 have
                 not
                 granted
                 to
                 them
                 the
                 priviledge
                 of
                 Milns
                 and
                 Multars
                 ,
                 will
                 appear
                 amongst
                 Servitudes
                 ,
                 of
                 which
                 hereafter
                 .
              
               
                 10.
                 
                 Superiority
                 carries
                 all
                 the
                 Casualities
                 thereof
                 ,
                 requiring
                 Declarator
                 to
                 Heirs
                 and
                 singular
                 Successors
                 ,
                 
                   hoc
                   ipso
                
                 ,
                 that
                 they
                 have
                 the
                 Superiority
                 established
                 in
                 their
                 person
                 ,
                 and
                 do
                 not
                 fall
                 to
                 the
                 Executors
                 of
                 the
                 Superiour
                 ,
                 as
                 to
                 bygones
                 ,
                 before
                 his
                 death
                 ,
                 unless
                 gifted
                 or
                 liquidat
                 by
                 Sentence
                 ,
                 March
                 5.
                 1611.
                 
                 
                   Dowglas
                   contra
                
                 Captain
                 
                   Crawford
                   .
                   February
                
                 19.
                 1635.
                 
                 
                   Cunninghame
                   contra
                   Stuart
                   .
                   July
                
                 11.
                 1673.
                 
                 
                   Robert
                   Fa
                   contra
                
                 Lord
                 Balmerino
                 and
                 Laird
                 of
                 Pourie
                 .
                 But
                 Feu-duties
                 ,
                 or
                 any
                 Casuality
                 may
                 be
                 separat
                 from
                 the
                 Superiority
                 ,
                 by
                 Sentence
                 or
                 Assignation
                 ;
                 and
                 therefore
                 ,
                 a
                 Disposition
                 of
                 the
                 Superiority
                 ,
                 was
                 found
                 to
                 imply
                 an
                 Assignation
                 to
                 the
                 Feu-duties
                 bygone
                 ,
                 which
                 being
                 to
                 the
                 vassal
                 himself
                 ,
                 needed
                 no
                 intimation
                 ,
                 and
                 was
                 valid
                 against
                 a
                 singular
                 Successor
                 Infeft
                 in
                 the
                 Lands
                 in
                 Superiority
                 ,
                 December
                 14.
                 1676.
                 
                 Earl
                 of
                 
                   Argile
                   contra
                
                 Lord
                 Mcdonald
                 .
              
               
                 11.
                 
                 A
                 Superiour
                 of
                 Kirk-lands
                 pursuing
                 his
                 vassal
                 for
                 his
                 reddendo
                 ,
                 was
                 not
                 excluded
                 till
                 he
                 instructed
                 that
                 he
                 consented
                 to
                 the
                 surrender
                 ,
                 conform
                 to
                 the
                 Act
                 of
                 Parliament
                 1633.
                 annexing
                 the
                 Superiority
                 of
                 Kirk-lands
                 to
                 the
                 Crown
                 ,
                 reserving
                 the
                 Feu-duties
                 to
                 the
                 Lords
                 of
                 Erection
                 ,
                 who
                 consented
                 to
                 the
                 surrender
                 ,
                 which
                 was
                 presumed
                 
                   in
                   possessorio
                   ,
                   June
                
                 27.
                 1662.
                 
                 Mr.
                 
                   David
                   Watson
                   contra
                
                 Mr.
                 
                   James
                   Elleis
                
                 .
              
               
               
               
               
                 12.
                 
                 Superiours
                 are
                 oblieged
                 to
                 receive
                 Appryzers
                 or
                 Adjudgers
                 for
                 a
                 years
                 Duty
                 ,
                 albeit
                 the
                 Superiour
                 alledge
                 a
                 better
                 Right
                 then
                 the
                 Appryzer
                 ;
                 but
                 the
                 Infeftment
                 to
                 bear
                 ,
                 
                   salvo
                   jure
                   cujuslibet
                   &
                   suo
                   ,
                   July
                
                 4.
                 1667.
                 
                 
                   George
                   Shein
                   contra
                   James
                   Chrystie
                
                 .
                 Yet
                 a
                 Superiour
                 having
                 received
                 an
                 Appryzer
                 ,
                 was
                 not
                 found
                 excluded
                 from
                 any
                 right
                 to
                 the
                 Property
                 ,
                 though
                 he
                 made
                 no
                 reservation
                 thereof
                 ,
                 seing
                 his
                 receiving
                 was
                 necessary
                 ,
                 July
                 19.
                 1664.
                 
                 Hospital
                 of
                 
                   Glasgow
                   contra
                   Robert
                   Campbel
                
                 .
                 But
                 a
                 Superiour
                 being
                 charged
                 to
                 receive
                 an
                 Adjudger
                 ,
                 was
                 found
                 to
                 have
                 his
                 option
                 ,
                 either
                 to
                 receive
                 him
                 for
                 a
                 years
                 Rent
                 ,
                 or
                 to
                 pay
                 the
                 sum
                 adjudged
                 ,
                 for
                 getting
                 Assignation
                 to
                 the
                 Adjudication
                 ,
                 being
                 redeemable
                 by
                 the
                 Vassal
                 from
                 the
                 Superiour
                 ,
                 and
                 without
                 any
                 years
                 Entry
                 to
                 be
                 payed
                 at
                 Redemption
                 ,
                 seing
                 the
                 Vassal
                 was
                 not
                 changed
                 ,
                 as
                 is
                 provided
                 ,
                 Par.
                 1439.
                 cap.
                 36.
                 
                 June
                 10.
                 1671.
                 
                 Sir
                 
                   Francis
                   Scot
                
                 of
                 
                   Thirlestain
                   contra
                
                 Lord
                 Drumlanerk
                 .
              
               
                 13.
                 
                 And
                 a
                 Superiour
                 is
                 also
                 oblieged
                 to
                 receive
                 a
                 Donatar
                 upon
                 the
                 Kings
                 Presentation
                 ,
                 gratis
                 ,
                 without
                 present
                 payment
                 of
                 the
                 Non-entry
                 duties
                 ,
                 till
                 declarator
                 ,
                 and
                 if
                 he
                 refuse
                 ,
                 he
                 loses
                 his
                 Superiority
                 during
                 his
                 Life
                 ,
                 June
                 25.
                 1680.
                 
                 Laird
                 of
                 
                   Blair
                   contra
                
                 Lord
                 Montgomerie
                 .
              
               
                 14.
                 
                 A
                 Superiour
                 must
                 also
                 receive
                 his
                 Sub-vassal
                 ,
                 whom
                 his
                 immediat
                 Vassal
                 refused
                 to
                 Enter
                 without
                 further
                 instructing
                 of
                 the
                 Vassals
                 Right
                 ,
                 but
                 by
                 receipt
                 of
                 the
                 Feu-duty
                 ,
                 by
                 him
                 as
                 Superiour
                 ,
                 wherein
                 the
                 mediat
                 Superiour
                 
                   supplet
                   vicem
                
                 ,
                 of
                 the
                 immediat
                 
                   salvo
                   jure
                   ,
                   June
                
                 28.
                 1672.
                 
                 
                   Menzies
                   contra
                
                 Laird
                 of
                 〈◊〉
                 .
              
               
                 Yet
                 a
                 Superiour
                 cannot
                 exclude
                 an
                 Appryzer
                 or
                 Adjudger
                 within
                 the
                 legal
                 ,
                 from
                 the
                 Rent
                 of
                 the
                 〈◊〉
                 ,
                 till
                 he
                 pay
                 a
                 years
                 rent
                 ,
                 December
                 3.
                 1672.
                 
                 Mr.
                 
                   Hendry
                   Hay
                   contra
                   Earlstoun
                
                 .
              
               
                 15.
                 
                 And
                 if
                 a
                 Superiour
                 or
                 any
                 to
                 his
                 behove
                 ,
                 take
                 the
                 gift
                 of
                 his
                 own
                 Ward
                 ,
                 he
                 was
                 found
                 to
                 have
                 no
                 interest
                 to
                 extend
                 it
                 further
                 against
                 his
                 Vissal
                 ,
                 Infeft
                 with
                 absolute
                 warrandice
                 ,
                 then
                 to
                 a
                 proportional
                 part
                 of
                 the
                 Composition
                 and
                 Expenses
                 ,
                 February
                 15.
                 1665.
                 
                 Boyd
                 of
                 
                   Penkil
                   cintra
                
                 Tennents
                 of
                 Carslooth
                 .
                 The
                 like
                 ,
                 where
                 the
                 Ward
                 had
                 fallen
                 after
                 the
                 Vassals
                 Right
                 ;
                 for
                 ,
                 if
                 it
                 had
                 fallen
                 before
                 ,
                 he
                 could
                 have
                 nothing
                 ,
                 December
                 1.
                 1676.
                 
                 Lord
                 
                   Lindsay
                   contra
                   Bargallon
                
                 .
              
               
                 16.
                 
                 Superiours
                 are
                 not
                 oblieged
                 to
                 receive
                 upon
                 Resignation
                 ,
                 or
                 by
                 Confirmation
                 ,
                 and
                 having
                 accepted
                 Resignation
                 ,
                 it
                 did
                 not
                 exclude
                 the
                 marriage
                 of
                 the
                 Resigners
                 Heir
                 ,
                 there
                 being
                 no
                 Infeftment
                 upon
                 the
                 Resignation
                 before
                 the
                 Resigners
                 death
                 ,
                 November
                 14.
                 1677.
                 
                 Sir
                 
                   William
                   Purves
                   contra
                   Strachan
                
                 of
                 Kinadie
                 .
              
               
                 17.
                 
                 Superiority
                 falling
                 to
                 more
                 Persons
                 ,
                 doth
                 not
                 obliege
                 the
                 Vassal
                 to
                 take
                 Infeftment
                 of
                 them
                 all
                 ,
                 but
                 if
                 heirs
                 portioners
                 ,
                 of
                 the
                 eldest
                 ,
                 July
                 30.
                 1678.
                 
                 Lady
                 
                   Lus
                   contra
                   Inglis
                
                 .
                 And
                 by
                 the
                 same
                 reason
                 ,
                 if
                 the
                 Superiority
                 fall
                 to
                 many
                 singular
                 Successors
                 ,
                 by
                 Appryzing
                 or
                 otherways
                 ,
                 the
                 Vassal
                 needs
                 only
                 take
                 Infeftment
                 of
                 the
                 greatest
                 Interest
                 .
              
               
                 18.
                 
                 The
                 first
                 and
                 most
                 common
                 Casuality
                 of
                 Superiority
                 is
                 Non-entry
                 ,
                 whereby
                 the
                 Fee
                 being
                 void
                 ,
                 and
                 no
                 Infeftment
                 renewed
                 thereof
                 ,
                 through
                 the
                 Vassals
                 neglect
                 ,
                 being
                 capable
                 of
                 Entry
                 thereto
                 ,
                 the
                 Profits
                 thereof
                 belong
                 to
                 the
                 Superiour
                 .
                 By
                 the
                 common
                 Feudal
                 Customs
                 there
                 was
                 not
                 only
                 an
                 Investiture
                 requisite
                 at
                 the
                 Constitution
                 of
                 the
                 Fee
                 ,
                 but
                 it
                 behoved
                 to
                 be
                 renewed
                 ,
                 either
                 at
                 the
                 change
                 of
                 the
                 Vassal
                 ,
                 or
                 at
                 the
                 change
                 of
                 the
                 Superiour
                 ,
                 
                   Guidilinus
                   ,
                   de
                   
                   jure
                   nov
                   .
                   Pars
                
                 2.
                 cap.
                 6.
                 
                 
                   Zoesius
                   ,
                   de
                   feudis
                   ,
                   cap.
                
                 12.
                 
                 But
                 our
                 Custom
                 requires
                 no
                 Infeftment
                 at
                 the
                 change
                 of
                 the
                 Superiour
                 ,
                 but
                 only
                 at
                 the
                 change
                 of
                 the
                 Vassal
                 ;
                 for
                 we
                 require
                 no
                 oaths
                 of
                 fidelity
                 ,
                 but
                 fidelity
                 it self
                 is
                 imported
                 due
                 without
                 an
                 oath
                 :
                 But
                 elsewhere
                 that
                 oath
                 is
                 required
                 ,
                 and
                 being
                 personal
                 ,
                 it
                 ought
                 to
                 be
                 renewed
                 ,
                 both
                 at
                 the
                 change
                 of
                 the
                 Vassal
                 and
                 of
                 the
                 Superiour
                 :
                 but
                 with
                 us
                 there
                 being
                 no
                 Fee
                 without
                 Infeftment
                 ,
                 
                   nulla
                   sasina
                   ,
                   nusla
                   terra
                
                 ;
                 therefore
                 ,
                 the
                 Vassal
                 must
                 have
                 the
                 Infeftment
                 renewed
                 .
                 The
                 renovation
                 of
                 Infeftment
                 to
                 Heirs
                 in
                 France
                 and
                 England
                 is
                 not
                 requisite
                 ,
                 but
                 
                   〈◊〉
                   sasit
                   〈◊〉
                
                 ,
                 as
                 they
                 express
                 it
                 ,
                 by
                 which
                 a
                 special
                 retour
                 perfecteth
                 the
                 Heirs
                 right
                 in
                 his
                 Fee
                 ,
                 with
                 a
                 great
                 deal
                 of
                 ease
                 ,
                 which
                 is
                 not
                 consonant
                 to
                 the
                 common
                 Feudal
                 Customes
                 ,
                 whereby
                 ,
                 if
                 the
                 Vassal
                 within
                 year
                 and
                 day
                 after
                 his
                 predecessors
                 death
                 ,
                 require
                 not
                 to
                 be
                 Entered
                 by
                 his
                 Superiour
                 ,
                 and
                 offer
                 his
                 fidelity
                 ,
                 he
                 forefaults
                 his
                 Fee
                 ,
                 l.
                 2.
                 
                 
                   Feudorum
                   tit
                
                 .
                 24.
                 which
                 severity
                 we
                 use
                 not
                 ,
                 for
                 the
                 Vassal
                 loseth
                 not
                 his
                 Fee
                 by
                 Non-entry
                 ,
                 nor
                 the
                 whole
                 Fruits
                 of
                 it
                 during
                 that
                 time
                 :
                 But
                 our
                 Custome
                 is
                 such
                 ,
                 if
                 by
                 any
                 means
                 the
                 Fee
                 be
                 void
                 ,
                 the
                 Vassals
                 right
                 ceaseth
                 during
                 that
                 time
                 ,
                 and
                 the
                 Fee
                 is
                 in
                 the
                 hands
                 of
                 the
                 Superiour
                 ;
                 and
                 therefore
                 ,
                 in
                 retours
                 to
                 that
                 Article
                 of
                 the
                 Brieve
                 ;
                 It
                 is
                 answered
                 ,
                 that
                 the
                 Lands
                 are
                 in
                 the
                 hands
                 of
                 such
                 a
                 man
                 ,
                 Superiour
                 :
                 And
                 though
                 the
                 Infeftment
                 of
                 the
                 Predecessor
                 against
                 others
                 then
                 the
                 Superiour
                 ,
                 be
                 sufficient
                 to
                 maintain
                 the
                 Right
                 and
                 Possession
                 of
                 the
                 Vassal
                 ;
                 as
                 to
                 his
                 Superiour
                 it
                 hath
                 no
                 effect
                 at
                 all
                 ,
                 after
                 special
                 Declarator
                 ,
                 till
                 the
                 Vassal
                 Enter
                 .
              
               
                 The
                 Fee
                 may
                 be
                 thus
                 void
                 ,
                 first
                 by
                 the
                 minority
                 of
                 the
                 Heir
                 ,
                 whereby
                 he
                 cannot
                 Enter
                 by
                 reason
                 of
                 Ward
                 ,
                 but
                 this
                 is
                 exprest
                 by
                 the
                 name
                 of
                 Ward
                 and
                 Non-entry
                 ,
                 though
                 it
                 may
                 signifie
                 the
                 Fees
                 ,
                 being
                 void
                 ,
                 whether
                 necessarly
                 or
                 voluntarly
                 ;
                 yet
                 it
                 is
                 appropriat
                 to
                 the
                 latter
                 ,
                 and
                 contra
                 distinguished
                 to
                 Ward
                 .
              
               
                 The
                 Fee
                 becomes
                 void
                 by
                 the
                 voluntary
                 outlying
                 of
                 the
                 Vassals
                 Heir
                 ,
                 or
                 by
                 the
                 vassals
                 Resignation
                 in
                 the
                 hands
                 of
                 his
                 Superiour
                 ,
                 for
                 new
                 Infeftment
                 to
                 be
                 given
                 to
                 himself
                 ,
                 or
                 to
                 any
                 other
                 ;
                 for
                 till
                 that
                 Infeftment
                 be
                 taken
                 ,
                 the
                 Fee
                 is
                 also
                 in
                 Non-entry
                 ;
                 for
                 in
                 that
                 case
                 ,
                 the
                 Resignation
                 putteth
                 the
                 Fee
                 in
                 the
                 Superiours
                 hand
                 ,
                 upon
                 whom
                 there
                 is
                 an
                 obliegement
                 to
                 renew
                 the
                 Infeftment
                 ,
                 to
                 the
                 person
                 in
                 whose
                 favours
                 the
                 Resignation
                 was
                 granted
                 ,
                 upon
                 which
                 he
                 may
                 be
                 compelled
                 by
                 a
                 personal
                 action
                 so
                 to
                 do
                 ,
                 and
                 which
                 is
                 carried
                 to
                 that
                 persons
                 Heir
                 ,
                 by
                 a
                 general
                 service
                 as
                 other
                 personal
                 Heretable
                 Rights
                 ,
                 or
                 Dispositions
                 .
              
               
                 19.
                 
                 Or
                 by
                 the
                 Reduction
                 or
                 nullity
                 of
                 the
                 Infeftment
                 ,
                 or
                 retour
                 of
                 any
                 person
                 formerly
                 Infeft
                 ,
                 which
                 is
                 more
                 rigorous
                 then
                 the
                 rest
                 ,
                 seing
                 the
                 vassal
                 had
                 thereby
                 a
                 colourable
                 Title
                 ,
                 and
                 was
                 
                   bonae
                   fidei
                
                 Possessor
                 ,
                 seing
                 Reductions
                 use
                 not
                 to
                 be
                 drawn
                 back
                 ,
                 adpraeterita
                 :
                 So
                 reduction
                 of
                 retours
                 was
                 sustained
                 at
                 the
                 Superiours
                 instance
                 ,
                 to
                 give
                 him
                 the
                 benefit
                 of
                 Non-entry
                 ,
                 July
                 12.
                 1625.
                 
                 Lord
                 
                   Cathcart
                   contra
                
                 Laird
                 of
                 
                   Kerse
                   .
                   Februany
                
                 last
                 ,
                 1628.
                 
                 Earl
                 of
                 
                   Nithisdail
                   contra
                   Westraw
                
                 ,
                 and
                 therefore
                 ,
                 it
                 must
                 be
                 considered
                 ,
                 what
                 the
                 nature
                 of
                 the
                 Right
                 will
                 import
                 .
                 If
                 Non-entry
                 had
                 its
                 rise
                 from
                 ingratitude
                 or
                 a
                 penalty
                 with
                 us
                 ,
                 by
                 the
                 negligence
                 of
                 the
                 Vassal
                 ,
                 it
                 could
                 hardly
                 take
                 place
                 in
                 this
                 case
                 ;
                 for
                 unless
                 such
                 infeftments
                 had
                 proceeded
                 upon
                 the
                 Fraud
                 ,
                 or
                 gross
                 ignorance
                 of
                 the
                 Vassal
                 himself
                 ,
                 it
                 could
                 not
                 be
                 called
                 voluntary
                 Non-entry
                 ,
                 which
                 stood
                 upon
                 some
                 informality
                 ,
                 unknown
                 to
                 the
                 Vassal
                 ,
                 or
                 his
                 Predecessor
                 :
                 But
                 seing
                 the
                 ground
                 of
                 this
                 Non-entry
                 is
                 from
                 the
                 Nature
                 of
                 the
                 Right
                 ,
                 which
                 cannot
                 consist
                 without
                 Infeftment
                 ;
                 therefore
                 ,
                 by
                 such
                 nullity
                 it
                 must
                 follow
                 ,
                 that
                 while
                 there
                 was
                 no
                 Infeftment
                 ,
                 or
                 a
                 null
                 Infeftment
                 ,
                 the
                 Vassal
                 had
                 no
                 
                 interest
                 ,
                 neither
                 will
                 there
                 be
                 hazard
                 of
                 rigour
                 ;
                 because
                 ,
                 it
                 can
                 but
                 extend
                 to
                 the
                 retoured
                 Duties
                 ,
                 and
                 is
                 eleided
                 by
                 all
                 the
                 ways
                 that
                 other
                 Non-entries
                 are
                 ,
                 and
                 specially
                 by
                 the
                 Superiours
                 Homologation
                 of
                 the
                 Infeftment
                 ,
                 if
                 the
                 nullity
                 were
                 in
                 prejudice
                 of
                 the
                 Superiour
                 ,
                 as
                 when
                 Lands
                 are
                 retoured
                 to
                 less
                 retour
                 mail
                 then
                 the
                 due
                 ;
                 or
                 Feu-duties
                 ,
                 or
                 other
                 Duties
                 in
                 the
                 reddenda
                 ,
                 are
                 diminished
                 ;
                 for
                 it
                 is
                 not
                 rare
                 ,
                 that
                 that
                 which
                 is
                 null
                 ,
                 as
                 to
                 some
                 persons
                 and
                 cases
                 ,
                 may
                 be
                 valid
                 as
                 to
                 others
                 from
                 these
                 nullities
                 being
                 injuries
                 to
                 the
                 Superiour
                 ;
                 Non-entry
                 wil
                 follow
                 ,
                 if
                 there
                 be
                 no
                 valid
                 Seasine
                 ;
                 then
                 Non-entry
                 will
                 take
                 place
                 ,
                 though
                 Charter
                 and
                 Precept
                 be
                 granted
                 voluntarly
                 ,
                 seing
                 Seasine
                 was
                 not
                 taken
                 thereupon
                 .
              
               
                 20.
                 
                 Non-entry
                 taketh
                 place
                 whenever
                 the
                 Fee
                 is
                 void
                 ,
                 whether
                 it
                 be
                 holden
                 Ward
                 ,
                 Blanch
                 ,
                 or
                 Feu
                 :
                 But
                 that
                 which
                 is
                 holden
                 in
                 Burgage
                 ,
                 or
                 is
                 mortified
                 ,
                 requireth
                 no
                 Renovation
                 of
                 the
                 Infeftment
                 ,
                 because
                 Societies
                 and
                 Incorporations
                 die
                 not
                 ,
                 which
                 is
                 extended
                 to
                 the
                 particular
                 Tenements
                 within
                 Burgh
                 ,
                 holden
                 Burgage
                 ,
                 which
                 are
                 thereby
                 holden
                 of
                 the
                 King
                 ,
                 and
                 the
                 Magistrates
                 of
                 the
                 Burgh
                 ,
                 give
                 the
                 Infeftment
                 as
                 his
                 Bailies
                 .
              
               
                 21.
                 
                 The
                 effect
                 of
                 Non-entry
                 is
                 attained
                 by
                 a
                 Declarator
                 of
                 Non-entry
                 ,
                 the
                 Style
                 whereof
                 beareth
                 ,
                 
                   that
                   the
                   Tenement
                   is
                   void
                   by
                   the
                   death
                   of
                   such
                   a
                   person
                   ,
                   who
                   died
                   last
                   Infeft
                   ,
                   and
                   ought
                   to
                   be
                   so
                   declared
                   ,
                   and
                   that
                   the
                   fruits
                   and
                   profits
                   thereof
                   do
                   belong
                   to
                   the
                   Superiour
                   ,
                   by
                   reason
                   of
                   Non-entry
                   :
                
                 Yet
                 because
                 the
                 case
                 of
                 the
                 Vassal
                 is
                 favourable
                 ,
                 Decreet
                 is
                 only
                 granted
                 ,
                 declaring
                 the
                 Non-entry
                 ,
                 and
                 finding
                 only
                 the
                 Feu-duties
                 due
                 in
                 Lands
                 holding
                 Feu
                 ,
                 July
                 .
                 19.
                 1631.
                 
                 Earl
                 of
                 
                   Kinghorn
                   contra
                   George
                   Strang
                
                 :
                 Or
                 the
                 retoured
                 Males
                 in
                 Lands
                 holding
                 Ward
                 or
                 Blansh
                 ,
                 which
                 have
                 any
                 such
                 retour
                 :
                 Or
                 otherways
                 ,
                 the
                 whole
                 Duties
                 of
                 the
                 Fee
                 are
                 carried
                 ,
                 the
                 reason
                 hereof
                 is
                 ,
                 because
                 Feues
                 are
                 Locations
                 ,
                 and
                 the
                 Feu-duty
                 is
                 the
                 Rent
                 or
                 Pension
                 ;
                 and
                 therefore
                 ,
                 
                   in
                   favorabilibus
                
                 ,
                 that
                 is
                 interpret
                 to
                 be
                 the
                 Rent
                 :
                 So
                 likewise
                 in
                 other
                 Lands
                 ,
                 the
                 retour
                 was
                 a
                 valuation
                 of
                 the
                 Lands
                 ,
                 as
                 they
                 were
                 worth
                 and
                 payed
                 at
                 that
                 time
                 ;
                 The
                 first
                 whereof
                 was
                 called
                 the
                 old
                 Extent
                 ,
                 and
                 it
                 is
                 exprest
                 by
                 Merk-lands
                 ,
                 or
                 Pound-lands
                 .
                 The
                 other
                 is
                 the
                 new
                 retour
                 ,
                 which
                 though
                 it
                 be
                 different
                 in
                 divers
                 Shires
                 ;
                 yet
                 being
                 once
                 a
                 Rent
                 ,
                 in
                 this
                 favourable
                 case
                 ,
                 the
                 general
                 Declarator
                 reacheth
                 no
                 further
                 ;
                 yea
                 ,
                 though
                 there
                 be
                 no
                 retour
                 of
                 the
                 particular
                 parcel
                 of
                 Land
                 in
                 question
                 ;
                 yet
                 if
                 there
                 be
                 a
                 retour
                 of
                 the
                 Tenement
                 or
                 Barrony
                 ,
                 whereof
                 it
                 is
                 a
                 part
                 ,
                 that
                 common
                 retour
                 will
                 be
                 divided
                 according
                 to
                 the
                 present
                 Rent
                 ,
                 and
                 a
                 proportion
                 thereof
                 stated
                 upon
                 this
                 parcel
                 ,
                 as
                 its
                 retour
                 ,
                 as
                 was
                 found
                 in
                 the
                 former
                 case
                 ,
                 Earl
                 of
                 
                   Kinghorn
                   contra
                   Strang.
                
                 The
                 like
                 ,
                 Feb.
                 5.
                 1623.
                 
                 
                   Mark
                   Ker
                   con
                   .
                   Scot
                
                 of
                 Hartwoodmires
                 .
                 Hence
                 it
                 is
                 ,
                 that
                 an
                 Annualrent
                 ,
                 because
                 it
                 hath
                 no
                 retour
                 distinct
                 ,
                 but
                 it
                 retoured
                 ,
                 
                   Quod
                   valetseipsum
                
                 ;
                 therefore
                 ,
                 if
                 it
                 be
                 in
                 Non-entry
                 ,
                 it
                 is
                 carried
                 by
                 the
                 general
                 Declarator
                 ,
                 and
                 the
                 Non-entry
                 was
                 found
                 to
                 carry
                 the
                 whole
                 profite
                 of
                 the
                 Annualrent
                 by
                 exception
                 ,
                 in
                 a
                 poinding
                 of
                 the
                 Ground
                 without
                 any
                 Declarator
                 ,
                 March
                 23.
                 1631.
                 
                 
                   Somervel
                   con
                   .
                   Somervel
                
                 of
                 Drum
                 :
                 Yea
                 ,
                 though
                 the
                 Annualrent
                 be
                 due
                 by
                 the
                 Superiours
                 consent
                 ,
                 yet
                 it
                 falls
                 in
                 Non-entry
                 ,
                 though
                 it
                 be
                 due
                 still
                 personally
                 by
                 the
                 personal
                 obliegement
                 ;
                 where
                 there
                 is
                 any
                 .
                 In
                 this
                 Declarator
                 ,
                 the
                 Superiour
                 producing
                 his
                 Infeftment
                 ,
                 needs
                 not
                 instruct
                 the
                 Defender
                 ,
                 his
                 Vassal
                 ;
                 and
                 though
                 the
                 Lands
                 in
                 question
                 be
                 not
                 expresly
                 in
                 the
                 Superiours
                 Infeftment
                 ,
                 but
                 claimed
                 by
                 him
                 as
                 part
                 and
                 pertinent
                 ,
                 he
                 needs
                 not
                 instruct
                 the
                 same
                 to
                 be
                 so
                 ,
                 unless
                 the
                 Vassal
                 disclaim
                 him
                 as
                 Superiour
                 in
                 that
                 part
                 ,
                 Spots
                 .
                 Non-entry
                 ,
                 Lord
                 
                   Yester
                   con
                
                 .
                 his
                 Vassals
                 :
                 Neither
                 needs
                 he
                 instruct
                 that
                 the
                 Lands
                 were
                 void
                 ,
                 since
                 the
                 time
                 libelled
                 ,
                 because
                 that
                 is
                 a
                 Negative
                 and
                 proves
                 it self
                 ,
                 unless
                 the
                 Vassal
                 instruct
                 that
                 it
                 was
                 full
                 .
              
               
               
                 The
                 〈◊〉
                 of
                 general
                 Declarator
                 is
                 not
                 personal
                 against
                 the
                 Vassal
                 ,
                 to
                 pay
                 the
                 〈◊〉
                 Mails
                 ,
                 &c.
                 but
                 is
                 real
                 against
                 the
                 ground
                 of
                 the
                 Tenement
                 ,
                 for
                 granting
                 Letters
                 to
                 Poynd
                 and
                 Apprise
                 ,
                 and
                 so
                 the
                 calling
                 of
                 an
                 appearand
                 Heir
                 is
                 sufficient
                 ,
                 
                   Spots
                   .
                   Escheat
                   ,
                   Balmiranoch
                   contra
                
                 his
                 Vassals
                 .
                 But
                 if
                 the
                 appearand
                 Heir
                 be
                 not
                 called
                 ,
                 but
                 a
                 person
                 notourly
                 known
                 to
                 have
                 no
                 relation
                 ,
                 it
                 is
                 a
                 relevant
                 defence
                 ,
                 competent
                 to
                 any
                 Party
                 called
                 ,
                 though
                 deriving
                 no
                 right
                 from
                 that
                 Defunct
                 ,
                 Nicol.
                 Non-entry
                 Sir
                 
                   Mungo
                   Murruy
                
                 .
              
               
                 22.
                 
                 And
                 though
                 Craig
                 insinuateth
                 ,
                 that
                 the
                 Action
                 is
                 real
                 ,
                 and
                 the
                 ground
                 may
                 be
                 poynded
                 for
                 the
                 whole
                 Duties
                 ,
                 yet
                 posterior
                 Decisions
                 have
                 upon
                 good
                 grounds
                 cleared
                 ,
                 that
                 as
                 to
                 these
                 ,
                 the
                 Superior
                 is
                 but
                 as
                 the
                 Master
                 of
                 the
                 Ground
                 ,
                 and
                 as
                 he
                 is
                 in
                 the
                 case
                 of
                 Ward
                 ,
                 and
                 therefore
                 the
                 Ground
                 cannot
                 be
                 poynded
                 .
                 Neither
                 is
                 any
                 lyable
                 but
                 the
                 intrometters
                 with
                 the
                 Fruits
                 ,
                 Spots
                 .
                 Non-entry
                 ,
                 
                   Gray
                   contra
                   Murray
                
                 .
                 Without
                 this
                 Declarator
                 of
                 Non-entry
                 ,
                 the
                 Superior
                 or
                 his
                 Donatar
                 cannot
                 enter
                 in
                 possession
                 of
                 this
                 voyd
                 Fie
                 ,
                 and
                 though
                 he
                 possess
                 ,
                 he
                 is
                 comptable
                 to
                 the
                 Vassal
                 for
                 the
                 Mails
                 and
                 duties
                 ,
                 
                   Hope
                   ,
                   Nonentry
                   ,
                   John
                   Brown
                   contra
                   Mcculloch
                
                 of
                 
                   Barholme
                   ,
                   Febr.
                
                 3.
                 1631.
                 
                 
                   Thomas
                   Ogilvy
                   contra
                   Murray
                
                 of
                 Halmyro
                 .
              
               
                 But
                 after
                 Declarator
                 of
                 Non-entry
                 is
                 obtained
                 ,
                 the
                 Superior
                 may
                 enter
                 in
                 possession
                 ,
                 any
                 lawful
                 way
                 he
                 pleaseth
                 ,
                 and
                 may
                 dispose
                 of
                 the
                 Fruits
                 and
                 profites
                 of
                 the
                 Tenements
                 ,
                 by
                 himself
                 or
                 his
                 donatar
                 ,
                 and
                 as
                 the
                 proprietar
                 might
                 out-put
                 and
                 in-put
                 Tenents
                 therein
                 ,
                 and
                 hath
                 the
                 full
                 profites
                 and
                 duties
                 thereof
                 ,
                 which
                 may
                 be
                 pursued
                 as
                 other
                 ordinary
                 Actions
                 ,
                 though
                 it
                 useth
                 to
                 to
                 be
                 pursued
                 under
                 the
                 name
                 of
                 
                   Special
                   Declarator
                
                 ,
                 which
                 takes
                 effect
                 from
                 the
                 date
                 of
                 the
                 Summonds
                 ,
                 whereupon
                 the
                 general
                 Declarator
                 proceeded
                 ;
                 because
                 the
                 Decreet
                 of
                 General
                 Declarator
                 ,
                 is
                 only
                 for
                 the
                 by-gone
                 Mails
                 as
                 aforesaid
                 ,
                 and
                 therefore
                 reacheth
                 not
                 after
                 the
                 date
                 of
                 the
                 Summonds
                 ,
                 after
                 which
                 the
                 whole
                 Mails
                 and
                 duties
                 are
                 due
                 ,
                 not
                 only
                 in
                 Ward
                 holdings
                 and
                 blench
                 ,
                 but
                 also
                 in
                 Fews
                 .
                 As
                 it
                 was
                 found
                 ,
                 that
                 before
                 general
                 Declarator
                 ,
                 the
                 Few-duty
                 was
                 only
                 due
                 ,
                 so
                 that
                 after
                 general
                 Declarator
                 ,
                 the
                 whole
                 profites
                 ,
                 July
                 19.
                 1631.
                 
                 Earl
                 of
                 
                   Kinghorn
                   contra
                   George
                   Strang
                   ,
                   Julie
                
                 25.
                 1667.
                 
                 Mr.
                 
                   John
                   Harper
                   contra
                
                 his
                 Vassals
                 ,
                 Julie
                 11.
                 1672.
                 
                 
                   Robert
                   Fa
                   contra
                
                 Lord
                 Balmiranoch
                 ,
                 and
                 Laird
                 of
                 Powrie
                 .
              
               
                 23.
                 
                 Non-entry
                 is
                 excluded
                 ,
                 first
                 by
                 the
                 entry
                 of
                 the
                 Vassal
                 and
                 his
                 Infeftment
                 ,
                 during
                 the
                 time
                 thereof
                 ,
                 even
                 though
                 the
                 same
                 was
                 granted
                 by
                 him
                 who
                 was
                 Superior
                 ,
                 after
                 his
                 Predecessor
                 was
                 denuded
                 four
                 ages
                 before
                 ,
                 which
                 must
                 be
                 in
                 respect
                 ,
                 the
                 new
                 Superiors
                 right
                 was
                 not
                 known
                 ,
                 as
                 neither
                 being
                 Registrat
                 ,
                 nor
                 any
                 Intimation
                 nor
                 Action
                 thereupon
                 ,
                 Hope
                 ,
                 Non-entry
                 
                   John
                   Arthur
                   contra
                
                 Laird
                 of
                 Blebo
                 .
                 And
                 if
                 the
                 Vasal
                 be
                 Infeft
                 upon
                 a
                 Charter
                 from
                 his
                 predecessors
                 ,
                 to
                 be
                 holden
                 of
                 the
                 Superior
                 ,
                 if
                 the
                 Superior
                 Confirm
                 it
                 ,
                 the
                 Infeftment
                 is
                 valid
                 ,
                 and
                 excludes
                 the
                 Non-entry
                 from
                 the
                 date
                 thereof
                 and
                 not
                 from
                 the
                 date
                 of
                 the
                 Confirmation
                 ,
                 being
                 simple
                 ,
                 Hope
                 Non-entry
                 ,
                 Bartoun
                 and
                 
                   Harvie
                   contra
                
                 Laird
                 of
                 Delspro
                 .
                 2.
                 
                 Nonentry
                 is
                 excluded
                 by
                 Feus
                 ,
                 terces
                 of
                 Reliques
                 ,
                 Liferents
                 of
                 Husbands
                 surviving
                 their
                 Wives
                 ,
                 by
                 the
                 courtesie
                 of
                 Scotland
                 .
                 These
                 are
                 effectual
                 by
                 Law
                 ,
                 and
                 are
                 introduced
                 without
                 the
                 Superiors
                 consent
                 .
                 It
                 is
                 excluded
                 also
                 by
                 his
                 express
                 consent
                 ,
                 by
                 Liferents
                 or
                 conjunct
                 Infeftments
                 holden
                 of
                 him
                 ,
                 though
                 the
                 Vassal
                 may
                 enter
                 to
                 the
                 Fee
                 ,
                 yet
                 the
                 Liferent
                 excludes
                 the
                 profites
                 ;
                 and
                 therefore
                 ,
                 during
                 the
                 simple
                 Liferent
                 ,
                 the
                 Superior
                 cannot
                 obtain
                 Declarator
                 of
                 Non-entry
                 .
                 3.
                 
                 By
                 the
                 Superiors
                 con
                 ent
                 ,
                 it
                 is
                 also
                 excluded
                 by
                 precepts
                 of
                 
                   clare
                   constat
                
                 ,
                 which
                 acknowledge
                 
                 
                 
                 the
                 person
                 who
                 died
                 last
                 ,
                 Vest
                 and
                 Seased
                 as
                 of
                 Fie
                 ,
                 during
                 whose
                 time
                 the
                 Non-entry
                 cannot
                 be
                 claimed
                 .
                 And
                 likewise
                 ,
                 by
                 receiving
                 the
                 Vassal
                 with
                 a
                 
                   novo
                   damus
                
                 ,
                 renouncing
                 expresly
                 Non-entry
                 ,
                 if
                 it
                 was
                 granted
                 by
                 the
                 Superior
                 ,
                 before
                 the
                 right
                 was
                 transmitted
                 from
                 him
                 to
                 the
                 Donatar
                 5.
                 
                 It
                 is
                 excluded
                 by
                 the
                 Superiors
                 tacite
                 ,
                 or
                 presumed
                 consent
                 ,
                 by
                 granting
                 subsequent
                 Infeftments
                 ,
                 for
                 the
                 space
                 of
                 40.
                 years
                 ,
                 ,
                 March
                 19.
                 1629.
                 
                 Earl
                 of
                 Angus
                 and
                 
                   Dowglas
                   contra
                
                 Earl
                 of
                 
                   Annandale
                   ,
                   June
                
                 29.
                 1629.
                 
                 Sir
                 
                   Mungo
                   Murray
                   contra
                
                 Laird
                 of
                 
                   Inchmartine
                   ,
                   Hope
                
                 ,
                 Non-entry
                 ,
                 
                   John
                   Art●●r
                   contra
                
                 Laird
                 of
                 Blebo
                 :
                 for
                 thereby
                 it
                 is
                 presumed
                 that
                 the
                 Non-entry
                 is
                 relinquished
                 ,
                 not
                 being
                 claimed
                 nor
                 reserved
                 all
                 that
                 time
                 ;
                 Which
                 Craig
                 observes
                 to
                 have
                 been
                 found
                 upon
                 Infeftments
                 ,
                 continued
                 by
                 the
                 space
                 of
                 36.
                 years
                 ,
                 but
                 the
                 best
                 Term
                 ,
                 as
                 being
                 ordinary
                 and
                 known
                 in
                 Law
                 ,
                 is
                 40.
                 years
                 ;
                 And
                 this
                 is
                 not
                 by
                 reason
                 of
                 prescription
                 ,
                 which
                 would
                 only
                 cut
                 off
                 profites
                 of
                 Non-entry
                 preceeding
                 the
                 40.
                 years
                 ,
                 but
                 this
                 would
                 take
                 it
                 away
                 ,
                 during
                 and
                 after
                 the
                 40.
                 years
                 .
                 The
                 like
                 is
                 very
                 rationally
                 observed
                 by
                 Craig
                 ,
                 to
                 be
                 inferred
                 by
                 three
                 Subsequent
                 Seasines
                 ,
                 having
                 the
                 same
                 presumption
                 as
                 three
                 subsequent
                 Discharges
                 have
                 to
                 infer
                 exoneration
                 of
                 all
                 bygones
                 ;
                 but
                 these
                 must
                 be
                 of
                 three
                 subsequent
                 Heirs
                 ,
                 and
                 not
                 by
                 receiving
                 three
                 singular
                 Successors
                 ,
                 the
                 Non-entry
                 returning
                 to
                 the
                 Vassal
                 or
                 his
                 Heirs
                 ,
                 they
                 cannot
                 make
                 use
                 of
                 it
                 against
                 the
                 Subvassals
                 ,
                 especially
                 if
                 they
                 be
                 lyable
                 to
                 warrant
                 the
                 Subvassals
                 as
                 to
                 Non-entry
                 or
                 by
                 absolute
                 warrandice
                 generally
                 ,
                 for
                 thereby
                 the
                 right
                 to
                 the
                 Non-entry
                 is
                 ,
                 
                   jus
                   superveniens
                   authori
                   accrescens
                   successori
                
                 ;
                 but
                 the
                 Subvassals
                 must
                 pay
                 their
                 proportion
                 of
                 Expenses
                 for
                 the
                 Gift
                 .
                 But
                 Non-entry
                 is
                 not
                 excluded
                 ,
                 because
                 it
                 was
                 gifted
                 to
                 the
                 appearand
                 Heir
                 of
                 a
                 Superior
                 of
                 a
                 Subvassal
                 :
                 which
                 Superior
                 was
                 obliedged
                 in
                 warrandice
                 to
                 his
                 Subvassal
                 ,
                 seing
                 he
                 was
                 not
                 Heir
                 ,
                 
                   spots
                   .
                   Nonentry
                
                 .
                 The
                 like
                 though
                 the
                 appearand
                 Heir
                 consented
                 to
                 the
                 Subvassal
                 before
                 the
                 Gift
                 ,
                 Laird
                 of
                 
                   Craichlaw
                   contra
                   Gordown
                
                 of
                 Barnernie
                 ,
                 and
                 Mackie
                 .
                 Neither
                 is
                 it
                 excluded
                 by
                 any
                 base
                 Infeftment
                 ,
                 not
                 being
                 Feu
                 ,
                 though
                 confirmed
                 by
                 the
                 Superior
                 ,
                 if
                 it
                 hold
                 not
                 of
                 the
                 Superior
                 for
                 such
                 Confirmations
                 ,
                 import
                 only
                 a
                 passing
                 from
                 Recognition
                 .
                 As
                 is
                 shown
                 in
                 the
                 Last
                 
                   Title
                   ,
                   concerning
                   Confirmations
                
                 .
                 But
                 Fews
                 exclude
                 Non-entry
                 ,
                 while
                 they
                 were
                 allowed
                 by
                 the
                 Acts
                 of
                 Parliament
                 ,
                 as
                 there
                 is
                 also
                 shown
                 ,
                 neither
                 is
                 it
                 excluded
                 by
                 Tacts
                 set
                 by
                 the
                 Vassal
                 ,
                 which
                 though
                 they
                 stand
                 as
                 real
                 Rights
                 against
                 Purchasers
                 by
                 Statute
                 ,
                 yet
                 have
                 no
                 effect
                 against
                 Superiors
                 in
                 prejudice
                 of
                 their
                 proper
                 Casualities
                 :
                 Neither
                 is
                 it
                 elided
                 by
                 Charters
                 or
                 Precepts
                 granted
                 by
                 the
                 Superior
                 ,
                 though
                 containing
                 warrandice
                 ,
                 till
                 Infeftment
                 thereupon
                 ,
                 March
                 20.
                 1630.
                 
                 
                   John
                   Hay
                   contra
                
                 Laird
                 of
                 Achnames
                 .
                 Neither
                 was
                 it
                 excluded
                 by
                 Apprysing
                 and
                 Charge
                 thereupon
                 ,
                 without
                 offer
                 of
                 a
                 years
                 Rent
                 of
                 the
                 Land
                 ,
                 or
                 Annualrent
                 of
                 the
                 Money
                 ,
                 Feb.
                 3.
                 1681.
                 
                 
                   Hendry
                   Keir
                   contra
                   Hendryson
                
                 .
                 Neither
                 is
                 it
                 excluded
                 ,
                 because
                 the
                 Vassal
                 was
                 not
                 
                   in
                   mora
                
                 ,
                 being
                 hindred
                 by
                 a
                 Question
                 of
                 Bastardry
                 against
                 him
                 ,
                 Spots
                 .
                 Non-entry
                 ,
                 〈…〉
                 
                   contra
                   Naiper
                
                 of
                 Wrightshouses
                 .
                 Nor
                 doth
                 the
                 Vassals
                 Minority
                 stop
                 Non-entry
                 of
                 Lands
                 not
                 being
                 Ward
                 ,
                 nor
                 restore
                 the
                 Minor
                 as
                 Lesed
                 .
                 For
                 as
                 hath
                 been
                 now
                 shown
                 ,
                 It
                 is
                 not
                 the
                 negligence
                 of
                 the
                 Vassal
                 ,
                 but
                 the
                 nature
                 of
                 the
                 right
                 that
                 infers
                 Non-entry
                 :
                 yet
                 there
                 is
                 no
                 doubt
                 if
                 it
                 be
                 by
                 the
                 Superiors
                 fault
                 ,
                 it
                 will
                 be
                 a
                 personal
                 Exclusion
                 against
                 him
                 ,
                 Non-entry
                 is
                 most
                 favourable
                 ,
                 when
                 extended
                 as
                 to
                 the
                 retoured
                 duties
                 .
                 But
                 as
                 to
                 the
                 full
                 Rents
                 it
                 is
                 capable
                 of
                 many
                 other
                 exceptions
                 ,
                 and
                 doth
                 not
                 alwayes
                 run
                 from
                 the
                 Citation
                 in
                 the
                 General
                 Declarator
                 ,
                 as
                 if
                 a
                 Superior
                 raise
                 his
                 Declarator
                 ,
                 and
                 also
                 Reduction
                 of
                 the
                 Vassals
                 Seasine
                 ,
                 though
                 he
                 reduce
                 the
                 Seasine
                 ,
                 he
                 will
                 not
                 have
                 the
                 full
                 Rents
                 till
                 the
                 Decreet
                 of
                 Reduction
                 and
                 Declarator
                 ,
                 Novemb.
                 26
                 1672.
                 
                 Earl
                 of
                 
                   Argyle
                   contra
                
                 Laird
                 of
                 Macleud
                 :
                 yea
                 if
                 the
                 Superior
                 do
                 not
                 insist
                 ,
                 but
                 only
                 use
                 Citation
                 ,
                 which
                 
                 may
                 be
                 at
                 the
                 Vassals
                 dwelling
                 house
                 ,
                 and
                 never
                 come
                 to
                 knowledge
                 ;
                 or
                 the
                 Vassal
                 being
                 a
                 Pupil
                 without
                 any
                 Tutor
                 ,
                 it
                 is
                 not
                 like
                 the
                 Lords
                 would
                 sustain
                 the
                 whole
                 Duties
                 from
                 the
                 Citation
                 ,
                 but
                 from
                 the
                 time
                 the
                 Vassal
                 becomes
                 contumacious
                 .
                 And
                 Queensberry
                 having
                 interposed
                 Kelhead
                 ,
                 betwixt
                 him
                 and
                 his
                 Vassals
                 ,
                 who
                 thereupon
                 pursued
                 Declarator
                 of
                 Non-entry
                 ,
                 though
                 the
                 Infeftment
                 was
                 found
                 null
                 ,
                 yet
                 the
                 Disposition
                 was
                 found
                 to
                 carry
                 a
                 Gift
                 to
                 the
                 Casualities
                 of
                 the
                 Superiority
                 ,
                 and
                 the
                 Vassals
                 were
                 only
                 found
                 lyable
                 for
                 the
                 Rent
                 after
                 the
                 Interloquitor
                 ,
                 sustaining
                 the
                 disposition
                 as
                 a
                 gift
                 of
                 Non-entry
                 ,
                 and
                 where
                 a
                 Tailzie
                 was
                 found
                 to
                 exclude
                 a
                 second
                 Branch
                 ,
                 so
                 long
                 as
                 there
                 was
                 hope
                 of
                 a
                 former
                 Branch
                 ,
                 the
                 Lands
                 were
                 found
                 in
                 Non-entry
                 ,
                 as
                 to
                 the
                 retoured
                 Mail
                 ,
                 but
                 not
                 as
                 to
                 the
                 full
                 Rent
                 ,
                 seing
                 the
                 Heir
                 did
                 not
                 forbear
                 to
                 enter
                 through
                 wilfulness
                 ,
                 but
                 of
                 necessity
                 ,
                 Julie
                 24.
                 1677.
                 
                 Lord
                 Melvil
                 and
                 
                   David
                   Melvil
                
                 his
                 Son
                 ,
                 contra
                 Sir
                 
                   William
                   Bruce
                
                 .
                 And
                 where
                 a
                 Singular
                 Successor
                 to
                 the
                 Superior
                 pursued
                 Non-entry
                 ,
                 it
                 was
                 not
                 sustained
                 till
                 he
                 produced
                 his
                 progress
                 from
                 the
                 acknowledged
                 Superior
                 .
                 the
                 full
                 duties
                 were
                 not
                 found
                 due
                 from
                 the
                 Citation
                 ,
                 Julie
                 18.
                 1680.
                 
                 Earl
                 of
                 
                   Queensberry
                   contra
                   Irwin
                
                 of
                 Cove
                 .
                 And
                 Craig
                 relates
                 ,
                 that
                 where
                 the
                 Defunct
                 died
                 in
                 Battle
                 ,
                 for
                 his
                 Superior
                 ,
                 Non-entry
                 should
                 have
                 no
                 place
                 .
                 We
                 shall
                 not
                 here
                 speak
                 of
                 common
                 exceptions
                 which
                 extinguish
                 all
                 Rights
                 as
                 prescription
                 ,
                 homologation
                 ,
                 or
                 the
                 priviledge
                 of
                 these
                 who
                 are
                 absent
                 ,
                 
                   reipublicae
                   causa
                
                 .
                 As
                 to
                 the
                 Question
                 ,
                 whether
                 Non-entry
                 Subsequent
                 to
                 Ward
                 ,
                 whereby
                 the
                 Superior
                 or
                 his
                 Donatar
                 ,
                 is
                 in
                 possession
                 requireth
                 any
                 Declarator
                 .
                 Craig
                 and
                 Skeen
                 upon
                 the
                 word
                 Non-entry
                 ,
                 are
                 for
                 the
                 negative
                 ;
                 and
                 since
                 Had.
                 and
                 Durie
                 observe
                 ,
                 March
                 23.
                 1622.
                 
                 
                   Lesly
                   contra
                   Pitcaple
                
                 ,
                 that
                 the
                 Lords
                 found
                 ,
                 that
                 where
                 the
                 Superior
                 pursued
                 both
                 for
                 the
                 Ward
                 ,
                 and
                 subsequent
                 Non-entry
                 ,
                 that
                 he
                 or
                 his
                 Donatars
                 ,
                 not
                 being
                 in
                 possession
                 by
                 the
                 Ward
                 ,
                 behoved
                 to
                 declare
                 the
                 Non-entry
                 ,
                 which
                 would
                 only
                 carry
                 the
                 retoured
                 Mails
                 till
                 Declarator
                 .
              
               
                 The
                 next
                 Casuality
                 of
                 the
                 Superiority
                 is
                 ,
                 the
                 releef
                 due
                 by
                 the
                 Vassal
                 to
                 his
                 Superior
                 for
                 his
                 entering
                 him
                 in
                 the
                 Fie
                 ,
                 as
                 the
                 lawfull
                 successor
                 of
                 the
                 Vassal
                 .
                 And
                 though
                 relees
                 be
                 only
                 considerable
                 in
                 Ward-holdings
                 ,
                 and
                 uses
                 to
                 be
                 subjoyned
                 to
                 Ward
                 ;
                 yet
                 all
                 Fies
                 which
                 require
                 Renovation
                 ,
                 are
                 lyable
                 to
                 releef
                 ;
                 and
                 therefore
                 Releef
                 is
                 here
                 immediatly
                 subjoyned
                 to
                 Non-entry
                 .
              
               
                 26.
                 
                 Releef
                 is
                 generally
                 treated
                 upon
                 by
                 the
                 Fewdists
                 .
                 The
                 Original
                 whereof
                 Cujace
                 ascribeth
                 to
                 the
                 constitution
                 of
                 the
                 
                   Emperor
                   Leo
                
                 ,
                 extant
                 in
                 the
                 Novels
                 ,
                 bearing
                 it
                 to
                 be
                 the
                 custom
                 of
                 several
                 places
                 ,
                 that
                 the
                 superior
                 should
                 have
                 that
                 years
                 Rent
                 ,
                 in
                 which
                 he
                 receives
                 a
                 new
                 Vassal
                 in
                 his
                 Clientel
                 ,
                 which
                 therefore
                 ,
                 by
                 most
                 of
                 the
                 Feudal
                 Customs
                 ,
                 is
                 extended
                 to
                 the
                 singular
                 Successors
                 of
                 the
                 Vassal
                 ,
                 who
                 in
                 some
                 places
                 ,
                 pay
                 for
                 their
                 Entry
                 the
                 fifth
                 of
                 the
                 price
                 of
                 the
                 Fie
                 ,
                 and
                 a
                 fifth
                 of
                 that
                 fifth
                 ;
                 whereby
                 ,
                 if
                 the
                 price
                 were
                 100.
                 
                 Crowns
                 ,
                 the
                 composition
                 for
                 the
                 Entry
                 would
                 be
                 24.
                 
                 Crowns
                 .
              
               
                 27.
                 
                 But
                 by
                 the
                 Customs
                 of
                 England
                 and
                 France
                 ,
                 the
                 Heir
                 of
                 the
                 Vassal
                 ,
                 if
                 he
                 be
                 Minor
                 ,
                 payes
                 no
                 releef
                 ,
                 but
                 he
                 and
                 his
                 Fie
                 are
                 in
                 the
                 hands
                 of
                 the
                 Superior
                 ,
                 as
                 in
                 Ward
                 or
                 Custody
                 ,
                 whereby
                 the
                 Superior
                 hath
                 the
                 whole
                 profites
                 ,
                 more
                 then
                 is
                 fit
                 for
                 the
                 Education
                 and
                 Intertainment
                 of
                 the
                 Minor
                 Valsal
                 ,
                 which
                 ceaseth
                 with
                 his
                 Majority
                 ,
                 and
                 there
                 is
                 no
                 releef
                 due
                 .
                 But
                 if
                 the
                 Vassals
                 Heir
                 at
                 his
                 Death
                 ,
                 be
                 Major
                 ,
                 his
                 Fie
                 is
                 lyable
                 to
                 his
                 Superior
                 for
                 releef
                 ;
                 
                 
                 
                 which
                 distinction
                 is
                 mentioned
                 in
                 the
                 
                   English
                   Magna
                   Charta
                
                 ,
                 the
                 quantity
                 of
                 the
                 releef
                 by
                 Heirs
                 in
                 England
                 ,
                 is
                 in
                 Ward-holdings
                 or
                 Military
                 Fies
                 100.
                 
                 Pounds
                 Sterling
                 for
                 an
                 Earldome
                 ,
                 100.
                 
                 Merks
                 for
                 a
                 Baronry
                 ,
                 and
                 100.
                 
                 Shillings
                 for
                 any
                 other
                 Military
                 Fie
                 ,
                 which
                 is
                 oblieged
                 to
                 maintain
                 one
                 Souldier
                 .
                 And
                 if
                 the
                 Fie
                 be
                 less
                 ,
                 and
                 lyable
                 only
                 for
                 a
                 share
                 of
                 the
                 entertainment
                 of
                 a
                 Souldier
                 it
                 is
                 lyable
                 Proportionally
                 .
              
               
                 Relief
                 ,
                 by
                 the
                 custom
                 of
                 France
                 ,
                 is
                 for
                 a
                 Barrony
                 ,
                 100.
                 
                 Franks
                 ,
                 and
                 for
                 any
                 other
                 Military
                 Fie
                 ,
                 15.
                 
                 But
                 if
                 it
                 answer
                 not
                 to
                 the
                 entertainment
                 of
                 one
                 Souldier
                 ,
                 it
                 payes
                 for
                 every
                 Aiker
                 ,
                 12.
                 
                 Deniers
                 ;
                 but
                 if
                 it
                 be
                 not
                 a
                 Military
                 Fie
                 ,
                 but
                 that
                 which
                 the
                 English
                 calls
                 Sockage
                 ,
                 the
                 Reddendo
                 whereof
                 is
                 not
                 Military
                 service
                 ,
                 but
                 some
                 other
                 payment
                 or
                 performance
                 ,
                 which
                 is
                 doubled
                 the
                 first
                 year
                 after
                 the
                 death
                 of
                 the
                 Vassal
                 ,
                 the
                 one
                 half
                 thereof
                 is
                 ,
                 the
                 releef
                 which
                 is
                 a
                 real
                 burden
                 ,
                 for
                 which
                 the
                 Superior
                 may
                 Poynd
                 or
                 distrenzie
                 all
                 goods
                 upon
                 the
                 ground
                 .
              
               
                 But
                 as
                 to
                 singular
                 Successors
                 ,
                 the
                 most
                 ancient
                 Feudal
                 Customs
                 ,
                 making
                 them
                 only
                 to
                 descend
                 to
                 the
                 Issue
                 of
                 the
                 first
                 Vassal
                 whose
                 Collaterals
                 had
                 no
                 right
                 ,
                 but
                 were
                 like
                 our
                 kindly
                 Tenents
                 ,
                 by
                 the
                 propinquity
                 of
                 blood
                 :
                 yet
                 by
                 the
                 favour
                 of
                 the
                 Superior
                 ,
                 they
                 were
                 oftimes
                 admitted
                 in
                 the
                 lie
                 ,
                 and
                 were
                 only
                 lyable
                 for
                 relief
                 .
                 If
                 the
                 Superior
                 did
                 receive
                 a
                 stranger
                 upon
                 the
                 resignation
                 of
                 his
                 Vassal
                 ,
                 he
                 was
                 to
                 pay
                 a
                 relief
                 ,
                 which
                 in
                 some
                 places
                 was
                 the
                 fiftieth
                 part
                 of
                 the
                 Price
                 .
                 And
                 by
                 the
                 Custom
                 of
                 France
                 ,
                 it
                 is
                 the
                 thirteenth
                 part
                 .
              
               
                 From
                 the
                 Original
                 of
                 Relief
                 ,
                 the
                 reason
                 of
                 its
                 name
                 may
                 be
                 conjectured
                 ;
                 and
                 these
                 who
                 appropriat
                 it
                 to
                 Ward-holdings
                 interpret
                 it
                 to
                 be
                 called
                 relief
                 ,
                 from
                 redeeming
                 or
                 Relieving
                 the
                 Fie
                 out
                 of
                 the
                 hands
                 of
                 the
                 Superior
                 .
                 But
                 relief
                 being
                 a
                 general
                 Feudal
                 name
                 ,
                 and
                 many
                 Nations
                 not
                 allowing
                 the
                 Superior
                 the
                 whole
                 profites
                 of
                 the
                 Fie
                 ,
                 in
                 the
                 minority
                 of
                 the
                 Heir
                 ,
                 and
                 giving
                 a
                 relief
                 in
                 the
                 case
                 of
                 singular
                 Successors
                 ;
                 that
                 derivation
                 must
                 be
                 too
                 narrow
                 .
                 And
                 it
                 seems
                 most
                 quadrant
                 to
                 the
                 common
                 Feudal
                 Customs
                 ,
                 that
                 relief
                 should
                 import
                 a
                 subsidie
                 or
                 aid
                 to
                 the
                 Superior
                 .
              
               
                 We
                 have
                 the
                 more
                 largely
                 considered
                 the
                 rise
                 and
                 Customs
                 of
                 Nations
                 concerning
                 relief
                 ,
                 because
                 though
                 it
                 frequently
                 occurs
                 with
                 us
                 ,
                 yet
                 it
                 hath
                 been
                 alwise
                 kindly
                 transacted
                 betwixt
                 the
                 Superior
                 and
                 Vassal
                 .
                 And
                 there
                 is
                 scarce
                 a
                 contraversie
                 or
                 decision
                 ,
                 observed
                 about
                 it
                 by
                 any
                 since
                 the
                 Institution
                 of
                 the
                 
                   Colledge
                   of
                   Justice
                
                 ,
                 so
                 that
                 we
                 must
                 rest
                 in
                 the
                 common
                 custom
                 used
                 betwixt
                 Superior
                 and
                 Vassal
                 ,
                 the
                 Nature
                 of
                 this
                 Casuality
                 ,
                 and
                 the
                 opinions
                 of
                 some
                 few
                 of
                 our
                 Lawyers
                 who
                 have
                 written
                 upon
                 it
                 ;
                 
                   Craig
                   ,
                   lib.
                
                 I.
                 Dieges
                 20.
                 handles
                 the
                 matter
                 of
                 relief
                 ,
                 and
                 sayeth
                 ,
                 
                   by
                   our
                   ancient
                   custom
                   ,
                   there
                   was
                   no
                   relief
                   due
                   after
                   Ward
                   .
                
                 And
                 that
                 it
                 was
                 the
                 common
                 opinion
                 of
                 Lawyers
                 at
                 that
                 time
                 ,
                 that
                 relief
                 had
                 only
                 place
                 in
                 Ward-holdings
                 ;
                 And
                 that
                 it
                 imported
                 a
                 years
                 rent
                 of
                 the
                 Fie
                 ,
                 being
                 the
                 full
                 profites
                 thereof
                 ,
                 when
                 the
                 Superior
                 or
                 his
                 Donatar
                 were
                 in
                 Possession
                 by
                 the
                 Ward
                 .
                 But
                 in
                 other
                 cases
                 ,
                 only
                 a
                 years
                 rent
                 ,
                 by
                 the
                 favourable
                 accompt
                 ,
                 that
                 is
                 one
                 years
                 new
                 retoured
                 duty
                 of
                 the
                 Fie
                 ,
                 as
                 it
                 is
                 retoured
                 by
                 it self
                 ,
                 or
                 the
                 share
                 of
                 the
                 retour
                 of
                 any
                 Barrony
                 or
                 Tenement
                 whereof
                 it
                 is
                 a
                 part
                 .
                 But
                 Craig
                 ,
                 with
                 good
                 reasoa
                 holds
                 relief
                 to
                 be
                 due
                 at
                 the
                 renovation
                 of
                 every
                 Fie
                 ,
                 to
                 the
                 Heirs
                 of
                 the
                 Investiture
                 ,
                 for
                 the
                 duplication
                 of
                 the
                 Feu-dutie
                 in
                 Feus
                 ,
                 is
                 due
                 at
                 the
                 entry
                 of
                 every
                 Heir
                 .
                 And
                 that
                 without
                 an
                 express
                 Clause
                 in
                 the
                 Reddendo
                 ,
                 by
                 the
                 Feudal
                 custom
                 ,
                 which
                 is
                 generally
                 acknowledged
                 .
                 And
                 
                 even
                 when
                 the
                 Duplication
                 is
                 exprest
                 ,
                 it
                 doth
                 ordinarly
                 bear
                 ,
                 
                   secundam
                   consuetudinent
                   Feudorum
                
                 :
                 And
                 Sir
                 
                   Thomas
                   Hope
                
                 ,
                 in
                 his
                 Title
                 of
                 Ward
                 ,
                 is
                 of
                 the
                 same
                 Opinion
                 ,
                 in
                 respect
                 that
                 the
                 Precepts
                 issued
                 out
                 of
                 the
                 Chanclery
                 ,
                 for
                 Infefting
                 of
                 Heirs
                 ,
                 even
                 in
                 Feues
                 ,
                 or
                 Blensh-holdings
                 ,
                 it
                 bears
                 ,
                 
                   capiendo
                   securitatem
                
                 ,
                 for
                 the
                 double
                 of
                 the
                 Feu
                 ,
                 or
                 Blensh-duty
                 .
              
               
                 28.
                 
                 And
                 as
                 to
                 the
                 quantity
                 of
                 the
                 relief
                 ,
                 Hope
                 in
                 that
                 Title
                 ,
                 holdeth
                 it
                 only
                 to
                 be
                 
                   the
                   retoured
                   dutie
                   ,
                   without
                   exception
                   when
                   the
                   Vassal
                   or
                   his
                   Donatar
                   was
                   in
                   Possession
                   .
                
                 And
                 Sir
                 
                   John
                   Skeen
                
                 in
                 his
                 
                   Title
                   ,
                   De
                   verborum
                   significatione
                
                 ,
                 asserteth
                 the
                 same
                 .
                 It
                 is
                 also
                 provided
                 by
                 Act
                 of
                 Parliament
                 ,
                 1587.
                 
                 
                   That
                   the
                   full
                   avail
                   of
                   the
                   Relief
                   be
                   taken
                   and
                   counted
                   for
                   in
                   Exchequer
                   ,
                   by
                   Sheriffs
                   ,
                   Stewarts
                   and
                   Bailies
                   ,
                   without
                   accepting
                   any
                   composition
                   ;
                   and
                   that
                   Charges
                   be
                   directed
                   against
                   persons
                   who
                   have
                   gotten
                   Precepts
                   of
                   Seasine
                   ,
                   or
                   the
                   Sheriffs
                   or
                   their
                   Deputs
                   ,
                   or
                   both
                   ,
                   to
                   Poind
                   for
                   the
                   sums
                   contained
                   in
                   the
                   Book
                   of
                   Responde
                
                 ;
                 which
                 is
                 a
                 Book
                 of
                 Record
                 in
                 the
                 Chanclery
                 ,
                 drawn
                 off
                 the
                 Precepts
                 of
                 Seasine
                 to
                 all
                 Heirs
                 ,
                 and
                 mentioning
                 such
                 a
                 Sheriff
                 or
                 Bailie
                 where
                 the
                 〈◊〉
                 ,
                 Respondere
                 :
                 That
                 is
                 ,
                 to
                 count
                 in
                 Exchequer
                 for
                 the
                 Sums
                 ,
                 which
                 by
                 the
                 Precepts
                 of
                 Seasine
                 direct
                 to
                 him
                 ,
                 he
                 is
                 ordered
                 to
                 take
                 security
                 for
                 which
                 sums
                 would
                 be
                 Liquid
                 ,
                 and
                 known
                 according
                 to
                 the
                 new
                 retour
                 ,
                 and
                 the
                 Feu
                 or
                 Blensh-duty
                 ;
                 but
                 could
                 not
                 be
                 known
                 otherways
                 ,
                 then
                 by
                 a
                 Process
                 of
                 Liquidation
                 ,
                 proving
                 the
                 full
                 yearly
                 Rent
                 of
                 the
                 Fee
                 ,
                 as
                 to
                 which
                 the
                 Sheriff
                 might
                 not
                 compone
                 or
                 Transact
                 ;
                 and
                 it
                 is
                 generally
                 acknowledged
                 ,
                 that
                 when
                 the
                 full
                 Rent
                 becomes
                 due
                 ,
                 there
                 is
                 no
                 real
                 execution
                 ,
                 by
                 Poinding
                 of
                 the
                 Ground
                 ;
                 but
                 the
                 Superiour
                 hath
                 the
                 full
                 benefite
                 of
                 the
                 Fee
                 ,
                 as
                 when
                 it
                 is
                 in
                 Ward
                 ;
                 and
                 therefore
                 ,
                 the
                 relief
                 which
                 is
                 
                   debitum
                   fundi
                
                 ,
                 must
                 only
                 be
                 the
                 retour
                 duty
                 .
              
               
                 Conform
                 to
                 this
                 Statute
                 it
                 was
                 found
                 ,
                 that
                 the
                 relief
                 might
                 be
                 recovered
                 ,
                 either
                 by
                 real
                 action
                 of
                 Poinding
                 of
                 the
                 Ground
                 ,
                 or
                 personally
                 against
                 the
                 vassal
                 ,
                 who
                 had
                 taken
                 his
                 Precept
                 of
                 Seasme
                 out
                 of
                 the
                 Chanclery
                 ,
                 though
                 he
                 had
                 not
                 taken
                 infeftment
                 there
                 upon
                 ,
                 March
                 12.
                 1678.
                 
                 Laird
                 of
                 
                   Lauriestoun
                   contra
                
                 the
                 Sherif
                 of
                 Mearns
                 ;
                 and
                 therefore
                 ,
                 though
                 in
                 Craigs
                 time
                 ,
                 relief
                 was
                 only
                 thought
                 to
                 affect
                 the
                 Fee
                 ,
                 and
                 not
                 the
                 personal
                 Estate
                 of
                 the
                 vassal
                 ,
                 this
                 Statute
                 clears
                 the
                 contrary
                 .
              
               
                 29.
                 
                 Relief
                 is
                 not
                 due
                 while
                 the
                 Fee
                 is
                 in
                 the
                 Non-entry
                 ;
                 seing
                 then
                 the
                 Rent
                 belongs
                 to
                 the
                 Superiour
                 ,
                 the
                 favourable
                 Rent
                 or
                 retoured
                 Duty
                 ,
                 while
                 the
                 Fee
                 is
                 void
                 through
                 necessity
                 and
                 negligence
                 ;
                 and
                 the
                 full
                 Rent
                 when
                 by
                 contempt
                 or
                 wilfulness
                 ,
                 the
                 Vassals
                 appearand
                 Heir
                 being
                 cited
                 ,
                 doth
                 not
                 enter
                 :
                 But
                 I
                 have
                 never
                 heard
                 of
                 one
                 retoured
                 Duty
                 demanded
                 for
                 the
                 Non-entry
                 ,
                 and
                 another
                 for
                 the
                 relief
                 ,
                 or
                 any
                 relief
                 required
                 where
                 a
                 years
                 Non-entry
                 was
                 exacted
                 :
                 But
                 if
                 the
                 Vassals
                 Heir
                 be
                 Entered
                 after
                 the
                 next
                 Term
                 from
                 the
                 Defuncts
                 death
                 ,
                 the
                 relief
                 may
                 at
                 least
                 be
                 demanded
                 for
                 the
                 other
                 subsequent
                 Term.
                 
              
               
                 30.
                 
                 If
                 the
                 Fee
                 be
                 possest
                 by
                 a
                 Relict
                 Conjunctfiar
                 ,
                 the
                 Vassals
                 Heir
                 needs
                 not
                 Enter
                 during
                 her
                 life
                 ,
                 for
                 her
                 Conjunctfee
                 doth
                 exclude
                 all
                 Casualities
                 during
                 her
                 life
                 :
                 Or
                 if
                 it
                 be
                 in
                 possession
                 of
                 a
                 Husband
                 by
                 the
                 Courtesie
                 of
                 Scotland
                 ;
                 yet
                 these
                 will
                 not
                 exclude
                 the
                 Fair
                 ,
                 to
                 Enter
                 to
                 the
                 Property
                 burdened
                 with
                 these
                 Liferents
                 ,
                 and
                 it
                 is
                 oftimes
                 necessary
                 for
                 him
                 to
                 secure
                 his
                 Creditors
                 ;
                 in
                 which
                 case
                 it
                 is
                 most
                 favourable
                 that
                 the
                 Superiour
                 should
                 have
                 a
                 years
                 retoured
                 Daty
                 ,
                 as
                 he
                 would
                 have
                 gotten
                 it
                 after
                 the
                 Conjunctfiars
                 death
                 ;
                 and
                 therefore
                 ,
                 much
                 more
                 where
                 the
                 Fee
                 is
                 wholly
                 burdened
                 with
                 a
                 Liferent
                 ,
                 by
                 the
                 constitution
                 or
                 consent
                 of
                 the
                 Superiour
                 .
              
               
               
               
               
                 31.
                 
                 The
                 
                   capiendo
                   securitatem
                
                 will
                 be
                 in
                 all
                 Precepts
                 ,
                 notwithstanding
                 these
                 Liferents
                 ,
                 and
                 it
                 will
                 not
                 stop
                 the
                 Seasine
                 of
                 the
                 Heir
                 ,
                 till
                 he
                 pay
                 the
                 relief
                 to
                 the
                 Superiour
                 ,
                 whether
                 King
                 or
                 Subject
                 ;
                 but
                 security
                 by
                 sufficient
                 Caution
                 must
                 be
                 received
                 .
              
               
                 32.
                 
                 In
                 place
                 of
                 the
                 relief
                 to
                 the
                 Superiour
                 by
                 the
                 Vassals
                 singular
                 Successor
                 ,
                 we
                 have
                 a
                 Composition
                 introduced
                 by
                 Statute
                 ,
                 1469.
                 cap.
                 36.
                 whereby
                 Superiours
                 are
                 oblieged
                 to
                 receive
                 Appryzers
                 for
                 a
                 years
                 rent
                 of
                 the
                 Lands
                 Appryzed
                 :
                 For
                 before
                 that
                 Statute
                 ,
                 no
                 Superiour
                 could
                 be
                 compelled
                 to
                 receive
                 any
                 other
                 Vassal
                 ,
                 then
                 the
                 Heir
                 of
                 the
                 First
                 Vassal
                 ,
                 provided
                 by
                 the
                 Investiture
                 ;
                 for
                 though
                 in
                 Dispositions
                 ,
                 Lands
                 are
                 ordinarly
                 disponed
                 to
                 the
                 Purchaser
                 ,
                 his
                 Heirs
                 and
                 Assignays
                 ;
                 yet
                 Assignays
                 use
                 not
                 to
                 be
                 repeated
                 in
                 the
                 Charters
                 ,
                 and
                 the
                 meaning
                 of
                 that
                 Clause
                 in
                 Dispositions
                 ,
                 hath
                 been
                 several
                 times
                 Interpret
                 ,
                 that
                 the
                 Disposition
                 may
                 be
                 Assigned
                 or
                 Transferred
                 :
                 But
                 Infeftment
                 being
                 once
                 taken
                 ,
                 Assignays
                 have
                 no
                 farther
                 interest
                 ;
                 and
                 that
                 Clause
                 doth
                 not
                 save
                 Recognition
                 ,
                 when
                 the
                 Ward-vassal
                 Infefts
                 any
                 other
                 in
                 the
                 Fee
                 then
                 his
                 Heir
                 apparent
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 the
                 Lady
                 
                   Carnagie
                   con
                
                 .
                 Lord
                 Cranburn
                 .
                 And
                 though
                 a
                 Disposition
                 have
                 no
                 mention
                 of
                 Assignays
                 ;
                 yet
                 before
                 Infeftment
                 ,
                 while
                 it
                 remains
                 personal
                 ,
                 it
                 is
                 assignable
                 ,
                 and
                 a
                 Superiour
                 who
                 granted
                 a
                 Disposition
                 by
                 a
                 minute
                 ,
                 was
                 discerned
                 to
                 receive
                 the
                 Assignay
                 to
                 the
                 Minute
                 ,
                 though
                 he
                 was
                 not
                 in
                 Freindship
                 with
                 him
                 ,
                 Jan.
                 29.
                 1623.
                 
                 
                   Ogilvie
                   contra
                   Kinloch
                
                 of
                 Bandoch
                 .
                 This
                 Statute
                 was
                 by
                 Custom
                 extended
                 to
                 Adjudications
                 ,
                 being
                 the
                 same
                 in
                 effect
                 ,
                 but
                 different
                 in
                 form
                 from
                 Appryzings
                 ;
                 for
                 the
                 design
                 of
                 the
                 Statute
                 being
                 to
                 Satisfie
                 Creditors
                 by
                 a
                 Judicial
                 alienation
                 of
                 the
                 Debitors
                 Lands
                 ,
                 
                   ex
                   paritate
                   rationis
                
                 ;
                 it
                 was
                 extended
                 against
                 the
                 Debitors
                 appearand
                 Heir
                 ,
                 who
                 being
                 Charged
                 to
                 Enter
                 Heir
                 ,
                 did
                 not
                 Enter
                 ;
                 and
                 therefore
                 ,
                 Lands
                 were
                 Adjudged
                 from
                 him
                 ,
                 to
                 which
                 he
                 might
                 have
                 Entered
                 ,
                 either
                 for
                 his
                 Predecessors
                 debt
                 or
                 his
                 own
                 ;
                 whereupon
                 the
                 Superiour
                 is
                 descerned
                 to
                 receive
                 the
                 Creditor
                 Adjudger
                 ,
                 whether
                 for
                 sums
                 of
                 Money
                 ,
                 or
                 for
                 Implement
                 of
                 Dispositions
                 ,
                 and
                 Obliegements
                 to
                 Infeft
                 :
                 But
                 the
                 Custom
                 allowed
                 not
                 a
                 years
                 Rent
                 to
                 Superiours
                 for
                 receiving
                 Adjudgers
                 ,
                 till
                 the
                 years
                 Rent
                 was
                 also
                 extended
                 to
                 Adjudications
                 by
                 Act
                 of
                 Parliament
                 ,
                 Decem.
                 3.
                 1669.
                 
              
               
                 The
                 Lords
                 of
                 Session
                 have
                 always
                 taken
                 latitude
                 in
                 the
                 modification
                 of
                 the
                 years
                 Rent
                 ,
                 especially
                 if
                 the
                 sum
                 Appryzed
                 or
                 Adjudged
                 for
                 be
                 small
                 ,
                 and
                 the
                 Lands
                 he
                 great
                 ;
                 and
                 they
                 have
                 allowed
                 the
                 Appryzer
                 or
                 Adjudger
                 ,
                 his
                 option
                 during
                 the
                 legal
                 ,
                 to
                 take
                 Infeftment
                 or
                 not
                 ;
                 and
                 yet
                 not
                 to
                 be
                 excluded
                 from
                 the
                 Rents
                 of
                 the
                 Lands
                 ,
                 till
                 he
                 be
                 satisfied
                 ,
                 Decem.
                 3.
                 1672.
                 
                 Mr.
                 
                   Hendry
                   Hay
                   contra
                
                 Laird
                 of
                 
                   Farlstoun
                   ,
                   Vide
                   Tit.
                
                 13.
                 
                 §
                 .
                 29.
                 
                 But
                 the
                 Appryzer
                 runs
                 that
                 hazard
                 ,
                 that
                 if
                 the
                 Debitor
                 die
                 before
                 he
                 be
                 satisfied
                 ,
                 if
                 the
                 Land
                 be
                 holden
                 Ward
                 ,
                 it
                 will
                 fall
                 in
                 Ward
                 ,
                 and
                 relief
                 by
                 the
                 Debitors
                 death
                 ,
                 and
                 in
                 Non-entry
                 ;
                 for
                 there
                 is
                 no
                 reason
                 that
                 the
                 Casualities
                 of
                 the
                 Superiority
                 should
                 neither
                 fall
                 by
                 the
                 Appryzer
                 nor
                 by
                 the
                 Debitor
                 .
              
               
                 There
                 is
                 not
                 the
                 like
                 reason
                 ,
                 that
                 the
                 Liferent-escheat
                 of
                 the
                 Debitor
                 should
                 exclude
                 the
                 Appryzer
                 ,
                 if
                 it
                 fell
                 after
                 the
                 Appryzing
                 and
                 Charge
                 ;
                 for
                 the
                 Liferent-escheat
                 falls
                 to
                 the
                 Superiour
                 ,
                 with
                 all
                 the
                 burdens
                 which
                 affected
                 it
                 by
                 the
                 Vassal
                 ,
                 even
                 with
                 the
                 burden
                 of
                 his
                 Tacks
                 ;
                 and
                 therefore
                 ,
                 Appryzing
                 with
                 a
                 Charge
                 way
                 be
                 as
                 effectual
                 as
                 these
                 ,
                 July
                 24.
                 1632.
                 
                 
                   James
                   Rule
                   con
                
                 .
                 Laird
                 of
                 Billie
                 .
              
               
                 The
                 Superiour
                 can
                 have
                 only
                 one
                 years
                 Rent
                 from
                 all
                 the
                 Appryzers
                 or
                 Adjudgers
                 .
                 But
                 now
                 since
                 Appryzers
                 and
                 Adjudgers
                 within
                 year
                 and
                 day
                 ,
                 
                 come
                 in
                 
                   pari
                   passu
                
                 ,
                 where
                 one
                 needs
                 only
                 to
                 be
                 Infeft
                 or
                 to
                 Charge
                 ;
                 there
                 is
                 less
                 reason
                 to
                 give
                 an
                 easie
                 modification
                 of
                 the
                 years
                 Rent
                 to
                 the
                 first
                 Appryzer
                 or
                 Adjudger
                 ,
                 insisting
                 for
                 Infeftment
                 then
                 before
                 ;
                 because
                 one
                 Infeftment
                 serves
                 for
                 all
                 ,
                 and
                 he
                 who
                 advanceth
                 the
                 same
                 ,
                 gets
                 relief
                 of
                 the
                 rest
                 ,
                 before
                 they
                 have
                 access
                 to
                 the
                 Rents
                 .
              
               
                 33.
                 
                 The
                 prime
                 Casulity
                 of
                 Fees
                 is
                 Ward
                 ,
                 which
                 is
                 not
                 competent
                 to
                 all
                 Superiours
                 ;
                 Ward
                 is
                 only
                 competent
                 in
                 Fees
                 holden
                 in
                 Military
                 Service
                 which
                 have
                 their
                 Denomination
                 from
                 this
                 Casuality
                 ,
                 being
                 therefore
                 called
                 Ward-holdings
                 ,
                 and
                 that
                 not
                 by
                 the
                 Tenor
                 of
                 the
                 Investiture
                 ,
                 which
                 seldom
                 mentioneth
                 Ward
                 ,
                 but
                 by
                 the
                 Nature
                 of
                 it
                 ;
                 for
                 when
                 the
                 Fee
                 is
                 holdeu
                 for
                 Military
                 Service
                 ,
                 or
                 as
                 the
                 English
                 better
                 express
                 by
                 Knight
                 Service
                 ,
                 extending
                 not
                 only
                 to
                 following
                 in
                 War
                 ,
                 but
                 to
                 Council
                 and
                 Assistance
                 in
                 Peace
                 ,
                 then
                 when
                 the
                 Vassal
                 is
                 unfit
                 for
                 such
                 Service
                 ,
                 the
                 Fee
                 is
                 open
                 and
                 remaineth
                 in
                 the
                 hands
                 of
                 the
                 Superiour
                 ,
                 or
                 his
                 Donatar
                 ;
                 and
                 though
                 this
                 capacity
                 might
                 be
                 in
                 some
                 sooner
                 ;
                 yet
                 it
                 is
                 fixed
                 in
                 men
                 to
                 their
                 majority
                 ,
                 at
                 twenty
                 one
                 years
                 compleat
                 ;
                 and
                 in
                 Women
                 ,
                 till
                 they
                 become
                 fourteen
                 years
                 compleat
                 ;
                 for
                 then
                 they
                 are
                 capable
                 of
                 Husbands
                 ,
                 who
                 may
                 do
                 the
                 Service
                 required
                 in
                 the
                 Fee
                 ,
                 Decem.
                 20.
                 1609.
                 and
                 Jan.
                 27.
                 1610.
                 
                 Lady
                 
                   Kilbirnie
                   contra
                
                 the
                 Heirs
                 of
                 Fairlie
                 .
                 What
                 Fees
                 are
                 holden
                 Ward
                 we
                 have
                 cleared
                 in
                 the
                 former
                 Title
                 .
                 It
                 now
                 remains
                 ,
                 that
                 we
                 hold
                 forth
                 the
                 effect
                 of
                 this
                 Casuality
                 .
              
               
                 24.
                 
                 Ward
                 reacheth
                 the
                 Custody
                 of
                 the
                 Person
                 ,
                 and
                 of
                 his
                 Lands
                 holden
                 Ward
                 ,
                 it
                 hath
                 its
                 denomination
                 rather
                 from
                 the
                 former
                 ;
                 for
                 Ward
                 is
                 as
                 much
                 as
                 Guard
                 or
                 Custody
                 :
                 The
                 Superiour
                 or
                 his
                 Donatar
                 is
                 by
                 the
                 Nature
                 of
                 this
                 Right
                 ,
                 as
                 a
                 Tutor
                 to
                 the
                 Vassals
                 Heir
                 ;
                 Craig
                 observeth
                 ,
                 that
                 he
                 is
                 preserable
                 to
                 all
                 other
                 Tutors
                 ,
                 except
                 only
                 the
                 Father
                 of
                 the
                 Heir
                 ,
                 whose
                 Fee
                 descends
                 by
                 the
                 Mother
                 ,
                 or
                 some
                 other
                 person
                 ;
                 and
                 that
                 he
                 is
                 oblieged
                 as
                 other
                 Tutors
                 ,
                 to
                 pursue
                 the
                 rights
                 of
                 the
                 heir
                 ;
                 but
                 the
                 course
                 of
                 time
                 having
                 turned
                 this
                 Right
                 from
                 its
                 ancient
                 Institution
                 ,
                 so
                 that
                 the
                 Superiour
                 hath
                 less
                 enjoyment
                 of
                 Service
                 ,
                 but
                 more
                 of
                 Profite
                 of
                 the
                 Fee
                 :
                 there
                 is
                 the
                 less
                 regard
                 to
                 the
                 Pupils
                 Education
                 ,
                 with
                 or
                 by
                 the
                 Superiour
                 ,
                 to
                 the
                 effect
                 he
                 might
                 be
                 fitted
                 for
                 his
                 Service
                 ;
                 and
                 therefore
                 ,
                 other
                 Tutors
                 ,
                 not
                 only
                 for
                 the
                 administration
                 of
                 the
                 Pupilsmeans
                 ,
                 but
                 even
                 for
                 the
                 Custody
                 and
                 Education
                 of
                 his
                 Person
                 will
                 be
                 preferred
                 ;
                 though
                 of
                 old
                 ,
                 the
                 Donatar
                 of
                 the
                 Ward
                 was
                 preferred
                 to
                 the
                 Tutor
                 in
                 Custody
                 of
                 the
                 Pupils
                 Person
                 ,
                 
                   Sinclar
                   ,
                   June
                
                 15.
                 1543.
                 
                 Laird
                 
                   Auchnames
                   contra
                
                 Laird
                 of
                 
                   Elphinstoun
                   Ledingtoun
                   .
                   March
                
                 16.
                 1565.
                 and
                 July
                 12.
                 1566.
                 
                 
                   Weir
                   contra
                   Lochart
                
                 .
                 Yet
                 later
                 Decisions
                 have
                 favoured
                 Tutors
                 more
                 ,
                 and
                 preferred
                 them
                 ,
                 
                   Nicol.
                   ubi
                   pupuli
                   educari
                
                 ,
                 Mr.
                 
                   James
                   Chalmers
                   contra
                   Elizabeth
                   Howstoun
                
                 Lady
                 Gadgirth
                 .
                 Neither
                 have
                 I
                 ever
                 observed
                 ,
                 that
                 Superiours
                 or
                 their
                 Donatars
                 were
                 made
                 lyable
                 as
                 Tutors
                 ,
                 for
                 Administration
                 of
                 their
                 Pupils
                 Affairs
                 .
              
               
                 35.
                 
                 The
                 main
                 effect
                 of
                 Ward
                 then
                 is
                 ,
                 that
                 thereby
                 the
                 Superiour
                 or
                 his
                 Donatar
                 have
                 ,
                 during
                 that
                 time
                 ,
                 the
                 full
                 fruits
                 and
                 profites
                 of
                 the
                 Fee
                 ,
                 and
                 may
                 remove
                 Tennents
                 ,
                 and
                 do
                 all
                 other
                 deeds
                 that
                 the
                 Proprietar
                 might
                 have
                 done
                 ,
                 and
                 was
                 accustomed
                 to
                 do
                 as
                 to
                 continue
                 the
                 profites
                 of
                 a
                 Wood
                 ,
                 if
                 there
                 be
                 constant
                 cutting
                 ,
                 as
                 being
                 divided
                 in
                 so
                 many
                 Hags
                 ,
                 that
                 the
                 first
                 is
                 ready
                 by
                 the
                 last
                 be
                 cut
                 :
                 Or
                 going
                 Heughs
                 ,
                 as
                 they
                 were
                 accustomed
                 by
                 the
                 Vassal
                 ;
                 but
                 he
                 cannor
                 cut
                 more
                 then
                 the
                 accustomed
                 yearly
                 Hags
                 of
                 Wood
                 ,
                 or
                 put
                 in
                 more
                 Coalziers
                 then
                 the
                 Vassal
                 had
                 at
                 his
                 death
                 ,
                 and
                 ordinarly
                 before
                 ;
                 and
                 he
                 may
                 remove
                 and
                 in
                 put
                 Tennents
                 ,
                 and
                 that
                 without
                 any
                 preceding
                 declarator
                 or
                 favourable
                 account
                 ,
                 esteeming
                 the
                 retour
                 Mail
                 for
                 the
                 Rent
                 ,
                 as
                 in
                 Non-entry
                 ;
                 
                 but
                 he
                 may
                 immediatly
                 pursue
                 actions
                 for
                 Mails
                 and
                 Duties
                 ,
                 removing
                 ,
                 &c.
                 unless
                 the
                 Ward
                 be
                 Taxed
                 ;
                 and
                 then
                 the
                 Superiour
                 can
                 have
                 no
                 more
                 then
                 the
                 Duties
                 to
                 which
                 it
                 is
                 Taxed
                 .
                 But
                 for
                 it
                 ,
                 he
                 hath
                 not
                 only
                 the
                 Vassal
                 ,
                 and
                 all
                 Intromettors
                 with
                 the
                 Fruits
                 ,
                 personally
                 ;
                 But
                 he
                 may
                 also
                 Poynd
                 the
                 Ground
                 for
                 the
                 Taxed
                 Duty
                 ,
                 as
                 Craig
                 affirmeth
                 in
                 this
                 Title
                 .
              
               
                 36.
                 
                 Yet
                 the
                 reach
                 of
                 the
                 Ward
                 by
                 the
                 Nature
                 of
                 the
                 Fee
                 ,
                 cannot
                 extend
                 to
                 alienation
                 ,
                 or
                 consumption
                 of
                 the
                 Substance
                 of
                 the
                 Fee
                 ,
                 or
                 any
                 part
                 or
                 pertinent
                 thereof
                 ,
                 and
                 this
                 is
                 cleared
                 by
                 the
                 Statute
                 ,
                 Parliament
                 1491.
                 cap.
                 25.
                 
                 Whereby
                 Donatars
                 must
                 find
                 Caution
                 not
                 to
                 destroy
                 the
                 Biggings
                 ,
                 Woods
                 ,
                 Stanks
                 ,
                 Parks
                 ,
                 Meadows
                 ,
                 or
                 Dovecoats
                 ,
                 but
                 to
                 keep
                 them
                 in
                 such
                 kind
                 as
                 they
                 get
                 them
                 .
              
               
                 Ward
                 is
                 also
                 restrained
                 by
                 the
                 Statutes
                 confirming
                 Feues
                 ,
                 of
                 which
                 formerly
                 ;
                 and
                 these
                 stand
                 valid
                 against
                 the
                 Superiour
                 ,
                 during
                 the
                 Ward
                 ;
                 so
                 do
                 also
                 all
                 Infeftments
                 holden
                 of
                 him
                 ,
                 either
                 by
                 Resignation
                 or
                 Confirmation
                 ;
                 but
                 not
                 Infeftments
                 to
                 be
                 holden
                 of
                 his
                 Vassal
                 ,
                 unless
                 Confirmed
                 by
                 him
                 ;
                 for
                 albeit
                 ,
                 Confirmations
                 by
                 the
                 King
                 ,
                 which
                 pass
                 of
                 course
                 ,
                 do
                 not
                 take
                 away
                 the
                 Casualities
                 of
                 Ward
                 ,
                 &c.
                 of
                 the
                 Kings
                 Vassals
                 ,
                 which
                 affect
                 the
                 Fee
                 of
                 the
                 Sub-vassals
                 ;
                 yet
                 the
                 Confirmation
                 of
                 other
                 Superiours
                 of
                 Sub-vassals
                 rights
                 ,
                 doth
                 take
                 off
                 from
                 him
                 the
                 Ward
                 ,
                 if
                 the
                 right
                 be
                 Feu
                 only
                 generally
                 ,
                 without
                 mention
                 of
                 the
                 Ward
                 ,
                 seing
                 the
                 Act
                 1606.
                 doth
                 only
                 annul
                 Feues
                 set
                 by
                 Vassals
                 ,
                 holding
                 Ward
                 of
                 Subjects
                 without
                 their
                 Superiours
                 consent
                 ,
                 which
                 was
                 so
                 found
                 ,
                 albeit
                 the
                 Feu
                 was
                 under
                 reversion
                 ,
                 that
                 it
                 was
                 free
                 of
                 the
                 Ward
                 and
                 Marriage
                 of
                 the
                 Vassal
                 as
                 to
                 the
                 subvassal
                 feuer
                 ,
                 but
                 did
                 only
                 affect
                 the
                 Vassals
                 interest
                 ,
                 viz.
                 the
                 Feu
                 duty
                 ,
                 reversion
                 and
                 back-tack
                 ,
                 July
                 2.
                 1672.
                 
                 Earl
                 of
                 
                   Eglintoun
                   contra
                
                 the
                 Laird
                 Greenock
                 .
              
               
                 Ward
                 is
                 also
                 restrained
                 by
                 the
                 Terce
                 and
                 Liferent
                 of
                 Husbands
                 ,
                 by
                 the
                 Courtesie
                 of
                 Scotland
                 ,
                 both
                 which
                 are
                 introduced
                 by
                 Law
                 ,
                 and
                 are
                 valid
                 without
                 the
                 Superiours
                 consent
                 .
              
               
                 But
                 Rentals
                 and
                 Tacks
                 set
                 by
                 the
                 Vassal
                 ,
                 have
                 only
                 this
                 effect
                 against
                 the
                 Superiour
                 or
                 his
                 Donatar
                 ,
                 that
                 the
                 Tennents
                 or
                 Labourers
                 shall
                 not
                 be
                 removed
                 till
                 the
                 next
                 Whitsonday
                 ,
                 after
                 the
                 beginning
                 of
                 the
                 Ward
                 ,
                 paying
                 the
                 old
                 accustomed
                 Duty
                 ,
                 Par.
                 1491.
                 cap.
                 26.
                 
                 But
                 then
                 the
                 Superiour
                 or
                 his
                 Donatar
                 may
                 remove
                 them
                 ,
                 notwithstanding
                 their
                 Tacks
                 be
                 unexpired
                 ,
                 which
                 therefore
                 sleep
                 during
                 the
                 Ward
                 ,
                 but
                 revive
                 against
                 the
                 setter
                 and
                 his
                 Heirs
                 ,
                 and
                 endure
                 as
                 many
                 years
                 after
                 the
                 Ward
                 ,
                 as
                 they
                 were
                 excluded
                 by
                 the
                 Ward
                 ,
                 
                   Sinclar
                   ,
                   May
                
                 21.
                 1549.
                 
                 Laird
                 of
                 
                   Durie
                   contra
                   Robert
                   Steuart
                   .
                   Ledingtoun
                   December
                
                 16.
                 1569.
                 
                 Kings
                 Donatar
                 contra
                 Tennents
                 of
                 
                   Drorgan
                   .
                   July
                
                 4.
                 1611.
                 
                 Laird
                 of
                 
                   Couter
                   contra
                
                 Where
                 also
                 the
                 Terce
                 was
                 found
                 relevant
                 to
                 exclude
                 the
                 Superiour
                 ;
                 yet
                 Ward
                 is
                 not
                 excluded
                 by
                 Annualrents
                 holden
                 of
                 the
                 Vassal
                 ,
                 March
                 11.
                 1629.
                 
                 
                   James
                   Weyms
                   contra
                   Kincraig
                
                 .
                 But
                 now
                 since
                 the
                 Act
                 of
                 Parliament
                 1606.
                 
                 Prohibiting
                 Feues
                 without
                 consent
                 of
                 the
                 Superiour
                 ;
                 these
                 did
                 not
                 exclude
                 the
                 Ward
                 or
                 other
                 Casualities
                 of
                 the
                 Superiority
                 ,
                 as
                 to
                 Fees
                 not
                 holden
                 of
                 the
                 King
                 ,
                 which
                 was
                 even
                 extended
                 to
                 the
                 Fees
                 holden
                 of
                 the
                 Prince
                 ,
                 Hope
                 ,
                 Ward
                 ,
                 Lady
                 
                   Cathcart
                   contra
                
                 Vassals
                 of
                 Cathcart
                 .
                 And
                 after
                 the
                 Act
                 of
                 Parliament
                 ,
                 1633.
                 extending
                 the
                 foresaid
                 Act
                 to
                 Ward-lands
                 holden
                 of
                 the
                 King
                 and
                 Prince
                 ;
                 Feues
                 then
                 granted
                 till
                 the
                 year
                 ,
                 1641.
                 when
                 the
                 effect
                 of
                 that
                 Act
                 ,
                 being
                 before
                 suspended
                 by
                 Act
                 of
                 Parliament
                 ,
                 1640.
                 was
                 taken
                 away
                 .
                 And
                 so
                 Feues
                 of
                 Lands
                 holden
                 of
                 the
                 King
                 or
                 Prince
                 ,
                 were
                 valid
                 
                 till
                 the
                 rescissory
                 Act
                 ,
                 1661.
                 whereby
                 the
                 said
                 Parliament
                 1641.
                 was
                 rescinded
                 ,
                 Par.
                 1661.
                 cap.
                 15.
                 
                 So
                 that
                 now
                 Feues
                 of
                 Lands
                 holden
                 of
                 the
                 King
                 ,
                 Prince
                 ,
                 or
                 any
                 other
                 Superiour
                 ,
                 without
                 their
                 consent
                 ,
                 do
                 not
                 exclude
                 it
                 or
                 other
                 Casualities
                 of
                 the
                 Superiority
                 ,
                 except
                 such
                 Feues
                 as
                 were
                 granted
                 the
                 several
                 times
                 they
                 were
                 allowed
                 by
                 Law
                 ;
                 but
                 a
                 Charter
                 upon
                 an
                 Apprizing
                 did
                 exclude
                 the
                 Ward
                 ,
                 though
                 no
                 Infeftment
                 was
                 taken
                 thereupon
                 ,
                 during
                 the
                 Vassals
                 life
                 ,
                 as
                 Hope
                 observes
                 ,
                 
                   Title
                   Ward
                   ,
                   Hamiltoun
                   contra
                
                 Tenents
                 of
                 Newburgh
                 ;
                 because
                 the
                 Superiours
                 Charter
                 without
                 Seasine
                 did
                 import
                 a
                 Gift
                 of
                 the
                 Casualities
                 ,
                 which
                 might
                 befall
                 to
                 the
                 Superiour
                 ;
                 and
                 he
                 there
                 observes
                 ,
                 that
                 a
                 Ward
                 was
                 excluded
                 by
                 Appryzing
                 and
                 Infeftment
                 thereupon
                 ,
                 whereby
                 the
                 Defunct
                 was
                 denuded
                 ,
                 albeit
                 it
                 was
                 to
                 the
                 behove
                 of
                 his
                 Heir
                 ,
                 Laird
                 of
                 
                   Ley
                   contra
                
                 Laird
                 of
                 Barro
                 .
              
               
                 During
                 the
                 Legal
                 ,
                 the
                 Superiour
                 or
                 Donatar
                 ,
                 as
                 before
                 the
                 Infeftment
                 upon
                 the
                 Apprysing
                 ,
                 they
                 might
                 pay
                 the
                 Appryzer
                 ,
                 and
                 take
                 his
                 right
                 :
                 So
                 after
                 ,
                 they
                 may
                 redeem
                 him
                 and
                 exclude
                 him
                 ,
                 it
                 being
                 against
                 reason
                 ,
                 that
                 by
                 Appryzing
                 (
                 suppose
                 of
                 a
                 great
                 Tenement
                 )
                 for
                 a
                 small
                 debt
                 ,
                 the
                 Superiour
                 should
                 be
                 simply
                 excluded
                 ,
                 and
                 it
                 may
                 be
                 upon
                 design
                 ;
                 if
                 an
                 Appryzer
                 Possess
                 ,
                 his
                 Ward
                 falls
                 ,
                 and
                 not
                 the
                 former
                 Vassals
                 ,
                 though
                 the
                 Legal
                 be
                 not
                 expired
                 ;
                 but
                 after
                 the
                 Ward
                 is
                 fallen
                 ,
                 though
                 the
                 Superiour
                 received
                 an
                 Appryzer
                 Appryzing
                 from
                 the
                 Heir
                 without
                 Protestation
                 ;
                 yet
                 it
                 was
                 found
                 not
                 to
                 prejudge
                 the
                 Ward
                 by
                 the
                 death
                 of
                 the
                 former
                 Vassal
                 ,
                 July
                 9.
                 1664.
                 
                 Hospital
                 of
                 
                   Glasgow
                   contra
                   Robert
                   Campbel
                
                 .
                 But
                 a
                 Superiour
                 was
                 not
                 excluded
                 from
                 the
                 Ward
                 by
                 his
                 Vassalt
                 death
                 ,
                 because
                 an
                 Appryzer
                 had
                 charged
                 him
                 to
                 Enter
                 him
                 ,
                 during
                 that
                 vassals
                 life
                 ,
                 seing
                 that
                 Charge
                 could
                 not
                 make
                 the
                 Apprizer
                 vassal
                 ,
                 by
                 whose
                 death
                 ,
                 Ward
                 would
                 fall
                 ,
                 and
                 thereby
                 make
                 the
                 Superiour
                 lose
                 this
                 Casuality
                 by
                 the
                 death
                 of
                 both
                 the
                 old
                 Vassal
                 and
                 the
                 appryzer
                 ,
                 unless
                 the
                 Superiour
                 had
                 been
                 
                   in
                   mora
                   aut
                   culpa
                
                 ,
                 which
                 was
                 not
                 found
                 ,
                 unless
                 a
                 years
                 rent
                 of
                 the
                 Land
                 ,
                 or
                 Annualrent
                 of
                 the
                 Money
                 :
                 And
                 a
                 Charter
                 were
                 offered
                 ,
                 with
                 a
                 Bond
                 to
                 pay
                 what
                 further
                 the
                 Lords
                 should
                 modifie
                 ,
                 February
                 19.
                 1669.
                 
                 
                   Black
                   contra
                   David
                   Trinch
                
                 .
              
               
                 If
                 an
                 Appryzing
                 be
                 satisfied
                 or
                 extinct
                 by
                 Intromission
                 ,
                 the
                 Ward-lands
                 appryzed
                 become
                 in
                 the
                 Superiours
                 hands
                 by
                 Ward
                 ,
                 till
                 the
                 Majority
                 of
                 the
                 heir
                 ,
                 July
                 20.
                 1671.
                 
                 Lindsay
                 of
                 
                   Mount
                   contra
                   Maxwel
                
                 of
                 Kirkonel
                 :
                 In
                 which
                 case
                 ,
                 the
                 Appryzer
                 was
                 not
                 found
                 oblieged
                 to
                 restrict
                 to
                 his
                 Annualrent
                 ,
                 to
                 the
                 effect
                 ,
                 that
                 the
                 Donatar
                 of
                 Ward
                 might
                 have
                 the
                 superplus
                 ,
                 by
                 the
                 Act
                 of
                 Parl
                 1661.
                 cap.
                 62.
                 betwixt
                 Debitor
                 and
                 Creditor
                 ,
                 whereby
                 there
                 is
                 a
                 power
                 given
                 to
                 the
                 Lords
                 of
                 Session
                 to
                 cause
                 Appryzers
                 restrict
                 to
                 their
                 Annualrent
                 ,
                 which
                 is
                 only
                 personal
                 ,
                 in
                 favours
                 of
                 the
                 debitor
                 ,
                 if
                 he
                 demand
                 it
                 .
              
               
                 The
                 benefite
                 of
                 Ward
                 is
                 also
                 burdened
                 with
                 the
                 Mentainance
                 and
                 Sustentation
                 of
                 the
                 Heir
                 ,
                 by
                 vertue
                 of
                 the
                 foresaid
                 Act
                 ,
                 1491.
                 cap.
                 25
                 whereby
                 a
                 reasonable
                 Sustentation
                 according
                 to
                 the
                 quantity
                 of
                 the
                 Heritage
                 is
                 appointed
                 to
                 the
                 Heir
                 ,
                 if
                 he
                 have
                 not
                 Lands
                 Blensh
                 or
                 Feu
                 to
                 sustain
                 him
                 ,
                 and
                 that
                 by
                 the
                 Superiour
                 and
                 his
                 Donatar
                 ,
                 and
                 Conjunctfiars
                 and
                 Liferenters
                 of
                 his
                 Estate
                 ;
                 the
                 quantity
                 whereof
                 is
                 to
                 be
                 modified
                 by
                 the
                 Lords
                 ,
                 according
                 to
                 the
                 quality
                 of
                 the
                 Heir
                 ,
                 and
                 so
                 found
                 ,
                 not
                 only
                 when
                 the
                 Heir
                 had
                 no
                 means
                 ,
                 but
                 though
                 he
                 had
                 ,
                 if
                 it
                 was
                 not
                 sufficient
                 to
                 entertain
                 him
                 ,
                 the
                 superplus
                 was
                 modified
                 out
                 of
                 the
                 Ward-lands
                 ,
                 and
                 Lands
                 Liferented
                 proportionably
                 ,
                 March
                 16.
                 1622.
                 
                 Heirs
                 of
                 
                   Miltoun
                   contra
                   Calderwood
                
                 .
              
               
                 We
                 shall
                 say
                 no
                 more
                 of
                 the
                 Aliment
                 of
                 Heirs
                 by
                 Ward
                 Superiours
                 ,
                 or
                 
                 their
                 Donatars
                 in
                 this
                 place
                 ;
                 but
                 you
                 may
                 see
                 it
                 in
                 its
                 proper
                 place
                 ,
                 Title
                 27.
                 
                 Section
                 third
                 .
              
               
                 Thus
                 it
                 appeareth
                 in
                 what
                 way
                 the
                 Casuality
                 of
                 Ward
                 is
                 excluded
                 ,
                 burdened
                 or
                 restricted
                 ,
                 being
                 always
                 by
                 Law
                 ,
                 or
                 by
                 the
                 consent
                 and
                 deed
                 of
                 the
                 Superiour
                 ;
                 but
                 no
                 private
                 deed
                 of
                 the
                 Vassal
                 without
                 the
                 Superiours
                 consent
                 ,
                 or
                 appointment
                 of
                 Law
                 ,
                 can
                 burden
                 the
                 Fee
                 when
                 it
                 is
                 in
                 the
                 hands
                 of
                 the
                 Superiour
                 ,
                 by
                 Ward
                 ,
                 &c.
                 
                 So
                 that
                 Servitudes
                 introduced
                 by
                 the
                 Vassal
                 ,
                 as
                 Thirlage
                 ,
                 ways
                 and
                 the
                 like
                 ,
                 are
                 not
                 effectual
                 against
                 the
                 Superiour
                 ,
                 or
                 his
                 Donatar
                 ,
                 when
                 the
                 Fee
                 is
                 in
                 their
                 hands
                 ;
                 Unless
                 such
                 Servitudes
                 be
                 introduced
                 by
                 Prescription
                 of
                 fourty
                 years
                 ,
                 or
                 immemorial
                 Possession
                 ,
                 whereunto
                 all
                 parties
                 having
                 interest
                 their
                 consent
                 is
                 presumed
                 ;
                 and
                 therefore
                 ,
                 in
                 that
                 case
                 there
                 is
                 more
                 ground
                 for
                 sustaining
                 of
                 the
                 Servitude
                 ,
                 even
                 against
                 the
                 Superiour
                 ,
                 who
                 might
                 at
                 least
                 have
                 used
                 civil
                 interruption
                 .
              
               
                 Marches
                 set
                 by
                 the
                 Vassal
                 of
                 consent
                 ,
                 or
                 by
                 Cognition
                 ,
                 whereto
                 the
                 Superiour
                 is
                 not
                 called
                 ,
                 hath
                 no
                 effect
                 in
                 his
                 prejudice
                 during
                 the
                 Ward
                 ,
                 Feb.
                 8.
                 1662.
                 
                 Lord
                 
                   Torphichen
                   contra
                
              
               
                 As
                 to
                 the
                 personal
                 debts
                 of
                 the
                 Vassal
                 ,
                 whether
                 Heretable
                 or
                 moveable
                 ,
                 they
                 do
                 not
                 affect
                 the
                 Fee
                 ,
                 though
                 in
                 Ward
                 ,
                 albeit
                 
                   Craig
                   Dieges
                
                 .
                 20.
                 relateth
                 ,
                 
                   that
                   of
                   old
                   it
                   was
                   otherways
                   ,
                   and
                   that
                   the
                   Superiour
                   had
                   the
                   Ward
                   ,
                   with
                   the
                   burden
                   of
                   intertaining
                   the
                   Heir
                   ,
                   and
                   with
                   the
                   paying
                   of
                   the
                   Annualrents
                   of
                   his
                   Heretable
                   debts
                   ,
                   and
                   that
                   the
                   Custom
                   of
                   Wards
                   in
                
                 France
                 
                   is
                   such
                
                 :
                 Yet
                 there
                 is
                 no
                 appearance
                 that
                 the
                 custom
                 hath
                 ever
                 been
                 so
                 with
                 us
                 ,
                 since
                 the
                 reign
                 of
                 King
                 Malcolm
                 ,
                 who
                 gave
                 out
                 all
                 his
                 Lands
                 to
                 his
                 Subjects
                 ,
                 and
                 reserved
                 only
                 to
                 himself
                 ,
                 for
                 sustaining
                 of
                 the
                 Royal
                 Dignity
                 ,
                 the
                 Ward
                 and
                 Marriage
                 of
                 his
                 Vassals
                 ,
                 which
                 at
                 that
                 time
                 were
                 very
                 considerable
                 ,
                 when
                 most
                 of
                 all
                 the
                 Lands
                 in
                 Scotland
                 were
                 holden
                 by
                 simple
                 Ward
                 ;
                 but
                 since
                 ,
                 a
                 great
                 part
                 hath
                 been
                 changed
                 into
                 blensh
                 ,
                 or
                 Taxed
                 Ward
                 ,
                 or
                 given
                 out
                 in
                 Burgage
                 and
                 Mortifications
                 ,
                 or
                 in
                 Feues
                 .
              
               
                 The
                 Casuality
                 of
                 Ward
                 may
                 be
                 enjoyed
                 immediatly
                 by
                 the
                 Superiour
                 ,
                 but
                 is
                 more
                 ordinarly
                 gifted
                 to
                 Donatars
                 ,
                 not
                 only
                 by
                 the
                 King
                 ,
                 but
                 by
                 other
                 Superiours
                 ;
                 which
                 Donatars
                 may
                 do
                 whatsoever
                 the
                 Superiour
                 himself
                 might
                 ,
                 because
                 they
                 Act
                 by
                 his
                 Right
                 ,
                 and
                 are
                 in
                 effect
                 his
                 Assigneys
                 :
                 So
                 that
                 if
                 gifts
                 be
                 granted
                 to
                 more
                 Donatars
                 ,
                 the
                 first
                 Intimation
                 or
                 Diligence
                 will
                 be
                 preferred
                 .
              
               
                 Gifts
                 of
                 Ward
                 and
                 Non-entry
                 were
                 accustomed
                 of
                 old
                 ,
                 to
                 be
                 granted
                 by
                 the
                 Exchequer
                 together
                 ,
                 bearing
                 ,
                 
                   not
                   only
                   for
                   bygones
                   ,
                   but
                   for
                   time
                   coming
                   ,
                   till
                   the
                   Entry
                   of
                   the
                   〈◊〉
                   Heir
                   or
                   Heirs
                   :
                
                 And
                 albeit
                 Gifts
                 of
                 Ward
                 run
                 still
                 in
                 the
                 same
                 Style
                 ;
                 yet
                 by
                 the
                 Acts
                 and
                 Customs
                 of
                 Exchequer
                 ,
                 Ward
                 and
                 Non-entry
                 are
                 several
                 Casualities
                 ,
                 and
                 pass
                 by
                 several
                 Gifts
                 ;
                 and
                 notwithstanding
                 the
                 foresaid
                 Clause
                 ,
                 the
                 Gift
                 of
                 Ward
                 reacheth
                 only
                 during
                 the
                 time
                 of
                 the
                 Ward
                 ,
                 and
                 three
                 terms
                 thereafter
                 ,
                 if
                 the
                 Lands
                 run
                 in
                 Non-entry
                 ;
                 but
                 ward
                 was
                 not
                 found
                 to
                 give
                 right
                 to
                 three
                 Terms
                 full
                 Rent
                 ,
                 here
                 the
                 Donatar
                 was
                 not
                 in
                 Possession
                 during
                 the
                 Ward
                 ,
                 Novemb.
                 2.
                 1680.
                 
                 Laird
                 of
                 
                   Dun
                   contra
                
                 Viscount
                 of
                 Arbuthnet
                 .
                 And
                 albeit
                 the
                 Gift
                 contain
                 relief
                 ,
                 yet
                 that
                 Casuality
                 ,
                 as
                 Hope
                 observeth
                 ,
                 is
                 always
                 demanded
                 by
                 the
                 Exchequer
                 ,
                 and
                 counted
                 for
                 by
                 the
                 Sheriff
                 ,
                 being
                 but
                 a
                 small
                 duty
                 of
                 the
                 retoured
                 mail
                 ,
                 as
                 the
                 gratuity
                 to
                 the
                 Superiour
                 at
                 the
                 Vassals
                 Entry
                 :
                 In
                 that
                 same
                 place
                 ,
                 he
                 saith
                 ,
                 
                   that
                   under
                   the
                   Gift
                   of
                   a
                   simple
                   Ward
                   ,
                   is
                   not
                   comprehended
                   Taxed
                   Ward
                   ,
                   which
                   being
                   Taxed
                   ,
                   is
                   as
                   a
                   Feu
                   duty
                   ,
                   and
                   rather
                   as
                   a
                   part
                   of
                   the
                   Kings
                   ordinar
                   Revenue
                   ,
                   then
                   a
                   Casuality
                   :
                
                 Upon
                 
                 which
                 ground
                 ,
                 the
                 Earl
                 of
                 Kinghorn
                 ,
                 as
                 Tutor
                 to
                 the
                 Earl
                 of
                 Errol
                 ,
                 having
                 gotten
                 a
                 gift
                 of
                 his
                 Ward
                 ,
                 without
                 mention
                 of
                 Taxt-ward
                 ,
                 he
                 was
                 necessitat
                 again
                 to
                 take
                 a
                 new
                 Gift
                 for
                 the
                 Taxt-ward
                 ,
                 and
                 gave
                 a
                 considerable
                 Composition
                 ,
                 and
                 did
                 not
                 adventure
                 to
                 put
                 the
                 matter
                 to
                 debate
                 before
                 the
                 Lords
                 of
                 Session
                 ,
                 whether
                 his
                 first
                 Gift
                 would
                 have
                 been
                 extended
                 to
                 Taxt-ward
                 or
                 not
                 .
              
               
                 37.
                 
                 The
                 fourth
                 Casuality
                 of
                 Superiority
                 ,
                 is
                 the
                 interest
                 of
                 Superiours
                 in
                 the
                 Marriage
                 of
                 their
                 Ward-vassals
                 ,
                 which
                 doth
                 arise
                 from
                 the
                 Nature
                 of
                 the
                 Feudal
                 Contract
                 in
                 proper
                 Fees
                 ,
                 whereby
                 the
                 Vassal
                 oweth
                 the
                 Superiour
                 ,
                 faithfulness
                 and
                 Military
                 Service
                 ,
                 and
                 is
                 thereby
                 in
                 his
                 Clientele
                 ,
                 which
                 could
                 Import
                 no
                 more
                 then
                 that
                 he
                 should
                 not
                 Contract
                 affinity
                 by
                 Marriage
                 ,
                 with
                 any
                 that
                 were
                 in
                 enmity
                 with
                 his
                 Superiour
                 ;
                 for
                 thereby
                 his
                 Fidelity
                 might
                 become
                 suspect
                 ,
                 which
                 would
                 take
                 place
                 ,
                 not
                 only
                 in
                 the
                 first
                 Marriage
                 of
                 the
                 Vassal
                 ,
                 but
                 as
                 to
                 any
                 subsequent
                 Marriage
                 ,
                 though
                 he
                 had
                 Succession
                 by
                 a
                 former
                 Marriage
                 ,
                 and
                 might
                 take
                 place
                 in
                 the
                 Marriage
                 of
                 the
                 Vassals
                 eldest
                 Son
                 ,
                 even
                 in
                 his
                 life
                 ,
                 and
                 might
                 be
                 considered
                 as
                 an
                 Act
                 of
                 Ingratitude
                 ,
                 if
                 the
                 enmity
                 betwixt
                 the
                 Superiour
                 and
                 the
                 Family
                 with
                 whom
                 the
                 Vassal
                 was
                 to
                 marry
                 ,
                 were
                 known
                 to
                 him
                 ,
                 and
                 might
                 import
                 a
                 breach
                 of
                 his
                 Fidelity
                 ,
                 if
                 the
                 Superiour
                 did
                 prohibit
                 him
                 to
                 match
                 with
                 that
                 Family
                 which
                 was
                 in
                 open
                 and
                 known
                 enmity
                 to
                 him
                 :
                 The
                 Superiour
                 might
                 also
                 have
                 Interest
                 in
                 his
                 Vassals
                 Marriage
                 ,
                 when
                 he
                 had
                 the
                 custody
                 of
                 his
                 Person
                 ,
                 as
                 a
                 Tutorial
                 Trust
                 for
                 the
                 good
                 of
                 the
                 Vassal
                 .
              
               
                 38.
                 
                 But
                 Time
                 and
                 Custom
                 hath
                 given
                 Superiours
                 a
                 far
                 different
                 interest
                 in
                 the
                 Marriage
                 of
                 their
                 Vassals
                 ,
                 here
                 and
                 in
                 England
                 ,
                 of
                 which
                 there
                 is
                 no
                 mention
                 in
                 the
                 common
                 Feudal
                 Customs
                 ,
                 nor
                 is
                 it
                 in
                 use
                 in
                 other
                 Kingdoms
                 ;
                 for
                 albeit
                 ,
                 by
                 the
                 Custom
                 of
                 France
                 ,
                 female
                 Heirs
                 in
                 the
                 Kings
                 Custody
                 ,
                 must
                 require
                 the
                 consent
                 of
                 the
                 King
                 or
                 his
                 Procurator
                 ,
                 yet
                 the
                 not
                 doing
                 so
                 ,
                 infers
                 not
                 the
                 value
                 of
                 their
                 Marriage
                 ,
                 as
                 in
                 England
                 ;
                 and
                 with
                 us
                 it
                 is
                 become
                 a
                 power
                 in
                 the
                 Superiour
                 ,
                 to
                 exact
                 out
                 of
                 his
                 Vassals
                 Fee
                 ,
                 the
                 value
                 of
                 a
                 Tocher
                 ,
                 suitable
                 to
                 the
                 whole
                 means
                 and
                 Estate
                 of
                 the
                 Vassal
                 ,
                 if
                 he
                 Marry
                 without
                 his
                 consent
                 ,
                 and
                 the
                 double
                 value
                 being
                 solemnly
                 required
                 ,
                 to
                 Marry
                 a
                 suitable
                 person
                 without
                 disparagement
                 ,
                 if
                 he
                 doth
                 not
                 obey
                 ,
                 but
                 Marry
                 another
                 ;
                 this
                 Custom
                 was
                 introduced
                 in
                 England
                 ,
                 in
                 the
                 Reign
                 of
                 King
                 Henry
                 the
                 third
                 .
              
               
                 It
                 is
                 commonly
                 held
                 to
                 have
                 been
                 introduced
                 in
                 Scotland
                 ,
                 in
                 the
                 Reign
                 of
                 King
                 Malcolm
                 the
                 second
                 ,
                 who
                 gave
                 out
                 all
                 his
                 Lands
                 in
                 Scotland
                 in
                 Fee
                 ,
                 and
                 reserved
                 to
                 himself
                 ,
                 for
                 the
                 ordinar
                 support
                 of
                 the
                 Royal
                 Dignity
                 ,
                 the
                 Ward
                 and
                 Marriage
                 of
                 his
                 Vassals
                 ,
                 whence
                 the
                 marriage
                 was
                 designed
                 as
                 a
                 profit
                 to
                 the
                 Crown
                 ,
                 and
                 by
                 example
                 was
                 derived
                 to
                 the
                 Subjects
                 ,
                 who
                 giving
                 their
                 Lands
                 Ward
                 ,
                 were
                 understood
                 to
                 give
                 the
                 same
                 with
                 the
                 like
                 Priviledge
                 of
                 the
                 value
                 of
                 their
                 Vassals
                 Marriage
                 ,
                 which
                 doth
                 never
                 take
                 effect
                 till
                 the
                 Vassal
                 be
                 Major
                 ;
                 for
                 during
                 his
                 Minority
                 ,
                 his
                 Superiour
                 or
                 his
                 Donatar
                 ,
                 have
                 the
                 full
                 profites
                 of
                 his
                 Fee
                 ,
                 over
                 and
                 above
                 the
                 expenses
                 of
                 his
                 Education
                 ,
                 and
                 mentainance
                 according
                 to
                 the
                 Vassals
                 quality
                 ,
                 if
                 he
                 have
                 no
                 other
                 Estate
                 which
                 is
                 not
                 Ward
                 ,
                 the
                 profits
                 whereof
                 may
                 be
                 sufficient
                 to
                 Entertain
                 and
                 Educate
                 him
                 ;
                 or
                 in
                 so
                 far
                 as
                 these
                 profits
                 come
                 short
                 ;
                 for
                 no
                 Minor
                 is
                 oblieged
                 to
                 spend
                 his
                 Stock
                 upon
                 his
                 mentainance
                 ;
                 nor
                 may
                 his
                 Tutors
                 or
                 Curators
                 securely
                 do
                 the
                 same
                 .
              
               
                 Therefore
                 the
                 true
                 Interest
                 of
                 Superiours
                 in
                 their
                 Vassals
                 Marriage
                 ,
                 should
                 now
                 be
                 the
                 Tocher
                 suitable
                 to
                 the
                 Vassals
                 Estate
                 ,
                 Marrying
                 after
                 his
                 Predecessours
                 
                 death
                 ,
                 if
                 he
                 had
                 not
                 been
                 Married
                 before
                 ;
                 for
                 the
                 value
                 of
                 the
                 Marriage
                 being
                 due
                 but
                 once
                 ,
                 and
                 not
                 for
                 every
                 Marriage
                 ,
                 if
                 the
                 first
                 Marriage
                 fall
                 not
                 after
                 the
                 Defunct
                 Vassals
                 death
                 ,
                 it
                 should
                 not
                 be
                 demanded
                 ,
                 nor
                 any
                 account
                 called
                 for
                 of
                 the
                 profite
                 of
                 the
                 Marriage
                 ,
                 falling
                 before
                 he
                 could
                 be
                 Vassal
                 ,
                 though
                 it
                 hath
                 been
                 claimed
                 ,
                 where
                 the
                 Vassal
                 was
                 Widow
                 at
                 his
                 Predecessors
                 death
                 ,
                 having
                 no
                 Children
                 of
                 the
                 former
                 Marriage
                 ;
                 but
                 it
                 came
                 not
                 to
                 be
                 determined
                 by
                 the
                 Session
                 ,
                 though
                 it
                 was
                 demanded
                 by
                 the
                 Commissioners
                 of
                 the
                 Thesaury
                 ,
                 from
                 Sir
                 
                   Robert
                   Barcley
                
                 of
                 Pearstoun
                 .
              
               
                 And
                 albeit
                 the
                 Vassal
                 never
                 marry
                 ,
                 yet
                 if
                 he
                 be
                 solemnly
                 required
                 by
                 Instrument
                 to
                 Marry
                 a
                 suitable
                 Person
                 without
                 disparagement
                 ,
                 if
                 he
                 live
                 to
                 his
                 majority
                 ,
                 though
                 he
                 never
                 Marry
                 ,
                 his
                 Fee
                 will
                 be
                 lyable
                 to
                 the
                 value
                 of
                 his
                 Marriage
                 ,
                 albeit
                 he
                 willingly
                 ly
                 out
                 uninfeft
                 ,
                 not
                 by
                 the
                 Superiours
                 fault
                 ,
                 but
                 his
                 own
                 ;
                 for
                 though
                 Creditors
                 have
                 a
                 remeid
                 by
                 a
                 Charge
                 ,
                 to
                 enter
                 Heir
                 within
                 fourty
                 dayes
                 ,
                 with
                 certification
                 ,
                 that
                 all
                 execution
                 shall
                 pass
                 ,
                 as
                 if
                 the
                 debitor
                 were
                 Entered
                 ;
                 yet
                 there
                 is
                 no
                 Reason
                 or
                 Practice
                 to
                 extend
                 the
                 same
                 to
                 Superiours
                 ,
                 albeit
                 Craig
                 think
                 that
                 it
                 may
                 be
                 so
                 extended
                 ,
                 and
                 that
                 the
                 Marriage
                 is
                 not
                 due
                 ,
                 unless
                 by
                 that
                 means
                 ,
                 the
                 Heir
                 required
                 to
                 Marry
                 be
                 Entered
                 ,
                 or
                 at
                 least
                 charged
                 to
                 Enter
                 ;
                 but
                 by
                 a
                 solemn
                 debate
                 and
                 Decision
                 betwixt
                 French
                 of
                 Frenchland
                 and
                 Thorniedykes
                 ,
                 upon
                 the
                 11.
                 of
                 July
                 1622.
                 the
                 Lords
                 found
                 that
                 the
                 Marriage
                 was
                 due
                 ,
                 if
                 the
                 appearand
                 Heir
                 became
                 Marriagable
                 ,
                 though
                 dying
                 in
                 minority
                 ,
                 when
                 they
                 were
                 not
                 Entered
                 Heirs
                 :
                 But
                 in
                 that
                 case
                 ,
                 the
                 Heirs
                 were
                 Female
                 ;
                 and
                 it
                 does
                 not
                 appear
                 whether
                 they
                 were
                 past
                 fourteen
                 ,
                 at
                 which
                 time
                 their
                 Ward
                 ceasseth
                 ,
                 and
                 they
                 are
                 in
                 the
                 same
                 case
                 as
                 men
                 ,
                 when
                 they
                 pass
                 twenty
                 one
                 ;
                 neither
                 doth
                 it
                 appear
                 whether
                 they
                 were
                 required
                 to
                 marry
                 or
                 not
                 ;
                 and
                 therefore
                 ,
                 we
                 shall
                 not
                 thence
                 conclude
                 ,
                 that
                 a
                 marriage
                 is
                 due
                 by
                 the
                 appearand
                 Heirs
                 being
                 marriagable
                 ,
                 though
                 dying
                 uninfeft
                 and
                 in
                 minority
                 ,
                 against
                 which
                 ,
                 Craigs
                 opinion
                 is
                 very
                 positive
                 ,
                 l.
                 2.
                 
                 Dieges
                 .
                 Yet
                 from
                 this
                 Decision
                 ,
                 and
                 from
                 that
                 betwixt
                 Dickson
                 of
                 Headrig
                 and
                 the
                 Kings
                 Donatar
                 ,
                 decided
                 ,
                 November
                 14.
                 1635.
                 we
                 may
                 conclude
                 ,
                 that
                 there
                 may
                 be
                 more
                 marriages
                 exacted
                 by
                 the
                 death
                 of
                 one
                 Ward-vassal
                 ,
                 having
                 several
                 appearand
                 Heirs
                 ,
                 of
                 which
                 none
                 were
                 Entered
                 ;
                 and
                 it
                 being
                 debated
                 ,
                 whether
                 the
                 marriage
                 would
                 be
                 due
                 ,
                 though
                 the
                 Vassal
                 died
                 unmarried
                 and
                 unrequired
                 to
                 marry
                 ,
                 in
                 the
                 case
                 of
                 
                   Archibald
                   Campbel
                   contra
                
                 Laird
                 of
                 
                   Mcnaghtoun
                   ,
                   Decem.
                
                 3.
                 1677.
                 the
                 Lords
                 proceeded
                 no
                 further
                 ,
                 but
                 did
                 only
                 determine
                 ,
                 that
                 the
                 single
                 value
                 is
                 not
                 penal
                 but
                 favourable
                 .
              
               
                 39.
                 
                 And
                 therefore
                 ,
                 the
                 single
                 value
                 of
                 the
                 Vassals
                 marriage
                 needs
                 not
                 be
                 pursued
                 penally
                 ,
                 because
                 the
                 Vassal
                 married
                 without
                 the
                 Superiours
                 consent
                 ,
                 or
                 being
                 required
                 ,
                 and
                 living
                 till
                 majority
                 ,
                 though
                 not
                 Entered
                 by
                 his
                 fault
                 ,
                 did
                 not
                 marry
                 ;
                 but
                 may
                 be
                 pursued
                 as
                 a
                 Casuality
                 ,
                 and
                 profite
                 due
                 to
                 the
                 Superiour
                 ,
                 for
                 the
                 Vassals
                 marriage
                 ,
                 marrying
                 after
                 his
                 Predecessors
                 death
                 :
                 Or
                 being
                 required
                 to
                 marry
                 ,
                 did
                 live
                 unmarried
                 past
                 his
                 majority
                 ,
                 or
                 married
                 without
                 his
                 Superiours
                 consent
                 ;
                 by
                 which
                 ,
                 all
                 the
                 unhandsome
                 formalities
                 ,
                 accustomed
                 to
                 reach
                 a
                 double
                 value
                 ,
                 might
                 be
                 abated
                 ;
                 for
                 the
                 single
                 value
                 would
                 be
                 due
                 ,
                 if
                 the
                 Vassal
                 live
                 to
                 majority
                 and
                 never
                 marry
                 ;
                 and
                 if
                 he
                 did
                 marry
                 without
                 the
                 Superiours
                 consent
                 ,
                 the
                 double
                 would
                 be
                 due
                 ;
                 and
                 for
                 obtaining
                 the
                 Superiours
                 consent
                 ,
                 it
                 would
                 be
                 necessarly
                 consequent
                 ,
                 that
                 the
                 Vassal
                 should
                 confer
                 with
                 the
                 Superiour
                 ,
                 and
                 propose
                 to
                 him
                 whom
                 he
                 inclined
                 to
                 marry
                 ,
                 and
                 if
                 the
                 Superiour
                 consented
                 not
                 thereto
                 ,
                 he
                 should
                 condescend
                 upon
                 his
                 reasons
                 ,
                 and
                 offer
                 another
                 fitter
                 person
                 .
              
               
               
                 40.
                 
                 All
                 which
                 being
                 exprest
                 by
                 Instrument
                 ,
                 the
                 Session
                 would
                 judge
                 who
                 were
                 in
                 the
                 right
                 ,
                 and
                 would
                 be
                 very
                 favourable
                 in
                 the
                 single
                 value
                 ,
                 but
                 would
                 not
                 sustain
                 the
                 double
                 ,
                 if
                 the
                 Superiour
                 did
                 without
                 reason
                 refuse
                 his
                 consent
                 ,
                 without
                 necessity
                 of
                 the
                 ordinary
                 form
                 of
                 Requisition
                 ,
                 offering
                 a
                 particular
                 person
                 ,
                 and
                 opportunity
                 of
                 a
                 visit
                 and
                 conference
                 ,
                 and
                 a
                 day
                 and
                 place
                 to
                 marry
                 ,
                 not
                 being
                 within
                 thirty
                 days
                 ;
                 and
                 a
                 second
                 Instrument
                 ,
                 bringing
                 that
                 person
                 to
                 the
                 place
                 of
                 conference
                 ;
                 first
                 to
                 offer
                 her
                 consent
                 ,
                 so
                 that
                 if
                 the
                 Vassal
                 at
                 the
                 first
                 fight
                 did
                 demand
                 of
                 her
                 if
                 she
                 would
                 marry
                 him
                 ,
                 she
                 behoved
                 immodestly
                 enough
                 to
                 consent
                 without
                 acquaintance
                 ,
                 without
                 consideration
                 or
                 affections
                 ;
                 and
                 then
                 openly
                 to
                 appear
                 at
                 the
                 Church
                 ,
                 and
                 offer
                 her self
                 again
                 ,
                 which
                 no
                 fit
                 and
                 modest
                 person
                 would
                 be
                 induced
                 to
                 do
                 ;
                 and
                 therefore
                 ,
                 these
                 are
                 meer
                 formalities
                 ,
                 without
                 any
                 design
                 to
                 offer
                 a
                 suitable
                 person
                 ;
                 so
                 that
                 there
                 is
                 no
                 reason
                 the
                 Superiour
                 should
                 lose
                 the
                 single
                 value
                 ,
                 for
                 any
                 defect
                 in
                 these
                 formalities
                 ;
                 nor
                 that
                 he
                 should
                 have
                 the
                 double
                 value
                 for
                 using
                 the
                 same
                 without
                 any
                 just
                 design
                 ,
                 or
                 desire
                 of
                 acceptance
                 ;
                 and
                 therefore
                 ,
                 the
                 double
                 value
                 hath
                 been
                 seldom
                 found
                 due
                 ,
                 and
                 so
                 takes
                 no
                 place
                 without
                 the
                 solemnity
                 of
                 an
                 Instrument
                 of
                 Requisition
                 by
                 a
                 Nottar
                 ,
                 observing
                 all
                 the
                 formalities
                 of
                 producing
                 the
                 Donatars
                 Gift
                 ,
                 if
                 he
                 do
                 personally
                 require
                 ,
                 and
                 both
                 the
                 Gift
                 and
                 Procuratory
                 ,
                 if
                 he
                 require
                 it
                 by
                 his
                 Procurator
                 ,
                 and
                 the
                 offering
                 of
                 a
                 person
                 by
                 name
                 ,
                 and
                 an
                 unsuspected
                 place
                 for
                 view
                 and
                 conference
                 ,
                 and
                 another
                 day
                 and
                 Church
                 for
                 solemnizing
                 the
                 marriage
                 ,
                 and
                 at
                 that
                 day
                 a
                 new
                 Instrument
                 presenting
                 the
                 Woman
                 ,
                 and
                 waiting
                 for
                 the
                 Vassal
                 till
                 one
                 of
                 the
                 Clock
                 ,
                 wherein
                 there
                 is
                 the
                 greatest
                 exactness
                 observed
                 as
                 to
                 the
                 double
                 value
                 ;
                 but
                 there
                 was
                 no
                 necessity
                 found
                 to
                 make
                 the
                 requisition
                 to
                 Curators
                 ,
                 whose
                 consent
                 is
                 not
                 required
                 to
                 the
                 marriage
                 of
                 Minors
                 ;
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 the
                 Heirs
                 of
                 Thorniedike
                 .
                 But
                 the
                 double
                 value
                 was
                 not
                 found
                 due
                 ,
                 where
                 the
                 Superiour
                 or
                 his
                 Donatar
                 appeared
                 not
                 at
                 the
                 day
                 appointed
                 ,
                 for
                 interview
                 ,
                 Hope
                 ,
                 marriage
                 ,
                 Earl
                 of
                 
                   Angus
                   contra
                   Hugh
                   Nisbit
                
                 :
                 Nor
                 where
                 the
                 Instrument
                 of
                 requisition
                 mentioned
                 not
                 the
                 Gift
                 produced
                 ,
                 though
                 it
                 was
                 offered
                 to
                 be
                 proven
                 by
                 witnesses
                 ,
                 that
                 it
                 was
                 truly
                 produced
                 ,
                 albeit
                 it
                 was
                 not
                 called
                 for
                 ,
                 March
                 8.
                 1627.
                 
                 Earl
                 of
                 
                   Rothes
                   contra
                   Balsour
                   ,
                   Hope
                
                 ,
                 marriage
                 ,
                 
                   Drummond
                   contra
                
                 Laird
                 of
                 Manner
                 .
                 The
                 double
                 value
                 was
                 not
                 sustained
                 ,
                 because
                 the
                 place
                 appointed
                 for
                 interview
                 ,
                 was
                 the
                 Donatars
                 Lodging
                 ,
                 July
                 3.
                 1622.
                 
                 
                   French
                   contra
                
                 Heirs
                 of
                 Thorniedike
                 .
                 Neither
                 was
                 it
                 found
                 effectual
                 till
                 the
                 Heir
                 married
                 another
                 ,
                 and
                 after
                 the
                 Ward
                 was
                 ended
                 ,
                 December
                 20.
                 1609.
                 and
                 January
                 27.
                 1610.
                 
                 Laird
                 of
                 
                   Kilburnie
                   contra
                
                 Heretrix
                 of
                 Fairlie
                 .
                 Neither
                 was
                 the
                 double
                 value
                 found
                 due
                 ,
                 where
                 the
                 Heir
                 remained
                 several
                 years
                 marriageable
                 ,
                 and
                 the
                 Requisition
                 was
                 made
                 after
                 the
                 Heir
                 was
                 aggreed
                 to
                 be
                 married
                 with
                 another
                 ,
                 and
                 the
                 day
                 of
                 the
                 marriage
                 was
                 set
                 ,
                 albeit
                 the
                 Contract
                 of
                 marriage
                 was
                 not
                 subscribed
                 ,
                 &
                 separatim
                 ,
                 because
                 the
                 woman
                 offered
                 ,
                 was
                 agreed
                 in
                 marriage
                 with
                 another
                 man
                 ,
                 and
                 both
                 were
                 found
                 probable
                 by
                 the
                 communers
                 ,
                 Feb
                 22
                 ,
                 1678.
                 
                 Drummond
                 of
                 
                   Machanie
                   contra
                   Stuart
                
                 of
                 Innernytie
                 .
              
               
                 And
                 even
                 when
                 the
                 double
                 value
                 is
                 sustained
                 ,
                 it
                 makes
                 but
                 a
                 small
                 addition
                 ordinarly
                 to
                 the
                 single
                 value
                 ,
                 which
                 is
                 two
                 or
                 three
                 years
                 free
                 Rent
                 ,
                 or
                 Annualrent
                 ,
                 deducing
                 Liferents
                 ;
                 or
                 Annualrents
                 real
                 or
                 personal
                 of
                 the
                 vassals
                 hail
                 Estate
                 ,
                 and
                 the
                 double
                 value
                 adds
                 ordinarly
                 but
                 a
                 fourth
                 .
              
               
                 41.
                 
                 The
                 single
                 value
                 is
                 due
                 though
                 the
                 vassal
                 was
                 married
                 before
                 his
                 Predecessors
                 death
                 ,
                 being
                 by
                 a
                 fraudulent
                 precipitation
                 ,
                 the
                 Predecessor
                 being
                 then
                 moribundus
                 ,
                 and
                 dying
                 within
                 some
                 few
                 days
                 ,
                 and
                 no
                 previous
                 Treaty
                 or
                 Proclamation
                 ,
                 February
                 20.
                 1677.
                 
                 Lord
                 Thesaurer
                 and
                 Advocat
                 contra
                 
                 Lord
                 Colvil
                 .
                 There
                 are
                 several
                 cases
                 to
                 the
                 same
                 purpose
                 ,
                 observed
                 by
                 Sir
                 
                   John
                   Skeen
                
                 .
              
               
                 42.
                 
                 There
                 is
                 no
                 regard
                 had
                 in
                 the
                 modification
                 of
                 the
                 value
                 of
                 the
                 marriages
                 ,
                 what
                 Tocher
                 the
                 vassal
                 actually
                 got
                 ,
                 or
                 any
                 personal
                 consideration
                 ,
                 but
                 only
                 an
                 ordinary
                 Tocher
                 for
                 such
                 an
                 Estate
                 ;
                 it
                 was
                 modified
                 to
                 two
                 years
                 and
                 an
                 half
                 ,
                 in
                 the
                 case
                 of
                 Innernytie
                 ,
                 and
                 to
                 two
                 years
                 in
                 the
                 case
                 of
                 Zeaman
                 of
                 
                   Dryburgh
                   ,
                   July
                
                 13.
                 and
                 28.
                 1680.
                 in
                 which
                 case
                 the
                 vassals
                 Rent
                 ,
                 and
                 Annualrent
                 ,
                 being
                 referred
                 to
                 his
                 oath
                 ,
                 he
                 did
                 depone
                 thereupon
                 ,
                 Qualificate
                 ,
                 that
                 he
                 had
                 so
                 much
                 debt
                 ,
                 and
                 such
                 burdens
                 ,
                 which
                 was
                 not
                 sustained
                 by
                 way
                 of
                 quality
                 ,
                 without
                 Probation
                 .
              
               
                 Neither
                 is
                 the
                 marriage
                 of
                 Heirs
                 Female
                 esteemed
                 the
                 worth
                 of
                 their
                 Estate
                 ,
                 which
                 ostentimes
                 is
                 disponed
                 ,
                 
                   nomine
                   dotis
                
                 ,
                 but
                 only
                 such
                 a
                 sum
                 for
                 them
                 all
                 ,
                 as
                 would
                 have
                 been
                 modified
                 for
                 the
                 Marriage
                 of
                 one
                 man
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 the
                 Heirs
                 of
                 Fairly
                 and
                 Thorniedikes
                 ,
                 and
                 so
                 was
                 found
                 ,
                 June
                 14.
                 1673.
                 
                 Mr.
                 
                   George
                   Gibson
                   contra
                   Janet
                   Ramsay
                
                 .
              
               
                 43.
                 
                 But
                 the
                 Marriage
                 of
                 Heirs
                 is
                 
                   debitum
                   fundi
                
                 ,
                 and
                 the
                 Tennents
                 Goods
                 may
                 be
                 Poinded
                 therefore
                 ,
                 for
                 their
                 Terms
                 mail
                 ;
                 or
                 otherways
                 the
                 Ground-right
                 and
                 Property
                 may
                 be
                 Appryzed
                 ,
                 both
                 being
                 done
                 after
                 the
                 Ward
                 is
                 ended
                 ,
                 which
                 in
                 men
                 is
                 at
                 the
                 age
                 of
                 twenty
                 one
                 compleat
                 ;
                 and
                 in
                 Women
                 ,
                 at
                 the
                 age
                 of
                 fourteen
                 compleat
                 .
                 This
                 Appryzing
                 or
                 Adjudication
                 ,
                 will
                 be
                 drawn
                 back
                 to
                 the
                 time
                 that
                 the
                 marriage
                 was
                 due
                 ,
                 and
                 preferred
                 to
                 any
                 legal
                 diligence
                 since
                 that
                 time
                 ;
                 as
                 all
                 Appryzings
                 ,
                 
                   super
                   debito
                   fundi
                
                 ,
                 are
                 ,
                 December
                 17.
                 1673.
                 
                 
                   Patrick
                   Hadden
                   contra
                   John
                   Moor.
                
                 But
                 it
                 doth
                 not
                 affect
                 the
                 appearand
                 Heir
                 personally
                 ,
                 not
                 being
                 in
                 Possession
                 ,
                 nor
                 is
                 the
                 Tocher
                 he
                 got
                 after
                 his
                 Predecessors
                 death
                 ,
                 accounted
                 as
                 a
                 part
                 of
                 his
                 Estate
                 ,
                 being
                 marriageable
                 before
                 that
                 time
                 ,
                 but
                 only
                 the
                 Estate
                 he
                 had
                 when
                 he
                 married
                 ,
                 or
                 was
                 required
                 to
                 marry
                 ,
                 January
                 5.
                 1681.
                 
                 Laird
                 of
                 
                   Dun
                   contra
                
                 Viscount
                 of
                 Arbuthnet
                 .
              
               
                 44.
                 
                 The
                 value
                 of
                 the
                 marriage
                 is
                 ,
                 
                   jus
                   indivisibile
                
                 ,
                 and
                 belongs
                 not
                 to
                 every
                 Superiour
                 ,
                 of
                 whom
                 the
                 Vassal
                 holds
                 Ward-lands
                 ,
                 but
                 to
                 the
                 most
                 ancient
                 Superiour
                 .
              
               
                 45.
                 
                 The
                 King
                 by
                 his
                 Royal
                 Prerogative
                 hath
                 the
                 Marriage
                 of
                 the
                 Ward-vassal
                 ,
                 whensoever
                 he
                 becomes
                 immediat
                 Superiour
                 ,
                 if
                 before
                 the
                 marriage
                 fell
                 due
                 ,
                 though
                 the
                 Lands
                 holden
                 of
                 the
                 King
                 were
                 Taxed
                 to
                 a
                 small
                 sum
                 for
                 the
                 marriage
                 ,
                 July
                 19.
                 1672.
                 
                 Earl
                 of
                 
                   Argile
                   contra
                   Mcleod
                
                 .
                 And
                 though
                 the
                 Vassal
                 hold
                 some
                 Lands
                 of
                 the
                 King
                 simple
                 Ward
                 ,
                 and
                 others
                 Taxed
                 Ward
                 ,
                 the
                 full
                 value
                 is
                 due
                 ;
                 but
                 the
                 Taxed
                 value
                 is
                 deduced
                 as
                 a
                 part
                 of
                 it
                 ,
                 February
                 24.
                 1675.
                 
                 Kings
                 Advocat
                 contra
                 Laird
                 of
                 Innernytie
                 :
                 Yea
                 ,
                 a
                 marriage
                 was
                 found
                 due
                 by
                 a
                 Vassal
                 in
                 the
                 principality
                 ,
                 albeit
                 he
                 held
                 Lands
                 immediatly
                 of
                 the
                 King
                 ,
                 Taxed
                 Ward
                 ,
                 in
                 respect
                 of
                 the
                 non-existence
                 of
                 a
                 Prince
                 ;
                 during
                 which
                 ,
                 the
                 King
                 acts
                 not
                 as
                 Administrator
                 or
                 Curator
                 
                   hareditatis
                   jacentis
                
                 ,
                 of
                 the
                 Prince
                 ,
                 but
                 
                   proprio
                   jure
                
                 ,
                 as
                 Soveraign
                 Prince
                 ,
                 and
                 Stewart
                 of
                 Scotland
                 ,
                 Jan.
                 1680.
                 
                 Sir
                 
                   William
                   Purves
                   contra
                
                 the
                 Laird
                 of
                 Lus.
                 
              
               
                 46.
                 
                 A
                 marriage
                 was
                 found
                 due
                 by
                 the
                 Heir
                 of
                 an
                 Appryzer
                 ,
                 who
                 died
                 Infeft
                 ,
                 albeit
                 within
                 the
                 Legal
                 ,
                 unless
                 the
                 Appryzing
                 were
                 proven
                 to
                 be
                 satisfied
                 in
                 the
                 Defunct
                 Vassals
                 time
                 ,
                 July
                 13.
                 1680.
                 
                 Kings
                 Advocat
                 
                   contra
                   Zeaman
                
                 of
                 Dryburgh
                 .
              
               
               
                 To
                 come
                 now
                 to
                 the
                 exceptions
                 exclusive
                 of
                 the
                 value
                 of
                 marriage
                 ,
                 it
                 was
                 not
                 found
                 relevant
                 ,
                 that
                 the
                 Vassal
                 died
                 in
                 the
                 War
                 ,
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 1641.
                 seing
                 there
                 was
                 a
                 pacification
                 after
                 that
                 Act
                 ,
                 and
                 it
                 was
                 not
                 renewed
                 thereafter
                 ,
                 July
                 9.
                 1672.
                 
                 Lord
                 
                   Hattoun
                   contra
                
                 Earl
                 of
                 Northesk
                 .
                 Neither
                 because
                 the
                 Vassal
                 died
                 in
                 the
                 Kings
                 Service
                 ,
                 seing
                 the
                 Acts
                 to
                 that
                 purpose
                 were
                 only
                 temporary
                 ,
                 January
                 20.
                 1681.
                 
                 Captain
                 
                   Paterson
                   contra
                   Tweedie
                
                 of
                 Whitehaugh
                 .
              
               
                 The
                 next
                 exception
                 is
                 the
                 consent
                 of
                 the
                 Superiour
                 ,
                 which
                 was
                 not
                 inferred
                 by
                 the
                 Superiours
                 being
                 present
                 at
                 the
                 marriage
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 the
                 Earl
                 of
                 
                   Argile
                   contra
                   M`naughtoun
                
                 :
                 Nor
                 by
                 receiving
                 a
                 Vassal
                 upon
                 Appryzing
                 :
                 Neither
                 by
                 Entering
                 the
                 Vassals
                 Heir
                 though
                 without
                 reservation
                 ;
                 these
                 being
                 Acts
                 to
                 which
                 the
                 Superiour
                 might
                 be
                 compelled
                 by
                 Charges
                 of
                 Horning
                 upon
                 Appryzings
                 ,
                 or
                 on
                 Precepts
                 out
                 of
                 the
                 Chanclery
                 upon
                 retours
                 ,
                 even
                 though
                 these
                 were
                 not
                 actually
                 used
                 ,
                 but
                 that
                 the
                 Superiour
                 gave
                 Precept
                 of
                 
                   clare
                   constat
                
                 ;
                 yea
                 ,
                 his
                 subscriving
                 witness
                 in
                 the
                 Vassals
                 Contract
                 of
                 marriage
                 ,
                 after
                 gifting
                 of
                 the
                 same
                 ,
                 was
                 not
                 sustained
                 ,
                 Feb.
                 25.
                 1662.
                 
                 
                   〈◊〉
                   contra
                   Keiths
                
                 .
                 So
                 that
                 it
                 seems
                 no
                 less
                 then
                 a
                 consent
                 as
                 Superiour
                 ,
                 will
                 exclude
                 the
                 marriage
                 .
              
               
                 The
                 most
                 exceptions
                 are
                 upon
                 the
                 informalities
                 of
                 the
                 Instrument
                 of
                 requisition
                 .
              
               
                 But
                 the
                 most
                 ordinary
                 and
                 material
                 exception
                 is
                 disparagement
                 ,
                 which
                 doth
                 not
                 consist
                 in
                 equality
                 of
                 Estate
                 or
                 Tocher
                 ,
                 but
                 in
                 the
                 inequality
                 of
                 Blood
                 ,
                 wherein
                 if
                 a
                 Zeaman
                 be
                 offered
                 to
                 a
                 Burgess
                 ,
                 or
                 a
                 Burgess
                 to
                 a
                 Barron
                 ,
                 it
                 is
                 commonly
                 interpret
                 disparagement
                 ;
                 but
                 a
                 Barron
                 to
                 any
                 Superiour
                 Dignity
                 of
                 a
                 Subject
                 ,
                 imports
                 no
                 disparagement
                 :
                 Or
                 if
                 there
                 be
                 great
                 disparity
                 in
                 age
                 ,
                 or
                 that
                 the
                 party
                 offered
                 ,
                 hath
                 any
                 considerable
                 defect
                 ,
                 as
                 the
                 want
                 of
                 a
                 Member
                 ;
                 or
                 have
                 any
                 loathsom
                 or
                 perpetual
                 disease
                 ,
                 which
                 are
                 all
                 the
                 grounds
                 of
                 disparagement
                 ,
                 mentioned
                 by
                 Craig
                 ;
                 buthe
                 thinks
                 not
                 Claudication
                 to
                 infer
                 disparagement
                 ,
                 and
                 it
                 is
                 like
                 ,
                 as
                 to
                 the
                 single
                 value
                 ,
                 the
                 disparagement
                 behoved
                 to
                 be
                 very
                 gross
                 ;
                 but
                 as
                 to
                 the
                 double
                 value
                 ,
                 any
                 just
                 ground
                 of
                 aversion
                 seems
                 to
                 be
                 be
                 sufficient
                 ,
                 as
                 deformity
                 ,
                 even
                 hardness
                 of
                 Favour
                 ;
                 or
                 any
                 vulgar
                 reproach
                 of
                 Inchastity
                 ,
                 Insobriety
                 ,
                 or
                 other
                 Vice
                 :
                 It
                 will
                 also
                 be
                 a
                 temporal
                 exception
                 ,
                 if
                 requisition
                 be
                 made
                 before
                 the
                 Vassal
                 be
                 mariageable
                 ,
                 which
                 is
                 the
                 age
                 of
                 fourteen
                 compleat
                 in
                 men
                 ,
                 and
                 twelve
                 compleat
                 in
                 women
                 ,
                 which
                 may
                 become
                 an
                 absolute
                 exclusion
                 ,
                 if
                 the
                 party
                 so
                 required
                 die
                 unmarried
                 ;
                 and
                 though
                 the
                 party
                 marry
                 to
                 another
                 ,
                 it
                 will
                 but
                 infer
                 the
                 single
                 value
                 .
              
               
                 The
                 value
                 of
                 marriage
                 is
                 due
                 to
                 the
                 Superiour
                 ,
                 if
                 the
                 Heir
                 was
                 not
                 married
                 at
                 his
                 Predecessors
                 death
                 ,
                 whether
                 minor
                 or
                 major
                 ,
                 marrying
                 without
                 consent
                 of
                 the
                 Superiour
                 or
                 his
                 Donatar
                 ,
                 or
                 that
                 being
                 or
                 becoming
                 major
                 ,
                 and
                 required
                 ,
                 they
                 marry
                 not
                 at
                 all
                 .
              
               
                 48.
                 
                 The
                 last
                 common
                 Casuality
                 of
                 Superiours
                 ,
                 is
                 the
                 Liferent-escheat
                 of
                 the
                 Vassal
                 ,
                 when
                 the
                 Vassal
                 is
                 denunced
                 Rebel
                 ,
                 for
                 disobedience
                 of
                 the
                 Law
                 ,
                 which
                 because
                 it
                 is
                 intimate
                 by
                 three
                 blasts
                 of
                 an
                 Horn
                 ,
                 is
                 called
                 Horning
                 ,
                 if
                 he
                 continue
                 so
                 unrestored
                 ,
                 or
                 unrelaxed
                 year
                 and
                 day
                 ,
                 his
                 Liferent
                 is
                 Escheat
                 ,
                 or
                 foresaulted
                 unto
                 his
                 several
                 Superiours
                 ,
                 of
                 whom
                 he
                 held
                 his
                 Fees
                 ;
                 this
                 may
                 seem
                 a
                 penalty
                 for
                 disobedience
                 to
                 Law
                 ,
                 and
                 is
                 so
                 as
                 to
                 Fees
                 holden
                 of
                 the
                 King
                 ;
                 yet
                 if
                 it
                 had
                 no
                 other
                 ground
                 ,
                 the
                 Liferent
                 could
                 not
                 befall
                 to
                 the
                 Superiour
                 ,
                 but
                 to
                 the
                 King
                 ,
                 whose
                 Command
                 was
                 disobeyed
                 ,
                 as
                 Forefaulture
                 and
                 single
                 Escheat
                 do
                 ;
                 but
                 the
                 original
                 of
                 it
                 is
                 ,
                 that
                 Rebellion
                 is
                 like
                 ,
                 
                   Capitis
                   
                   diminutio
                
                 ,
                 or
                 
                   Civitatis
                   amissio
                
                 ,
                 amongst
                 the
                 Romans
                 ,
                 whereby
                 such
                 person
                 cannot
                 stand
                 in
                 Judgement
                 ,
                 and
                 they
                 are
                 
                   civiliter
                   mortui
                
                 ,
                 and
                 thereby
                 their
                 Fees
                 become
                 void
                 ,
                 and
                 return
                 to
                 their
                 Superiours
                 ,
                 and
                 so
                 is
                 declared
                 ,
                 Parl.
                 1535.
                 cap.
                 31.
                 
              
               
                 49.
                 
                 Liferent-escheat
                 carries
                 the
                 profit
                 of
                 all
                 Fees
                 and
                 Liferents
                 ,
                 whether
                 constitute
                 by
                 Conjunct-fee
                 ,
                 Infeftments
                 ,
                 Terce
                 or
                 Liferent-tack
                 ,
                 during
                 the
                 life
                 of
                 the
                 Rebel
                 ,
                 having
                 remained
                 year
                 and
                 day
                 at
                 the
                 Horn
                 (
                 though
                 thereafter
                 he
                 be
                 relaxed
                 )
                 during
                 his
                 natural
                 life
                 ,
                 even
                 though
                 he
                 be
                 not
                 infeft
                 and
                 entered
                 as
                 Heir
                 the
                 time
                 of
                 his
                 denunciation
                 ,
                 July
                 3.
                 1624.
                 
                 Moor
                 contra
                 Hannay
                 and
                 the
                 Earl
                 of
                 Galloway
                 .
                 Yea
                 ,
                 though
                 there
                 be
                 no
                 Infeftment
                 ,
                 if
                 by
                 Contract
                 or
                 Disposition
                 ,
                 there
                 be
                 any
                 heretable
                 Right
                 or
                 Life-rent
                 provided
                 ,
                 even
                 though
                 there
                 were
                 no
                 Infeftment
                 required
                 ,
                 as
                 a
                 Terce
                 by
                 paction
                 without
                 service
                 or
                 kenning
                 ,
                 Hope
                 Horning
                 Maxwel
                 and
                 Gordoun
                 contra
                 Lochinvar
                 .
                 So
                 Life-rent
                 Tacks
                 of
                 Lands
                 or
                 Teinds
                 fall
                 under
                 escheat
                 ,
                 without
                 prejudice
                 to
                 these
                 who
                 have
                 right
                 to
                 such
                 Tacks
                 after
                 the
                 Life-renters
                 ,
                 Parl.
                 1617.
                 cap.
                 15.
                 
                 These
                 Tacks
                 befall
                 to
                 the
                 Master
                 of
                 the
                 ground
                 ;
                 and
                 Life-rents
                 by
                 Terce
                 or
                 Courtesie
                 ,
                 fall
                 to
                 the
                 Superiour
                 of
                 the
                 Land
                 ;
                 for
                 these
                 Life-renters
                 are
                 his
                 vassals
                 during
                 life
                 ,
                 and
                 owe
                 him
                 fidelity
                 and
                 a
                 reddendo
                 .
              
               
                 50.
                 
                 Whensoever
                 there
                 is
                 not
                 Infeftment
                 actually
                 expede
                 ,
                 the
                 denunciation
                 makes
                 not
                 the
                 Liferent
                 to
                 belong
                 to
                 that
                 person
                 of
                 whom
                 the
                 Liferent
                 should
                 have
                 been
                 holden
                 ;
                 but
                 to
                 the
                 King
                 ,
                 as
                 an
                 Annual-rent
                 due
                 by
                 Contract
                 or
                 Disposition
                 ,
                 to
                 be
                 holden
                 of
                 the
                 Disponer
                 ,
                 Decemb.
                 20.
                 1609.
                 
                 Hay
                 contra
                 
                   Laurie
                   ;
                   July
                
                 1
                 ,
                 1626.
                 
                 Halyburtoun
                 contra
                 
                   Stewart
                   ;
                   January
                
                 22.
                 1675.
                 
                 Menzies
                 of
                 Castlehill
                 ,
                 contra
                 Kennedy
                 of
                 Auchtifardel
                 .
                 So
                 likewise
                 ,
                 Life-rent
                 Escheat
                 of
                 a
                 Minister
                 causeth
                 his
                 Stipend
                 and
                 Profit
                 of
                 his
                 Manse
                 and
                 Gleib
                 ,
                 though
                 locally
                 within
                 Regality
                 ,
                 to
                 fall
                 not
                 to
                 the
                 Lord
                 of
                 Regality
                 ;
                 but
                 if
                 there
                 be
                 Infeftment
                 ,
                 it
                 falleth
                 to
                 the
                 immediat
                 Superior
                 ,
                 albeit
                 it
                 proceed
                 upon
                 Disposition
                 containing
                 obliegement
                 for
                 double
                 Infeftments
                 ,
                 and
                 that
                 not
                 only
                 till
                 the
                 publick
                 Infeftment
                 be
                 taken
                 ,
                 but
                 even
                 thereafter
                 during
                 the
                 Vassals
                 life
                 ,
                 January
                 23.
                 1624.
                 
                 Meldrum
                 contra
                 Meldrum
                 ,
                 seing
                 here
                 the
                 Life-rent
                 was
                 gifted
                 and
                 declared
                 before
                 the
                 publick
                 Infeftment
                 was
                 taken
                 .
                 And
                 likewise
                 an
                 Annual-rent
                 due
                 by
                 a
                 heretable
                 Bond
                 ,
                 bearing
                 a
                 clause
                 to
                 infeft
                 the
                 Creditor
                 in
                 an
                 Annual-rent
                 ,
                 without
                 mention
                 of
                 particular
                 Lands
                 or
                 manner
                 of
                 Holding
                 ,
                 was
                 found
                 to
                 fall
                 in
                 Life-rent
                 Escheat
                 to
                 the
                 Kings
                 Donatar
                 after
                 year
                 and
                 day
                 ;
                 but
                 it
                 was
                 not
                 determined
                 ,
                 whether
                 if
                 the
                 Sum
                 were
                 payed
                 or
                 consigned
                 ,
                 it
                 behoved
                 to
                 be
                 re-imployed
                 for
                 the
                 Kings
                 Donatars
                 use
                 during
                 the
                 Creditors
                 life
                 ;
                 whereon
                 ,
                 and
                 in
                 the
                 case
                 of
                 redemption
                 of
                 Wodsetts
                 ,
                 most
                 of
                 the
                 Lords
                 were
                 of
                 a
                 contrary
                 opinion
                 ,
                 July
                 1.
                 1626.
                 
                 Haliburton
                 contra
                 Stewart
                 .
                 It
                 was
                 found
                 to
                 be
                 re-imployed
                 for
                 the
                 Superior
                 during
                 the
                 Wodsetters
                 lifetime
                 ,
                 June
                 29.
                 1661.
                 
                 Tailfer
                 contra
                 Maxtoun
                 and
                 Cunninghame
                 .
              
               
                 51.
                 
                 Life-rent
                 Escheat
                 of
                 the
                 Vassal
                 carries
                 the
                 Life-rent
                 of
                 the
                 sub-vassal
                 ,
                 falling
                 after
                 the
                 denunciation
                 of
                 the
                 Vassal
                 ,
                 and
                 being
                 year
                 and
                 day
                 at
                 the
                 Horn
                 ,
                 February
                 26.
                 1623.
                 
                 
                   Clunie
                   contra
                
                 Bishop
                 of
                 
                   Dunkeld
                   ,
                   July
                
                 24.
                 1632.
                 
                 
                   James
                   Ruel
                   contra
                
                 Laird
                 of
                 Billi
                 ;
                 because
                 then
                 the
                 Superiour
                 is
                 in
                 place
                 of
                 the
                 vassal
                 :
                 but
                 where
                 the
                 sub-vassals
                 Life-rent
                 fell
                 before
                 the
                 vassals
                 own
                 Liferent
                 ,
                 it
                 was
                 found
                 carried
                 by
                 the
                 vassals
                 single
                 Escheat
                 ,
                 February
                 13.
                 1661.
                 
                 
                   Symson
                   contra
                
                 Laird
                 of
                 Moncur
                 .
              
               
                 Life-rent
                 Escheat
                 falleth
                 by
                 the
                 vassals
                 Rebellion
                 ,
                 and
                 the
                 year
                 and
                 day
                 subsequent
                 is
                 only
                 allowed
                 to
                 purge
                 the
                 Rebellion
                 by
                 Relaxation
                 ,
                 which
                 being
                 used
                 year
                 and
                 day
                 after
                 the
                 Rebellion
                 ,
                 hath
                 no
                 effect
                 as
                 to
                 the
                 Life-rent
                 Escheat
                 of
                 such
                 Lands
                 as
                 belong
                 to
                 the
                 Rebel
                 the
                 time
                 of
                 the
                 denunciation
                 ,
                 though
                 it
                 have
                 effect
                 as
                 to
                 his
                 Moveables
                 :
                 Therefore
                 ,
                 the
                 vassals
                 voluntary
                 
                 deed
                 prejudgeth
                 not
                 the
                 Superior
                 of
                 his
                 Life-rent
                 Escheat
                 ,
                 not
                 only
                 such
                 deeds
                 as
                 are
                 done
                 after
                 year
                 and
                 day
                 from
                 the
                 denunciation
                 ,
                 but
                 which
                 are
                 done
                 at
                 any
                 time
                 after
                 the
                 denunciation
                 ,
                 if
                 Relaxation
                 be
                 not
                 used
                 within
                 year
                 and
                 day
                 ;
                 which
                 is
                 to
                 be
                 extended
                 to
                 these
                 cases
              
               
                 52.
                 
                 First
                 ,
                 no
                 Infeftment
                 ,
                 following
                 upon
                 a
                 debt
                 contracted
                 by
                 the
                 Rebel
                 after
                 the
                 Rebellion
                 ,
                 though
                 the
                 Infeftment
                 be
                 accomplished
                 within
                 the
                 year
                 ,
                 will
                 exclude
                 the
                 Life-rent
                 escheat
                 ,
                 or
                 prejudge
                 the
                 Superior
                 ,
                 if
                 Relaxation
                 be
                 not
                 used
                 within
                 year
                 and
                 day
                 ,
                 whether
                 the
                 Infeftment
                 proceed
                 upon
                 the
                 Rebels
                 own
                 Disposition
                 ,
                 or
                 upon
                 Apprising
                 ;
                 for
                 in
                 both
                 cases
                 ,
                 it
                 is
                 the
                 voluntar
                 deed
                 of
                 the
                 Rebel
                 that
                 prejudges
                 the
                 Superiour
                 :
                 For
                 ,
                 albeit
                 the
                 Apprising
                 be
                 a
                 deed
                 of
                 Law
                 and
                 necessary
                 ,
                 yet
                 it
                 proceeds
                 upon
                 a
                 Debt
                 voluntarily
                 contracted
                 after
                 Rebellion
                 ,
                 such
                 Debts
                 will
                 not
                 exclude
                 the
                 single
                 escheat
                 ,
                 and
                 therefore
                 ought
                 not
                 to
                 exclude
                 the
                 Life-rent
                 escheat
                 ,
                 which
                 was
                 so
                 found
                 ,
                 though
                 the
                 Infeftment
                 was
                 granted
                 to
                 a
                 Son
                 and
                 his
                 Wife
                 for
                 a
                 competent
                 Tocher
                 ,
                 Spots
                 .
                 Escheat
                 
                   Panmure
                   contra
                
                 Laird
                 and
                 Lady
                 Ghight
                 .
                 2.
                 
                 The
                 Debts
                 or
                 Obliegements
                 of
                 the
                 vassal
                 ,
                 though
                 they
                 preceed
                 the
                 denunciation
                 ,
                 no
                 Infeftment
                 granted
                 by
                 him
                 ,
                 
                   in
                   cursu
                   rebellionis
                
                 ,
                 for
                 satisfying
                 these
                 anterior
                 Debts
                 ,
                 will
                 exclude
                 the
                 Life-rent
                 Escheat
                 ,
                 unless
                 he
                 had
                 been
                 specially
                 oblieged
                 to
                 grant
                 such
                 an
                 Infeftment
                 before
                 the
                 Rebellion
                 ;
                 for
                 then
                 the
                 granting
                 of
                 it
                 after
                 ,
                 is
                 not
                 a
                 voluntary
                 ,
                 but
                 a
                 necessary
                 deed
                 ,
                 which
                 he
                 might
                 be
                 compelled
                 to
                 grant
                 ,
                 January
                 23.
                 1627.
                 
                 
                   James
                   Vallance
                
                 contra
                 
                   Thomas
                   Porteous
                
                 :
                 In
                 which
                 case
                 ,
                 an
                 Infeftment
                 for
                 an
                 onerous
                 debt
                 before
                 Rebellion
                 ,
                 was
                 not
                 found
                 sufficient
                 to
                 exclude
                 the
                 Life-rent
                 ,
                 seing
                 there
                 was
                 no
                 anterior
                 Obliegement
                 to
                 grant
                 that
                 Infeftment
                 ;
                 which
                 is
                 the
                 more
                 confirmed
                 by
                 the
                 parity
                 of
                 the
                 case
                 of
                 Inhibitions
                 ,
                 which
                 annull
                 Infeftments
                 after
                 the
                 the
                 Inhibition
                 ,
                 though
                 granted
                 for
                 satisfying
                 anterior
                 debts
                 :
                 but
                 if
                 there
                 was
                 an
                 anterior
                 Obliegement
                 ,
                 the
                 Infeftment
                 conform
                 thereto
                 ,
                 though
                 after
                 the
                 Inhibition
                 ,
                 is
                 valid
                 ,
                 as
                 not
                 being
                 a
                 voluntary
                 ,
                 but
                 a
                 necessary
                 deed
                 ,
                 
                   Vide
                   Title
                   Infeftments
                   ,
                   §
                   Inhibition
                   .
                
              
               
                 Thirdly
                 ,
                 Dispositions
                 and
                 Obliegements
                 to
                 grant
                 Infeftments
                 anterior
                 to
                 the
                 Rebellion
                 ,
                 and
                 Infeftment
                 thereupon
                 posterior
                 ,
                 do
                 not
                 exclude
                 the
                 Liferent
                 Escheat
                 ,
                 unless
                 the
                 Infeftment
                 be
                 taken
                 
                   in
                   cursu
                   rebellionis
                
                 ;
                 and
                 so
                 a
                 Contract
                 of
                 Wodset
                 long
                 before
                 Rebellion
                 ,
                 clad
                 with
                 thirty
                 eight
                 years
                 possession
                 before
                 denunciation
                 ,
                 was
                 not
                 found
                 sufficient
                 to
                 exclude
                 the
                 Life-rent
                 Escheat
                 ,
                 December
                 3.
                 1634.
                 
                 Mr.
                 
                   James
                   Lindsay
                
                 contra
                 Scot.
                 Neither
                 a
                 Charter
                 and
                 Inhibition
                 thereupon
                 ,
                 seing
                 there
                 was
                 not
                 Seasine
                 taken
                 within
                 year
                 and
                 day
                 ,
                 December
                 3.
                 1623.
                 
                 
                   Jonet
                   Herris
                
                 contra
                 Glendinning
                 .
                 Neither
                 a
                 base
                 Infeftment
                 before
                 denunciation
                 ,
                 there
                 being
                 no
                 possession
                 thereon
                 till
                 year
                 and
                 day
                 ,
                 March
                 19.
                 1633.
                 
                 Laird
                 of
                 Kentoun
                 contra
                 
                   Blackcadder
                   ;
                   February
                
                 21.
                 1667.
                 
                 
                   Robert
                   Miln
                
                 contra
                 Clerkson
                 .
              
               
                 53.
                 
                 Fourthly
                 ,
                 Apprisings
                 or
                 Adjudications
                 ,
                 though
                 for
                 a
                 debt
                 anterior
                 to
                 the
                 Rebellion
                 ,
                 exclude
                 not
                 Life-rent
                 Escheat
                 ,
                 unless
                 Infeftment
                 or
                 Charge
                 against
                 the
                 Superiour
                 be
                 used
                 thereupon
                 within
                 year
                 and
                 day
                 after
                 Rebellion
                 ;
                 For
                 without
                 Infeftment
                 or
                 Charge
                 ,
                 Apprising
                 is
                 no
                 real
                 Right
                 :
                 And
                 therefore
                 ,
                 though
                 it
                 were
                 led
                 before
                 Rebellion
                 against
                 a
                 vassal
                 ,
                 if
                 Infeftment
                 or
                 Charge
                 follow
                 not
                 
                   in
                   cursu
                   rebellionis
                
                 ,
                 it
                 excludes
                 not
                 the
                 vassals
                 Life-rent
                 Escheat
                 to
                 fall
                 to
                 the
                 Superior
                 or
                 Donatar
                 ,
                 July
                 14.
                 1622.
                 
                 Rollo
                 contra
                 Laird
                 of
                 Kellie
                 ,
                 albeit
                 Infeftment
                 follow
                 upon
                 the
                 Apprising
                 before
                 the
                 Life-rent
                 was
                 gifted
                 ,
                 Hope
                 Horning
                 and
                 Escheat
                 ,
                 Sir
                 
                   Patrick
                   Murray
                
                 contra
                 Adamson
                 .
                 Neither
                 did
                 an
                 Apprising
                 upon
                 a
                 denunciation
                 ,
                 begun
                 
                   in
                   cursu
                   rebellionis
                
                 ,
                 but
                 not
                 perfected
                 ,
                 exclude
                 the
                 Life-rent
                 Escheat
                 ,
                 February
                 16.
                 1631.
                 
                 Cranstoun
                 contra
                 Scot.
                 But
                 if
                 Apprising
                 or
                 Adjudication
                 be
                 led
                 for
                 sums
                 prior
                 to
                 the
                 rebellion
                 ,
                 and
                 be
                 compleat
                 by
                 Infeftment
                 or
                 Charge
                 
                   in
                   cursu
                   rebellionis
                
                 ,
                 albeit
                 they
                 be
                 deduced
                 after
                 rebellion
                 ,
                 they
                 exclude
                 the
                 Liferent
                 Escheat
                 ,
                 as
                 is
                 insinuat
                 in
                 the
                 Limitations
                 
                 in
                 the
                 former
                 decisions
                 ,
                 and
                 was
                 so
                 decided
                 ,
                 February
                 13.
                 1611.
                 
                 Tenants
                 of
                 Lochauld
                 contra
                 Yonmig
                 and
                 Sir
                 
                   George
                   Arskine
                
                 .
              
               
                 Liferent-escheat
                 being
                 one
                 of
                 the
                 Casualities
                 of
                 Superiority
                 ,
                 only
                 introduced
                 by
                 statute
                 or
                 custom
                 ,
                 there
                 is
                 this
                 difference
                 of
                 that
                 which
                 hath
                 been
                 said
                 of
                 Non-entry
                 ,
                 Ward
                 or
                 Recognition
                 ,
                 which
                 are
                 Casualities
                 arising
                 from
                 the
                 nature
                 of
                 the
                 feudal
                 Contract
                 ,
                 that
                 Liferent
                 Escheat
                 flowing
                 not
                 thence
                 ,
                 but
                 upon
                 the
                 Vassals
                 rebellion
                 and
                 disobedience
                 to
                 Law
                 ,
                 which
                 is
                 not
                 against
                 the
                 Superior
                 or
                 any
                 delinquence
                 against
                 the
                 feudal
                 Contract
                 ,
                 the
                 Vassals
                 Liferent
                 Escheat
                 gives
                 the
                 Superior
                 no
                 more
                 then
                 the
                 Vassal
                 himself
                 had
                 the
                 time
                 of
                 his
                 denunciation
                 ,
                 and
                 so
                 all
                 real
                 Rights
                 compleat
                 by
                 possession
                 ,
                 whether
                 Infeftments
                 or
                 Tacks
                 ,
                 are
                 not
                 prejudged
                 by
                 the
                 subsequent
                 Life-rent
                 Escheat
                 ,
                 as
                 was
                 found
                 ,
                 January
                 19.
                 1672.
                 
                 Mr.
                 
                   William
                   Beatoun
                
                 contra
                 Scot
                 of
                 Letham
                 .
                 In
                 Feues
                 ,
                 so
                 far
                 as
                 is
                 allowed
                 by
                 Law
                 ,
                 the
                 Vassals
                 Life-rent
                 will
                 reach
                 no
                 more
                 then
                 the
                 Feu-duties
                 of
                 Feues
                 set
                 by
                 the
                 Vassal
                 before
                 his
                 denunciation
                 :
                 But
                 any
                 subaltern
                 base
                 Infeftment
                 ,
                 not
                 cled
                 with
                 possession
                 before
                 rebellion
                 ,
                 is
                 excluded
                 by
                 the
                 Life-rent
                 ,
                 March
                 19
                 ,
                 1633.
                 
                 Laird
                 of
                 Rentoun
                 con
                 .
                 
                   Blackcader
                   ;
                   Feb.
                
                 21.
                 1667.
                 
                 
                   Robert
                   Miln
                
                 con
                 .
                 Clerkson
                 ;
                 in
                 which
                 case
                 it
                 was
                 found
                 ,
                 that
                 possession
                 not
                 being
                 attained
                 
                   in
                   cursu
                   rebellionis
                
                 during
                 the
                 year
                 ,
                 it
                 was
                 not
                 effectual
                 .
                 If
                 a
                 〈◊〉
                 be
                 set
                 ,
                 without
                 diminution
                 of
                 the
                 Rental
                 ,
                 for
                 the
                 old
                 Tack-dutie
                 ,
                 it
                 will
                 not
                 be
                 excluded
                 by
                 the
                 Life-rent
                 ,
                 though
                 it
                 be
                 set
                 after
                 denunciation
                 ,
                 as
                 was
                 found
                 in
                 a
                 Tack
                 after
                 denunciation
                 within
                 the
                 year
                 ,
                 Hope
                 ,
                 Horning
                 ,
                 Charters
                 contra
                 
                   Mclelland
                   ;
                   Spots
                
                 .
                 Escheat
                 ,
                 Tillibairn
                 contra
                 Dalziel
                 .
                 The
                 like
                 of
                 a
                 Tack
                 set
                 to
                 a
                 kindly
                 Tenant
                 ,
                 Hope
                 ,
                 Horning
                 ,
                 Paton
                 contra
                 Drumrash
                 :
                 For
                 ,
                 in
                 such
                 cases
                 ,
                 setting
                 of
                 Tacks
                 is
                 a
                 necessary
                 administration
                 for
                 the
                 good
                 of
                 both
                 Superiour
                 and
                 Vassal
                 ,
                 and
                 to
                 shun
                 debate
                 concerning
                 prejudice
                 and
                 unanswerable
                 Tack-duties
                 ,
                 as
                 in
                 other
                 cases
                 of
                 administration
                 of
                 beneficed
                 persons
                 ;
                 so
                 if
                 there
                 Tacks
                 be
                 set
                 without
                 diminution
                 of
                 the
                 Rental
                 ,
                 they
                 are
                 good
                 .
              
               
                 54.
                 
                 Liferent-escheat
                 extends
                 it self
                 to
                 all
                 Fees
                 ,
                 whether
                 holden
                 Ward
                 ,
                 Blensh
                 or
                 Feu
                 ,
                 but
                 not
                 to
                 Burgage
                 and
                 Mortification
                 ,
                 because
                 the
                 Fiar
                 is
                 a
                 Society
                 and
                 Incorporation
                 ,
                 which
                 dieth
                 not
                 ;
                 and
                 therefore
                 ,
                 have
                 no
                 Liferent-escheat
                 :
                 And
                 though
                 Denunciation
                 may
                 be
                 used
                 against
                 the
                 persons
                 administrating
                 the
                 same
                 ,
                 even
                 for
                 that
                 which
                 is
                 due
                 by
                 the
                 Incorporation
                 ,
                 and
                 as
                 they
                 represent
                 it
                 ;
                 yet
                 that
                 being
                 supposed
                 their
                 fault
                 and
                 negligence
                 ,
                 doth
                 not
                 prejudge
                 the
                 Society
                 ,
                 as
                 Magistrates
                 of
                 Burghs
                 ,
                 Masters
                 of
                 Colledges
                 ,
                 Incumbents
                 in
                 common
                 or
                 collegiat
                 Kirks
                 ,
                 Chapters
                 or
                 Convents
                 ,
                 
                   sede
                   vacante
                
                 .
              
               
                 55.
                 
                 But
                 where
                 a
                 Beneficed
                 person
                 having
                 a
                 distinct
                 Benefice
                 ,
                 or
                 a
                 Stipendary
                 ,
                 is
                 denunced
                 for
                 his
                 own
                 debt
                 ,
                 his
                 Liferent-escheat
                 falleth
                 ,
                 and
                 therewith
                 the
                 profites
                 ,
                 during
                 his
                 life
                 or
                 incumbency
                 ,
                 because
                 though
                 the
                 Fee
                 be
                 not
                 in
                 him
                 ,
                 yet
                 he
                 hath
                 a
                 distinct
                 Liferent
                 thereof
                 ,
                 which
                 is
                 not
                 so
                 in
                 the
                 former
                 case
                 ,
                 where
                 both
                 Fee
                 and
                 profites
                 are
                 in
                 the
                 Society
                 .
              
               
                 56.
                 
                 Liferent-escheat
                 is
                 made
                 effectual
                 by
                 a
                 general
                 declarator
                 ,
                 finding
                 the
                 Vassal
                 to
                 be
                 denunced
                 ,
                 and
                 year
                 and
                 day
                 past
                 by
                 production
                 of
                 the
                 Horning
                 ,
                 but
                 there
                 is
                 no
                 necessity
                 to
                 prove
                 him
                 Vassal
                 ,
                 unless
                 he
                 be
                 a
                 singular
                 Successor
                 in
                 the
                 Superiority
                 ,
                 not
                 acknowledged
                 by
                 the
                 Vassal
                 ;
                 or
                 in
                 case
                 the
                 vassal
                 disclaim
                 ,
                 herein
                 is
                 no
                 mention
                 of
                 profites
                 ;
                 but
                 this
                 Declarator
                 being
                 obtained
                 ,
                 the
                 Fee
                 is
                 void
                 from
                 the
                 Denunciation
                 ;
                 and
                 the
                 Superiour
                 or
                 his
                 Donatar
                 have
                 access
                 to
                 the
                 Mails
                 and
                 Duties
                 thereof
                 ,
                 and
                 to
                 set
                 and
                 remove
                 the
                 same
                 ,
                 and
                 to
                 do
                 all
                 deeds
                 accustomed
                 by
                 the
                 vassal
                 himself
                 ,
                 in
                 the
                 same
                 manner
                 as
                 Ward
                 :
                 This
                 useth
                 to
                 be
                 done
                 by
                 a
                 special
                 Declarator
                 ,
                 which
                 is
                 now
                 accustomed
                 to
                 be
                 in
                 one
                 Process
                 with
                 the
                 general
                 Declarator
                 .
                 As
                 to
                 the
                 Profites
                 ,
                 
                   Vide
                   Title
                
                 25.
                 
              
            
             
               
               
                 TITLE
                 XV.
                 Annualrent
                 where
                 ,
                 of
                 Pensions
                 ,
                 and
                 Poinding
                 of
                 the
                 Ground
                 .
              
               
                 
                   1.
                   
                   Description
                   of
                   Annualrent
                   .
                
                 
                   2.
                   
                   Therise
                   of
                   Annualrent
                   .
                
                 
                   3.
                   
                   The
                   manner
                   of
                   constituting
                   Annualrents
                   .
                
                 
                   4.
                   
                   The
                   kinds
                   of
                   holding
                   of
                   Annualrents
                   .
                
                 
                   5.
                   
                   Liferent-escheat
                   of
                   Annualrenters
                   .
                
                 
                   6.
                   
                   Kinds
                   of
                   Annualrents
                   amongst
                   the
                   English.
                   
                
                 
                   7.
                   
                   The
                   difference
                   of
                   Feu
                   Annuals
                   ,
                   Ground
                   Annuals
                   and
                   Top
                   Annuals
                   .
                
                 
                   8.
                   
                   Poinding
                   of
                   the
                   Ground
                   .
                
                 
                   9.
                   
                   The
                   extent
                   thereof
                   .
                
                 
                   10.
                   
                   Who
                   must
                   be
                   cited
                   in
                   Poinding
                   of
                   the
                   Ground
                   .
                
                 
                   11.
                   
                   The
                   effect
                   of
                   Poinding
                   the
                   Ground
                   as
                   to
                   Ground
                   rights
                   .
                
                 
                   12.
                   
                   The
                   Order
                   of
                   Poinding
                   Moveables
                   ,
                   by
                   several
                   Annualrenters
                   .
                
                 
                   13.
                   
                   Annualrents
                   are
                   effectual
                   ,
                   personally
                   against
                   intrometters
                   .
                
                 
                   14.
                   
                   Annualrents
                   are
                   moveable
                   as
                   to
                   bygones
                   .
                
                 
                   15.
                   
                   Extinction
                   of
                   Annualrents
                   .
                
                 
                   16.
                   
                   Ecclesiastick
                   Pensions
                   affect
                   the
                   Benefice
                   :
                
                 
                   17.
                   
                   Pensions
                   by
                   secular
                   Persons
                   ,
                   how
                   far
                   effectual
                   .
                
                 
                   18.
                   
                   The
                   Kings
                   Pensions
                   are
                   not
                   Arrestable
                   .
                
              
               
               
                 WHETHER
                 Annualrent
                 by
                 infeftment
                 be
                 a
                 distinct
                 Right
                 of
                 property
                 ;
                 or
                 whether
                 it
                 be
                 only
                 a
                 Servitude
                 upon
                 the
                 ground
                 ,
                 leaving
                 the
                 name
                 of
                 Property
                 to
                 the
                 ground
                 Right
                 ,
                 as
                 Craig
                 esteemeth
                 ,
                 l.
                 1.
                 
                 Dieges
                 .
                 10.
                 
                 §
                 .
                 last
                 .
                 it
                 is
                 not
                 worth
                 much
                 Debate
                 ;
                 but
                 in
                 either
                 case
                 it
                 falleth
                 fitly
                 here
                 under
                 Consideration
                 ,
                 after
                 Property
                 and
                 Superiority
                 ,
                 and
                 before
                 unquestionable
                 Servitudes
                 .
              
               
                 1.
                 
                 Annualrent
                 is
                 so
                 called
                 ,
                 because
                 it
                 returneth
                 to
                 be
                 payed
                 every
                 year
                 at
                 one
                 or
                 two
                 Terms
                 ;
                 and
                 therefore
                 it
                 is
                 called
                 Rent
                 ;
                 and
                 because
                 it
                 is
                 yearly
                 so
                 payed
                 ,
                 it
                 is
                 called
                 annualrent
                 .
              
               
                 The
                 English
                 extend
                 these
                 Rents
                 to
                 Rents
                 due
                 by
                 Lease
                 or
                 Tack
                 ;
                 but
                 with
                 us
                 ,
                 annualrents
                 are
                 only
                 Constitute
                 by
                 Infeftment
                 ;
                 and
                 though
                 the
                 Disposition
                 or
                 provision
                 thereof
                 ,
                 may
                 be
                 sufficient
                 against
                 the
                 Constituent
                 or
                 his
                 Heirs
                 ,
                 it
                 is
                 not
                 effectual
                 against
                 their
                 singular
                 Successors
                 ,
                 and
                 is
                 no
                 real
                 Right
                 of
                 the
                 Ground
                 .
              
               
                 2.
                 
                 The
                 Rise
                 of
                 annualrents
                 is
                 from
                 the
                 Prohibition
                 of
                 Usury
                 in
                 the
                 Canon
                 Law
                 ,
                 which
                 they
                 extend
                 to
                 the
                 taking
                 of
                 any
                 annual
                 ,
                 or
                 profite
                 for
                 Money
                 or
                 any
                 other
                 thing
                 ,
                 in
                 Lieu
                 whereof
                 those
                 who
                 were
                 unfit
                 for
                 Trading
                 ,
                 or
                 mannaging
                 the
                 Property
                 of
                 Lands
                 ,
                 bought
                 annualrents
                 ,
                 either
                 irredeemably
                 ,
                 or
                 under
                 reversion
                 ,
                 it
                 had
                 the
                 same
                 effect
                 with
                 the
                 personal
                 obliegement
                 for
                 annualrent
                 ;
                 and
                 therefore
                 ,
                 it
                 is
                 still
                 retained
                 ,
                 where
                 annualrent
                 according
                 to
                 the
                 rates
                 prescribed
                 by
                 Statute
                 or
                 Custom
                 is
                 allowed
                 by
                 personal
                 obligation
                 ,
                 and
                 is
                 not
                 Usury
                 ;
                 and
                 the
                 Infeftment
                 of
                 annualrent
                 ,
                 is
                 in
                 security
                 thereof
                 .
              
               
                 Annualrents
                 may
                 be
                 constitute
                 ,
                 either
                 of
                 Money
                 ,
                 Victual
                 ,
                 or
                 other
                 Fungible
                 ,
                 and
                 that
                 either
                 in
                 Fee
                 and
                 Heritage
                 ,
                 or
                 in
                 Liferent
                 ;
                 and
                 either
                 by
                 a
                 several
                 Infeftment
                 ,
                 or
                 by
                 Reservations
                 in
                 Infeftments
                 of
                 Property
                 :
                 In
                 which
                 cases
                 ,
                 the
                 Proprietars
                 Seasine
                 serveth
                 both
                 .
              
               
                 3.
                 
                 Infeftments
                 of
                 annualrents
                 in
                 most
                 things
                 do
                 agree
                 with
                 the
                 Infeftments
                 of
                 property
                 ,
                 in
                 the
                 manner
                 of
                 Constituting
                 thereof
                 ,
                 by
                 Charter
                 or
                 Disposition
                 and
                 Seasine
                 ;
                 in
                 which
                 the
                 symbol
                 and
                 token
                 of
                 the
                 Delivery
                 of
                 Possession
                 of
                 the
                 annualrent
                 ,
                 when
                 Money
                 is
                 ,
                 a
                 penny
                 Money
                 ;
                 and
                 when
                 Victual
                 ,
                 a
                 parcel
                 thereof
                 .
                 Yet
                 an
                 old
                 Infeftment
                 of
                 annualrent
                 was
                 sustained
                 ,
                 though
                 it
                 bore
                 ,
                 
                   only
                   Seasine
                   to
                   be
                   given
                   ,
                   according
                   to
                   the
                   solemnities
                   used
                   in
                   such
                   cases
                
                 ;
                 albeit
                 it
                 was
                 given
                 thirty
                 six
                 years
                 before
                 ,
                 and
                 no
                 Possession
                 thereby
                 ,
                 March
                 23.
                 1631.
                 
                 
                   Somervel
                   contra
                   Somervel
                
                 of
                 Drum.
                 And
                 being
                 once
                 validat
                 by
                 Possession
                 ,
                 it
                 was
                 not
                 excluded
                 by
                 the
                 Infeftment
                 of
                 Property
                 of
                 the
                 present
                 Heretor
                 ,
                 though
                 the
                 annualrenter
                 shew
                 not
                 the
                 Infeftment
                 of
                 him
                 who
                 Constitute
                 the
                 annualrent
                 ,
                 with
                 the
                 Proprietar
                 his
                 authors
                 Infeftment
                 ;
                 so
                 that
                 it
                 did
                 not
                 appear
                 whether
                 both
                 Infeftments
                 flowed
                 from
                 one
                 common
                 author
                 ,
                 seing
                 the
                 Infeftment
                 of
                 annualrent
                 
                 was
                 prior
                 to
                 the
                 Infeftment
                 of
                 Property
                 ,
                 it
                 was
                 not
                 excluded
                 thereby
                 ,
                 February
                 7.
                 1667.
                 
                 
                   Smeitoun
                   contra
                   Tarbet
                
                 .
              
               
                 4.
                 
                 Annualrent
                 may
                 be
                 either
                 holden
                 Ward
                 ,
                 or
                 Blensh
                 ,
                 or
                 by
                 Mortification
                 ,
                 and
                 useth
                 not
                 to
                 be
                 holden
                 Feu
                 or
                 Burgage
                 ,
                 and
                 is
                 most
                 frequently
                 Blensh
                 for
                 a
                 Penny
                 ;
                 but
                 if
                 no
                 holding
                 be
                 exprest
                 ,
                 it
                 is
                 held
                 to
                 be
                 Ward
                 ;
                 and
                 therefore
                 ,
                 the
                 Casualities
                 of
                 the
                 Superiority
                 befall
                 to
                 the
                 Superiour
                 ,
                 according
                 to
                 the
                 kind
                 of
                 the
                 holding
                 ,
                 as
                 in
                 Property
                 ;
                 so
                 that
                 being
                 Ward
                 or
                 Blensh
                 ,
                 it
                 falleth
                 in
                 Non-entry
                 ,
                 in
                 the
                 hands
                 of
                 the
                 Superiour
                 ,
                 without
                 Declarator
                 ,
                 and
                 so
                 ceasseth
                 during
                 that
                 time
                 ,
                 even
                 though
                 the
                 constituent
                 as
                 Debitor
                 ,
                 be
                 Superiour
                 ,
                 though
                 he
                 may
                 be
                 lyable
                 personally
                 ,
                 upon
                 any
                 personal
                 obliegement
                 ,
                 for
                 paying
                 thereof
                 ,
                 March
                 23.
                 1631.
                 
                 
                   Somervel
                   contra
                   Somervel
                
                 .
              
               
                 Annualrents
                 may
                 be
                 either
                 base
                 ,
                 or
                 publick
                 by
                 Resignation
                 or
                 Confirmation
                 ,
                 as
                 to
                 the
                 requisits
                 to
                 accomplish
                 it
                 when
                 base
                 ,
                 it
                 is
                 fully
                 shown
                 before
                 ,
                 Title
                 13.
                 
                 §
                 .
                 
                   Base
                   Infeftments
                
                 .
              
               
                 5.
                 
                 So
                 likewise
                 annualrent
                 falling
                 in
                 Liferent
                 escheat
                 ,
                 belongs
                 to
                 the
                 Superiour
                 ,
                 during
                 the
                 annualrenters
                 Life
                 ;
                 and
                 if
                 it
                 be
                 redeemed
                 ,
                 the
                 Profite
                 of
                 the
                 Money
                 comes
                 in
                 place
                 thereof
                 ,
                 as
                 followeth
                 ,
                 
                   a
                   pari
                
                 ,
                 from
                 a
                 Wodsett
                 redeemed
                 ,
                 which
                 was
                 fallen
                 in
                 Liferent-escheat
                 ;
                 and
                 therefore
                 ,
                 the
                 Money
                 was
                 ordained
                 to
                 be
                 imployed
                 upon
                 annualrent
                 for
                 the
                 Superiour
                 ,
                 during
                 the
                 Life
                 of
                 the
                 Wodsetter
                 ,
                 June
                 29.
                 1661.
                 
                 
                   Tailziefer
                   contra
                   Maxtoun
                
                 and
                 Cunninghame
                 .
              
               
                 6.
                 
                 The
                 English
                 distinguish
                 Rent
                 in
                 Rent-Service
                 ,
                 Rent-Charge
                 ,
                 and
                 Rent-Seck
                 ;
                 Rent-service
                 is
                 that
                 which
                 is
                 due
                 by
                 the
                 reddendo
                 of
                 an
                 Infeftment
                 of
                 property
                 ,
                 as
                 a
                 Feu
                 or
                 Blensh
                 duty
                 ;
                 this
                 is
                 a
                 part
                 of
                 the
                 Infeftment
                 of
                 Property
                 ,
                 but
                 hath
                 the
                 same
                 effect
                 by
                 poinding
                 of
                 the
                 Ground
                 ,
                 as
                 other
                 Annualrents
                 ;
                 Rent-charge
                 is
                 that
                 which
                 not
                 being
                 by
                 reddendo
                 ,
                 yet
                 is
                 so
                 Constitute
                 ,
                 that
                 the
                 Annualrenter
                 may
                 ,
                 
                   brevi
                   manu
                
                 (
                 his
                 Terms
                 being
                 past
                 )
                 poind
                 the
                 Ground
                 therefore
                 ,
                 we
                 have
                 no
                 such
                 Annualrent
                 ,
                 for
                 we
                 admit
                 of
                 no
                 distress
                 without
                 publick
                 Authority
                 ;
                 but
                 all
                 execution
                 must
                 proceed
                 by
                 Decreet
                 and
                 Precept
                 .
              
               
                 Rent-seck
                 is
                 so
                 called
                 ,
                 as
                 
                   reditus
                   siccus
                
                 ,
                 because
                 it
                 is
                 dry
                 ,
                 having
                 no
                 effect
                 without
                 Sentence
                 ;
                 such
                 are
                 our
                 Annualrents
                 .
              
               
                 7.
                 
                 There
                 is
                 a
                 distinction
                 of
                 Annualrents
                 mentioned
                 ,
                 Par.
                 1551.
                 c.
                 10.
                 in
                 feu
                 Annuals
                 ,
                 Ground-annuals
                 ,
                 and
                 Top-annuals
                 ,
                 which
                 Craig
                 thinketh
                 to
                 quadrat
                 with
                 the
                 English
                 distinction
                 of
                 Rents
                 :
                 But
                 the
                 consideration
                 of
                 that
                 Act
                 and
                 Ordinance
                 ,
                 in
                 relation
                 to
                 the
                 Articles
                 there
                 exprest
                 ,
                 will
                 make
                 it
                 appear
                 ,
                 that
                 the
                 case
                 being
                 there
                 of
                 Tennents
                 within
                 Burgh
                 ,
                 the
                 Feu
                 Annual
                 is
                 that
                 which
                 is
                 due
                 by
                 the
                 reddendo
                 of
                 the
                 Property
                 ,
                 either
                 of
                 the
                 Ground
                 before
                 the
                 House
                 was
                 built
                 ,
                 or
                 the
                 Ground
                 and
                 House
                 together
                 .
              
               
                 Ground-annuals
                 is
                 a
                 distinct
                 several
                 annualrent
                 ,
                 Constitute
                 upon
                 the
                 Ground
                 ,
                 before
                 the
                 House
                 was
                 built
                 ;
                 and
                 the
                 Top-annualrent
                 is
                 out
                 of
                 the
                 House
                 ,
                 which
                 is
                 the
                 more
                 clear
                 ,
                 that
                 when
                 such
                 Tenements
                 were
                 destroyed
                 ,
                 the
                 least
                 abatement
                 was
                 of
                 the
                 Feu-annual
                 ,
                 or
                 Feu-duty
                 ;
                 and
                 therefore
                 ,
                 the
                 Proprietar
                 repairing
                 the
                 Tenement
                 ,
                 was
                 to
                 pay
                 the
                 Feu-annuals
                 ,
                 with
                 abatement
                 of
                 a
                 sixth
                 part
                 ;
                 and
                 the
                 Ground-annual
                 ,
                 as
                 being
                 more
                 ancient
                 then
                 the
                 Top-annual
                 ,
                 
                 
                 
                 suffered
                 an
                 abatement
                 of
                 a
                 fifth
                 part
                 ,
                 and
                 the
                 Top-annual
                 of
                 a
                 fourth
                 part
                 .
              
               
                 8.
                 
                 The
                 chief
                 effect
                 of
                 Annualrents
                 ,
                 either
                 by
                 reddendo
                 in
                 Property
                 ,
                 or
                 several
                 Infeftments
                 ,
                 is
                 by
                 poinding
                 of
                 the
                 Ground
                 ,
                 upon
                 which
                 the
                 Annualrent
                 is
                 constitute
                 ,
                 and
                 that
                 by
                 an
                 ordinary
                 Action
                 ,
                 whereby
                 the
                 Annualrenter
                 pursueth
                 upon
                 Letters
                 to
                 Poind
                 and
                 Appryze
                 all
                 Goods
                 upon
                 the
                 Ground
                 ,
                 for
                 payment
                 of
                 his
                 Annualrent
                 ;
                 and
                 also
                 for
                 Poinding
                 and
                 Appryzing
                 the
                 Ground-right
                 and
                 Property
                 it self
                 .
              
               
                 As
                 to
                 the
                 first
                 member
                 ,
                 the
                 English
                 Custom
                 extendeth
                 it
                 to
                 all
                 goods
                 that
                 shall
                 happen
                 to
                 be
                 upon
                 the
                 Ground
                 at
                 the
                 Term
                 ,
                 if
                 they
                 have
                 but
                 lain
                 down
                 thereupon
                 .
              
               
                 And
                 our
                 ancient
                 custom
                 extendeth
                 it
                 to
                 all
                 Goods
                 of
                 the
                 Possessors
                 ,
                 &
                 
                   invecta
                   &
                   illata
                
                 ,
                 by
                 them
                 ,
                 without
                 retrinching
                 it
                 to
                 what
                 the
                 Tennent
                 is
                 due
                 to
                 the
                 Proprietar
                 ,
                 Constituent
                 of
                 the
                 Annualrent
                 ;
                 and
                 the
                 Poinding
                 in
                 this
                 case
                 was
                 extended
                 to
                 purge
                 a
                 Spuilzie
                 ,
                 November
                 21.
                 1628.
                 
                 
                   Watson
                   contra
                   Reid
                   .
                   June
                
                 26.
                 1628.
                 
                 Laird
                 of
                 
                   Ednem
                   contra
                
                 Tennents
                 of
                 Ednem
                 ,
                 where
                 the
                 pursuit
                 was
                 rather
                 declaratory
                 to
                 establish
                 the
                 pursuers
                 Right
                 ,
                 then
                 for
                 present
                 Possession
                 or
                 Execution
                 .
              
               
                 But
                 thereafter
                 the
                 Lords
                 have
                 been
                 accustomed
                 to
                 interpose
                 with
                 Chargers
                 upon
                 Decreets
                 of
                 Poinding
                 of
                 the
                 Ground
                 ,
                 to
                 restrict
                 the
                 same
                 in
                 favours
                 of
                 Tennents
                 ,
                 to
                 their
                 Terms
                 mails
                 from
                 the
                 Statute
                 ,
                 1469.
                 cap.
                 36.
                 bearing
                 ,
                 
                   that
                   the
                   Cattel
                   of
                   poor
                   men
                   ,
                   Inhabitants
                   of
                   the
                   Ground
                   ,
                   shall
                   not
                   be
                   poinded
                   for
                   the
                   Landlords
                   debt
                   ,
                   where
                   the
                   Mail
                   extends
                   not
                   to
                   the
                   avail
                   thereof
                
                 ;
                 and
                 though
                 the
                 Act
                 seemeth
                 Correctory
                 of
                 an
                 evil
                 Custom
                 ,
                 to
                 poind
                 the
                 Tennents
                 Goods
                 for
                 the
                 Masters
                 debt
                 ,
                 yet
                 the
                 same
                 reason
                 ,
                 equity
                 ,
                 and
                 favour
                 of
                 their
                 Rusticity
                 ,
                 craves
                 the
                 Extension
                 of
                 it
                 to
                 these
                 
                   debita
                   fundi
                
                 ;
                 and
                 therefore
                 ,
                 it
                 was
                 so
                 restricted
                 ,
                 the
                 Tennents
                 producing
                 their
                 Tacks
                 ,
                 or
                 offering
                 to
                 depone
                 upon
                 their
                 Rent
                 summarly
                 ,
                 without
                 taking
                 a
                 Term
                 ;
                 but
                 it
                 was
                 not
                 found
                 requisite
                 that
                 the
                 Annualrenter
                 should
                 either
                 lybel
                 or
                 prove
                 the
                 quantity
                 of
                 the
                 Rent
                 ,
                 February
                 14.
                 1674.
                 
                 Lady
                 
                   Pitfoddels
                   contra
                
                 the
                 Laird
                 of
                 Pitfoddels
                 and
                 Tennents
                 :
                 In
                 which
                 case
                 it
                 was
                 found
                 ,
                 that
                 if
                 the
                 Tennents
                 the
                 time
                 of
                 the
                 poinding
                 had
                 compeared
                 and
                 produced
                 their
                 Tacks
                 ,
                 or
                 had
                 offered
                 to
                 make
                 Faith
                 what
                 the
                 Rent
                 was
                 ,
                 if
                 more
                 had
                 been
                 poinded
                 for
                 ,
                 then
                 equivalent
                 to
                 their
                 Rent
                 ,
                 it
                 would
                 have
                 been
                 a
                 Spuilzie
                 ;
                 but
                 they
                 should
                 not
                 only
                 depone
                 what
                 their
                 Rent
                 is
                 ,
                 but
                 what
                 is
                 resting
                 of
                 it
                 ;
                 for
                 the
                 poinding
                 of
                 the
                 Ground
                 ,
                 or
                 the
                 Brieve
                 of
                 distress
                 ,
                 is
                 only
                 restricted
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 for
                 remeid
                 of
                 that
                 inconvenience
                 ,
                 that
                 was
                 sometime
                 in
                 use
                 ;
                 that
                 where
                 sums
                 are
                 to
                 be
                 payed
                 by
                 the
                 Brieve
                 or
                 Distress
                 against
                 the
                 Lord
                 owner
                 of
                 the
                 Ground
                 ,
                 the
                 Goods
                 and
                 Cattel
                 of
                 poor
                 men
                 ,
                 Inhabitants
                 of
                 the
                 Ground
                 were
                 taken
                 and
                 distrenzied
                 for
                 the
                 Lords
                 debt
                 ,
                 where
                 the
                 Mail
                 extends
                 not
                 to
                 the
                 avail
                 of
                 the
                 debt
                 ;
                 and
                 therefore
                 ,
                 it
                 is
                 ordained
                 ,
                 
                   that
                   the
                   Tennent
                   shall
                   not
                   be
                   distrenzied
                   for
                   the
                   Lords
                   debt
                   where
                   the
                   Mail
                   exetnds
                   not
                   to
                   the
                   avail
                   of
                   the
                   debt
                   ;
                   further
                   then
                   his
                   Terms
                   Mail
                   extends
                   to
                   .
                
                 And
                 therefore
                 ,
                 in
                 so
                 far
                 as
                 the
                 Tennents
                 Mails
                 are
                 resting
                 ,
                 the
                 poinding
                 may
                 proceed
                 :
                 And
                 likewise
                 for
                 the
                 current
                 Terms
                 ,
                 though
                 not
                 yet
                 come
                 :
                 that
                 is
                 ,
                 if
                 the
                 Rent
                 be
                 Victual
                 ,
                 payable
                 all
                 at
                 one
                 Term
                 ,
                 the
                 poinding
                 may
                 proceed
                 for
                 the
                 value
                 of
                 the
                 victual
                 ,
                 according
                 to
                 the
                 Rate
                 of
                 the
                 Victual
                 ,
                 
                   communibus
                   annis
                
                 ,
                 in
                 the
                 several
                 places
                 of
                 the
                 Countrey
                 ,
                 as
                 men
                 use
                 to
                 buy
                 ,
                 or
                 Wodset
                 ,
                 or
                 by
                 the
                 feirs
                 of
                 that
                 place
                 :
                 Neither
                 cantacks
                 absolutely
                 secure
                 the
                 tenents
                 ,
                 if
                 they
                 be
                 posterior
                 to
                 the
                 Infeftment
                 of
                 Annualrent
                 ;
                 in
                 which
                 case
                 ,
                 if
                 they
                 
                 be
                 within
                 the
                 true
                 value
                 of
                 the
                 Land
                 ,
                 the
                 〈◊〉
                 or
                 others
                 poinding
                 ,
                 
                   pro
                   debitis
                   fundi
                
                 ,
                 cannot
                 be
                 prejudged
                 by
                 Collusive
                 Tacks
                 ,
                 or
                 such
                 as
                 are
                 granted
                 with
                 considerable
                 diminution
                 of
                 the
                 true
                 worth
                 :
                 So
                 that
                 the
                 poinding
                 may
                 proceed
                 for
                 one
                 year
                 or
                 Terms
                 Mail
                 ,
                 as
                 the
                 Lands
                 are
                 worth
                 the
                 time
                 of
                 the
                 poinding
                 .
                 But
                 in
                 this
                 case
                 the
                 poinding
                 cannot
                 proceed
                 summarly
                 ,
                 till
                 it
                 be
                 cognosced
                 by
                 Declarator
                 ,
                 or
                 Reduction
                 of
                 the
                 Tacks
                 ,
                 which
                 may
                 frequently
                 occur
                 ,
                 Tennents
                 being
                 oft
                 accustomed
                 to
                 suspend
                 in
                 Decreets
                 for
                 poinding
                 the
                 Ground
                 .
                 Poinding
                 of
                 the
                 Ground
                 was
                 found
                 to
                 take
                 no
                 effect
                 against
                 Corns
                 ,
                 standing
                 upon
                 the
                 Ground
                 ,
                 having
                 been
                 poinded
                 before
                 by
                 a
                 third
                 party
                 ,
                 for
                 a
                 Debt
                 ,
                 Hope
                 poinding
                 ,
                 
                   Paterson
                   contra
                   Patrick
                   Adam
                
                 .
              
               
                 10.
                 
                 In
                 poinding
                 of
                 the
                 Ground
                 ,
                 the
                 Proprietar
                 the
                 time
                 of
                 the
                 Summonds
                 ,
                 must
                 be
                 called
                 ,
                 albeit
                 his
                 Infeftment
                 be
                 base
                 ,
                 but
                 not
                 the
                 Superiour
                 ,
                 January
                 19.
                 1636.
                 
                 
                   Oliphant
                   contra
                   Oliphant
                
                 .
                 And
                 is
                 sufficient
                 to
                 call
                 the
                 Wodsetter
                 without
                 the
                 Reverser
                 ,
                 February
                 1.
                 1631.
                 
                 
                   Gilbert
                   Williamson
                   contra
                   Hendrie
                   Cunninghame
                
                 .
                 The
                 Tennents
                 also
                 must
                 be
                 called
                 ,
                 in
                 so
                 far
                 as
                 concerns
                 their
                 Goods
                 ,
                 but
                 the
                 present
                 Heretors
                 ,
                 and
                 Tennents
                 being
                 once
                 Discerned
                 ,
                 the
                 Decreet
                 will
                 be
                 effectual
                 against
                 all
                 singular
                 Successors
                 ,
                 and
                 subsequent
                 Tennents
                 without
                 a
                 new
                 Decreet
                 of
                 Transferrence
                 ,
                 Hope
                 ,
                 poinding
                 of
                 the
                 Ground
                 ,
                 
                   Forrester
                   contra
                
                 Tennents
                 .
                 November
                 21.
                 1628.
                 
                 
                   Watson
                   contra
                   Reid
                   .
                   June
                
                 26.
                 1662.
                 
                 
                   Adamson
                   contra
                
                 Lord
                 Balmerino
                 .
                 But
                 poinding
                 of
                 the
                 Ground
                 upon
                 Annualrents
                 may
                 proceed
                 summarly
                 ,
                 without
                 declaring
                 the
                 Right
                 in
                 a
                 petitorie
                 Judgement
                 ,
                 though
                 the
                 Annualrenter
                 hath
                 not
                 been
                 in
                 possession
                 for
                 seven
                 years
                 ;
                 and
                 a
                 posterior
                 Annualrenter
                 in
                 possession
                 seven
                 years
                 ,
                 was
                 not
                 found
                 preferable
                 ,
                 because
                 Annualrents
                 being
                 
                   debita
                   fundi
                
                 ,
                 have
                 neither
                 prejudice
                 nor
                 profite
                 by
                 Possession
                 ,
                 as
                 in
                 a
                 possessory
                 Judgement
                 ,
                 which
                 is
                 only
                 competent
                 upon
                 Infeftments
                 of
                 Property
                 or
                 Tacks
                 ,
                 January
                 9.
                 1668.
                 old
                 Lady
                 
                   Clerkingtoun
                   contra
                   Clerkingtoun
                
                 and
                 the
                 young
                 Lady
                 .
              
               
                 And
                 a
                 poinding
                 of
                 the
                 ground
                 may
                 proceed
                 against
                 the
                 appear
                 and
                 Heir
                 ,
                 without
                 a
                 Charge
                 to
                 enter
                 Heir
                 ,
                 January
                 2.
                 1667.
                 
                 
                   Oliphant
                   contra
                   Hamiltoun
                
                 .
              
               
                 11.
                 
                 As
                 to
                 the
                 Ground-right
                 and
                 Property
                 of
                 the
                 Land
                 ,
                 Appryzing
                 upon
                 Infeftment
                 of
                 Annualrent
                 is
                 not
                 only
                 effectual
                 against
                 the
                 Proprietar
                 ,
                 but
                 against
                 any
                 other
                 Appryzing
                 for
                 personal
                 debt
                 ,
                 and
                 Infeftment
                 thereupon
                 ,
                 being
                 after
                 the
                 Original
                 Infeftment
                 of
                 the
                 Annualrent
                 ;
                 though
                 before
                 the
                 appryzing
                 thereon
                 ,
                 Hope
                 ,
                 poinding
                 and
                 appryzing
                 ,
                 Tennents
                 of
                 
                   Clunie
                   contra
                   Tarachtrie
                   ,
                   Slowand
                
                 and
                 Glendoning
                 .
                 And
                 it
                 is
                 the
                 singularity
                 of
                 this
                 Right
                 ,
                 that
                 the
                 Infeftment
                 of
                 Annualrent
                 being
                 once
                 Established
                 ,
                 appryzing
                 thereupon
                 will
                 be
                 preferred
                 to
                 all
                 interveening
                 Rights
                 and
                 Diligences
                 ,
                 even
                 though
                 they
                 proceed
                 upon
                 posterior
                 Infeftments
                 and
                 Annualrents
                 .
                 And
                 though
                 by
                 the
                 late
                 Act
                 of
                 Parliament
                 ,
                 Appryzings
                 within
                 year
                 and
                 day
                 ,
                 come
                 
                   in
                   pari
                   passu
                
                 ,
                 there
                 is
                 an
                 express
                 exception
                 of
                 Annualrents
                 ;
                 and
                 therefore
                 ,
                 an
                 appryzing
                 proceeding
                 upon
                 a
                 personal
                 Obliegement
                 and
                 Requisition
                 ,
                 both
                 for
                 Principal
                 and
                 Annual
                 ,
                 and
                 within
                 year
                 and
                 day
                 of
                 other
                 appryzings
                 ,
                 the
                 Appryzer
                 was
                 allowed
                 to
                 pass
                 from
                 his
                 appryzing
                 ,
                 as
                 to
                 the
                 Annualrents
                 prior
                 to
                 the
                 Appryzing
                 ;
                 and
                 these
                 were
                 preferred
                 to
                 all
                 the
                 appryzings
                 ,
                 and
                 his
                 appryzing
                 was
                 brought
                 in
                 ,
                 
                   pari
                   passu
                
                 ,
                 for
                 the
                 Principal
                 sum
                 and
                 Annualrents
                 after
                 the
                 appryzing
                 ,
                 December
                 22.
                 1671.
                 
                 
                   Campbel
                   contra
                
                 Yea
                 ,
                 an
                 Infeftment
                 of
                 Annualrent
                 being
                 betwixt
                 the
                 first
                 effectual
                 appryzing
                 ,
                 and
                 the
                 subsequent
                 appryzings
                 within
                 year
                 and
                 day
                 ,
                 was
                 brought
                 in
                 ,
                 
                   pari
                   passu
                
                 ,
                 with
                 these
                 appryzings
                 ,
                 as
                 to
                 the
                 whole
                 right
                 ,
                 as
                 being
                 in
                 a
                 matter
                 dubious
                 ,
                 upon
                 a
                 new
                 Statute
                 ,
                 the
                 Annualrenter
                 having
                 rested
                 thereupon
                 ,
                 and
                 not
                 having
                 appryzed
                 
                 for
                 his
                 principal
                 sum
                 ;
                 which
                 if
                 he
                 had
                 done
                 ,
                 he
                 would
                 clearly
                 have
                 come
                 in
                 ,
                 
                   pari
                   passu
                   ,
                   February
                
                 6.
                 1673.
                 
                 Brown
                 of
                 
                   Colstoun
                   contra
                   Edward
                   Nicolas
                
                 .
              
               
                 There
                 is
                 a
                 case
                 proposed
                 by
                 Sir
                 
                   Thomas
                   Hope
                   ,
                   viz.
                
                 If
                 one
                 having
                 Right
                 to
                 some
                 years
                 of
                 an
                 Annualrent
                 by
                 Liferent
                 ,
                 or
                 otherways
                 should
                 appryze
                 for
                 these
                 years
                 ,
                 and
                 that
                 appryzing
                 expyre
                 ,
                 whether
                 that
                 appryzing
                 expired
                 will
                 carry
                 the
                 right
                 of
                 Property
                 ,
                 not
                 only
                 from
                 him
                 who
                 constitute
                 the
                 Annualrent
                 ,
                 but
                 from
                 the
                 Fiar
                 of
                 the
                 Annualrent
                 himself
                 ,
                 so
                 that
                 the
                 Infeftment
                 of
                 annualrent
                 should
                 become
                 extinct
                 ,
                 which
                 seems
                 to
                 be
                 resolved
                 affirmatively
                 ,
                 because
                 of
                 the
                 nature
                 of
                 the
                 Right
                 ;
                 for
                 the
                 Infeftment
                 of
                 annualrent
                 ,
                 being
                 
                   jus
                   sed
                   ignobilius
                
                 ,
                 becomes
                 extinct
                 ,
                 if
                 the
                 annualrenter
                 there
                 upon
                 do
                 appryze
                 the
                 Property
                 ,
                 and
                 be
                 Infeft
                 :
                 and
                 therefore
                 ,
                 whoever
                 appryzeth
                 for
                 years
                 of
                 the
                 annualrent
                 ,
                 the
                 Infeftment
                 thereof
                 ,
                 unless
                 it
                 be
                 taken
                 away
                 by
                 satisfaction
                 ,
                 or
                 redemption
                 ,
                 extinguisheth
                 the
                 Infeftment
                 of
                 annualrent
                 ,
                 without
                 distinction
                 ,
                 whether
                 the
                 appryzing
                 be
                 led
                 for
                 any
                 years
                 belonging
                 to
                 the
                 Fiar
                 ,
                 Liferenter
                 ,
                 or
                 any
                 other
                 :
                 and
                 whereas
                 the
                 difficulty
                 seems
                 to
                 be
                 ,
                 that
                 the
                 Liferenter
                 cannot
                 prejudge
                 the
                 Fiar
                 of
                 the
                 annualrent
                 ,
                 or
                 appryze
                 more
                 from
                 the
                 Fiar
                 of
                 the
                 Land
                 than
                 he
                 had
                 ;
                 It
                 is
                 answered
                 ,
                 the
                 Fiar
                 needs
                 not
                 be
                 prejudged
                 ,
                 because
                 he
                 hath
                 a
                 virtual
                 Reversion
                 ,
                 and
                 might
                 thereby
                 redeem
                 from
                 the
                 Annualrenter
                 and
                 take
                 the
                 Liferenters
                 Right
                 :
                 Neither
                 doth
                 the
                 appryzing
                 exclude
                 the
                 annualrent
                 it self
                 ,
                 as
                 to
                 years
                 posterior
                 ,
                 by
                 the
                 Tenor
                 of
                 the
                 appryzing
                 ,
                 but
                 by
                 the
                 nature
                 of
                 the
                 right
                 constitute
                 to
                 that
                 very
                 end
                 ,
                 that
                 an
                 Apprising
                 for
                 any
                 years
                 of
                 the
                 Annualrent
                 is
                 drawn
                 back
                 
                   ad
                   suam
                   causam
                   ,
                   viz.
                
                 The
                 original
                 Infeftment
                 of
                 the
                 Annualrent
                 ;
                 and
                 so
                 excludes
                 all
                 posterior
                 Infeftments
                 :
                 and
                 therefore
                 ,
                 extinguisheth
                 not
                 only
                 these
                 ,
                 but
                 even
                 the
                 Infeftment
                 of
                 Annualrent
                 it self
                 ceaseth
                 ,
                 by
                 accession
                 of
                 the
                 property
                 ,
                 
                   ut
                   juris
                   nobilioris
                
                 ;
                 but
                 if
                 the
                 Fiar
                 of
                 the
                 Annualrent
                 were
                 neglective
                 in
                 so
                 dubious
                 a
                 case
                 ,
                 it
                 is
                 like
                 the
                 Lords
                 would
                 repone
                 him
                 ,
                 satisfying
                 the
                 Liferenter
                 .
                 In
                 the
                 case
                 of
                 competition
                 ,
                 the
                 Infeftment
                 of
                 Annualrent
                 it self
                 will
                 be
                 preferred
                 to
                 the
                 posterior
                 Rights
                 ,
                 though
                 no
                 Apprising
                 followed
                 ,
                 January
                 29.
                 1635.
                 
                 Sir
                 
                   James
                   Hamiltoun
                
                 of
                 Brownhill
                 contra
                 Wilson
                 .
                 Infeftments
                 of
                 Annualrents
                 have
                 the
                 priviledge
                 and
                 preference
                 ,
                 though
                 they
                 be
                 made
                 use
                 of
                 by
                 way
                 of
                 competition
                 ,
                 without
                 Apprising
                 thereupon
                 :
                 Yea
                 ,
                 though
                 requisition
                 was
                 made
                 ,
                 and
                 an
                 Apprising
                 led
                 upon
                 the
                 Sum
                 whereunto
                 the
                 Annualrent
                 was
                 accessory
                 ,
                 yet
                 it
                 was
                 found
                 ,
                 the
                 Appriser
                 might
                 ,
                 
                   pro
                   loco
                   &
                   tempore
                
                 ,
                 pass
                 from
                 that
                 Apprising
                 ,
                 and
                 upon
                 the
                 Annualrent
                 it self
                 be
                 preferred
                 ,
                 January
                 24.
                 1663.
                 
                 
                   Robert
                   Graham
                
                 contra
                 
                   John
                   Ross.
                
                 
              
               
                 12.
                 
                 But
                 as
                 to
                 apprising
                 of
                 Moveables
                 or
                 Rents
                 ,
                 the
                 Lords
                 use
                 in
                 competitions
                 to
                 give
                 so
                 much
                 time
                 to
                 the
                 first
                 Annualrenter
                 ,
                 and
                 so
                 to
                 the
                 rest
                 after
                 each
                 term
                 ,
                 that
                 they
                 only
                 may
                 poind
                 ;
                 and
                 so
                 they
                 decerned
                 the
                 first
                 Annualrenter
                 to
                 poind
                 within
                 twenty
                 dayes
                 of
                 each
                 term
                 ,
                 and
                 the
                 second
                 within
                 the
                 next
                 twenty
                 dayes
                 ,
                 Feb.
                 15.
                 1662.
                 
                 Ladies
                 Mouswall
                 elder
                 and
                 younger
                 ,
                 competing
                 .
                 The
                 like
                 allowing
                 the
                 first
                 Annualrenter
                 fourty
                 dayes
                 after
                 each
                 term
                 ,
                 July
                 26.
                 1662.
                 
                 Sir
                 
                   John
                   Aiton
                
                 contra
                 
                   Adam
                   Wat.
                
                 But
                 as
                 to
                 the
                 Apprising
                 of
                 the
                 Property
                 ,
                 the
                 first
                 Annualrenter
                 may
                 apprise
                 when
                 he
                 pleaseth
                 ,
                 and
                 then
                 is
                 preferable
                 to
                 all
                 others
                 ;
                 but
                 the
                 regulating
                 of
                 the
                 poinding
                 of
                 Moveables
                 is
                 in
                 favour
                 of
                 the
                 poor
                 Labourers
                 .
                 The
                 like
                 ,
                 June
                 26.
                 1662.
                 
                 Adamson
                 contra
                 Lord
                 Balmerino
                 ,
                 where
                 it
                 was
                 found
                 ,
                 that
                 the
                 Annualrenter
                 might
                 affect
                 any
                 part
                 of
                 the
                 ground
                 
                   in
                   solidum
                
                 ,
                 albeit
                 now
                 belonging
                 to
                 several
                 Heretors
                 ;
                 but
                 so
                 ,
                 as
                 the
                 Heretor
                 of
                 the
                 ground
                 affected
                 ,
                 behoved
                 to
                 have
                 Assignation
                 to
                 the
                 Decreet
                 for
                 obtaining
                 relief
                 .
              
               
               
                 13.
                 
                 Annualrents
                 long
                 ago
                 had
                 no
                 effect
                 but
                 poinding
                 of
                 the
                 ground
                 ,
                 and
                 could
                 not
                 come
                 in
                 to
                 hinder
                 Arresters
                 of
                 the
                 duties
                 for
                 the
                 Proprietars
                 debt
                 ,
                 March
                 24.
                 1626.
                 
                 Gray
                 contra
                 Graham
                 ;
                 but
                 thereafter
                 were
                 ordained
                 to
                 be
                 a
                 sufficient
                 Title
                 against
                 all
                 intromettors
                 with
                 the
                 Duties
                 personally
                 ,
                 March
                 15.
                 1637.
                 
                 
                   Richard
                   Guthrie
                
                 contra
                 Earl
                 of
                 Galloway
                 .
                 Annualrents
                 were
                 found
                 lyable
                 to
                 publick
                 Burdens
                 ,
                 proportional
                 with
                 the
                 superplus
                 Rent
                 belonging
                 to
                 the
                 Fiar
                 ,
                 June
                 23.
                 1675.
                 
                 
                   David
                   Bruce
                
                 contra
                 
                   James
                   Bruce
                
                 .
                 This
                 annualrent
                 was
                 not
                 for
                 security
                 of
                 a
                 Stock
                 .
                 The
                 like
                 was
                 found
                 of
                 a
                 Liferent
                 Annualrent
                 ,
                 June
                 18.
                 1663.
                 
                 
                   Margaret
                   Fleming
                
                 contra
                 
                   James
                   Gillis
                
                 .
              
               
                 14.
                 
                 Annualrents
                 ,
                 as
                 to
                 bygones
                 ,
                 are
                 moveable
                 and
                 so
                 arrestable
                 ,
                 and
                 belong
                 to
                 Executors
                 ,
                 December
                 15.
                 1630.
                 
                 Ogilvie
                 contra
                 Ogilvie
                 :
                 Yet
                 it
                 will
                 be
                 more
                 competent
                 and
                 suitable
                 to
                 pursue
                 it
                 personally
                 against
                 intrometters
                 with
                 the
                 Rents
                 ,
                 or
                 Postessors
                 ,
                 then
                 by
                 a
                 real
                 Action
                 of
                 poinding
                 the
                 ground
                 ;
                 Annualrents
                 are
                 supprest
                 by
                 Wodset
                 of
                 the
                 Land
                 ,
                 or
                 other
                 more
                 noble
                 Right
                 in
                 the
                 person
                 of
                 the
                 Annualrenter
                 ,
                 unless
                 that
                 Right
                 were
                 evicted
                 .
              
               
                 15.
                 
                 An
                 Infeftment
                 of
                 Annualrent
                 redeemable
                 ,
                 was
                 found
                 extinct
                 by
                 a
                 Renunciation
                 registrat
                 in
                 the
                 Register
                 of
                 Reversions
                 ,
                 and
                 that
                 against
                 a
                 singular
                 Successor
                 ,
                 though
                 there
                 was
                 no
                 resignation
                 of
                 the
                 Annualrent
                 ,
                 January
                 7.
                 1680.
                 
                 
                   John
                   Mcclellan
                
                 contra
                 Mushet
                 .
                 An
                 annualrent
                 was
                 also
                 found
                 extinct
                 ,
                 by
                 the
                 annualrenters
                 intrometting
                 with
                 the
                 Rents
                 of
                 the
                 Lands
                 ,
                 out
                 of
                 which
                 the
                 Annualrent
                 was
                 payable
                 equivalent
                 to
                 the
                 principal
                 Sum
                 ,
                 for
                 security
                 whereof
                 the
                 annualrent
                 was
                 constitute
                 ;
                 which
                 intromission
                 was
                 sound
                 probable
                 by
                 witnesses
                 ,
                 though
                 it
                 was
                 silver-rent
                 ,
                 Feb.
                 4.
                 1671.
                 
                 Wishart
                 contra
                 
                   Elizabeth
                   Arthur
                
                 .
                 And
                 therefore
                 ,
                 singnlar
                 Successors
                 succeeding
                 in
                 annualrents
                 ,
                 either
                 by
                 voluntary
                 Disposition
                 ,
                 or
                 by
                 Apprising
                 or
                 Adjudication
                 ,
                 cannot
                 be
                 secure
                 by
                 inspection
                 of
                 Registers
                 ,
                 as
                 they
                 may
                 be
                 for
                 Lands
                 ;
                 but
                 they
                 run
                 the
                 hazard
                 of
                 satisfaction
                 of
                 the
                 principal
                 Sum
                 for
                 which
                 the
                 Annualrent
                 is
                 granted
                 ,
                 wherewith
                 it
                 falls
                 in
                 consequence
                 :
                 For
                 ,
                 no
                 provident
                 man
                 will
                 buy
                 an
                 annualrent
                 given
                 for
                 security
                 of
                 a
                 principal
                 Sum
                 ,
                 but
                 either
                 upon
                 necessity
                 ,
                 for
                 satisfying
                 a
                 prior
                 debt
                 ,
                 or
                 upon
                 great
                 advantage
                 ;
                 in
                 both
                 which
                 cases
                 ,
                 he
                 should
                 take
                 his
                 hazard
                 ,
                 
                   Scire
                   debet
                   cum
                   quo
                   contrahit
                
                 ,
                 as
                 all
                 Purchasers
                 of
                 personal
                 Rights
                 must
                 do
                 .
              
               
                 Pensions
                 resemble
                 Annualrents
                 ,
                 or
                 the
                 
                   seuda
                   ex
                   camera
                
                 or
                 
                   ex
                   cavena
                
                 ,
                 mentioned
                 by
                 the
                 Feudists
                 ;
                 for
                 thereby
                 ,
                 a
                 yearly
                 Rent
                 is
                 constitute
                 to
                 be
                 payed
                 out
                 of
                 the
                 Constituents
                 Lands
                 ,
                 generally
                 or
                 particularly
                 :
                 Yet
                 these
                 Pensions
                 ,
                 not
                 having
                 Infeftment
                 ,
                 have
                 but
                 the
                 nature
                 of
                 Assignations
                 ,
                 and
                 so
                 are
                 not
                 valid
                 against
                 singular
                 Successors
                 .
              
               
                 16.
                 
                 Except
                 only
                 Ecclesiastick
                 Pensions
                 ,
                 constitute
                 by
                 Prelates
                 ,
                 which
                 are
                 valid
                 against
                 their
                 Successors
                 in
                 Office
                 ,
                 but
                 not
                 unless
                 they
                 be
                 cloathed
                 with
                 Possession
                 or
                 Decreets
                 conform
                 ,
                 in
                 the
                 Constituents
                 life
                 ,
                 Par.
                 1592.
                 cap.
                 137.
                 
                 And
                 so
                 a
                 Pension
                 granted
                 by
                 a
                 Bishop
                 with
                 power
                 to
                 assign
                 ,
                 was
                 found
                 valid
                 to
                 the
                 Assigney
                 ,
                 after
                 the
                 first
                 Pensioners
                 death
                 ,
                 against
                 the
                 succeeding
                 Bishop
                 ,
                 and
                 to
                 be
                 no
                 dilapidation
                 ,
                 July
                 21.
                 1625.
                 
                 Minister
                 of
                 Kirklistoun
                 contra
                 
                   Patrick
                   Whitelaw
                
                 ;
                 yea
                 ,
                 though
                 the
                 Pension
                 bore
                 a
                 power
                 to
                 assign
                 
                   etiam
                   in
                   articulo
                   mortis
                
                 ,
                 December
                 17.
                 1628.
                 
                 Chalmers
                 contra
                 Craigievar
                 :
                 But
                 in
                 this
                 case
                 ,
                 the
                 Pensioner
                 granting
                 Assignation
                 ,
                 reserving
                 his
                 own
                 Life-rent
                 ,
                 or
                 to
                 take
                 effect
                 after
                 his
                 death
                 ,
                 whereby
                 both
                 might
                 at
                 once
                 have
                 interest
                 therein
                 ,
                 the
                 Assignation
                 was
                 found
                 null
                 by
                 exception
                 ,
                 though
                 having
                 Decreet
                 conform
                 ,
                 and
                 thirty
                 years
                 possession
                 .
                 The
                 like
                 Hope
                 ,
                 Assignation
                 ,
                 Abernethie
                 contra
                 
                 Lady
                 Drumlanerk
                 .
                 But
                 now
                 ,
                 by
                 the
                 Act
                 of
                 Par.
                 1606.
                 cap.
                 3.
                 
                 Archbishops
                 and
                 Bishops
                 are
                 disabled
                 to
                 grant
                 Pensions
                 to
                 affect
                 their
                 Benefices
                 ,
                 further
                 then
                 themselves
                 have
                 right
                 to
                 the
                 Benefice
                 ,
                 but
                 do
                 not
                 prejudge
                 their
                 Successors
                 in
                 Office.
                 Yet
                 Pensions
                 granted
                 by
                 beneficed
                 persons
                 ,
                 are
                 not
                 only
                 due
                 during
                 their
                 life
                 ,
                 but
                 out
                 of
                 their
                 annat
                 after
                 their
                 death
                 ,
                 February
                 28.
                 1628.
                 
                 Bairns
                 of
                 the
                 Bishop
                 of
                 Galloway
                 contra
                 
                   Andrew
                   Couper
                
                 .
              
               
                 17.
                 
                 Pensions
                 granted
                 by
                 secular
                 persons
                 ,
                 though
                 they
                 contain
                 Assignations
                 to
                 the
                 duties
                 of
                 the
                 Lands
                 specially
                 ,
                 and
                 have
                 Decreet
                 conform
                 ,
                 were
                 found
                 ineffectual
                 against
                 singular
                 Successors
                 in
                 the
                 Land
                 ,
                 July
                 9.
                 1629.
                 
                 Urquhart
                 contra
                 the
                 Earl
                 of
                 
                   Caithness
                   ,
                   December
                
                 11.
                 1662.
                 
                 
                   Andrew
                   Clappertoun
                
                 contra
                 Laird
                 of
                 Ednem
                 ;
                 neither
                 against
                 the
                 Lady
                 Tercer
                 of
                 the
                 Constituent
                 ,
                 March
                 27.
                 1634.
                 
                 Countess
                 of
                 Dumfermling
                 contra
                 Earl
                 of
                 Dumsermling
                 .
              
               
                 A
                 Decreet
                 conform
                 being
                 obtained
                 against
                 the
                 granter
                 of
                 a
                 Pension
                 ,
                 his
                 Tenants
                 and
                 Chamberlains
                 ,
                 is
                 effectual
                 against
                 subsequent
                 Chamberlains
                 ,
                 without
                 new
                 Decreet
                 or
                 Transference
                 ,
                 yet
                 must
                 be
                 transferred
                 against
                 the
                 Constituents
                 Heir
                 and
                 his
                 Chamberlain
                 ,
                 though
                 it
                 would
                 be
                 valid
                 ,
                 being
                 an
                 Ecclesiastick
                 Pension
                 ,
                 against
                 his
                 Successor
                 ,
                 December
                 7.
                 1630.
                 
                 Earl
                 of
                 Carrict
                 contra
                 Duke
                 of
                 
                   Lennox
                   ,
                   Spots
                   .
                   hic
                   ,
                   Alexander
                   Weyms
                
                 contra
                 Chamberlain
                 of
                 the
                 Duke
                 of
                 Lennox
                 .
              
               
                 A
                 Pension
                 ,
                 bearing
                 for
                 love
                 and
                 special
                 service
                 done
                 and
                 to
                 be
                 done
                 ,
                 was
                 found
                 effectual
                 ,
                 though
                 the
                 Pensioner
                 removed
                 and
                 did
                 not
                 that
                 service
                 ,
                 his
                 removal
                 being
                 necessary
                 by
                 transportation
                 ,
                 March
                 25.
                 1629.
                 
                 Doctor
                 Strang
                 contra
                 Lord
                 Couper
                 .
                 The
                 like
                 of
                 a
                 Pension
                 granted
                 to
                 an
                 Advocat
                 ,
                 for
                 services
                 done
                 and
                 to
                 be
                 done
                 ,
                 which
                 was
                 found
                 valid
                 during
                 his
                 life
                 ,
                 though
                 he
                 left
                 Pleading
                 ,
                 December
                 3.
                 1662.
                 
                 Mr.
                 
                   John
                   Alexander
                
                 contra
                 Mr.
                 
                   Roderick
                   Mcleod
                
                 .
                 The
                 like
                 of
                 a
                 Pension
                 ,
                 for
                 service
                 done
                 and
                 to
                 be
                 done
                 ,
                 though
                 the
                 service
                 was
                 not
                 done
                 when
                 not
                 required
                 :
                 nor
                 was
                 it
                 excluded
                 by
                 the
                 Pensioners
                 pursuing
                 Processes
                 at
                 his
                 own
                 instance
                 against
                 the
                 Constituent
                 ,
                 upon
                 a
                 probable
                 ground
                 ,
                 though
                 the
                 Constituent
                 was
                 assoiled
                 ,
                 June
                 26.
                 1678.
                 
                 Mr.
                 
                   William
                   Weir
                
                 Advocat
                 contra
                 the
                 Earl
                 of
                 Callendar
                 .
              
               
                 18.
                 
                 Pensions
                 granted
                 by
                 the
                 King
                 are
                 declared
                 not
                 arrestable
                 in
                 the
                 Thesaurers
                 hands
                 by
                 Act
                 of
                 Sederunt
                 ,
                 June
                 11.
                 1613.
                 
                 The
                 reason
                 thereof
                 must
                 be
                 ,
                 because
                 such
                 are
                 ordinarly
                 alimentary
                 ,
                 and
                 alwayes
                 for
                 the
                 Kings
                 special
                 service
                 ,
                 which
                 would
                 be
                 impeded
                 ,
                 by
                 hindering
                 payment
                 of
                 the
                 Pension
                 .
              
            
             
               
               
                 TITLE
                 XVI
                 .
                 LIFERENTS
                 ,
                 Where
                 ,
                 of
                 Conjunctfees
                 ,
                 Terces
                 ,
                 and
                 Liferents
                 by
                 the
                 Courtesie
                 of
                 Scotland
                 .
              
               
                 
                   1.
                   
                   Servitudes
                   personal
                   by
                   the
                   Roman
                   Law.
                   
                
                 
                   2.
                   
                   Servitudes
                   personal
                   by
                   our
                   Custom
                   .
                
                 
                   3.
                   
                   Clauses
                   of
                   Conquest
                   ,
                   of
                   Liferent
                   ,
                   or
                   fee
                   of
                   Lands
                   acquired
                   during
                   marriages
                   ,
                   how
                   far
                   extended
                   .
                
                 
                   4.
                   
                   All
                   Liferents
                   must
                   be
                   
                     salva
                     rei
                     substantia
                  
                   .
                
                 
                   5.
                   
                   Liferenters
                   are
                   burdened
                   with
                   aliment
                   of
                   Heirs
                   .
                
                 
                   6.
                   
                   Liferents
                   without
                   Infeftment
                   are
                   not
                   effectual
                   against
                   singular
                   successors
                   .
                
                 
                   7.
                   
                   The
                   effect
                   of
                   Assignations
                   to
                   Liferents
                   .
                
                 
                   8.
                   
                   Liferents
                   are
                   not
                   prejudged
                   by
                   Tacks
                   or
                   other
                   deeds
                   of
                   the
                   Fiar
                   being
                   posterior
                   .
                
                 
                   9.
                   
                   What
                   Terms
                   do
                   belong
                   to
                   Liferenters
                   .
                
                 
                   10.
                   
                   Conjunctsees
                   .
                
                 
                   11.
                   
                   Liferenters
                   by
                   Conjunctsee
                   have
                   all
                   the
                   Casualities
                   of
                   Superiority
                   .
                
                 
                   
                   12.
                   
                   Terce
                   .
                
                 
                   13.
                   
                   Services
                   of
                   Terces
                   .
                
                 
                   14.
                   
                   Kenning
                   to
                   Terces
                   .
                
                 
                   15.
                   
                   The
                   effect
                   of
                   Terces
                   .
                
                 
                   16.
                   
                   The
                   extent
                   of
                   Terces
                   .
                
                 
                   17.
                   
                   Exceptions
                   against
                   Terces
                   .
                
                 
                   18.
                   
                   Burdens
                   of
                   Terces
                   .
                
                 
                   19.
                   
                   Liferents
                   by
                   the
                   courtesie
                   of
                   Scotland
                   .
                
                 
                   20.
                   
                   Publick
                   burdens
                   .
                
              
               
                 FROM
                 the
                 Feudal
                 Rights
                 of
                 Property
                 ,
                 we
                 proceed
                 to
                 Servitudes
                 ,
                 burdening
                 the
                 〈◊〉
                 ;
                 these
                 are
                 either
                 personal
                 or
                 real
                 :
                 Personal
                 Servitudes
                 are
                 ,
                 whereby
                 the
                 property
                 of
                 one
                 is
                 subservient
                 to
                 the
                 person
                 of
                 another
                 :
                 Real
                 Servitude
                 is
                 ,
                 whereby
                 a
                 Tenement
                 is
                 subservient
                 to
                 another
                 Tenement
                 ,
                 and
                 to
                 persons
                 ;
                 But
                 as
                 ,
                 and
                 while
                 they
                 have
                 Right
                 to
                 the
                 Tenement
                 Dominant
                 ,
                 as
                 Thirleage
                 ,
                 Pasturage
                 ,
                 Ways
                 ,
                 Passages
                 ,
                 &c.
                 and
                 the
                 like
                 .
              
               
                 Servitudes
                 personal
                 for
                 term
                 of
                 Life
                 ,
                 are
                 therefore
                 called
                 Liferents
                 ,
                 Servitudes
                 for
                 an
                 indefinite
                 time
                 are
                 such
                 ,
                 which
                 either
                 may
                 or
                 uses
                 to
                 be
                 Constitute
                 for
                 a
                 longer
                 or
                 shorter
                 time
                 ,
                 such
                 are
                 Pensions
                 Ecclesiastick
                 ,
                 Rentals
                 and
                 Tacks
                 ,
                 which
                 ,
                 though
                 they
                 be
                 in
                 their
                 nature
                 but
                 personal
                 Rights
                 :
                 Yet
                 by
                 Statute
                 or
                 Custom
                 ,
                 they
                 have
                 the
                 effect
                 of
                 real
                 Rights
                 ,
                 of
                 which
                 hereafter
                 .
                 Teinds
                 also
                 must
                 come
                 in
                 as
                 Servitudes
                 ,
                 though
                 they
                 are
                 accounted
                 a
                 distinct
                 Right
                 .
              
               
                 1.
                 
                 The
                 Roman
                 Law
                 divideth
                 personal
                 Servitudes
                 into
                 Usufruct
                 ,
                 Use
                 ,
                 and
                 Habitation
                 .
                 Usufruct
                 is
                 the
                 power
                 of
                 disposal
                 of
                 the
                 use
                 and
                 fruits
                 ,
                 saving
                 the
                 Substance
                 of
                 the
                 thing
                 ,
                 which
                 if
                 it
                 be
                 restrained
                 to
                 these
                 persons
                 ,
                 and
                 their
                 proper
                 use
                 ,
                 without
                 making
                 profite
                 ,
                 or
                 disponing
                 to
                 others
                 it
                 is
                 called
                 the
                 use
                 ;
                 and
                 because
                 of
                 some
                 special
                 Consideration
                 in
                 the
                 Law
                 of
                 that
                 use
                 of
                 Houses
                 ,
                 Habitation
                 is
                 a
                 distinct
                 Servitude
                 from
                 other
                 uses
                 .
              
               
                 2.
                 
                 All
                 Servitudes
                 with
                 us
                 come
                 under
                 some
                 of
                 the
                 kinds
                 before
                 named
                 .
                 Personal
                 Servitudes
                 are
                 either
                 constitute
                 by
                 the
                 deeds
                 of
                 men
                 ,
                 or
                 by
                 the
                 Law
                 ,
                 which
                 provideth
                 a
                 competent
                 portion
                 to
                 either
                 of
                 the
                 surviving
                 Spouses
                 out
                 of
                 the
                 Lands
                 and
                 Tenements
                 of
                 the
                 other
                 during
                 the
                 Survivers
                 Life
                 ;
                 as
                 if
                 the
                 Wife
                 survive
                 ,
                 she
                 hath
                 the
                 third
                 of
                 her
                 Husbands
                 Tenements
                 :
                 and
                 if
                 the
                 Husband
                 survive
                 ,
                 he
                 hath
                 the
                 Liferent
                 of
                 the
                 Wifes
                 whole
                 Tenements
                 ,
                 and
                 that
                 
                   provisione
                   
                   legis
                
                 alone
                 .
                 But
                 other
                 Liferents
                 constitute
                 for
                 surviving
                 Spouses
                 ,
                 or
                 otherways
                 are
                 
                   provisione
                   hominis
                
                 :
                 So
                 may
                 the
                 Terce
                 or
                 Liferent
                 by
                 Courtesie
                 be
                 provided
                 ,
                 and
                 some
                 things
                 altered
                 from
                 the
                 course
                 of
                 Law
                 ;
                 but
                 oftner
                 Liferents
                 are
                 constitute
                 by
                 Conjunctfee
                 ,
                 and
                 most
                 ordinarly
                 otherways
                 ,
                 which
                 therefore
                 retain
                 the
                 common
                 name
                 of
                 Liferents
                 appropriat
                 thereto
                 ,
                 and
                 distinct
                 from
                 Conjunctfees
                 .
              
               
                 3.
                 
                 Liferents
                 are
                 sometimes
                 provided
                 particularly
                 ,
                 and
                 sometimes
                 generally
                 for
                 the
                 whole
                 ,
                 or
                 such
                 a
                 share
                 of
                 the
                 Conquest
                 ,
                 during
                 the
                 Marriage
                 ,
                 which
                 though
                 not
                 fulfilled
                 by
                 the
                 Husband
                 in
                 his
                 Life
                 ,
                 is
                 effectual
                 against
                 his
                 Heirs
                 ,
                 and
                 is
                 not
                 accounted
                 a
                 fraudulent
                 provision
                 ,
                 though
                 it
                 be
                 the
                 whole
                 Conquest
                 ,
                 even
                 amongst
                 Merchants
                 ,
                 yea
                 it
                 was
                 found
                 effectual
                 for
                 recovering
                 the
                 rents
                 of
                 the
                 Conquest
                 Lands
                 without
                 Infeftment
                 ,
                 against
                 the
                 Husbands
                 Heir
                 ,
                 in
                 the
                 case
                 of
                 the
                 Relict
                 of
                 Johnstoun
                 Merchant
                 in
                 Glasgow
                 .
                 And
                 where
                 a
                 Husband
                 purchased
                 Lands
                 in
                 favours
                 of
                 his
                 eldest
                 Son
                 ,
                 being
                 then
                 an
                 Infant
                 ,
                 and
                 not
                 to
                 himself
                 ,
                 yet
                 his
                 Relict
                 was
                 found
                 to
                 have
                 Right
                 to
                 her
                 Liferent
                 thereof
                 ,
                 as
                 being
                 a
                 fraudulent
                 deed
                 in
                 prejudice
                 of
                 the
                 obliegement
                 of
                 Conquest
                 ,
                 July
                 3.
                 1627.
                 
                 Countess
                 of
                 
                   Dumfermling
                   contra
                
                 the
                 Earl
                 of
                 Dumfermling
                 her
                 Son.
                 But
                 these
                 provisions
                 of
                 Conquest
                 do
                 not
                 hinder
                 the
                 Husband
                 acquirer
                 to
                 denude
                 himself
                 wlthout
                 Fraud
                 ,
                 for
                 any
                 onerous
                 or
                 just
                 cause
                 ,
                 as
                 selling
                 for
                 a
                 price
                 ,
                 or
                 disponing
                 to
                 Children
                 ,
                 whether
                 it
                 be
                 the
                 appearand
                 Heir
                 by
                 ordinary
                 Terms
                 of
                 Contracts
                 of
                 Marriage
                 ,
                 to
                 younger
                 Children
                 ,
                 or
                 to
                 Wives
                 of
                 subsequent
                 Marriages
                 ,
                 June
                 16.
                 1676.
                 
                 
                   Katharin
                   Mitchel
                   contra
                
                 the
                 Children
                 of
                 
                   Thomas
                   Litlejohn
                
                 .
                 And
                 such
                 a
                 Clause
                 being
                 of
                 all
                 sums
                 acquired
                 during
                 a
                 second
                 Marriage
                 ,
                 was
                 found
                 to
                 annul
                 an
                 universal
                 Legacie
                 to
                 the
                 eldest
                 Son
                 of
                 the
                 first
                 Marriage
                 ,
                 but
                 not
                 to
                 annul
                 competent
                 provisions
                 to
                 the
                 Bairns
                 of
                 the
                 first
                 Marriage
                 ,
                 June
                 19.
                 1677.
                 
                 
                   Murrays
                   contra
                   Murrays
                
                 .
                 The
                 like
                 ,
                 January
                 3.
                 1679.
                 
                 Mr.
                 
                   Alexander
                   Gibson
                   contra
                   Elizabeth
                   Thomson
                
                 .
                 Yea
                 ,
                 a
                 Clause
                 providing
                 the
                 present
                 Stock
                 and
                 all
                 the
                 Conquest
                 to
                 the
                 Bairns
                 of
                 the
                 Marriage
                 ;
                 whilks
                 failing
                 ,
                 the
                 one
                 half
                 to
                 the
                 mans
                 Heirs
                 ,
                 the
                 other
                 to
                 the
                 wifes
                 Heirs
                 ,
                 was
                 found
                 to
                 make
                 the
                 man
                 Fiar
                 ,
                 and
                 not
                 to
                 hinder
                 him
                 to
                 provide
                 his
                 whole
                 means
                 ,
                 which
                 were
                 very
                 great
                 to
                 his
                 Bairns
                 of
                 a
                 subsequent
                 Marriage
                 ,
                 there
                 being
                 no
                 Bairns
                 surviving
                 of
                 the
                 former
                 marriage
                 ,
                 December
                 1.
                 and
                 21.
                 1680.
                 
                 
                   Alexander
                   Anderson
                   contra
                   Andrew
                   Bruce
                
                 .
                 But
                 as
                 to
                 such
                 Clauses
                 ,
                 Conquest
                 is
                 only
                 understood
                 where
                 the
                 Husband
                 acquired
                 more
                 then
                 he
                 had
                 the
                 time
                 of
                 the
                 Clause
                 ,
                 but
                 not
                 when
                 he
                 sold
                 some
                 Lands
                 and
                 acquired
                 others
                 of
                 no
                 greater
                 value
                 ,
                 June
                 27.
                 1676.
                 
                 Earl
                 of
                 
                   Dumfermling
                   contra
                
                 Earl
                 of
                 Callender
                 :
                 yea
                 a
                 Clause
                 of
                 Conquest
                 in
                 a
                 Wifes
                 Contract
                 of
                 Marriage
                 ,
                 who
                 was
                 otherways
                 sufficiently
                 provided
                 ,
                 was
                 found
                 to
                 be
                 with
                 the
                 burden
                 of
                 the
                 Annualrent
                 of
                 a
                 sum
                 ,
                 which
                 the
                 Husband
                 declared
                 under
                 his
                 hand
                 to
                 be
                 a
                 part
                 of
                 the
                 price
                 of
                 the
                 Lands
                 acquired
                 ,
                 remaining
                 due
                 to
                 the
                 seller
                 ,
                 Decem.
                 20.
                 1665.
                 
                 Lady
                 
                   Kilbocho
                   contra
                
                 Laird
                 of
                 Kilbocho
                 .
              
               
                 4.
                 
                 This
                 is
                 common
                 to
                 all
                 kinds
                 of
                 Liferents
                 ,
                 and
                 involved
                 in
                 the
                 nature
                 thereof
                 ,
                 that
                 they
                 must
                 be
                 
                   salva
                   rei
                   substantia
                
                 ,
                 which
                 by
                 Statute
                 is
                 especially
                 extended
                 to
                 Conjunctfiars
                 and
                 Liferenters
                 ,
                 that
                 they
                 must
                 be
                 countable
                 ,
                 and
                 find
                 surety
                 not
                 to
                 wast
                 or
                 destroy
                 the
                 Biggings
                 ,
                 Orchards
                 ,
                 Woods
                 ,
                 Stanks
                 ,
                 Parks
                 ,
                 Meadows
                 or
                 Dovecoats
                 ,
                 but
                 that
                 they
                 hold
                 them
                 in
                 such
                 like
                 kind
                 ,
                 as
                 they
                 receive
                 them
                 ,
                 Par.
                 1491.
                 cap.
                 25.
                 which
                 is
                 confirmed
                 and
                 declared
                 to
                 proceed
                 upon
                 twenty
                 one
                 days
                 by
                 Sheriffs
                 ,
                 Bailies
                 of
                 Burghs
                 or
                 Regalities
                 ,
                 under
                 pain
                 of
                 Confiscation
                 of
                 the
                 Liferent-right
                 to
                 the
                 Kings
                 use
                 ,
                 Parliament
                 1535.
                 cap.
                 14.
                 
                 And
                 though
                 the
                 Narrative
                 of
                 the
                 Statute
                 expresseth
                 Conjunctfiars
                 and
                 Liferenters
                 ,
                 giving
                 Caution
                 as
                 being
                 most
                 ordinary
                 by
                 provision
                 of
                 men
                 ;
                 yet
                 
                 the
                 Statutory
                 part
                 is
                 general
                 ,
                 at
                 least
                 may
                 be
                 extended
                 to
                 Terces
                 and
                 Liferents
                 by
                 the
                 Courtesie
                 .
                 So
                 a
                 Liferenter
                 was
                 Charged
                 Summarly
                 to
                 uphold
                 the
                 〈◊〉
                 Liferented
                 ,
                 and
                 to
                 leave
                 it
                 in
                 as
                 good
                 case
                 as
                 she
                 found
                 it
                 ,
                 without
                 precognition
                 ,
                 how
                 it
                 was
                 the
                 time
                 of
                 her
                 Entry
                 ,
                 March
                 28.
                 1626.
                 
                 
                   George
                   Foulis
                   contra
                   Isobel
                   Allan
                
                 .
                 By
                 Act
                 of
                 Parl.
                 1594.
                 cap.
                 226.
                 
                 
                   Anent
                   ruinous
                   Tenements
                   within
                   Burgh
                
                 ,
                 which
                 being
                 cognosced
                 by
                 an
                 In
                 quest
                 to
                 be
                 ruinous
                 ,
                 as
                 become
                 or
                 which
                 may
                 become
                 within
                 a
                 short
                 time
                 uninhabitable
                 ,
                 the
                 same
                 must
                 be
                 repaired
                 ,
                 by
                 the
                 Liferenter
                 or
                 the
                 Fiar
                 may
                 enter
                 in
                 Possession
                 ,
                 finding
                 Caution
                 within
                 the
                 Burgh
                 to
                 pay
                 the
                 Liferenter
                 the
                 Mail
                 thereof
                 ,
                 as
                 the
                 samine
                 gave
                 or
                 might
                 give
                 the
                 time
                 of
                 the
                 precognition
                 ;
                 but
                 this
                 Act
                 was
                 not
                 found
                 to
                 derogat
                 from
                 the
                 former
                 Acts
                 ,
                 nor
                 that
                 Precognition
                 was
                 requisit
                 before
                 finding
                 Caution
                 ,
                 except
                 in
                 Tenements
                 within
                 Burgh
                 ,
                 decayed
                 before
                 the
                 Liferenters
                 entry
                 ,
                 as
                 was
                 found
                 in
                 the
                 foresaid
                 case
                 ,
                 
                   George
                   Foulis
                   contra
                   Isobel
                   Allan
                
                 .
                 Neither
                 was
                 the
                 Liferenter
                 freed
                 from
                 Caution
                 upon
                 her
                 offer
                 to
                 quite
                 the
                 Possession
                 to
                 the
                 Heretor
                 for
                 paying
                 of
                 the
                 Rent
                 ,
                 the
                 Tenement
                 not
                 being
                 ruinous
                 at
                 her
                 Entry
                 .
              
               
                 5.
                 
                 It
                 is
                 also
                 common
                 to
                 Liferents
                 and
                 Conjunctfees
                 ,
                 that
                 the
                 Liferent-right
                 is
                 lyable
                 with
                 the
                 Superiour
                 of
                 Ward-lands
                 or
                 his
                 Donatar
                 ,
                 for
                 an
                 Aliment
                 to
                 the
                 Heir
                 ,
                 to
                 be
                 modified
                 by
                 the
                 Lords
                 proportionally
                 according
                 to
                 the
                 quantity
                 of
                 the
                 Land
                 in
                 Ward
                 and
                 Liferent
                 ,
                 by
                 the
                 said
                 Statute
                 1491.
                 cap.
                 23.
                 
                 
                   Vide
                   Tit.
                   Heirs
                
                 §
                 .
                 3.
                 
              
               
                 6.
                 
                 Liferents
                 are
                 either
                 Constitute
                 by
                 way
                 of
                 Reservation
                 ,
                 in
                 Infeftments
                 of
                 Property
                 ,
                 or
                 otherways
                 by
                 a
                 several
                 Infeftment
                 ,
                 but
                 it
                 cannot
                 become
                 a
                 real
                 Right
                 ,
                 and
                 be
                 effectual
                 against
                 singular
                 Successours
                 ,
                 without
                 Infeftment
                 ;
                 though
                 most
                 Servitudes
                 may
                 be
                 Constitute
                 by
                 Disposition
                 and
                 Possession
                 .
              
               
                 7.
                 
                 Yea
                 ,
                 though
                 Liferents
                 being
                 Constitute
                 by
                 Infeftment
                 ,
                 may
                 be
                 conveyed
                 by
                 Assignation
                 ,
                 because
                 there
                 can
                 be
                 no
                 subaltern
                 or
                 renewed
                 Infeftment
                 of
                 a
                 Liferent
                 ,
                 which
                 is
                 only
                 personal
                 to
                 the
                 Liferenter
                 ,
                 and
                 the
                 Right
                 is
                 incommunicable
                 ,
                 yet
                 the
                 Fruits
                 and
                 Profits
                 arising
                 thence
                 are
                 communicable
                 and
                 assignable
                 .
              
               
                 8.
                 
                 It
                 is
                 also
                 common
                 to
                 Liferents
                 ,
                 that
                 nothing
                 done
                 after
                 their
                 Infeftment
                 ,
                 by
                 the
                 Constituent
                 or
                 his
                 singular
                 Successor
                 ,
                 can
                 prejudge
                 the
                 Liferenter
                 :
                 And
                 so
                 an
                 Appryzer
                 from
                 the
                 Husband
                 was
                 found
                 lyable
                 to
                 the
                 Liferenter
                 ,
                 for
                 the
                 true
                 worth
                 of
                 the
                 Liferent-lands
                 ,
                 and
                 not
                 according
                 as
                 he
                 set
                 them
                 ,
                 though
                 they
                 were
                 never
                 set
                 before
                 ,
                 except
                 the
                 Appryzer
                 had
                 set
                 the
                 Lands
                 wholly
                 ,
                 or
                 near
                 to
                 the
                 worth
                 ,
                 March
                 9.
                 1631.
                 
                 Lady
                 
                   Huttonhall
                   contra
                
                 Lairds
                 of
                 Moristoun
                 and
                 Touch.
                 
              
               
                 9.
                 
                 A
                 Liferenters
                 Executors
                 was
                 found
                 to
                 have
                 right
                 to
                 the
                 Mertimas
                 Term
                 ,
                 though
                 the
                 Liferenter
                 died
                 upon
                 the
                 Mertimas
                 day
                 in
                 the
                 afternoon
                 ,
                 February
                 16.
                 1642.
                 
                 Executors
                 of
                 the
                 Lady
                 
                   Bruntoun
                   contra
                
                 Heir
                 of
                 the
                 Bishop
                 of
                 Glasgow
                 .
                 And
                 they
                 have
                 right
                 to
                 the
                 whole
                 Cropt
                 and
                 Profite
                 of
                 the
                 Land
                 laboured
                 and
                 sown
                 by
                 themselves
                 ,
                 or
                 which
                 was
                 in
                 Mansing
                 and
                 not
                 set
                 to
                 Tenents
                 ,
                 though
                 the
                 Liferenter
                 died
                 before
                 
                   Mertimas
                   ,
                   December
                
                 14.
                 1621.
                 
                 
                   William
                   〈◊〉
                   contra
                   James
                   Nisbit
                
                 .
                 A
                 Liferenters
                 Executors
                 was
                 found
                 to
                 have
                 right
                 to
                 the
                 whole
                 years
                 Rent
                 of
                 a
                 Miln
                 Liferented
                 by
                 her
                 ,
                 she
                 having
                 survived
                 Martimas
                 ,
                 and
                 that
                 Miln
                 Rents
                 were
                 not
                 due
                 ,
                 
                   de
                   die
                   in
                   diem
                
                 ,
                 but
                 as
                 Land-rents
                 ,
                 not
                 as
                 house
                 mails
                 ,
                 though
                 the
                 conventional
                 Terms
                 of
                 the
                 Miln
                 Rent
                 was
                 after
                 
                 
                   Martimas
                   ,
                   viz.
                
                 one
                 Term
                 at
                 Candlemess
                 after
                 the
                 Separation
                 ,
                 and
                 the
                 other
                 at
                 Whitsonday
                 thereafter
                 ,
                 July
                 20.
                 1671.
                 
                 
                   Guthry
                   contra
                
                 Laird
                 of
                 Mckerstoun
                 .
                 But
                 a
                 Liferenter
                 Infeft
                 in
                 an
                 Annualrent
                 of
                 Victual
                 provided
                 to
                 be
                 payed
                 yearly
                 betwixt
                 Zule
                 and
                 Candlemess
                 ,
                 her
                 Husband
                 having
                 died
                 after
                 Martimas
                 and
                 before
                 Candlemess
                 ,
                 she
                 was
                 found
                 to
                 have
                 no
                 share
                 of
                 her
                 Annualrent
                 for
                 that
                 Cropt
                 ,
                 January
                 12.
                 1681.
                 
                 
                   Katharine
                   Trotter
                
                 Lady
                 
                   Craiglieth
                   contra
                   Rochhead
                
                 Lady
                 Prestoungrange
                 .
              
               
                 10.
                 
                 A
                 Conjunctfee
                 or
                 Conjunct-infeftment
                 ,
                 is
                 that
                 which
                 is
                 granted
                 to
                 more
                 persons
                 joyntly
                 ;
                 which
                 if
                 it
                 be
                 provided
                 to
                 them
                 and
                 their
                 Heirs
                 simply
                 ,
                 it
                 maketh
                 them
                 and
                 their
                 Heirs
                 to
                 have
                 equal
                 right
                 ,
                 
                   pro
                   indiviso
                
                 ;
                 and
                 they
                 are
                 all
                 equally
                 Fiars
                 .
                 and
                 after
                 the
                 death
                 of
                 any
                 of
                 them
                 ,
                 their
                 Portions
                 belong
                 to
                 their
                 Heirs
                 ;
                 but
                 the
                 Liferent
                 of
                 the
                 Deceassing
                 accresseth
                 not
                 to
                 the
                 Survivers
                 ;
                 but
                 when
                 Conjunct-infeftments
                 are
                 provided
                 to
                 Husbands
                 and
                 Wives
                 ,
                 the
                 longest
                 liver
                 of
                 them
                 two
                 and
                 their
                 Heirs
                 :
                 There
                 the
                 Law
                 presumes
                 ,
                 that
                 the
                 Heirs
                 are
                 the
                 mans
                 Heirs
                 ;
                 and
                 by
                 that
                 Interpretation
                 ,
                 the
                 wife
                 by
                 the
                 Conjunctfee
                 is
                 but
                 Liferenter
                 ;
                 and
                 generally
                 Heirs
                 of
                 man
                 and
                 wife
                 in
                 all
                 things
                 except
                 Moveable
                 Rights
                 ,
                 are
                 ever
                 understood
                 to
                 be
                 the
                 mans
                 Heirs
                 ,
                 
                   propter
                   eminentiam
                   masculini
                   sexus
                
                 ;
                 so
                 was
                 it
                 found
                 in
                 an
                 Assignation
                 to
                 a
                 Reversion
                 ,
                 granted
                 to
                 a
                 man
                 and
                 his
                 wife
                 and
                 their
                 Heirs
                 ,
                 that
                 thereby
                 the
                 mans
                 Heirs
                 (
                 first
                 these
                 of
                 the
                 Marriage
                 ,
                 and
                 next
                 his
                 other
                 Heirs
                 whatsomever
                 )
                 were
                 understood
                 ,
                 Hope
                 Husband
                 and
                 Wife
                 ,
                 
                   Walter
                   Collestoun
                   contra
                   Pitfoddels
                
                 :
                 Yet
                 though
                 this
                 be
                 
                   presumptio
                   juris
                
                 ,
                 it
                 admits
                 contrary
                 more
                 pregnant
                 evidences
                 ,
                 as
                 a
                 Reversion
                 granted
                 to
                 a
                 man
                 and
                 wife
                 and
                 their
                 Heirs
                 ,
                 found
                 to
                 Constitute
                 the
                 wife
                 Fiar
                 ,
                 because
                 she
                 was
                 Heretrix
                 of
                 the
                 Wodset
                 Lands
                 ,
                 Hope
                 Liferent
                 ,
                 
                   Kincaid
                   contra
                   Menzies
                   of
                   Pitfoddels
                
                 .
              
               
                 But
                 to
                 prevent
                 this
                 question
                 ,
                 the
                 provision
                 ordinarly
                 is
                 to
                 the
                 longest
                 liver
                 of
                 them
                 two
                 and
                 their
                 Heirs
                 ,
                 whilks
                 failing
                 ,
                 to
                 such
                 particular
                 Heirs
                 exprest
                 ;
                 whereby
                 these
                 are
                 commonly
                 esteemed
                 Fiars
                 ,
                 whose
                 Heirs
                 what
                 some
                 ever
                 are
                 substitute
                 .
                 And
                 yet
                 a
                 sum
                 provided
                 to
                 a
                 man
                 and
                 his
                 Wife
                 ,
                 and
                 the
                 Heirs
                 betwixt
                 them
                 ,
                 whilks
                 failing
                 ,
                 to
                 divide
                 betwixt
                 the
                 man
                 and
                 wifes
                 Heirs
                 ,
                 was
                 found
                 not
                 to
                 Constitute
                 the
                 wife
                 Fiar
                 of
                 the
                 half
                 ,
                 but
                 only
                 Liferenter
                 ;
                 and
                 the
                 wifes
                 Heirs
                 of
                 line
                 to
                 be
                 Heirs
                 of
                 provision
                 to
                 the
                 man
                 ,
                 and
                 that
                 the
                 sum
                 was
                 Disposeable
                 by
                 him
                 ,
                 and
                 Arrestable
                 by
                 his
                 Creditors
                 ,
                 January
                 29.
                 1639.
                 
                 
                   Graham
                   contra
                   Park
                
                 and
                 Gerdon
                 .
                 So
                 strong
                 is
                 this
                 presumption
                 ,
                 that
                 there
                 is
                 no
                 more
                 meaned
                 to
                 be
                 granted
                 to
                 Wives
                 ,
                 but
                 their
                 Liferent-right
                 and
                 no
                 part
                 of
                 the
                 Fee
                 ,
                 unless
                 the
                 provision
                 bear
                 expresly
                 ,
                 
                   a
                   power
                   to
                   the
                   wife
                   to
                   Dispone
                   ,
                
                 and
                 if
                 it
                 be
                 adjected
                 at
                 any
                 time
                 ,
                 during
                 her
                 life
                 ,
                 the
                 Fee
                 will
                 remain
                 in
                 the
                 man
                 ,
                 and
                 that
                 power
                 in
                 the
                 wife
                 will
                 rather
                 be
                 understood
                 as
                 a
                 Faculty
                 ,
                 like
                 to
                 the
                 power
                 given
                 to
                 Commissioners
                 to
                 Dispone
                 Lands
                 ,
                 then
                 an
                 Act
                 of
                 Property
                 ,
                 unless
                 that
                 the
                 provision
                 bear
                 ,
                 
                   a
                   power
                   to
                   the
                   wife
                   and
                   her
                   Heirs
                   to
                   Dispone
                
                 ;
                 but
                 a
                 Conjunctfee
                 to
                 future
                 Spouses
                 of
                 Conquest
                 ,
                 during
                 the
                 Marriage
                 ,
                 in
                 these
                 Terms
                 ,
                 
                   The
                   one
                   half
                   thereof
                   to
                   be
                   disponed
                   upon
                   as
                   the
                   Wife
                   shall
                   think
                   fit
                   ,
                
                 being
                 in
                 a
                 minut
                 of
                 Contract
                 ,
                 expressing
                 no
                 Heirs
                 ,
                 but
                 being
                 a
                 short
                 draught
                 ,
                 the
                 Lady
                 being
                 of
                 great
                 quality
                 ,
                 having
                 about
                 22000.
                 
                 Merks
                 yearly
                 in
                 Liferent
                 ,
                 beside
                 Money
                 and
                 Moveables
                 ;
                 and
                 the
                 Husband
                 being
                 a
                 Noblemans
                 Son
                 ,
                 having
                 gained
                 an
                 Estate
                 of
                 7000.
                 
                 Merks
                 yearly
                 ,
                 in
                 the
                 Ware
                 which
                 he
                 had
                 lest
                 ;
                 the
                 Clause
                 was
                 found
                 to
                 be
                 understood
                 ,
                 and
                 extended
                 so
                 ,
                 as
                 to
                 make
                 both
                 future
                 Spouses
                 equal
                 Fiars
                 ,
                 seeing
                 the
                 Conquest
                 was
                 mainly
                 to
                 arise
                 out
                 of
                 the
                 wifes
                 Liferent
                 ,
                 June
                 27.
                 1676.
                 
                 Earl
                 of
                 
                   Dumfermling
                   contra
                
                 Earl
                 of
                 Callender
                 .
              
               
               
                 If
                 a
                 Conjunct-infeftment
                 be
                 granted
                 to
                 two
                 or
                 more
                 ,
                 the
                 longest
                 liver
                 of
                 them
                 ,
                 and
                 express
                 no
                 Heirs
                 ,
                 but
                 a
                 liferent
                 to
                 them
                 all
                 ,
                 the
                 same
                 accresseth
                 to
                 the
                 Survivers
                 ;
                 or
                 if
                 it
                 be
                 a
                 Right
                 of
                 Lands
                 or
                 Annualrents
                 to
                 a
                 man
                 and
                 his
                 Wife
                 ,
                 the
                 longest
                 liver
                 of
                 them
                 two
                 ,
                 and
                 to
                 their
                 Son
                 named
                 and
                 his
                 Heirs
                 ;
                 the
                 man
                 and
                 his
                 wife
                 are
                 both
                 liferenters
                 ,
                 and
                 the
                 Son
                 is
                 Fiar
                 only
                 ,
                 unless
                 the
                 right
                 be
                 for
                 security
                 of
                 Sums
                 of
                 money
                 ,
                 and
                 then
                 the
                 person
                 named
                 is
                 but
                 as
                 Heir
                 substitute
                 ,
                 the
                 Father
                 is
                 Fiar
                 ,
                 even
                 though
                 the
                 Son
                 were
                 infeft
                 with
                 the
                 Father
                 and
                 Mother
                 ,
                 January
                 14.
                 1663.
                 
                 
                   Thomas
                   Bog
                
                 contra
                 Sir
                 
                   Thomas
                   Nicolson
                   ,
                   July
                
                 23.
                 1675.
                 
                 Moor
                 of
                 Anistoun
                 ,
                 contra
                 Laird
                 of
                 Lamingtoun
                 .
              
               
                 11.
                 
                 The
                 main
                 difference
                 betwixt
                 Conjunct-fees
                 and
                 other
                 Life-rents
                 ,
                 is
                 that
                 the
                 Conjunct-fiar
                 ,
                 though
                 by
                 interpretation
                 Liferenter
                 only
                 ,
                 and
                 so
                 may
                 not
                 alienat
                 or
                 waste
                 ;
                 yet
                 by
                 the
                 nature
                 of
                 the
                 right
                 and
                 custom
                 ,
                 they
                 have
                 the
                 benefit
                 of
                 all
                 Casualities
                 befalling
                 during
                 their
                 life
                 ,
                 and
                 may
                 dispose
                 thereof
                 ;
                 which
                 will
                 not
                 only
                 be
                 effectual
                 during
                 their
                 life
                 ,
                 but
                 simply
                 for
                 that
                 individual
                 casuality
                 .
                 So
                 Conjunct-fiars
                 may
                 receive
                 and
                 enter
                 the
                 Heirs
                 of
                 Vassals
                 ,
                 and
                 have
                 the
                 benefit
                 of
                 their
                 Ward
                 ,
                 Non-entry
                 ,
                 Liferent-escheat
                 ,
                 and
                 may
                 grant
                 Gifts
                 thereof
                 effectually
                 ,
                 even
                 as
                 to
                 the
                 time
                 after
                 their
                 death
                 .
                 So
                 also
                 a
                 Conjunct-siar
                 ,
                 infeft
                 with
                 her
                 Husband
                 in
                 Lands
                 
                   cum
                   Sylvis
                
                 ,
                 was
                 found
                 thereby
                 to
                 have
                 right
                 to
                 make
                 use
                 of
                 the
                 Woods
                 for
                 her
                 and
                 her
                 Tennants
                 use
                 ,
                 January
                 10.
                 1610.
                 
                 Hunter
                 and
                 others
                 contra
                 Relict
                 of
                 
                   Gadgirth
                   ,
                   Vide
                   Title
                
                 13.
                 
                 §
                 41.
                 
              
               
                 Liferenters
                 have
                 not
                 these
                 Casualities
                 of
                 Superiority
                 ;
                 yet
                 a
                 Baron
                 having
                 disponed
                 his
                 Barony
                 ,
                 reserving
                 his
                 Liferent
                 ,
                 was
                 thereby
                 found
                 to
                 have
                 right
                 to
                 receive
                 the
                 Heirs
                 of
                 his
                 Vassals
                 ,
                 but
                 not
                 singular
                 Successors
                 ,
                 Ianuary
                 11.
                 1611.
                 
                 
                   Crawfurd
                   contra
                
                 Laird
                 of
                 Glaspen
                 .
                 And
                 there
                 is
                 reason
                 ,
                 that
                 the
                 Fiar
                 disponing
                 with
                 reservation
                 to
                 himself
                 ,
                 whereby
                 his
                 own
                 Infeftment
                 stands
                 
                   pro
                   tanto
                
                 ,
                 should
                 have
                 greater
                 power
                 then
                 a
                 Liferent
                 apart
                 or
                 by
                 reservation
                 ,
                 not
                 being
                 before
                 infeft
                 ,
                 conjunctfees
                 though
                 publick
                 ,
                 as
                 ordinarly
                 they
                 are
                 ;
                 and
                 thereby
                 ,
                 as
                 to
                 the
                 Superiour
                 ,
                 the
                 Fee
                 is
                 full
                 ,
                 and
                 the
                 casualities
                 of
                 Ward
                 and
                 Non-entry
                 excluded
                 :
                 yet
                 the
                 Heir
                 may
                 enter
                 to
                 the
                 Property
                 ,
                 and
                 compel
                 the
                 Superiour
                 to
                 receive
                 him
                 .
              
               
                 12.
                 
                 Terce
                 is
                 the
                 third
                 of
                 the
                 Tenements
                 ,
                 in
                 which
                 the
                 Husband
                 died
                 infeft
                 ,
                 as
                 of
                 Fee
                 provided
                 to
                 his
                 Wife
                 surviving
                 by
                 Law
                 or
                 Custom
                 ,
                 though
                 there
                 be
                 no
                 provision
                 or
                 paction
                 for
                 that
                 purpose
                 .
                 The
                 original
                 hereof
                 ,
                 as
                 hath
                 been
                 shown
                 before
                 amongst
                 the
                 interest
                 of
                 Marriage
                 ,
                 is
                 from
                 that
                 obligation
                 upon
                 the
                 Husband
                 to
                 provide
                 for
                 his
                 Wife
                 ;
                 which
                 therefore
                 positive
                 Law
                 hath
                 determined
                 to
                 a
                 third
                 of
                 his
                 Moveables
                 ,
                 if
                 there
                 be
                 Children
                 in
                 the
                 Family
                 ,
                 and
                 if
                 there
                 be
                 none
                 ,
                 to
                 a
                 half
                 :
                 but
                 in
                 either
                 case
                 ,
                 she
                 hath
                 a
                 third
                 of
                 his
                 Tenements
                 .
                 And
                 though
                 as
                 Craig
                 observeth
                 ,
                 by
                 our
                 ancient
                 custom
                 ,
                 Terce
                 extended
                 only
                 to
                 a
                 third
                 of
                 the
                 Tenements
                 a
                 Husband
                 had
                 the
                 time
                 of
                 the
                 Marriage
                 ;
                 yet
                 since
                 ,
                 it
                 extends
                 to
                 a
                 third
                 of
                 those
                 he
                 stands
                 infeft
                 in
                 as
                 of
                 fee
                 the
                 time
                 of
                 his
                 death
                 ;
                 and
                 so
                 ,
                 when
                 he
                 is
                 denuded
                 before
                 his
                 death
                 ,
                 the
                 Terce
                 is
                 excluded
                 .
                 Yea
                 ,
                 a
                 base
                 Infeftment
                 without
                 possession
                 ,
                 granted
                 by
                 a
                 Husband
                 to
                 his
                 Creditor
                 ,
                 was
                 found
                 to
                 exclude
                 his
                 Wife
                 from
                 a
                 Terce
                 of
                 that
                 Land
                 ,
                 January
                 27.
                 1669.
                 
                 Bell
                 of
                 Belford
                 contra
                 Lady
                 Rutherford
                 .
                 This
                 provision
                 of
                 Law
                 is
                 more
                 equitable
                 and
                 proportionable
                 ,
                 then
                 ordinarly
                 are
                 their
                 provision
                 by
                 Contract
                 of
                 the
                 Husband
                 ,
                 who
                 being
                 carried
                 with
                 affection
                 ,
                 doth
                 oft-times
                 provide
                 his
                 Wife
                 to
                 the
                 prejudice
                 of
                 their
                 Children
                 ,
                 and
                 ruine
                 of
                 their
                 Estate
                 ,
                 which
                 this
                 Terce
                 keepeth
                 alwayes
                 proportionable
                 ,
                 and
                 maketh
                 the
                 Wife
                 sharer
                 of
                 the
                 Industry
                 and
                 Fortune
                 of
                 the
                 man
                 ,
                 and
                 therefore
                 more
                 
                 careful
                 over
                 it
                 ;
                 and
                 upon
                 the
                 contrary
                 ,
                 giving
                 out
                 but
                 small
                 Provisions
                 to
                 their
                 Wives
                 at
                 their
                 Marriage
                 ,
                 when
                 oft-times
                 they
                 do
                 but
                 begin
                 to
                 have
                 Estates
                 ,
                 which
                 they
                 increase
                 not
                 according
                 to
                 the
                 increase
                 of
                 their
                 Fortune
                 ;
                 but
                 the
                 Law
                 doth
                 more
                 fitly
                 order
                 the
                 Wifes
                 Provision
                 to
                 be
                 increased
                 or
                 decreased
                 ,
                 according
                 to
                 the
                 condition
                 of
                 the
                 man.
                 
              
               
                 13.
                 
                 The
                 Terce
                 taketh
                 place
                 ordinarly
                 ,
                 where
                 the
                 Husband
                 died
                 infeft
                 as
                 of
                 Fee
                 ;
                 and
                 it
                 hath
                 no
                 effect
                 ,
                 till
                 the
                 Widow
                 take
                 Brieves
                 out
                 of
                 the
                 Chancelery
                 ,
                 directed
                 to
                 Sheriffs
                 or
                 Bailies
                 to
                 call
                 an
                 Inquest
                 of
                 fifteen
                 sworn
                 men
                 ,
                 and
                 thereby
                 to
                 serve
                 the
                 Brieve
                 ;
                 which
                 hath
                 two
                 Heads
                 ,
                 the
                 one
                 ,
                 
                   That
                   the
                   bearer
                   was
                   lawful
                   wife
                   to
                   the
                   defunct
                
                 ;
                 the
                 other
                 ,
                 
                   that
                   he
                   died
                   in
                   fee
                   of
                   such
                   Tenemnts
                   .
                
                 This
                 is
                 a
                 pleadable
                 Brieve
                 ,
                 and
                 hath
                 no
                 retour
                 ;
                 but
                 Service
                 alone
                 is
                 sufficient
                 enough
                 to
                 give
                 the
                 Wife
                 interest
                 that
                 other
                 Liferenters
                 have
                 .
                 It
                 was
                 specially
                 statute
                 ,
                 That
                 where
                 the
                 Marriage
                 was
                 not
                 questioned
                 in
                 the
                 Husbands
                 life
                 ,
                 and
                 the
                 Widow
                 was
                 holden
                 and
                 repute
                 his
                 lawful
                 Wife
                 in
                 his
                 Time
                 ;
                 no
                 exception
                 in
                 the
                 contrary
                 shall
                 be
                 sustained
                 in
                 the
                 service
                 of
                 the
                 Brieve
                 ,
                 but
                 she
                 shall
                 be
                 served
                 and
                 injoy
                 the
                 Terce
                 ,
                 till
                 it
                 be
                 declared
                 in
                 a
                 petitory
                 judgement
                 ,
                 That
                 she
                 was
                 not
                 lawful
                 Wife
                 ,
                 Par.
                 1503.
                 cap.
                 77.
                 
              
               
                 14.
                 
                 The
                 Brieve
                 being
                 thus
                 served
                 ,
                 the
                 Sheriff
                 or
                 Bailiff
                 must
                 also
                 ,
                 if
                 it
                 be
                 demanded
                 ,
                 ken
                 the
                 Relict
                 to
                 her
                 Terce
                 ,
                 which
                 is
                 ordinarly
                 done
                 by
                 the
                 Sun
                 or
                 the
                 Shade
                 ;
                 That
                 is
                 ,
                 whether
                 the
                 division
                 shall
                 begin
                 at
                 the
                 east
                 or
                 the
                 west
                 ,
                 and
                 so
                 the
                 division
                 of
                 the
                 Tenements
                 proceed
                 by
                 Aikers
                 ,
                 two
                 befalling
                 to
                 the
                 Heir
                 ,
                 and
                 one
                 to
                 the
                 Relict
                 ,
                 wherein
                 there
                 ought
                 to
                 be
                 Marches
                 set
                 ,
                 and
                 Instruments
                 taken
                 thereupon
                 ,
                 which
                 is
                 as
                 a
                 Seasine
                 ;
                 but
                 this
                 division
                 being
                 most
                 inconvenient
                 ,
                 except
                 the
                 whole
                 interest
                 were
                 used
                 to
                 be
                 set
                 in
                 Aikerdale
                 ,
                 it
                 is
                 not
                 exclusive
                 of
                 other
                 divisions
                 by
                 the
                 worth
                 of
                 the
                 Lands
                 or
                 the
                 Rent
                 ,
                 so
                 many
                 Rooms
                 being
                 designed
                 for
                 the
                 Tercer
                 ,
                 the
                 rest
                 remaining
                 for
                 the
                 Fiar
                 .
                 This
                 way
                 of
                 kenning
                 would
                 be
                 valid
                 ,
                 and
                 much
                 better
                 ;
                 but
                 it
                 is
                 not
                 necessary
                 to
                 divide
                 ,
                 at
                 serving
                 the
                 Brieve
                 ,
                 to
                 constitute
                 the
                 Terce
                 ;
                 for
                 the
                 Service
                 giveth
                 sufficient
                 Title
                 to
                 the
                 third
                 of
                 the
                 Mails
                 and
                 Duties
                 of
                 every
                 Room
                 ,
                 March
                 5.
                 1632.
                 
                 Relick
                 of
                 Veatch
                 of
                 Dawick
                 contra
                 .
              
               
                 15.
                 
                 But
                 that
                 thereby
                 she
                 cannot
                 remove
                 possessors
                 is
                 ,
                 because
                 she
                 brooketh
                 the
                 Terce
                 
                   pro
                   indiviso
                
                 with
                 the
                 Heir
                 ,
                 till
                 it
                 be
                 be
                 kenned
                 ,
                 or
                 otherwayes
                 divided
                 ;
                 and
                 the
                 Terce
                 being
                 served
                 ,
                 gives
                 right
                 not
                 only
                 to
                 the
                 years
                 thereafter
                 ,
                 but
                 preceeding
                 ,
                 since
                 the
                 Husbands
                 death
                 ,
                 November
                 20.
                 1624.
                 
                 Tennants
                 
                   contra
                   Crawford
                
                 and
                 Flemming
                 :
                 and
                 so
                 the
                 Tercer
                 may
                 pursue
                 the
                 Heretor
                 or
                 other
                 intromettor
                 ,
                 for
                 all
                 by-gones
                 of
                 the
                 third
                 of
                 the
                 Duty
                 ,
                 not
                 as
                 they
                 were
                 at
                 the
                 Husbands
                 death
                 ,
                 but
                 as
                 they
                 were
                 bettered
                 by
                 the
                 fiar
                 ,
                 Feb.
                 13.
                 1628.
                 
                 Countess
                 of
                 Dumfermling
                 contra
                 Earl
                 of
                 Dumfermling
                 ,
                 and
                 that
                 without
                 deduction
                 of
                 Factor-fee
                 ,
                 March
                 27.
                 1634.
                 
                   inter
                   eosdem
                
                 .
                 The
                 Tercer
                 being
                 served
                 ,
                 hath
                 interest
                 to
                 pursue
                 for
                 Commission
                 to
                 cognosce
                 pasturage
                 Lands
                 what
                 Soums
                 they
                 may
                 hold
                 ,
                 that
                 she
                 may
                 have
                 the
                 third
                 Soum
                 ,
                 or
                 else
                 to
                 divide
                 ,
                 January
                 18.
                 1628.
                 
                   contra
                   Mackenzie
                
                 .
              
               
                 The
                 division
                 of
                 the
                 Terce
                 from
                 the
                 two
                 thirds
                 ,
                 may
                 be
                 in
                 the
                 most
                 convenient
                 way
                 ,
                 wherein
                 all
                 Dwelling-houses
                 ,
                 or
                 Kilns
                 and
                 Barns
                 ,
                 and
                 other
                 Houses
                 for
                 service
                 ,
                 will
                 come
                 in
                 as
                 they
                 may
                 be
                 most
                 conveniently
                 divided
                 .
                 This
                 is
                 the
                 most
                 ordinary
                 way
                 of
                 Terces
                 by
                 Service
                 ,
                 as
                 said
                 is
                 ,
                 when
                 the
                 Husband
                 died
                 infeft
                 in
                 Fee.
                 
              
               
                 16.
                 
                 Terce
                 takes
                 place
                 ,
                 not
                 only
                 in
                 Lands
                 ,
                 but
                 also
                 in
                 Annualrents
                 ,
                 wherein
                 
                 the
                 Husband
                 died
                 infeft
                 as
                 of
                 Fee
                 ,
                 Novemb.
                 30.
                 1627.
                 
                 Tennants
                 of
                 Easthouses
                 contra
                 Hepburn
                 ;
                 but
                 not
                 to
                 the
                 Terce
                 of
                 Annualrents
                 of
                 Bands
                 ,
                 whereupon
                 no
                 Infeftment
                 followed
                 ,
                 June
                 24.
                 1663.
                 
                 
                   Elizabeth
                   Scrimzeour
                
                 contra
                 Murrays
                 .
                 It
                 is
                 also
                 extended
                 to
                 Infeftments
                 of
                 Teinds
                 ,
                 Feb.
                 13.
                 1628.
                 
                 Countess
                 of
                 Dumfermling
                 contra
                 Earl
                 of
                 Dumfermling
                 :
                 But
                 it
                 is
                 not
                 extended
                 to
                 Tenements
                 or
                 Lands
                 within
                 Burgh
                 or
                 holden
                 Burgage
                 ;
                 neither
                 to
                 Superiority
                 or
                 Feu-duties
                 ,
                 or
                 other
                 Casualities
                 thereof
                 ;
                 nor
                 to
                 Tacks
                 ,
                 ibidem
                 ;
                 neither
                 to
                 Patronage
                 or
                 Advocation
                 of
                 Kirks
                 ;
                 neither
                 doth
                 Terce
                 extend
                 to
                 Reversions
                 .
              
               
                 If
                 the
                 Fiar
                 ,
                 whose
                 Land
                 is
                 lyable
                 to
                 a
                 Terce
                 ,
                 die
                 ,
                 and
                 his
                 Wife
                 have
                 right
                 to
                 another
                 Terce
                 ,
                 which
                 is
                 called
                 
                   the
                   lesser
                   Terce
                
                 ,
                 though
                 the
                 Husband
                 died
                 infeft
                 as
                 of
                 Fee
                 of
                 the
                 whole
                 Tenement
                 ,
                 she
                 hath
                 not
                 a
                 third
                 of
                 the
                 whole
                 ,
                 but
                 a
                 third
                 of
                 these
                 two
                 thirds
                 ,
                 which
                 were
                 unaffected
                 with
                 the
                 greater
                 Terce
                 ,
                 till
                 the
                 former
                 Tercers
                 death
                 ,
                 
                   Craig
                   ,
                   lib.
                
                 2.
                 dieges
                 .
                 22.
                 proposeth
                 two
                 cases
                 ,
                 in
                 which
                 the
                 Relict
                 will
                 have
                 a
                 Terce
                 ,
                 though
                 the
                 Husband
                 died
                 not
                 infeft
                 as
                 of
                 Fee
                 ;
                 The
                 first
                 is
                 ,
                 if
                 the
                 Husband
                 infeft
                 his
                 appearand
                 Heir
                 in
                 his
                 Estate
                 ,
                 if
                 there
                 be
                 no
                 Liferent
                 provided
                 to
                 his
                 wife
                 by
                 a
                 Contract
                 ;
                 in
                 that
                 case
                 ,
                 the
                 Relict
                 will
                 have
                 a
                 Terce
                 ,
                 which
                 is
                 most
                 just
                 ,
                 albeit
                 it
                 will
                 not
                 proceed
                 summarly
                 by
                 a
                 Brieve
                 ,
                 which
                 bears
                 only
                 warrand
                 for
                 a
                 Terce
                 of
                 the
                 Tenements
                 in
                 which
                 the
                 Husband
                 died
                 infeft
                 as
                 of
                 Fee
                 :
                 But
                 it
                 may
                 proceed
                 by
                 Reduction
                 or
                 Declarator
                 ,
                 and
                 would
                 not
                 only
                 have
                 effect
                 against
                 the
                 appearand
                 Heir
                 ,
                 but
                 against
                 any
                 gratuitous
                 Disposition
                 ,
                 reserving
                 the
                 Husbands
                 own
                 Liferent
                 ;
                 for
                 such
                 deeds
                 would
                 be
                 found
                 fraudulent
                 ,
                 and
                 contrary
                 to
                 the
                 nature
                 of
                 the
                 obligation
                 of
                 Husbands
                 to
                 provide
                 their
                 Wives
                 ,
                 unless
                 there
                 remained
                 Tenements
                 ,
                 out
                 of
                 which
                 a
                 reasonable
                 Terce
                 might
                 remain
                 to
                 the
                 Relict
                 ,
                 according
                 to
                 her
                 quality
                 .
                 The
                 other
                 case
                 is
                 ,
                 when
                 a
                 Father
                 ,
                 by
                 his
                 Sons
                 Contract
                 of
                 Marriage
                 ,
                 is
                 oblieged
                 to
                 infeft
                 his
                 Son
                 in
                 Fee
                 in
                 certain
                 Lands
                 ;
                 if
                 the
                 Sons
                 Relict
                 be
                 no
                 otherwayes
                 provided
                 ,
                 she
                 may
                 claim
                 a
                 Terce
                 of
                 these
                 Lands
                 ,
                 though
                 the
                 Father
                 did
                 not
                 perform
                 his
                 obliegement
                 ,
                 which
                 may
                 be
                 construed
                 as
                 fraudulent
                 and
                 in
                 her
                 prejudice
                 .
              
               
                 17.
                 
                 Terce
                 is
                 excluded
                 by
                 all
                 wayes
                 whereby
                 the
                 Marriage
                 was
                 dissolved
                 ,
                 upon
                 adultery
                 or
                 desertion
                 ;
                 or
                 by
                 the
                 death
                 of
                 either
                 party
                 ,
                 within
                 year
                 and
                 day
                 without
                 Children
                 ,
                 or
                 may
                 be
                 found
                 null
                 ,
                 of
                 which
                 formerly
                 ,
                 amongst
                 Conjugal
                 Interests
                 ,
                 Tit.
                 4.
                 
                 And
                 also
                 ,
                 by
                 whatsoever
                 way
                 the
                 Husband
                 is
                 
                   sine
                   frande
                
                 divested
                 ,
                 the
                 Terce
                 is
                 excluded
                 :
                 as
                 by
                 a
                 Crime
                 inferring
                 Forefaulture
                 or
                 Recognition
                 by
                 the
                 Husband
                 or
                 his
                 Superiour
                 ,
                 though
                 not
                 declared
                 before
                 his
                 death
                 ,
                 or
                 by
                 the
                 Ward
                 and
                 Non-entry
                 of
                 his
                 immediat
                 Superiour
                 .
              
               
                 There
                 was
                 one
                 decision
                 observed
                 by
                 Spotswood
                 and
                 Hope
                 ,
                 betwixt
                 the
                 Relict
                 of
                 
                   John
                   Cranstoun
                
                 and
                 Crichtonn
                 ,
                 That
                 an
                 Apprising
                 without
                 Infeftment
                 ,
                 did
                 exclude
                 a
                 Relict
                 from
                 her
                 Terce
                 :
                 it
                 were
                 hard
                 to
                 sustain
                 that
                 in
                 all
                 cases
                 ,
                 even
                 though
                 there
                 were
                 a
                 Charge
                 against
                 the
                 Superiour
                 upon
                 the
                 Apprising
                 ;
                 which
                 as
                 it
                 would
                 not
                 exclude
                 the
                 Superiour
                 from
                 the
                 Ward
                 ,
                 Non-entry
                 or
                 Relief
                 ,
                 So
                 neither
                 should
                 it
                 exclude
                 a
                 Relict
                 from
                 her
                 Terce
                 ,
                 unless
                 she
                 had
                 a
                 Conjunct-fee
                 or
                 Life-rent
                 by
                 consent
                 ,
                 equivalent
                 to
                 a
                 
                   tertia
                   rationabilis
                
                 :
                 And
                 though
                 our
                 custom
                 hath
                 far
                 deborded
                 from
                 the
                 ancient
                 design
                 of
                 Terces
                 ,
                 whereby
                 a
                 reasonable
                 Terce
                 was
                 appointed
                 ;
                 and
                 if
                 any
                 voluntary
                 Liferent
                 were
                 granted
                 ,
                 Craig
                 observes
                 ,
                 that
                 it
                 was
                 ever
                 understood
                 to
                 be
                 no
                 more
                 ,
                 but
                 for
                 clearing
                 and
                 securing
                 the
                 Tercer
                 against
                 the
                 trouble
                 and
                 difficulty
                 of
                 recovering
                 possession
                 by
                 a
                 Service
                 ,
                 and
                 therefore
                 was
                 alwayes
                 retrenched
                 unto
                 the
                 Terce
                 .
                 Yet
                 now
                 ,
                 not
                 only
                 real
                 voluntary
                 Provisions
                 are
                 sustained
                 ,
                 though
                 of
                 the
                 Husbands
                 whole
                 Estate
                 and
                 Conquest
                 ,
                 albeit
                 granted
                 
                   in
                   aestu
                   
                   amoris
                
                 ,
                 with
                 this
                 temperament
                 only
                 ,
                 That
                 if
                 the
                 Heir
                 have
                 no
                 other
                 Estate
                 ,
                 the
                 Liferenter
                 must
                 intertain
                 and
                 educat
                 him
                 ,
                 according
                 to
                 his
                 quality
                 ,
                 by
                 Act
                 of
                 Parliament
                 ,
                 which
                 is
                 more
                 extensive
                 then
                 a
                 simple
                 aliment
                 ;
                 but
                 she
                 is
                 also
                 lyable
                 ,
                 
                   super
                   jure
                   Naturae
                
                 ,
                 to
                 aliment
                 her
                 other
                 Children
                 ,
                 if
                 they
                 have
                 no
                 provisions
                 .
                 But
                 Custom
                 hath
                 so
                 far
                 proceeded
                 ,
                 as
                 not
                 only
                 to
                 allow
                 voluntary
                 provisions
                 ,
                 how
                 great
                 soever
                 ,
                 but
                 therewith
                 to
                 add
                 a
                 Terce
                 of
                 any
                 other
                 distinct
                 Tenement
                 ,
                 unless
                 the
                 voluntary
                 Liferent
                 were
                 accepted
                 in
                 satisfaction
                 of
                 the
                 Terce
                 ,
                 which
                 indeed
                 were
                 reasonable
                 in
                 many
                 cases
                 .
                 The
                 voluntary
                 Liferent
                 being
                 oftimes
                 small
                 and
                 suitable
                 to
                 the
                 Estate
                 the
                 parties
                 have
                 when
                 they
                 Marry
                 ,
                 but
                 cannot
                 make
                 a
                 
                   rationabilis
                   tertia
                
                 ;
                 if
                 by
                 Conquest
                 ,
                 their
                 Estate
                 should
                 grow
                 great
                 ,
                 neither
                 is
                 it
                 reasonable
                 ,
                 that
                 though
                 the
                 voluntary
                 provision
                 be
                 never
                 so
                 great
                 ,
                 that
                 a
                 Terce
                 should
                 be
                 given
                 ,
                 though
                 litle
                 remained
                 to
                 the
                 Heir
                 ,
                 only
                 because
                 by
                 Ignorance
                 or
                 negligence
                 ,
                 the
                 clause
                 in
                 satisfaction
                 were
                 not
                 adjected
                 :
                 Which
                 satisfaction
                 may
                 not
                 only
                 be
                 proved
                 by
                 Write
                 ,
                 but
                 by
                 Presumption
                 ,
                 from
                 the
                 design
                 of
                 parties
                 ,
                 in
                 the
                 Contracts
                 of
                 Marriage
                 ,
                 which
                 are
                 
                   uberrimae
                   fidei
                
                 ;
                 For
                 suppose
                 ,
                 which
                 is
                 ordinary
                 enough
                 ,
                 that
                 a
                 Liferent
                 of
                 Lands
                 are
                 provided
                 by
                 the
                 Contract
                 of
                 Marriage
                 ;
                 yet
                 some
                 Lands
                 are
                 not
                 mentioned
                 ,
                 but
                 there
                 is
                 a
                 Clause
                 adjected
                 for
                 the
                 Liferent
                 of
                 the
                 whole
                 Conquest
                 ,
                 were
                 it
                 
                   rationabilis
                   terlia
                
                 ,
                 to
                 give
                 the
                 Wife
                 a
                 third
                 of
                 that
                 which
                 is
                 omitted
                 ,
                 though
                 she
                 had
                 a
                 particular
                 Liferent
                 of
                 more
                 ,
                 and
                 the
                 whole
                 Conquest
                 ,
                 though
                 never
                 so
                 considerable
                 ;
                 Yea
                 ,
                 it
                 came
                 lately
                 to
                 be
                 〈◊〉
                 ,
                 whether
                 a
                 Liferenter
                 Infeft
                 in
                 an
                 Annualrent
                 ,
                 out
                 of
                 her
                 Husbands
                 Estate
                 ,
                 consisting
                 of
                 one
                 Tenement
                 ,
                 lying
                 Contigue
                 ,
                 the
                 Annualrent
                 being
                 two
                 thirds
                 of
                 the
                 Rent
                 thereof
                 ,
                 because
                 it
                 bore
                 not
                 ,
                 
                   in
                   satisfaction
                   of
                   a
                   Terce
                
                 .
                 The
                 Relict
                 did
                 also
                 claim
                 a
                 Terce
                 out
                 of
                 that
                 same
                 one
                 Tenement
                 ,
                 which
                 is
                 yet
                 
                   sub
                   judice
                
                 .
              
               
                 But
                 so
                 far
                 as
                 I
                 can
                 understand
                 by
                 former
                 Decisions
                 ,
                 it
                 hath
                 not
                 yet
                 been
                 determined
                 ,
                 whether
                 Relicts
                 should
                 have
                 a
                 reasonable
                 Terce
                 ,
                 according
                 to
                 the
                 Terms
                 of
                 the
                 ancient
                 Law
                 ,
                 inducing
                 Terces
                 :
                 Or
                 whether
                 she
                 should
                 have
                 a
                 Terce
                 proportionable
                 ,
                 or
                 suiteable
                 ,
                 or
                 not
                 ;
                 though
                 she
                 be
                 already
                 suitably
                 provided
                 ,
                 if
                 she
                 have
                 not
                 expresly
                 accepted
                 her
                 former
                 provision
                 ,
                 in
                 satisfaction
                 of
                 her
                 Terce
                 :
                 Which
                 Terce
                 ,
                 is
                 most
                 favourable
                 when
                 suitable
                 ;
                 and
                 therefore
                 ,
                 takes
                 place
                 in
                 the
                 two
                 cases
                 before
                 mentioned
                 ,
                 even
                 beyond
                 the
                 Letter
                 of
                 the
                 Law
                 ;
                 and
                 therefore
                 ,
                 if
                 it
                 were
                 unproportionable
                 ,
                 to
                 the
                 quality
                 of
                 the
                 Husband
                 and
                 Wife
                 ,
                 who
                 might
                 have
                 a
                 great
                 Estate
                 in
                 Money
                 ,
                 and
                 little
                 Land
                 ,
                 a
                 voluntary
                 Provision
                 out
                 of
                 any
                 Tenement
                 ,
                 should
                 not
                 exclude
                 a
                 Terce
                 ,
                 out
                 of
                 the
                 remanent
                 of
                 the
                 same
                 Tenement
                 ,
                 or
                 of
                 any
                 other
                 Tenement
                 ,
                 unless
                 the
                 Relict
                 were
                 sufficiently
                 provided
                 before
                 .
                 There
                 is
                 one
                 Interloquter
                 betwixt
                 
                   Jean
                   Crightoun
                
                 and
                 Kirkhouse
                 her
                 Son
                 ,
                 wherein
                 it
                 was
                 alledged
                 ,
                 that
                 she
                 was
                 sufficiently
                 provided
                 ,
                 to
                 more
                 then
                 a
                 Terce
                 of
                 her
                 Husbands
                 Estate
                 ,
                 which
                 was
                 repelled
                 ;
                 but
                 the
                 Case
                 was
                 ,
                 
                   in
                   possessorio
                
                 ,
                 where
                 the
                 Relict
                 was
                 already
                 served
                 ,
                 and
                 kenned
                 to
                 a
                 Terce
                 ,
                 and
                 was
                 pursuing
                 the
                 Tennents
                 ;
                 so
                 that
                 the
                 Service
                 and
                 Kenning
                 ,
                 being
                 a
                 standing
                 Sentence
                 ,
                 doth
                 not
                 determine
                 what
                 might
                 be
                 done
                 ,
                 
                   in
                   petiterio
                
                 ;
                 Neither
                 was
                 that
                 allegeance
                 proponed
                 ,
                 and
                 offered
                 to
                 be
                 proven
                 ,
                 but
                 only
                 alledged
                 informative
                 ;
                 whereas
                 the
                 Defence
                 proponed
                 was
                 ,
                 that
                 the
                 Relicts
                 provision
                 was
                 but
                 a
                 minut
                 of
                 Contract
                 ,
                 bearing
                 ,
                 
                   to
                   be
                   extended
                   with
                   all
                   Clauses
                   requisite
                   ,
                
                 whereof
                 there
                 was
                 a
                 Process
                 of
                 Extension
                 depending
                 ,
                 including
                 the
                 acceptance
                 ,
                 in
                 satisfaction
                 of
                 the
                 Terce
                 ,
                 as
                 being
                 ordinary
                 ;
                 but
                 it
                 was
                 replyed
                 ,
                 that
                 that
                 Clause
                 was
                 omitted
                 in
                 the
                 full
                 Contract
                 already
                 extended
                 :
                 But
                 now
                 by
                 the
                 late
                 Act
                 of
                 Par.
                 1681.
                 cap.
                 1.
                 there
                 is
                 no
                 place
                 for
                 a
                 Terce
                 ,
                 where
                 there
                 is
                 a
                 provision
                 for
                 the
                 wife
                 of
                 liferent
                 ,
                 unless
                 a
                 Terce
                 be
                 expresly
                 reserved
                 .
              
               
               
                 Craig
                 proposeth
                 another
                 case
                 ,
                 whether
                 the
                 〈◊〉
                 would
                 have
                 a
                 Terce
                 of
                 Lands
                 competent
                 in
                 Fee
                 to
                 her
                 Husband
                 ,
                 and
                 so
                 possest
                 by
                 him
                 ,
                 though
                 by
                 fraud
                 or
                 neglegence
                 ,
                 he
                 never
                 Infeft
                 himself
                 ,
                 which
                 he
                 says
                 is
                 the
                 opinion
                 of
                 Litletoun
                 ,
                 and
                 it
                 is
                 not
                 without
                 much
                 ground
                 ,
                 though
                 it
                 hath
                 not
                 come
                 to
                 be
                 decided
                 with
                 us
                 ,
                 voluntary
                 Liferents
                 in
                 satisfaction
                 being
                 so
                 ordinary
                 ;
                 for
                 though
                 the
                 appearand
                 Heir
                 not
                 entering
                 ,
                 cannot
                 burden
                 the
                 Fee
                 with
                 his
                 debt
                 ,
                 yet
                 his
                 
                   jus
                   apparentiae
                
                 ,
                 gives
                 him
                 or
                 his
                 Executors
                 ,
                 right
                 to
                 the
                 Fruits
                 during
                 all
                 his
                 life
                 ,
                 whereunto
                 it
                 would
                 be
                 suitable
                 enough
                 ,
                 that
                 though
                 his
                 voluntary
                 provisions
                 to
                 his
                 Wife
                 could
                 not
                 affect
                 the
                 Fee
                 ;
                 yet
                 the
                 legal
                 provision
                 of
                 a
                 reasonable
                 Terce
                 might
                 .
              
               
                 By
                 the
                 Custome
                 of
                 England
                 Relicts
                 loose
                 their
                 Terces
                 ,
                 by
                 falling
                 in
                 publick
                 and
                 atrocious
                 Crimes
                 ,
                 as
                 Treason
                 ,
                 Murder
                 ,
                 Witchcraft
                 ,
                 although
                 they
                 be
                 restored
                 by
                 the
                 King
                 ,
                 by
                 way
                 of
                 grace
                 ,
                 because
                 thereby
                 the
                 memory
                 of
                 their
                 husbands
                 ,
                 and
                 fame
                 of
                 their
                 Children
                 are
                 disgraced
                 ;
                 I
                 know
                 no
                 such
                 Point
                 to
                 have
                 been
                 drawn
                 in
                 question
                 with
                 us
                 .
                 Craig
                 in
                 the
                 forecited
                 place
                 holds
                 ,
                 that
                 if
                 the
                 Fiar
                 Transact
                 for
                 his
                 own
                 or
                 his
                 Superiours
                 Forefaulture
                 ,
                 or
                 Recognition
                 ,
                 or
                 obtain
                 a
                 Gift
                 thereof
                 ,
                 it
                 should
                 accress
                 to
                 the
                 Tercer
                 ,
                 whose
                 provision
                 is
                 onerous
                 ,
                 importing
                 Warrandice
                 ;
                 and
                 therefore
                 ,
                 might
                 be
                 effectuall
                 against
                 the
                 Fiar
                 ,
                 if
                 he
                 represent
                 the
                 Husband
                 ;
                 and
                 in
                 all
                 distresses
                 ,
                 Relief
                 doth
                 import
                 what
                 the
                 party
                 distressed
                 truly
                 payed
                 out
                 .
              
               
                 A
                 Terce
                 of
                 Wodset
                 Lands
                 ,
                 wherein
                 the
                 Husband
                 died
                 Infeft
                 ,
                 was
                 not
                 found
                 elieded
                 ,
                 because
                 the
                 Husband
                 Required
                 ,
                 or
                 Charged
                 for
                 the
                 Money
                 ,
                 not
                 being
                 denuded
                 before
                 his
                 death
                 ,
                 Feb.
                 16.
                 1642.
                 
                 
                   Veich
                   contra
                   Veich
                
                 of
                 Dawick
                 .
                 But
                 the
                 wifes
                 third
                 continues
                 as
                 to
                 the
                 third
                 of
                 the
                 Annualrent
                 of
                 the
                 Money
                 in
                 lieu
                 of
                 the
                 Lands
                 Redeemed
                 by
                 the
                 heir
                 after
                 his
                 predecessors
                 death
                 .
              
               
                 Terce
                 is
                 not
                 excluded
                 by
                 Ward
                 ,
                 Non
                 entry
                 or
                 Liferent-escheat
                 of
                 the
                 Husband
                 ,
                 as
                 hath
                 been
                 more
                 fully
                 shown
                 before
                 ,
                 
                   Title
                   Superiority
                
                 .
              
               
                 18.
                 
                 Terce
                 is
                 burdened
                 proportianally
                 by
                 all
                 ,
                 
                   debita
                   fundi
                
                 ,
                 affecting
                 the
                 whole
                 Tenement
                 as
                 Annualrent
                 ,
                 Thirlage
                 ,
                 Pasturage
                 ,
                 but
                 with
                 no
                 other
                 debts
                 of
                 the
                 Defunct
                 ,
                 being
                 personal
                 ,
                 though
                 they
                 be
                 Heretable
                 and
                 have
                 provision
                 of
                 Infeftment
                 .
              
               
                 19.
                 
                 Liferent
                 by
                 the
                 Courtesie
                 or
                 Curiliaty
                 of
                 Scotland
                 ,
                 is
                 the
                 Liferent
                 competent
                 to
                 the
                 Husband
                 of
                 the
                 Wifes
                 Lands
                 and
                 Hereditaments
                 :
                 It
                 is
                 introduced
                 by
                 our
                 Common
                 Law
                 ,
                 which
                 is
                 our
                 most
                 ancient
                 Custom
                 ,
                 wheroef
                 no
                 beginning
                 is
                 known
                 in
                 the
                 same
                 way
                 ,
                 as
                 the
                 Terce
                 of
                 the
                 surviving
                 Wife
                 ,
                 whereby
                 without
                 any
                 paction
                 or
                 provision
                 ,
                 〈◊〉
                 enjoys
                 the
                 third
                 of
                 her
                 deceassed
                 Husbands
                 Heretable
                 Rights
                 ,
                 wherein
                 he
                 〈◊〉
                 Invested
                 as
                 of
                 Fee
                 ,
                 during
                 her
                 life
                 ;
                 so
                 the
                 Husband
                 Liferents
                 the
                 whole
                 Lands
                 and
                 Hereditaments
                 of
                 the
                 wife
                 ,
                 wherein
                 she
                 died
                 Infeft
                 in
                 Fee
                 ,
                 and
                 that
                 without
                 any
                 Service
                 or
                 Kenning
                 ,
                 as
                 in
                 Terces
                 ,
                 but
                 Summarly
                 ,
                 by
                 vertue
                 of
                 his
                 having
                 been
                 Husband
                 to
                 the
                 Defunct
                 ;
                 neither
                 is
                 there
                 any
                 difference
                 ,
                 whether
                 the
                 Defunct
                 wife
                 had
                 a
                 prior
                 Husband
                 or
                 not
                 ;
                 or
                 whether
                 her
                 hereditament
                 be
                 Ward
                 ,
                 Blensh
                 ,
                 Feu
                 ,
                 or
                 Burgage
                 .
              
               
                 The
                 original
                 of
                 this
                 Liferent
                 by
                 the
                 Courtesie
                 ,
                 as
                 Craig
                 observeth
                 ,
                 lib.
                 2.
                 dieges
                 .
                 22.
                 is
                 from
                 the
                 Rescript
                 of
                 the
                 Emperour
                 Constantine
                 ,
                 whereby
                 the
                 Father
                 had
                 the
                 Usufruct
                 of
                 the
                 heretage
                 of
                 his
                 Children
                 ,
                 befalling
                 to
                 them
                 as
                 heirs
                 to
                 their
                 Mother
                 ;
                 and
                 therefore
                 ,
                 the
                 Courtesie
                 takes
                 no
                 place
                 but
                 where
                 there
                 
                 were
                 Children
                 of
                 the
                 Marriage
                 ,
                 one
                 or
                 more
                 ,
                 which
                 attained
                 that
                 maturity
                 as
                 to
                 be
                 heard
                 cry
                 or
                 weep
                 ,
                 ;
                 for
                 then
                 the
                 Law
                 regardeth
                 not
                 how
                 long
                 the
                 Children
                 live
                 ,
                 or
                 whether
                 they
                 do
                 Survive
                 their
                 Mother
                 ,
                 but
                 
                   hoc
                   ipso
                
                 ,
                 that
                 they
                 are
                 born
                 at
                 maturity
                 ,
                 they
                 are
                 heirs
                 appearand
                 of
                 the
                 Fee
                 ;
                 and
                 the
                 Liferent
                 is
                 established
                 in
                 their
                 Father
                 :
                 In
                 this
                 the
                 Courtesie
                 of
                 Husbands
                 differs
                 from
                 the
                 Terce
                 of
                 Wives
                 ;
                 for
                 the
                 Wife
                 hath
                 her
                 Terce
                 ,
                 if
                 either
                 the
                 Marriage
                 continue
                 undissolved
                 year
                 and
                 day
                 ,
                 or
                 though
                 it
                 continue
                 not
                 so
                 long
                 ,
                 if
                 a
                 Child
                 was
                 born
                 of
                 the
                 marriage
                 ,
                 heard
                 cry
                 and
                 weep
                 ,
                 though
                 the
                 Child
                 had
                 been
                 begotten
                 before
                 the
                 Marriage
                 ,
                 yea
                 ,
                 though
                 it
                 had
                 been
                 born
                 before
                 the
                 Marriage
                 ,
                 being
                 Legitimat
                 by
                 the
                 subsequent
                 Marriage
                 ,
                 how
                 short
                 soever
                 it
                 endured
                 the
                 wife
                 should
                 have
                 her
                 Terce
                 .
                 But
                 the
                 Courtesie
                 takes
                 no
                 place
                 ,
                 unless
                 a
                 ripe
                 Child
                 beborn
                 ,
                 though
                 the
                 Marriage
                 should
                 continue
                 for
                 many
                 years
                 ,
                 so
                 that
                 the
                 being
                 of
                 Children
                 procreat
                 and
                 born
                 to
                 maturity
                 ,
                 is
                 the
                 chief
                 motive
                 introductory
                 of
                 this
                 Law.
                 
              
               
                 Skeen
                 in
                 his
                 
                   Title
                   ,
                   de
                   verborum
                   significatione
                
                 ,
                 upon
                 the
                 word
                 Curialitas
                 ,
                 limiteth
                 the
                 Courtesie
                 to
                 the
                 Lands
                 or
                 Hereditament
                 ,
                 into
                 which
                 wives
                 succeed
                 as
                 heirs
                 to
                 their
                 Predecessors
                 ,
                 whether
                 before
                 ,
                 or
                 during
                 the
                 Marriage
                 ,
                 which
                 Craig
                 in
                 the
                 foresaid
                 place
                 doth
                 likewise
                 follow
                 ,
                 and
                 doth
                 exclude
                 the
                 Husband
                 from
                 the
                 Liferent
                 of
                 the
                 wifes
                 Land
                 ;
                 to
                 which
                 the
                 wife
                 had
                 right
                 by
                 any
                 Contract
                 ,
                 as
                 
                   titulo
                   emptionis
                
                 ,
                 which
                 will
                 not
                 exclude
                 the
                 husband
                 ,
                 where
                 the
                 wises
                 Predecessor
                 Infefts
                 her
                 ,
                 
                   per
                   praeceptionem
                   haereditatis
                
                 .
                 If
                 a
                 Father
                 should
                 Infeft
                 his
                 Daughter
                 ,
                 reserving
                 his
                 own
                 Liferent
                 ,
                 with
                 power
                 ro
                 Dispose
                 ,
                 she
                 is
                 not
                 thereby
                 heir
                 active
                 ,
                 nor
                 is
                 that
                 Estate
                 accompted
                 Heretage
                 but
                 Conquest
                 ;
                 yet
                 she
                 is
                 heir
                 passive
                 ,
                 and
                 there
                 is
                 more
                 reason
                 that
                 the
                 husband
                 should
                 enjoy
                 his
                 Liferent
                 of
                 that
                 Estate
                 ,
                 then
                 if
                 his
                 Wife
                 had
                 been
                 therein
                 heir
                 of
                 Provision
                 or
                 Tailzie
                 ,
                 whereby
                 failing
                 her
                 and
                 her
                 Issue
                 ,
                 another
                 Branch
                 ,
                 not
                 nearest
                 of
                 blood
                 to
                 her
                 ,
                 might
                 readily
                 succeed
                 ,
                 so
                 that
                 if
                 her
                 Children
                 were
                 dead
                 before
                 her self
                 ,
                 her
                 heirs
                 of
                 Tailzie
                 would
                 have
                 much
                 more
                 reason
                 to
                 question
                 her
                 husbands
                 Liferent
                 by
                 the
                 Courtesie
                 ,
                 then
                 his
                 own
                 Children
                 as
                 heirs
                 of
                 line
                 would
                 have
                 to
                 contravert
                 his
                 Liferent
                 of
                 the
                 Estate
                 ,
                 wherein
                 she
                 was
                 Infeft
                 by
                 her
                 Father
                 or
                 any
                 of
                 her
                 Predecessors
                 ,
                 to
                 which
                 she
                 was
                 appearand
                 heir
                 ;
                 but
                 there
                 have
                 been
                 few
                 Debates
                 or
                 Decisions
                 ,
                 or
                 limitations
                 thereof
                 ,
                 which
                 would
                 clear
                 this
                 and
                 other
                 points
                 thereanent
                 .
              
               
                 The
                 Law
                 hath
                 well
                 fixed
                 the
                 maturity
                 of
                 the
                 Children
                 by
                 their
                 crying
                 or
                 weeping
                 ,
                 and
                 hath
                 not
                 left
                 it
                 to
                 the
                 conjecture
                 of
                 witnesses
                 ,
                 whether
                 the
                 Child
                 was
                 ripe
                 or
                 not
                 ,
                 both
                 as
                 to
                 the
                 Courtesie
                 ,
                 Terce
                 and
                 Dissolution
                 of
                 the
                 Marriage
                 within
                 the
                 year
                 ;
                 in
                 all
                 which
                 cases
                 ,
                 the
                 Law
                 alloweth
                 Women
                 Witnesses
                 ,
                 as
                 being
                 necessary
                 in
                 the
                 case
                 of
                 the
                 death
                 of
                 the
                 Children
                 ,
                 at
                 the
                 time
                 of
                 their
                 Birth
                 .
              
               
                 Liferenters
                 were
                 found
                 free
                 of
                 the
                 Reparation
                 of
                 Ministers
                 Manses
                 ,
                 by
                 the
                 Act
                 of
                 Parliament
                 1662.
                 
                   cap.
                   Ordaining
                   Heretors
                   to
                   build
                   or
                   repair
                   Manses
                   to
                   the
                   value
                   of
                
                 1000.
                 
                 Pounds
                 ;
                 whereof
                 no
                 share
                 of
                 relief
                 was
                 found
                 due
                 by
                 the
                 Liferenters
                 ,
                 they
                 not
                 being
                 exprest
                 ,
                 November
                 14.
                 1679.
                 
                 Minister
                 of
                 contra
                 Laird
                 and
                 Lady
                 Beanstoun
                 :
                 Yet
                 if
                 the
                 whole
                 Estate
                 were
                 Liferented
                 by
                 Conjunctfee
                 ,
                 the
                 Conjunctfiar
                 might
                 be
                 liable
                 as
                 Fiar
                 in
                 that
                 case
                 ,
                 when
                 the
                 Heretor
                 had
                 no
                 profite
                 of
                 the
                 Land
                 ;
                 and
                 if
                 the
                 whole
                 were
                 affected
                 with
                 a
                 separat
                 Liferent
                 ,
                 the
                 effect
                 would
                 be
                 the
                 same
                 ,
                 seing
                 what
                 the
                 Heretor
                 would
                 be
                 lyable
                 to
                 ,
                 would
                 diminish
                 his
                 Aliment
                 ,
                 which
                 behoved
                 to
                 be
                 made
                 up
                 by
                 the
                 Liferenter
                 .
              
               
               
                 Liferent
                 by
                 the
                 Courtesie
                 hath
                 the
                 same
                 extensions
                 and
                 limitations
                 sa
                 terces
                 ,
                 it
                 affects
                 all
                 the
                 wifes
                 Lands
                 ,
                 not
                 Acquired
                 by
                 a
                 singular
                 Title
                 ;
                 it
                 is
                 not
                 excluded
                 by
                 the
                 Ward
                 ,
                 but
                 it
                 is
                 excluded
                 during
                 the
                 Non-entry
                 ,
                 or
                 by
                 Liferent-Escheat
                 ;
                 and
                 also
                 by
                 the
                 Ward
                 of
                 the
                 Superiour
                 ,
                 or
                 the
                 Forefaulture
                 or
                 Recognition
                 ,
                 either
                 of
                 the
                 Superiour
                 or
                 Wife
                 ,
                 it
                 is
                 burdened
                 with
                 all
                 real
                 burdens
                 by
                 Infeftment
                 or
                 Tack
                 ,
                 and
                 with
                 the
                 Aliment
                 of
                 the
                 Wifes
                 Heir
                 ,
                 if
                 he
                 have
                 not
                 aliunde
                 ;
                 It
                 is
                 also
                 excluded
                 by
                 the
                 Dissolution
                 of
                 the
                 Marriage
                 within
                 year
                 and
                 day
                 ,
                 by
                 Divorce
                 ,
                 or
                 by
                 the
                 Husbands
                 desertion
                 of
                 the
                 Wife
                 ,
                 though
                 Divorce
                 followed
                 not
                 :
                 Or
                 by
                 his
                 Adultery
                 ,
                 or
                 other
                 atrocious
                 Crimes
                 .
              
               
                 20.
                 
                 Amongst
                 personal
                 Servitudes
                 may
                 be
                 numbered
                 publick
                 Burdens
                 ,
                 imposed
                 by
                 the
                 King
                 and
                 Parliament
                 for
                 publick
                 use
                 ,
                 such
                 as
                 Taxations
                 ,
                 which
                 by
                 the
                 Acts
                 imposing
                 them
                 ,
                 are
                 declared
                 real
                 ,
                 affecting
                 the
                 Ground
                 ,
                 and
                 that
                 thereupon
                 the
                 Ground
                 may
                 be
                 poinded
                 ;
                 and
                 so
                 consequently
                 do
                 affect
                 singular
                 Successors
                 :
                 The
                 extraordinary
                 burdens
                 of
                 Mentainance
                 ;
                 and
                 Sess
                 imposed
                 by
                 the
                 Parliament
                 ,
                 during
                 the
                 troubles
                 ,
                 had
                 not
                 that
                 Clause
                 therein
                 of
                 Poinding
                 the
                 Ground
                 ,
                 and
                 so
                 were
                 not
                 found
                 
                   debita
                   fundi
                
                 ,
                 but
                 
                   debita
                   fructuum
                
                 ,
                 nor
                 do
                 they
                 affect
                 singular
                 Successors
                 ,
                 July
                 13.
                 1664.
                 
                 Grahame
                 of
                 
                   Hiltoun
                   contra
                
                 the
                 Heretors
                 of
                 Clackmannan
                 .
              
            
             
               
               
                 TITLE
                 XVII
                 .
                 Servitudes
                 Real
                 .
              
               
                 
                   1.
                   
                   Requisites
                   to
                   Constitute
                   real
                   Servitudes
                   by
                   consent
                   .
                
                 
                   2.
                   
                   How
                   Prescription
                   Constituteth
                   Servitude
                   .
                
                 
                   3.
                   
                   How
                   far
                   Servitudes
                   are
                   effectual
                   against
                   the
                   Superiour
                   .
                
                 
                   4.
                   
                   Extinction
                   of
                   Servitudes
                   .
                
                 
                   5.
                   
                   Kinds
                   of
                   Servitudes
                   .
                
                 
                   6.
                   
                   Servitudes
                   of
                   Support
                   .
                
                 
                   7
                   Stillicides
                   .
                
                 
                   8.
                   
                   Sinks
                   .
                
                 
                   9.
                   
                   Servitudes
                   of
                   Prospect
                   or
                   Light.
                   
                
                 
                   10.
                   
                   Wayes
                   .
                
                 
                   11.
                   
                   Watering
                   .
                
                 
                   12.
                   
                   Watergang
                   .
                
                 
                   13.
                   
                   Feualling
                   .
                
                 
                   14.
                   
                   Pasturage
                   .
                
                 
                   15.
                   
                   Thirleage
                   .
                
                 
                   16.
                   
                   Several
                   ways
                   of
                   Constituting
                   Thirlage
                   .
                
                 
                   17.
                   
                   Several
                   Cases
                   in
                   which
                   Thirlage
                   is
                   not
                   Constitute
                   .
                
                 
                   18.
                   
                   The
                   effect
                   and
                   extent
                   of
                   Thirlage
                   .
                
                 
                   19.
                   
                   The
                   import
                   of
                   several
                   Clauses
                   of
                   Thirlage
                   .
                
                 
                   
                     20.
                     
                     Invecta
                     &
                     illata
                  
                   ,
                   or
                   tholing
                   Fire
                   and
                   Water
                   .
                
                 
                   21.
                   
                   Sequels
                   .
                
                 
                   22.
                   
                   Miln
                   Service
                   .
                
                 
                   23.
                   
                   Priviledge
                   of
                   Milns
                   .
                
                 
                   24.
                   
                   How
                   Thirlage
                   becomes
                   extinct
                   .
                
                 
                   25.
                   
                   In
                   Multure
                   ,
                   Seed
                   ,
                   or
                   Horse
                   Corn
                   ,
                   are
                   to
                   be
                   deduced
                   ,
                   but
                   no
                   other
                   expence
                   of
                   Labouring
                   .
                
                 
                   26.
                   
                   Thirlage
                   Constitute
                   by
                   a
                   Vassal
                   ,
                   not
                   effectual
                   against
                   the
                   Superiour
                   .
                
                 
                   27.
                   
                   Deductions
                   for
                   insufficiency
                   of
                   the
                   Miln
                   ,
                   breaking
                   down
                   of
                   the
                   Damn
                   or
                   Frost
                   .
                
              
               
               
                 SERVITUDES
                 are
                 distinguished
                 in
                 Real
                 and
                 Personal
                 ,
                 though
                 neither
                 of
                 them
                 be
                 personal
                 Rights
                 ;
                 yet
                 these
                 Servitudes
                 whereby
                 one
                 Tenement
                 is
                 subservient
                 to
                 another
                 Tenement
                 ,
                 and
                 to
                 persons
                 only
                 as
                 having
                 Right
                 to
                 ,
                 and
                 for
                 the
                 use
                 of
                 that
                 Tenement
                 ,
                 are
                 called
                 real
                 Servitudes
                 ,
                 as
                 not
                 being
                 subservient
                 directly
                 to
                 persons
                 ,
                 but
                 to
                 things
                 :
                 And
                 the
                 other
                 are
                 called
                 Personal
                 ;
                 because
                 thereby
                 the
                 Tenement
                 is
                 subservient
                 directly
                 to
                 Persons
                 ,
                 and
                 not
                 with
                 respect
                 to
                 any
                 other
                 thing
                 ,
                 as
                 Liferents
                 ,
                 &c.
                 
              
               
                 Before
                 we
                 come
                 to
                 the
                 particular
                 kinds
                 of
                 these
                 real
                 Servitudes
                 ,
                 it
                 will
                 be
                 fit
                 to
                 enquire
                 how
                 such
                 Servitudes
                 are
                 Constitute
                 ;
                 and
                 next
                 how
                 they
                 are
                 Destitute
                 and
                 Ceass
                 .
              
               
                 1.
                 
                 As
                 to
                 the
                 first
                 ,
                 these
                 Servitudes
                 require
                 no
                 Infeftment
                 ,
                 though
                 they
                 may
                 be
                 Constitute
                 by
                 Infeftments
                 ,
                 yet
                 there
                 is
                 no
                 necessity
                 of
                 Infeftment
                 ,
                 to
                 their
                 Constitution
                 .
              
               
                 Secondly
                 ,
                 Real
                 Servitudes
                 cannot
                 be
                 Constitute
                 by
                 any
                 personal
                 Right
                 ,
                 as
                 by
                 Contract
                 ,
                 Paction
                 ,
                 Testament
                 or
                 Legacy
                 ,
                 neither
                 by
                 Disposition
                 or
                 Assignation
                 alone
                 ;
                 the
                 reason
                 is
                 ,
                 because
                 they
                 are
                 real
                 Rights
                 ,
                 and
                 cannot
                 be
                 Constitute
                 by
                 any
                 personal
                 Right
                 ,
                 which
                 though
                 they
                 be
                 oftimes
                 the
                 remote
                 cause
                 of
                 real
                 Rights
                 ,
                 yet
                 there
                 is
                 more
                 requisite
                 to
                 their
                 Constitution
                 ;
                 and
                 therefore
                 ,
                 though
                 such
                 personal
                 Rights
                 may
                 be
                 sufficient
                 against
                 the
                 granters
                 thereof
                 ,
                 by
                 a
                 personal
                 Objection
                 ,
                 whereby
                 they
                 cannot
                 come
                 against
                 their
                 own
                 deed
                 ,
                 yet
                 they
                 are
                 not
                 sufficient
                 against
                 singular
                 Successors
                 ,
                 neither
                 do
                 they
                 affect
                 the
                 Ground
                 .
              
               
                 Thirdly
                 ,
                 All
                 real
                 Servitudes
                 are
                 Constitute
                 by
                 Possession
                 or
                 Use
                 ;
                 for
                 things
                 corporeal
                 are
                 said
                 only
                 to
                 be
                 Possest
                 ;
                 therefore
                 Incorporeal
                 Rights
                 ,
                 as
                 Servitudes
                 have
                 rather
                 use
                 then
                 Possession
                 to
                 Consumate
                 them
                 ,
                 which
                 though
                 it
                 be
                 the
                 last
                 requisite
                 to
                 accomplish
                 Servitudes
                 ,
                 yet
                 is
                 not
                 sufficient
                 alone
                 ,
                 but
                 must
                 have
                 another
                 Title
                 ,
                 either
                 by
                 the
                 express
                 consent
                 of
                 the
                 Proprietar
                 ,
                 or
                 by
                 Prescription
                 ;
                 there
                 is
                 no
                 difference
                 in
                 what
                 way
                 the
                 consent
                 be
                 adhibite
                 ,
                 so
                 it
                 be
                 in
                 Write
                 ;
                 and
                 the
                 Obliegement
                 to
                 grant
                 any
                 Servitude
                 with
                 Possession
                 ,
                 is
                 equivalent
                 to
                 the
                 formal
                 Disposition
                 or
                 grant
                 thereof
                 ,
                 as
                 it
                 is
                 in
                 the
                 most
                 of
                 these
                 Rights
                 ,
                 which
                 do
                 essentially
                 require
                 nothing
                 else
                 ,
                 but
                 Consent
                 alone
                 ,
                 or
                 Consent
                 with
                 Possession
                 ,
                 and
                 not
                 any
                 other
                 Solemnity
                 ,
                 as
                 Obliegements
                 to
                 grant
                 Assignations
                 ,
                 Discharges
                 ,
                 Renunciations
                 ,
                 are
                 equivalent
                 to
                 these
                 Rights
                 themselves
                 ,
                 when
                 formally
                 made
                 .
              
               
                 2.
                 
                 The
                 Civilians
                 debate
                 much
                 ,
                 whether
                 Servitudes
                 can
                 be
                 introduced
                 by
                 prescription
                 ,
                 and
                 whether
                 in
                 that
                 case
                 there
                 be
                 requisite
                 a
                 Title
                 and
                 the
                 Proprietars
                 
                 Knowledge
                 ,
                 wherein
                 we
                 need
                 not
                 insist
                 ,
                 seing
                 our
                 Prescription
                 being
                 only
                 by
                 Statute
                 upon
                 the
                 course
                 of
                 fourty
                 years
                 ,
                 in
                 most
                 cases
                 presumeth
                 both
                 a
                 Title
                 and
                 Knowledge
                 ,
                 but
                 theirs
                 being
                 upon
                 ten
                 years
                 ,
                 against
                 those
                 who
                 are
                 present
                 ,
                 may
                 require
                 more
                 ,
                 yet
                 many
                 ,
                 even
                 of
                 the
                 learnedest
                 of
                 them
                 ,
                 account
                 Prescription
                 sufficient
                 ,
                 without
                 Title
                 ,
                 or
                 any
                 other
                 then
                 presumed
                 Knowledge
                 .
              
               
                 With
                 us
                 ,
                 the
                 Servitude
                 of
                 a
                 way
                 to
                 the
                 Kirk
                 ,
                 was
                 not
                 found
                 Constitute
                 by
                 Possession
                 thirty
                 years
                 ,
                 but
                 by
                 immemorial
                 Possession
                 ,
                 going
                 and
                 coming
                 that
                 way
                 uninterrupted
                 ,
                 without
                 any
                 Write
                 ;
                 for
                 here
                 the
                 way
                 was
                 claimed
                 at
                 the
                 nearest
                 to
                 the
                 Kirk
                 ;
                 whether
                 the
                 Desenders
                 Lands
                 were
                 under
                 Cropt
                 or
                 not
                 :
                 For
                 though
                 a
                 way
                 to
                 the
                 Kirk
                 be
                 due
                 to
                 all
                 parties
                 in
                 the
                 Paroch
                 ,
                 without
                 Consent
                 or
                 Prescription
                 ,
                 yet
                 it
                 must
                 be
                 with
                 the
                 least
                 detriment
                 to
                 the
                 interjacent
                 Lands
                 ,
                 and
                 so
                 cannot
                 always
                 be
                 the
                 nearest
                 way
                 ,
                 but
                 must
                 go
                 about
                 Corns
                 ;
                 and
                 though
                 thirty
                 or
                 fourty
                 years
                 Alternative
                 ,
                 was
                 not
                 sustained
                 to
                 Constitute
                 a
                 way
                 thorow
                 Lands
                 ,
                 even
                 under
                 〈◊〉
                 yet
                 fourty
                 years
                 is
                 equivalent
                 ,
                 and
                 always
                 〈◊〉
                 to
                 immemorial
                 Possession
                 ;
                 in
                 the
                 same
                 case
                 ,
                 
                   〈◊〉
                   gtoun
                
                 observes
                 ,
                 
                   That
                   a
                   convement
                   way
                   to
                   the
                   Kirk
                   ,
                   without
                   going
                   through
                   Corns
                   ,
                   was
                   sustained
                   without
                   prescription
                
                 ;
                 And
                 the
                 like
                 would
                 be
                 sustained
                 for
                 Passage
                 to
                 Mercat
                 Towns
                 ,
                 or
                 〈◊〉
                 Ports
                 .
                 A
                 servitude
                 of
                 laying
                 over
                 a
                 Miln
                 Damn
                 upon
                 another
                 Heretors
                 Land
                 ,
                 was
                 found
                 Constitute
                 by
                 Possession
                 fourty
                 years
                 ,
                 whereby
                 the
                 Heretor
                 of
                 the
                 Miln
                 was
                 found
                 to
                 have
                 Right
                 ;
                 that
                 when
                 the
                 Water
                 did
                 wash
                 away
                 the
                 Ground
                 from
                 the
                 end
                 of
                 the
                 Damn
                 ,
                 to
                 lengthen
                 the
                 same
                 upon
                 the
                 Servient
                 Tenement
                 ,
                 so
                 that
                 it
                 might
                 be
                 made
                 effectual
                 with
                 the
                 least
                 detriment
                 ,
                 and
                 that
                 he
                 was
                 not
                 lyable
                 for
                 any
                 damage
                 by
                 washing
                 away
                 the
                 ground
                 of
                 the
                 Servient
                 Tenement
                 ,
                 by
                 occasion
                 of
                 his
                 Damn
                 ,
                 July
                 20.
                 1677.
                 
                 Laird
                 of
                 
                   Gairletoun
                   contra
                
                 Laird
                 of
                 
                   Smeatoun
                   .
                   June
                
                 27.
                 1623.
                 
                 
                   Gilbert
                   Neilson
                   contra
                
                 Sheriff
                 of
                 Galloway
                 .
                 It
                 must
                 be
                 adverted
                 ,
                 that
                 when
                 such
                 Servitudes
                 are
                 said
                 to
                 be
                 Constitute
                 by
                 sole
                 prescription
                 ,
                 without
                 Write
                 ,
                 it
                 is
                 to
                 be
                 understood
                 ,
                 without
                 Write
                 from
                 the
                 Proprietar
                 of
                 the
                 Servient
                 Tenement
                 ;
                 for
                 ordinarly
                 there
                 is
                 this
                 much
                 Title
                 in
                 Write
                 for
                 these
                 Servitudes
                 ,
                 that
                 the
                 party
                 having
                 Right
                 thereto
                 is
                 Infeft
                 in
                 the
                 Tenement
                 with
                 the
                 Pertinents
                 ,
                 under
                 which
                 Servitudes
                 are
                 comprehended
                 .
                 Or
                 with
                 common
                 〈◊〉
                 trage
                 ,
                 by
                 which
                 he
                 hath
                 not
                 only
                 such
                 Pasturage
                 as
                 he
                 hath
                 been
                 long
                 in
                 Possession
                 of
                 ,
                 upon
                 the
                 Lands
                 of
                 his
                 Superiour
                 or
                 Author
                 ,
                 but
                 fourty
                 years
                 Possession
                 therewith
                 ,
                 is
                 sufficient
                 against
                 any
                 other
                 ,
                 who
                 can
                 be
                 said
                 in
                 no
                 case
                 to
                 have
                 done
                 any
                 deed
                 for
                 the
                 Constituting
                 of
                 the
                 Servitude
                 ;
                 and
                 it
                 was
                 so
                 found
                 in
                 the
                 case
                 of
                 the
                 Town
                 of
                 Pearth
                 ,
                 concerning
                 the
                 Isle
                 of
                 Sleiples
                 .
                 But
                 this
                 long
                 Possession
                 is
                 not
                 estimat
                 by
                 deeds
                 done
                 by
                 the
                 Proprietar
                 of
                 the
                 Servient
                 Tenement
                 ,
                 as
                 he
                 who
                 brings
                 his
                 Grain
                 to
                 another
                 mans
                 〈◊〉
                 ,
                 for
                 〈◊〉
                 so
                 many
                 years
                 ;
                 these
                 deeds
                 of
                 his
                 do
                 not
                 Constitute
                 a
                 Thirleage
                 upon
                 his
                 Lands
                 ,
                 unless
                 he
                 suffer
                 the
                 Proprietar
                 or
                 Tennent
                 of
                 the
                 Miln
                 ,
                 to
                 cause
                 him
                 or
                 his
                 Tennents
                 either
                 to
                 bring
                 their
                 Grain
                 by
                 Process
                 ,
                 or
                 otherways
                 :
                 And
                 he
                 who
                 opens
                 a
                 Window
                 in
                 his
                 Dyke
                 or
                 Wall
                 ,
                 whereby
                 his
                 neighbour
                 hath
                 a
                 Prospect
                 ,
                 doth
                 not
                 thereby
                 put
                 himself
                 under
                 a
                 Servitude
                 :
                 But
                 if
                 he
                 suffer
                 his
                 neighbour
                 to
                 break
                 a
                 Window
                 in
                 his
                 Wall
                 ,
                 and
                 enjoy
                 it
                 till
                 prescription
                 be
                 run
                 ,
                 his
                 suffering
                 introduceth
                 that
                 Servitude
                 .
              
               
                 3.
                 
                 As
                 to
                 these
                 who
                 can
                 impose
                 Servitude
                 ,
                 when
                 they
                 are
                 Constitute
                 by
                 express
                 consent
                 .
                 They
                 cannot
                 be
                 Constitute
                 without
                 consent
                 of
                 the
                 〈◊〉
                 and
                 if
                 the
                 Superiour
                 consent
                 not
                 ,
                 they
                 will
                 not
                 be
                 effectual
                 against
                 him
                 ,
                 if
                 the
                 〈◊〉
                 be
                 open
                 and
                 return
                 to
                 him
                 by
                 Right
                 of
                 Superiority
                 ,
                 for
                 a
                 time
                 ,
                 or
                 for
                 〈◊〉
                 .
                 Liferenters
                 cannot
                 Constitute
                 a
                 Servitude
                 ,
                 to
                 have
                 a
                 real
                 
                 Right
                 against
                 singular
                 Successors
                 ,
                 or
                 beyond
                 the
                 endurance
                 of
                 that
                 Liferent
                 or
                 Wodset
                 ;
                 much
                 less
                 can
                 Tennents
                 ,
                 yet
                 both
                 can
                 begin
                 or
                 continue
                 to
                 make
                 up
                 Prescription
                 .
              
               
                 But
                 when
                 Servitudes
                 are
                 Constitute
                 by
                 Prescription
                 ,
                 the
                 knowledge
                 even
                 of
                 the
                 Superiour
                 is
                 presumed
                 ,
                 who
                 though
                 he
                 had
                 not
                 the
                 full
                 Right
                 ,
                 yet
                 might
                 have
                 interrupted
                 .
              
               
                 4.
                 
                 Servitudes
                 are
                 extinct
                 by
                 the
                 Proprietar
                 of
                 the
                 Tenement
                 dominant
                 his
                 Renunciation
                 ,
                 or
                 contrary
                 consent
                 in
                 Write
                 ,
                 without
                 any
                 other
                 Solemnity
                 ;
                 and
                 there
                 needs
                 here
                 no
                 other
                 Possession
                 ,
                 then
                 that
                 Possession
                 the
                 Proprietar
                 of
                 the
                 servient
                 Tenement
                 hath
                 of
                 his
                 Tenement
                 ,
                 whereby
                 he
                 may
                 make
                 free
                 use
                 thereof
                 ;
                 for
                 he
                 who
                 Possesseth
                 Naturally
                 or
                 Corporeally
                 ,
                 Possesseth
                 to
                 all
                 effects
                 and
                 uses
                 ,
                 unless
                 there
                 be
                 impediment
                 by
                 any
                 opposite
                 standing
                 Right
                 .
              
               
                 Servitudes
                 are
                 also
                 extinct
                 by
                 Prescription
                 of
                 Liberty
                 ;
                 for
                 as
                 Servitudes
                 by
                 Prescription
                 take
                 away
                 the
                 Liberty
                 or
                 free
                 use
                 of
                 the
                 Tenement
                 servient
                 :
                 So
                 Liberty
                 is
                 recovered
                 in
                 the
                 same
                 way
                 ;
                 for
                 though
                 in
                 the
                 short
                 prescription
                 in
                 the
                 Civil
                 Law
                 ,
                 simple
                 forbearance
                 of
                 the
                 Servitude
                 ,
                 will
                 not
                 import
                 prescription
                 ,
                 unless
                 some
                 contrary
                 Acts
                 that
                 may
                 hinder
                 the
                 use
                 of
                 it
                 ,
                 were
                 done
                 by
                 the
                 Proprietar
                 of
                 the
                 servient
                 Tenement
                 :
                 Yet
                 in
                 our
                 long
                 Prescription
                 of
                 fourty
                 years
                 simple
                 forbearance
                 of
                 the
                 use
                 may
                 suffice
                 ,
                 as
                 presuming
                 the
                 will
                 of
                 the
                 party
                 to
                 be
                 ,
                 to
                 relinquish
                 the
                 Servitude
                 ,
                 and
                 to
                 suffer
                 Liberty
                 to
                 be
                 recovered
                 ;
                 and
                 when
                 the
                 Servitude
                 is
                 Constitute
                 by
                 Write
                 ,
                 the
                 same
                 will
                 be
                 the
                 effect
                 ,
                 seing
                 the
                 Write
                 and
                 Obliegement
                 prescrive
                 not
                 being
                 used
                 ,
                 or
                 acclaimed
                 fourty
                 years
                 .
              
               
                 5.
                 
                 To
                 descend
                 now
                 to
                 the
                 kindes
                 of
                 Servitudes
                 ,
                 there
                 may
                 be
                 as
                 many
                 as
                 there
                 are
                 wayes
                 ,
                 whereby
                 the
                 liberty
                 of
                 a
                 House
                 or
                 Tenement
                 may
                 be
                 restrained
                 in
                 favours
                 of
                 another
                 Tenement
                 ;
                 for
                 Liberty
                 and
                 Servitude
                 are
                 contraries
                 ,
                 and
                 the
                 abatement
                 of
                 the
                 one
                 ,
                 is
                 the
                 beeing
                 or
                 inlargement
                 of
                 the
                 other
                 .
              
               
                 Servitudes
                 ,
                 in
                 respect
                 of
                 the
                 subject
                 matter
                 ,
                 are
                 either
                 in
                 reference
                 to
                 City-Tenements
                 ,
                 such
                 as
                 houses
                 for
                 Habitation
                 ,
                 not
                 for
                 the
                 use
                 of
                 Agriculture
                 or
                 Pasturage
                 ,
                 whether
                 they
                 be
                 in
                 Towns
                 or
                 Villages
                 ,
                 or
                 not
                 :
                 And
                 in
                 Countrey-Tenements
                 ,
                 such
                 as
                 Fields
                 and
                 Grounds
                 ,
                 and
                 all
                 houses
                 for
                 the
                 use
                 thereof
                 ,
                 as
                 Stables
                 ,
                 Barns
                 ,
                 Byers
                 ,
                 Kilns
                 ,
                 wheresoever
                 situate
                 in
                 Town
                 or
                 Countrey
                 .
              
               
                 Servitudes
                 upon
                 City-tenements
                 are
                 very
                 many
                 ,
                 whereof
                 we
                 shall
                 point
                 at
                 the
                 prime
                 ;
                 They
                 are
                 either
                 positive
                 or
                 negative
                 .
                 A
                 positive
                 Servitude
                 is
                 that
                 ,
                 whereby
                 the
                 servient
                 Tenement
                 is
                 not
                 only
                 restrained
                 of
                 its
                 liberty
                 ,
                 but
                 is
                 constrained
                 to
                 suffer
                 some
                 things
                 to
                 be
                 done
                 to
                 the
                 behove
                 of
                 the
                 dominant
                 Tenement
                 ,
                 contrary
                 to
                 its
                 Liberty
                 .
                 Negative
                 Servitude
                 is
                 ,
                 whereby
                 the
                 freedom
                 of
                 the
                 servient
                 Tenement
                 is
                 only
                 restrained
                 .
              
               
                 6.
                 
                 The
                 prime
                 positive
                 Servitude
                 of
                 City-tenements
                 is
                 ,
                 the
                 Servitude
                 of
                 support
                 ,
                 whereby
                 the
                 servient
                 Tenement
                 is
                 lyable
                 to
                 bear
                 any
                 burden
                 for
                 the
                 use
                 of
                 the
                 dominant
                 ;
                 and
                 that
                 either
                 by
                 laying
                 on
                 the
                 weight
                 upon
                 its
                 walls
                 ,
                 or
                 other
                 parts
                 thereof
                 ;
                 or
                 by
                 putting
                 in
                 Jeests
                 or
                 other
                 means
                 of
                 support
                 in
                 the
                 walls
                 of
                 the
                 same
                 ,
                 which
                 the
                 Romans
                 called
                 
                   servitutem
                   tigni
                   immissi
                
                 ;
                 or
                 otherwayes
                 ,
                 this
                 Servitude
                 may
                 be
                 ,
                 by
                 bearing
                 the
                 pressure
                 or
                 putt
                 of
                 any
                 
                 Building
                 for
                 the
                 use
                 of
                 the
                 dominant
                 Tenement
                 ,
                 as
                 of
                 a
                 Vault
                 or
                 Pend
                 ,
                 or
                 the
                 like
                 :
                 Such
                 is
                 the
                 servitude
                 of
                 Superstructure
                 ,
                 whereby
                 any
                 Building
                 may
                 be
                 built
                 upon
                 the
                 servient
                 Tenement
                 ;
                 like
                 unto
                 which
                 is
                 now
                 frequent
                 in
                 Edinburgh
                 ,
                 when
                 one
                 Tenement
                 is
                 built
                 above
                 another
                 at
                 divers
                 times
                 ;
                 or
                 divers
                 Stories
                 or
                 Contignations
                 of
                 the
                 same
                 Tenement
                 ,
                 are
                 bought
                 by
                 divers
                 Proprietars
                 ,
                 and
                 thereby
                 the
                 upper
                 becomes
                 a
                 distinct
                 Tenement
                 ,
                 and
                 hath
                 a
                 Servitude
                 upon
                 the
                 lower
                 Tenements
                 ,
                 whereby
                 they
                 must
                 support
                 it
                 .
              
               
                 The
                 question
                 useth
                 to
                 be
                 moved
                 here
                 ,
                 Whether
                 the
                 owner
                 of
                 the
                 servient
                 Tenement
                 be
                 oblieged
                 to
                 uphold
                 or
                 repair
                 his
                 Tenement
                 ,
                 that
                 it
                 may
                 be
                 sufficient
                 to
                 support
                 the
                 dominant
                 Tenement
                 .
                 There
                 are
                 opinions
                 of
                 the
                 learned
                 and
                 probable
                 reasons
                 upon
                 both
                 parts
                 ;
                 for
                 the
                 affirmative
                 maketh
                 the
                 common
                 rule
                 ,
                 that
                 when
                 any
                 thing
                 is
                 granted
                 ,
                 all
                 things
                 are
                 understood
                 to
                 be
                 granted
                 therewith
                 that
                 are
                 necessary
                 thereto
                 :
                 So
                 he
                 who
                 constituteth
                 upon
                 his
                 Tenement
                 ,
                 a
                 Servitude
                 of
                 support
                 ,
                 must
                 make
                 it
                 effectual
                 .
                 And
                 for
                 the
                 negative
                 ,
                 Servitudes
                 are
                 odious
                 ,
                 and
                 not
                 to
                 be
                 extended
                 beyond
                 what
                 is
                 expresly
                 granted
                 or
                 accustomed
                 ,
                 to
                 which
                 we
                 incline
                 ;
                 and
                 therefore
                 ,
                 it
                 would
                 be
                 adverted
                 how
                 the
                 Servitude
                 is
                 constitute
                 ,
                 that
                 if
                 it
                 appear
                 ,
                 the
                 Constituent
                 hath
                 granted
                 this
                 Servitude
                 ,
                 so
                 as
                 to
                 uphold
                 it
                 ;
                 or
                 if
                 by
                 custom
                 ,
                 he
                 hath
                 been
                 made
                 to
                 uphold
                 it
                 ,
                 not
                 upon
                 the
                 account
                 of
                 his
                 own
                 Tenement
                 ,
                 but
                 of
                 the
                 dominant
                 ,
                 he
                 must
                 so
                 continue
                 ;
                 and
                 it
                 is
                 not
                 only
                 a
                 personal
                 obligation
                 ,
                 but
                 a
                 part
                 of
                 the
                 Servitude
                 passing
                 with
                 the
                 servient
                 Tenement
                 ,
                 even
                 to
                 singular
                 Successors
                 :
                 But
                 if
                 it
                 appear
                 not
                 so
                 constitute
                 ,
                 it
                 will
                 import
                 no
                 more
                 then
                 a
                 Tolerance
                 ,
                 to
                 lay
                 on
                 or
                 impute
                 the
                 burden
                 of
                 the
                 dominant
                 Tenement
                 upon
                 the
                 servient
                 ,
                 which
                 therefore
                 the
                 owner
                 of
                 the
                 servient
                 neither
                 can
                 hinder
                 nor
                 prejudge
                 ;
                 but
                 he
                 is
                 not
                 oblieged
                 to
                 do
                 any
                 positive
                 deed
                 ,
                 by
                 reparation
                 of
                 his
                 own
                 Tenement
                 ,
                 to
                 that
                 purpose
                 ,
                 but
                 the
                 owner
                 of
                 the
                 dominant
                 Tenement
                 hath
                 right
                 to
                 repair
                 it
                 for
                 his
                 own
                 use
                 ,
                 by
                 reason
                 of
                 his
                 Servitude
                 ,
                 and
                 the
                 owner
                 of
                 the
                 servient
                 Tenement
                 cannot
                 hinder
                 it
                 ;
                 yet
                 in
                 what
                 he
                 thereby
                 advantageth
                 the
                 servient
                 Tenement
                 ,
                 he
                 hath
                 upon
                 the
                 owner
                 thereof
                 the
                 obligation
                 of
                 recompence
                 ,
                 
                   in
                   quantum
                   lucratus
                
                 .
              
               
                 If
                 it
                 be
                 objected
                 ,
                 that
                 within
                 Burgh
                 ,
                 the
                 owners
                 of
                 the
                 inferiour
                 and
                 supporting
                 Tenements
                 are
                 oblieged
                 to
                 repair
                 for
                 the
                 behove
                 of
                 the
                 superiour
                 Tenements
                 ,
                 the
                 owners
                 whereof
                 may
                 legally
                 inforce
                 Reparation
                 ;
                 yet
                 ,
                 it
                 inferreth
                 not
                 this
                 to
                 be
                 the
                 nature
                 of
                 the
                 Servitude
                 ,
                 but
                 a
                 positive
                 Statute
                 or
                 Custom
                 of
                 the
                 Burgh
                 for
                 the
                 publick
                 good
                 thereof
                 ,
                 which
                 is
                 concerned
                 in
                 upholding
                 Tenements
                 .
                 But
                 mainly
                 ,
                 the
                 reason
                 of
                 it
                 is
                 ,
                 because
                 when
                 divers
                 owners
                 have
                 parts
                 of
                 the
                 same
                 Tenement
                 ,
                 it
                 cannot
                 be
                 said
                 to
                 be
                 a
                 perfect
                 division
                 ,
                 because
                 the
                 Roof
                 remaineth
                 Roof
                 to
                 both
                 ,
                 and
                 the
                 Ground
                 supporteth
                 both
                 ;
                 and
                 therefore
                 ,
                 by
                 the
                 nature
                 of
                 communion
                 ,
                 there
                 are
                 mutual
                 obligations
                 upon
                 both
                 ,
                 viz.
                 That
                 the
                 owner
                 of
                 the
                 lower
                 Tenement
                 must
                 uphold
                 his
                 Tenement
                 as
                 a
                 Foundation
                 to
                 the
                 upper
                 ,
                 and
                 the
                 owner
                 of
                 the
                 upper
                 Tenement
                 must
                 uphold
                 his
                 Tenement
                 ,
                 as
                 a
                 Roof
                 and
                 Cover
                 to
                 the
                 lower
                 :
                 Both
                 which
                 ,
                 though
                 they
                 have
                 the
                 resemblance
                 of
                 Servitudes
                 ,
                 and
                 pass
                 with
                 the
                 thing
                 to
                 singular
                 Successors
                 ;
                 yet
                 they
                 are
                 rather
                 personal
                 obligations
                 ,
                 such
                 as
                 pass
                 in
                 communion
                 even
                 to
                 singular
                 Successors
                 of
                 either
                 party
                 .
              
               
                 7.
                 
                 The
                 next
                 positive
                 City-servitude
                 is
                 ,
                 of
                 Stillicides
                 or
                 Sinks
                 :
                 Stillicide
                 is
                 the
                 easing-drop
                 which
                 falleth
                 off
                 any
                 house
                 or
                 building
                 ,
                 or
                 the
                 rain
                 turned
                 off
                 a
                 Tenement
                 either
                 by
                 dropping
                 or
                 by
                 spout
                 ;
                 concerning
                 which
                 ,
                 consider
                 what
                 may
                 be
                 done
                 freely
                 without
                 any
                 Servitude
                 ;
                 for
                 thereby
                 it
                 will
                 easily
                 appear
                 ,
                 what
                 Servitudes
                 are
                 competent
                 herein
                 .
                 The
                 
                 main
                 question
                 is
                 ,
                 Whether
                 the
                 owner
                 of
                 any
                 Ground
                 may
                 build
                 Houses
                 or
                 Buildings
                 closs
                 to
                 the
                 march
                 of
                 his
                 own
                 Ground
                 ,
                 whereby
                 his
                 easing-drop
                 will
                 fall
                 upon
                 his
                 neighbours
                 Ground
                 ,
                 or
                 if
                 by
                 spout
                 ,
                 he
                 may
                 make
                 the
                 rain
                 that
                 falls
                 upon
                 his
                 own
                 Tenement
                 ,
                 run
                 over
                 upon
                 his
                 neighbours
                 .
                 And
                 though
                 it
                 may
                 appear
                 from
                 that
                 common
                 rule
                 ,
                 
                   Cujus
                   est
                   solum
                   ,
                   ejus
                   est
                   usque
                   ad
                   Coelum
                   ,
                
                 that
                 thereby
                 the
                 owner
                 may
                 build
                 upon
                 any
                 part
                 of
                 his
                 own
                 Ground
                 what
                 he
                 will
                 ,
                 even
                 though
                 it
                 be
                 to
                 the
                 detriment
                 of
                 his
                 neighbours
                 prospect
                 or
                 light
                 :
                 yet
                 ,
                 no
                 man
                 may
                 dispose
                 so
                 upon
                 his
                 own
                 Ground
                 ,
                 as
                 to
                 put
                 any
                 positive
                 prejudice
                 ,
                 hurt
                 or
                 damnage
                 upon
                 his
                 neighbours
                 ;
                 as
                 if
                 he
                 should
                 alter
                 the
                 course
                 of
                 any
                 River
                 or
                 Water
                 ,
                 running
                 within
                 his
                 own
                 Ground
                 ,
                 so
                 that
                 it
                 cause
                 an
                 alteration
                 thereof
                 in
                 his
                 neighbours
                 Ground
                 ,
                 or
                 by
                 damming
                 of
                 the
                 water
                 ,
                 make
                 it
                 run
                 upon
                 his
                 neighbours
                 :
                 And
                 therefore
                 ,
                 he
                 may
                 not
                 so
                 build
                 upon
                 his
                 own
                 ground
                 ,
                 as
                 by
                 gathering
                 the
                 water
                 from
                 its
                 natural
                 way
                 ,
                 he
                 should
                 make
                 it
                 fall
                 together
                 upon
                 his
                 neighbours
                 ground
                 ;
                 otherwayes
                 ,
                 any
                 neighbour
                 might
                 take
                 away
                 both
                 the
                 Profit
                 and
                 the
                 Pleasure
                 of
                 his
                 neighbours
                 Tenement
                 ,
                 or
                 closs
                 ,
                 by
                 Spouts
                 or
                 Kennels
                 carrying
                 in
                 the
                 rain
                 water
                 thereupon
                 in
                 abundance
                 .
                 And
                 albeit
                 it
                 be
                 not
                 so
                 palpable
                 in
                 the
                 Easing-drop
                 as
                 in
                 Spouts
                 ,
                 what
                 the
                 neighbours
                 detriment
                 may
                 be
                 ,
                 yet
                 the
                 very
                 Roof
                 of
                 the
                 house
                 is
                 a
                 considerable
                 gathering
                 of
                 the
                 water
                 :
                 and
                 therefore
                 ,
                 every
                 man
                 ought
                 so
                 to
                 build
                 ,
                 as
                 that
                 the
                 drops
                 of
                 the
                 building
                 may
                 fall
                 upon
                 his
                 own
                 Ground
                 ,
                 which
                 commonly
                 in
                 neighbourhood
                 is
                 counted
                 two
                 foot
                 and
                 a
                 half
                 within
                 the
                 Marches
                 ,
                 according
                 to
                 the
                 ancient
                 Roman
                 custom
                 ,
                 
                   auctore
                   Marciano
                
                 .
                 If
                 it
                 were
                 not
                 so
                 ,
                 but
                 that
                 the
                 first
                 builder
                 might
                 build
                 to
                 his
                 March
                 ,
                 no
                 question
                 the
                 second
                 might
                 do
                 the
                 like
                 ;
                 and
                 so
                 there
                 should
                 be
                 no
                 way
                 to
                 convey
                 the
                 drop
                 ,
                 without
                 much
                 detriment
                 to
                 both
                 .
                 And
                 though
                 either
                 might
                 ,
                 by
                 a
                 Spout
                 ,
                 keep
                 the
                 water
                 from
                 falling
                 upon
                 his
                 neighbours
                 ground
                 ;
                 yet
                 ,
                 that
                 Spout
                 might
                 fail
                 ,
                 and
                 at
                 least
                 his
                 neighbonr
                 be
                 put
                 to
                 the
                 trouble
                 of
                 an
                 Action
                 ,
                 to
                 cause
                 him
                 keep
                 it
                 right
                 ,
                 which
                 his
                 neighbour
                 cannot
                 inforce
                 upon
                 him
                 .
                 But
                 ,
                 as
                 the
                 Romans
                 account
                 it
                 as
                 a
                 delinquence
                 ,
                 &
                 
                   damnum
                   infectum
                
                 ,
                 as
                 a
                 damage
                 like
                 to
                 befall
                 ,
                 though
                 not
                 befalling
                 when
                 any
                 thing
                 was
                 built
                 ,
                 to
                 hang
                 over
                 the
                 high
                 way
                 ,
                 or
                 whereby
                 a
                 neighbour
                 might
                 have
                 probable
                 damage
                 :
                 and
                 therefore
                 ,
                 either
                 caused
                 the
                 doer
                 to
                 demolish
                 it
                 ,
                 or
                 to
                 find
                 Caution
                 not
                 to
                 damnifie
                 his
                 neighbour
                 :
                 So
                 from
                 that
                 same
                 ground
                 of
                 equity
                 and
                 expediencie
                 ,
                 it
                 ought
                 to
                 be
                 in
                 this
                 case
                 .
                 There
                 is
                 an
                 exception
                 here
                 of
                 Towns
                 and
                 Villages
                 ,
                 which
                 for
                 common
                 conveniency
                 ,
                 do
                 allow
                 Houses
                 to
                 be
                 built
                 closs
                 together
                 ,
                 which
                 is
                 tacitly
                 imported
                 in
                 the
                 incorporation
                 of
                 Towns
                 ,
                 or
                 union
                 of
                 Villages
                 ,
                 in
                 which
                 ,
                 the
                 custom
                 of
                 the
                 place
                 must
                 be
                 the
                 rule
                 .
              
               
                 8.
                 
                 What
                 hath
                 been
                 said
                 of
                 Stillicides
                 ,
                 holdeth
                 more
                 apparently
                 in
                 Sinks
                 ,
                 either
                 for
                 conveying
                 of
                 water-filth
                 ,
                 or
                 any
                 thing
                 else
                 ,
                 upon
                 or
                 thorow
                 the
                 neighbours
                 Tenements
                 ,
                 which
                 cannot
                 be
                 done
                 ,
                 unless
                 there
                 be
                 a
                 Servitude
                 thereupon
                 either
                 by
                 consent
                 or
                 prescription
                 .
              
               
                 9.
                 
                 Negative
                 Urbane
                 Servitudes
                 ,
                 do
                 chiefly
                 concern
                 the
                 light
                 view
                 or
                 prospect
                 of
                 Tenements
                 ;
                 for
                 the
                 owner
                 of
                 every
                 Ground
                 may
                 build
                 thereupon
                 at
                 his
                 displeasure
                 ,
                 though
                 thereby
                 he
                 hinder
                 the
                 view
                 and
                 prospect
                 from
                 his
                 neighbours
                 Tenement
                 ,
                 or
                 the
                 coming
                 of
                 the
                 Sun-beams
                 or
                 light
                 thereto
                 ,
                 which
                 being
                 but
                 in
                 relation
                 to
                 the
                 extrinsick
                 benefite
                 of
                 that
                 which
                 is
                 not
                 in
                 ,
                 but
                 without
                 the
                 Tenement
                 ,
                 is
                 not
                 accounted
                 a
                 positive
                 damage
                 ,
                 from
                 which
                 the
                 owners
                 of
                 neighbouring
                 Tenements
                 must
                 abstain
                 ,
                 as
                 in
                 the
                 case
                 of
                 Stillicides
                 and
                 Sinks
                 ,
                 and
                 so
                 much
                 the
                 rather
                 ;
                 for
                 common
                 utility
                 would
                 be
                 highly
                 impaired
                 ,
                 if
                 the
                 first
                 builder
                 might
                 hinder
                 his
                 neighbour
                 to
                 build
                 upon
                 his
                 own
                 
                 Ground
                 ,
                 upon
                 pretence
                 that
                 thereby
                 his
                 light
                 or
                 prospect
                 were
                 hindred
                 ;
                 So
                 that
                 it
                 is
                 free
                 for
                 the
                 owner
                 to
                 build
                 what
                 he
                 will
                 ,
                 though
                 thereby
                 he
                 darken
                 his
                 neighbours
                 Tenement
                 .
                 For
                 helping
                 the
                 inconveniency
                 that
                 may
                 ensue
                 by
                 this
                 liberty
                 of
                 building
                 ,
                 two
                 Servitudes
                 use
                 to
                 be
                 introduced
                 ,
                 both
                 restraining
                 the
                 owners
                 liberty
                 ;
                 the
                 one
                 is
                 ,
                 by
                 giving
                 light
                 or
                 prospect
                 to
                 the
                 dominant
                 Tenement
                 ,
                 whereby
                 the
                 building
                 upon
                 the
                 servient
                 Tenement
                 may
                 neither
                 be
                 lifted
                 higher
                 ,
                 nor
                 any
                 building
                 where
                 there
                 are
                 none
                 ,
                 or
                 any
                 Window
                 or
                 In-let
                 ,
                 whereby
                 there
                 may
                 be
                 prospect
                 from
                 the
                 dominant
                 Tenement
                 to
                 ,
                 or
                 through
                 the
                 servient
                 ,
                 may
                 be
                 marred
                 or
                 altered
                 :
                 the
                 other
                 is
                 ,
                 whereby
                 the
                 prospect
                 or
                 view
                 of
                 the
                 servient
                 Tenement
                 is
                 restrained
                 ,
                 in
                 that
                 there
                 may
                 be
                 no
                 building
                 thereupon
                 ,
                 or
                 Windows
                 opened
                 therein
                 ,
                 which
                 may
                 look
                 to
                 the
                 House
                 ,
                 Closs
                 or
                 Garden
                 of
                 the
                 dominant
                 Tenement
                 .
              
               
                 These
                 Servitudes
                 of
                 light
                 or
                 prospect
                 cannot
                 be
                 introduced
                 by
                 the
                 injoyment
                 and
                 use
                 thereof
                 ,
                 though
                 time
                 out
                 of
                 minde
                 :
                 but
                 there
                 must
                 be
                 either
                 consent
                 or
                 prescription
                 ,
                 by
                 hindering
                 the
                 owner
                 of
                 the
                 servient
                 Tenement
                 to
                 use
                 his
                 freedom
                 ;
                 for
                 the
                 first
                 builder
                 ,
                 though
                 he
                 have
                 light
                 or
                 view
                 for
                 an
                 hundred
                 years
                 through
                 his
                 neighbours
                 ground
                 ,
                 doth
                 not
                 thereby
                 nut
                 a
                 Servitude
                 upon
                 his
                 neighbour
                 ;
                 but
                 if
                 he
                 have
                 been
                 in
                 use
                 to
                 hinder
                 his
                 neighbour
                 to
                 take
                 away
                 that
                 prospect
                 in
                 any
                 lawful
                 way
                 ,
                 by
                 reiterat
                 acts
                 during
                 the
                 time
                 of
                 prescription
                 .
                 And
                 therefore
                 ,
                 though
                 two
                 Purchasers
                 bought
                 Houses
                 from
                 the
                 same
                 Owner
                 ,
                 neither
                 of
                 them
                 was
                 found
                 to
                 be
                 astricted
                 not
                 to
                 build
                 as
                 high
                 as
                 they
                 pleased
                 ,
                 albeit
                 to
                 the
                 prejudice
                 of
                 the
                 light
                 and
                 view
                 of
                 the
                 other
                 ,
                 Hope
                 Servitudes
                 ,
                 Somervel
                 contra
                 Somervel
                 .
              
               
                 The
                 Predial
                 or
                 Countrey
                 Servitudes
                 ,
                 whereby
                 one
                 Ground
                 or
                 Field
                 is
                 subservient
                 to
                 another
                 ,
                 may
                 be
                 as
                 manifold
                 as
                 the
                 free
                 use
                 of
                 the
                 one
                 may
                 be
                 restrained
                 or
                 impaired
                 ,
                 for
                 the
                 profite
                 or
                 pleasure
                 of
                 the
                 other
                 ;
                 the
                 chief
                 of
                 which
                 in
                 use
                 with
                 us
                 are
                 Wayes
                 ,
                 Watering
                 ,
                 Watergangs
                 ,
                 Fewelling
                 ,
                 Pasturage
                 ,
                 Thirlage
                 .
              
               
                 10.
                 
                 Wayes
                 are
                 a
                 part
                 of
                 the
                 reservation
                 from
                 Property
                 ,
                 and
                 the
                 necessary
                 vestige
                 of
                 the
                 ancient
                 community
                 of
                 the
                 earth
                 :
                 Of
                 which
                 before
                 ,
                 Tit.
                 12.
                 
                 §
                 16.
                 and
                 ,
                 which
                 are
                 understood
                 as
                 the
                 common
                 pertinents
                 of
                 all
                 grounds
                 ,
                 free
                 Ish
                 and
                 Entry
                 are
                 implyed
                 in
                 the
                 very
                 right
                 of
                 Property
                 ,
                 though
                 not
                 exprest
                 :
                 but
                 that
                 doth
                 not
                 infer
                 Wayes
                 or
                 Passages
                 from
                 every
                 part
                 of
                 the
                 dominant
                 Ground
                 ,
                 thorow
                 every
                 part
                 of
                 the
                 servient
                 ,
                 which
                 would
                 make
                 both
                 unprofitable
                 ,
                 but
                 it
                 must
                 be
                 in
                 the
                 way
                 ,
                 lest
                 hurtful
                 to
                 either
                 .
                 And
                 now
                 by
                 long
                 custom
                 it
                 is
                 every
                 where
                 determined
                 ,
                 and
                 can
                 be
                 no
                 further
                 claimed
                 ,
                 then
                 according
                 to
                 ancient
                 custom
                 :
                 and
                 it
                 is
                 a
                 necessary
                 effect
                 of
                 Property
                 ,
                 rather
                 then
                 a
                 Servitude
                 ,
                 seing
                 it
                 is
                 mutual
                 and
                 equal
                 to
                 either
                 ground
                 ,
                 whereof
                 the
                 one
                 cannot
                 be
                 called
                 dominant
                 and
                 the
                 other
                 servient
                 ,
                 untill
                 custom
                 or
                 consent
                 have
                 so
                 determined
                 ,
                 that
                 the
                 wayes
                 which
                 are
                 constitute
                 are
                 more
                 profitable
                 to
                 one
                 Tenement
                 ,
                 and
                 more
                 burdensom
                 to
                 another
                 ,
                 whereby
                 this
                 becometh
                 the
                 servient
                 ,
                 and
                 that
                 the
                 dominant
                 .
              
               
                 Wayes
                 are
                 distinguished
                 by
                 the
                 Romans
                 ,
                 according
                 to
                 the
                 measure
                 or
                 burdensomness
                 of
                 them
                 in
                 three
                 kindes
                 :
                 The
                 first
                 and
                 least
                 is
                 ,
                 a
                 Road
                 for
                 a
                 man
                 to
                 walk
                 or
                 ride
                 by
                 ,
                 which
                 they
                 call
                 Iter
                 ;
                 the
                 second
                 called
                 Actus
                 ,
                 is
                 a
                 way
                 for
                 Carts
                 ;
                 the
                 third
                 which
                 retaineth
                 the
                 common
                 name
                 ,
                 is
                 ,
                 whereby
                 droves
                 may
                 pass
                 .
                 Of
                 these
                 ,
                 the
                 greater
                 comprehends
                 the
                 lesser
                 ;
                 our
                 custom
                 sticketh
                 not
                 to
                 this
                 distinction
                 ,
                 but
                 measureth
                 the
                 way
                 according
                 to
                 the
                 end
                 for
                 which
                 it
                 was
                 constitute
                 ,
                 and
                 by
                 the
                 use
                 for
                 which
                 it
                 was
                 introduced
                 ,
                 as
                 having
                 only
                 a
                 
                 Foot-road
                 ,
                 or
                 only
                 a
                 way
                 for
                 leading
                 of
                 Loads
                 upon
                 Horse-back
                 ,
                 or
                 a
                 way
                 for
                 leading
                 of
                 Carts
                 ,
                 or
                 a
                 way
                 for
                 driving
                 of
                 Cattel
                 ;
                 It
                 is
                 observed
                 accordingly
                 .
                 There
                 is
                 another
                 Distinction
                 of
                 Ways
                 amongst
                 the
                 Romans
                 ;
                 and
                 with
                 us
                 ,
                 in
                 publick
                 and
                 private
                 Ways
                 ;
                 publick
                 Ways
                 are
                 these
                 which
                 are
                 constitute
                 for
                 publick
                 use
                 ,
                 and
                 which
                 go
                 from
                 one
                 publick
                 place
                 to
                 another
                 ,
                 as
                 from
                 one
                 Burgh
                 to
                 another
                 ;
                 or
                 from
                 a
                 Burgh
                 to
                 a
                 publick
                 Port
                 ;
                 This
                 is
                 called
                 a
                 a
                 High-way
                 ,
                 And
                 by
                 the
                 Romans
                 ,
                 an
                 Imperial
                 or
                 Pretorian
                 way
                 :
                 And
                 with
                 us
                 ,
                 the
                 Kings
                 High-way
                 ,
                 for
                 preservation
                 whereof
                 ,
                 there
                 are
                 express
                 Statutes
                 ,
                 Parliament
                 1555.
                 cap.
                 53.
                 
                 Par.
                 1592.
                 cap.
                 156.
                 
                 And
                 this
                 is
                 patent
                 to
                 all
                 the
                 Leidges
                 ,
                 without
                 respect
                 to
                 any
                 Land
                 ,
                 yea
                 and
                 to
                 all
                 Strangers
                 having
                 freedom
                 of
                 Traffick
                 .
              
               
                 Privat
                 Ways
                 are
                 these
                 which
                 are
                 Constitute
                 by
                 privat
                 Parties
                 ,
                 for
                 private
                 use
                 ,
                 whereof
                 both
                 are
                 ,
                 or
                 at
                 least
                 one
                 end
                 is
                 to
                 a
                 private
                 place
                 ,
                 and
                 is
                 a
                 proper
                 Servitude
                 to
                 the
                 use
                 of
                 that
                 place
                 for
                 which
                 it
                 is
                 Constitute
                 ;
                 So
                 a
                 Way
                 ,
                 the
                 one
                 end
                 whereof
                 is
                 at
                 a
                 publick
                 Place
                 ;
                 may
                 be
                 a
                 privat
                 way
                 ,
                 if
                 the
                 other
                 end
                 thereof
                 be
                 from
                 ,
                 or
                 for
                 the
                 use
                 of
                 a
                 private
                 place
                 ;
                 as
                 a
                 Way
                 from
                 a
                 privat
                 place
                 to
                 a
                 City
                 or
                 Church
                 ,
                 which
                 doth
                 not
                 fall
                 in
                 to
                 any
                 publick
                 Way
                 ;
                 for
                 in
                 so
                 far
                 it
                 remaineth
                 private
                 ,
                 and
                 cannot
                 be
                 made
                 use
                 of
                 ,
                 but
                 for
                 the
                 behove
                 of
                 the
                 place
                 or
                 ground
                 from
                 which
                 it
                 comes
                 ;
                 but
                 it
                 is
                 not
                 the
                 largeness
                 or
                 latitude
                 of
                 the
                 Way
                 ,
                 that
                 makes
                 a
                 publick
                 or
                 private
                 Way
                 :
                 For
                 a
                 private
                 Way
                 may
                 be
                 as
                 large
                 as
                 a
                 publick
                 .
                 Private
                 Ways
                 are
                 Constitute
                 as
                 other
                 Servitudes
                 by
                 Prescription
                 ,
                 by
                 going
                 and
                 coming
                 that
                 way
                 uninterrupted
                 ,
                 time
                 out
                 of
                 minde
                 ,
                 or
                 fourty
                 years
                 without
                 Write
                 ,
                 or
                 any
                 other
                 Right
                 .
              
               
                 Private
                 parties
                 may
                 repair
                 these
                 Ways
                 becoming
                 difficult
                 ;
                 so
                 an
                 Heretor
                 having
                 a
                 Way
                 to
                 the
                 Kirk
                 ,
                 and
                 to
                 a
                 Royal
                 Burgh
                 ,
                 at
                 a
                 Foord
                 where
                 there
                 was
                 an
                 old
                 Bridge
                 ,
                 was
                 found
                 (
                 the
                 Foord
                 becoming
                 difficult
                 )
                 to
                 have
                 right
                 to
                 rebuild
                 the
                 Bridge
                 ,
                 though
                 the
                 one
                 end
                 of
                 it
                 was
                 but
                 upon
                 his
                 Land
                 ,
                 and
                 the
                 other
                 end
                 upon
                 his
                 neighbours
                 who
                 withstood
                 it
                 ,
                 
                   Nicol.
                   de
                   servitudibus
                
                 ,
                 Sir
                 
                   James
                   Cleiland
                   contra
                   Cleiland
                
                 .
              
               
                 11.
                 
                 Watering
                 is
                 a
                 Servitude
                 of
                 taking
                 water
                 ,
                 proper
                 to
                 one
                 Ground
                 for
                 the
                 use
                 of
                 another
                 ,
                 whether
                 it
                 be
                 for
                 the
                 Cattel
                 of
                 the
                 dominant
                 Ground
                 ,
                 which
                 is
                 most
                 ordinary
                 ,
                 or
                 for
                 other
                 uses
                 thereof
                 ,
                 and
                 it
                 doth
                 ordinarly
                 carry
                 ,
                 a
                 way
                 for
                 these
                 Cattel
                 to
                 come
                 to
                 that
                 Water
                 thorow
                 the
                 Servient
                 Ground
                 ;
                 but
                 if
                 it
                 be
                 only
                 a
                 Way
                 to
                 publick
                 Water
                 in
                 Rivers
                 or
                 publick
                 Lochs
                 ,
                 it
                 differeth
                 nothing
                 from
                 the
                 Servitude
                 of
                 a
                 Way
                 ,
                 unless
                 with
                 the
                 Way
                 ,
                 there
                 be
                 also
                 the
                 making
                 use
                 of
                 the
                 private
                 Water
                 in
                 the
                 Fountains
                 ,
                 Ponds
                 ,
                 or
                 other
                 places
                 proper
                 to
                 the
                 servient
                 Ground
                 .
              
               
                 12.
                 
                 A
                 Watergang
                 is
                 a
                 Servitude
                 ,
                 of
                 conveying
                 Water
                 thorow
                 the
                 servient
                 Ground
                 ,
                 for
                 the
                 use
                 of
                 the
                 Dominant
                 ;
                 and
                 if
                 the
                 Water
                 be
                 proper
                 ,
                 and
                 belong
                 to
                 the
                 Servient
                 Ground
                 ,
                 the
                 Servitude
                 is
                 the
                 greater
                 ,
                 but
                 hath
                 no
                 different
                 name
                 ;
                 such
                 are
                 the
                 Aquaeducts
                 to
                 Milns
                 and
                 other
                 uses
                 ;
                 for
                 without
                 such
                 a
                 Servitude
                 ,
                 Water
                 may
                 not
                 be
                 altered
                 or
                 diverted
                 from
                 its
                 course
                 ,
                 as
                 was
                 found
                 ,
                 where
                 the
                 Water-course
                 was
                 the
                 March
                 betwixt
                 the
                 Heretors
                 ,
                 that
                 the
                 one
                 could
                 not
                 change
                 its
                 old
                 Channel
                 (
                 though
                 it
                 returned
                 thereto
                 again
                 )
                 without
                 consent
                 of
                 the
                 other
                 ,
                 though
                 he
                 alledged
                 no
                 prejudice
                 ,
                 but
                 the
                 want
                 of
                 the
                 pleasure
                 of
                 the
                 Water
                 ,
                 and
                 Fishing
                 of
                 Trouts
                 ,
                 and
                 that
                 thereafter
                 he
                 might
                 make
                 use
                 of
                 it
                 upon
                 his
                 side
                 ,
                 June
                 25.
                 1624.
                 
                 
                   Ballantine
                   contra
                   Cranstoun
                
                 .
                 It
                 was
                 also
                 found
                 ,
                 that
                 an
                 Heretor
                 might
                 not
                 divert
                 the
                 Water
                 from
                 
                 its
                 own
                 course
                 upon
                 his
                 own
                 Ground
                 ,
                 to
                 the
                 prejudice
                 of
                 others
                 having
                 the
                 right
                 of
                 Fishing
                 therein
                 ,
                 
                   Hope
                   ,
                   de
                   actionibus
                   in
                   factum
                   ,
                
                 Bairdie
                 contra
                 Stonehouse
                 .
              
               
                 13.
                 
                 Feweling
                 is
                 a
                 Servitude
                 of
                 suffering
                 Fewel
                 to
                 be
                 taken
                 from
                 the
                 servient
                 Ground
                 for
                 the
                 use
                 of
                 the
                 Dominant
                 and
                 Inhabitants
                 thereof
                 .
                 And
                 it
                 is
                 ordinarly
                 in
                 Peats
                 ,
                 Turffs
                 and
                 Heather
                 ;
                 and
                 it
                 doth
                 necessarly
                 import
                 Fields
                 to
                 win
                 the
                 Feuel
                 upon
                 ,
                 and
                 a
                 way
                 to
                 bring
                 it
                 away
                 ,
                 though
                 these
                 be
                 not
                 exprest
                 .
                 This
                 Servitude
                 is
                 sometimes
                 Constitute
                 indefinitely
                 upon
                 a
                 whole
                 Moss
                 or
                 Muire
                 ,
                 and
                 sometimes
                 upon
                 a
                 particular
                 place
                 thereof
                 ,
                 and
                 accordingly
                 it
                 is
                 to
                 be
                 regulate
                 by
                 the
                 consent
                 or
                 custom
                 which
                 did
                 Constitute
                 it
                 .
                 The
                 like
                 is
                 in
                 the
                 Way
                 for
                 carrying
                 the
                 Feuel
                 ,
                 which
                 sometimes
                 is
                 a
                 Cart-way
                 ,
                 sometimes
                 only
                 a
                 Load-way
                 .
              
               
                 Feweling
                 is
                 presumed
                 to
                 be
                 comprehended
                 under
                 Pasturage
                 ,
                 though
                 not
                 exprest
                 ;
                 as
                 the
                 Minor
                 Servitudes
                 are
                 involved
                 in
                 the
                 Major
                 ,
                 yet
                 this
                 presumption
                 is
                 taken
                 off
                 by
                 contrary
                 Custom
                 ,
                 or
                 express
                 paction
                 ,
                 for
                 they
                 are
                 not
                 inseparable
                 ,
                 
                   asiter
                   &
                   actus
                
                 ,
                 are
                 under
                 via
                 ,
                 there
                 being
                 no
                 end
                 nor
                 Interest
                 to
                 hinder
                 a
                 man
                 to
                 go
                 or
                 ride
                 ,
                 where
                 a
                 Cart
                 or
                 Drove
                 doth
                 pass
                 ;
                 but
                 where
                 common
                 Pasturage
                 is
                 Constitute
                 ,
                 it
                 is
                 a
                 several
                 and
                 separable
                 Interest
                 to
                 break
                 the
                 ground
                 for
                 Fewel
                 ,
                 Feal
                 or
                 Divet
                 ,
                 which
                 in
                 so
                 far
                 exclude
                 the
                 other
                 party
                 ,
                 and
                 appropriats
                 that
                 part
                 of
                 the
                 Grassto
                 the
                 Feweler
                 ;
                 and
                 so
                 it
                 was
                 found
                 ,
                 that
                 a
                 Servitude
                 of
                 Pasturage
                 introduced
                 by
                 fourty
                 years
                 peaceable
                 Possession
                 of
                 the
                 Pasturage
                 ,
                 was
                 not
                 to
                 be
                 extended
                 to
                 Feal
                 and
                 Divet
                 ,
                 seing
                 the
                 Acquirer
                 was
                 interrupted
                 in
                 these
                 ,
                 February
                 15.
                 1668.
                 
                 Laird
                 of
                 
                   Hayning
                   contra
                
                 Town
                 of
                 Selkirk
                 .
                 And
                 where
                 the
                 Servitude
                 was
                 only
                 Constitute
                 for
                 Feal
                 ,
                 Divet
                 ,
                 Clay
                 and
                 Stone
                 ,
                 in
                 a
                 large
                 Muir
                 indefinitely
                 ,
                 it
                 was
                 not
                 found
                 to
                 hinder
                 the
                 Proprietar
                 to
                 rive
                 out
                 a
                 part
                 of
                 the
                 Muire
                 ,
                 leaving
                 enough
                 that
                 might
                 serve
                 that
                 Servitude
                 for
                 ever
                 unplewed
                 ,
                 and
                 with
                 condition
                 ,
                 that
                 if
                 that
                 sufficed
                 not
                 ,
                 more
                 of
                 the
                 Muire
                 should
                 be
                 left
                 Lee
                 again
                 ,
                 wherein
                 respect
                 was
                 had
                 to
                 the
                 publick
                 utility
                 of
                 making
                 a
                 large
                 Muire
                 to
                 be
                 profitable
                 ,
                 June
                 21.
                 1667.
                 
                 
                   John
                   Watson
                   contra
                
                 Feuers
                 of
                 Dunkennan
                 .
                 The
                 like
                 was
                 found
                 in
                 a
                 Servitude
                 of
                 Fewelling
                 upon
                 a
                 Muire
                 of
                 vast
                 bounds
                 ,
                 that
                 it
                 did
                 not
                 hinder
                 the
                 Proprietar
                 to
                 Plow
                 :
                 But
                 the
                 most
                 convenient
                 places
                 for
                 Fewelling
                 were
                 appointed
                 to
                 be
                 laid
                 aside
                 ,
                 as
                 they
                 were
                 adjacent
                 to
                 the
                 Dominant
                 Tenements
                 ,
                 so
                 that
                 they
                 might
                 be
                 secure
                 of
                 perpetual
                 Feweling
                 ,
                 which
                 the
                 proprietar
                 might
                 never
                 plow
                 ,
                 January
                 20.
                 1680.
                 
                 Earl
                 of
                 
                   Southesk
                   contra
                   Melgunt
                
                 and
                 others
                 .
                 But
                 in
                 all
                 these
                 by
                 the
                 nature
                 of
                 the
                 Servitude
                 ,
                 they
                 should
                 not
                 be
                 extended
                 further
                 then
                 for
                 the
                 use
                 of
                 the
                 Dominant
                 ground
                 ,
                 and
                 so
                 not
                 applicable
                 by
                 the
                 Heretor
                 of
                 the
                 Dominant
                 ground
                 ,
                 to
                 any
                 other
                 not
                 inhabiting
                 the
                 Dominant
                 Field
                 ;
                 yet
                 if
                 Custom
                 and
                 Prescription
                 hath
                 been
                 to
                 the
                 contrary
                 ,
                 it
                 over-rules
                 all
                 ;
                 and
                 so
                 it
                 was
                 found
                 ,
                 that
                 an
                 Heretor
                 or
                 his
                 Tennents
                 ,
                 having
                 right
                 to
                 a
                 common
                 Muire
                 ,
                 not
                 only
                 might
                 win
                 Fewel
                 there
                 for
                 his
                 own
                 use
                 ,
                 but
                 sell
                 it
                 to
                 others
                 ,
                 June
                 21.
                 1611
                 ,
                 
                   Moniemusk
                   contra
                   Pitfoddels
                
                 .
              
               
                 14.
                 
                 Pasturage
                 is
                 a
                 Servitude
                 ,
                 whereby
                 the
                 Grass
                 of
                 the
                 ground
                 servient
                 ,
                 is
                 applyed
                 to
                 the
                 use
                 of
                 the
                 ground
                 Dominant
                 ,
                 and
                 this
                 sometimes
                 reacheth
                 to
                 the
                 full
                 benefite
                 of
                 the
                 Grass
                 ;
                 so
                 that
                 the
                 Proprietar
                 hath
                 no
                 share
                 thereof
                 ,
                 but
                 the
                 benefite
                 of
                 the
                 Tillage
                 and
                 other
                 pertinents
                 beside
                 the
                 Grass
                 ,
                 whereby
                 he
                 may
                 Till
                 when
                 he
                 pleaseth
                 ,
                 or
                 open
                 the
                 Ground
                 for
                 other
                 effects
                 of
                 Property
                 ,
                 as
                 to
                 win
                 Coal
                 or
                 Stone
                 ,
                 unless
                 by
                 consent
                 or
                 Custom
                 it
                 be
                 otherways
                 regular
                 ;
                 but
                 so
                 far
                 as
                 remains
                 Grass
                 ,
                 belongs
                 wholly
                 to
                 the
                 other
                 .
                 But
                 most
                 ordinarly
                 Pasturage
                 is
                 in
                 common
                 ,
                 either
                 to
                 the
                 Proprietar
                 and
                 him
                 that
                 hath
                 the
                 Servitude
                 :
                 
                 Or
                 to
                 many
                 having
                 acquired
                 the
                 Servitnde
                 promiscuously
                 ,
                 though
                 with
                 exclusion
                 of
                 the
                 Proprietar
                 from
                 Grassing
                 ;
                 and
                 that
                 again
                 is
                 either
                 for
                 an
                 indefinite
                 number
                 of
                 sums
                 ,
                 or
                 definitly
                 for
                 a
                 certain
                 number
                 exprest
                 .
              
               
                 Common
                 Pasturage
                 is
                 ordinarly
                 Constitute
                 by
                 the
                 Charter
                 of
                 the
                 Dominant
                 ground
                 ,
                 expressing
                 the
                 Clause
                 (
                 with
                 common
                 Pasturage
                 )
                 which
                 ,
                 when
                 general
                 ,
                 hath
                 no
                 other
                 effect
                 then
                 the
                 common
                 Clauses
                 of
                 Charters
                 ,
                 to
                 give
                 the
                 Right
                 of
                 any
                 pasturage
                 belonging
                 to
                 the
                 Fee
                 (
                 if
                 any
                 be
                 )
                 But
                 if
                 it
                 be
                 cled
                 with
                 immemorial
                 or
                 fourty
                 years
                 Possession
                 ,
                 by
                 the
                 Act
                 of
                 Prescription
                 ,
                 it
                 carrieth
                 unquestionably
                 the
                 Right
                 of
                 Pasturage
                 ,
                 upon
                 any
                 ground
                 belonging
                 to
                 the
                 Superiour
                 ,
                 and
                 upon
                 which
                 he
                 might
                 ,
                 the
                 time
                 of
                 the
                 Charter
                 ,
                 have
                 Constitute
                 a
                 Pasturage
                 :
                 Yet
                 it
                 is
                 more
                 dubious
                 ,
                 whether
                 long
                 Possession
                 can
                 introduce
                 Pasturage
                 upon
                 ground
                 not
                 belonging
                 to
                 the
                 Superiour
                 ,
                 granter
                 of
                 the
                 Charter
                 ;
                 and
                 it
                 hath
                 been
                 found
                 that
                 it
                 hath
                 been
                 so
                 Constitute
                 ;
                 yea
                 though
                 the
                 Clause
                 of
                 common
                 Pasturage
                 be
                 not
                 in
                 the
                 Charter
                 ,
                 but
                 only
                 the
                 Land
                 Disponed
                 with
                 parts
                 and
                 pertinents
                 ,
                 with
                 long
                 Possession
                 ,
                 Spots
                 .
                 Servitudes
                 ,
                 
                   Knockdolian
                   contra
                
                 Tennents
                 of
                 Partick
                 .
                 The
                 like
                 was
                 formerly
                 found
                 in
                 the
                 case
                 of
                 the
                 Town
                 of
                 Pearth
                 anent
                 the
                 Isle
                 of
                 Sleiples
                 .
              
               
                 Pasturage
                 may
                 also
                 be
                 constitute
                 by
                 a
                 Contract
                 cled
                 with
                 Possession
                 ,
                 without
                 any
                 Seasine
                 ,
                 which
                 is
                 effectual
                 ,
                 even
                 against
                 singular
                 Successours
                 ,
                 Jan.
                 26.
                 1622.
                 
                 
                   Turnbul
                   contra
                
                 Laird
                 of
                 Blanernie
                 .
              
               
                 Pasturage
                 being
                 constitute
                 in
                 reference
                 to
                 the
                 Dominant
                 ground
                 ,
                 though
                 it
                 be
                 indefinite
                 and
                 promiscuous
                 ,
                 must
                 be
                 regulate
                 and
                 proportionat
                 according
                 to
                 the
                 use
                 of
                 the
                 several
                 Dominant
                 grounds
                 ,
                 having
                 right
                 thereto
                 proportional
                 to
                 the
                 Rent
                 thereof
                 ,
                 or
                 the
                 Goods
                 it
                 may
                 hold
                 ,
                 and
                 Fodder
                 in
                 Winter
                 .
                 Thus
                 a
                 Comontie
                 was
                 ordained
                 ,
                 to
                 be
                 visited
                 and
                 soumed
                 ,
                 and
                 proportionat
                 to
                 every
                 Room
                 ,
                 having
                 priviledge
                 therein
                 ,
                 
                   Nicol.
                   de
                   communi
                
                 ,
                 the
                 Laird
                 of
                 
                   Sessnock
                   contra
                   Nimnto
                
                 ,
                 absent
                 .
                 And
                 though
                 the
                 pasturage
                 hath
                 been
                 never
                 so
                 long
                 promiscuously
                 used
                 ,
                 without
                 any
                 determinat
                 soums
                 ,
                 but
                 that
                 all
                 have
                 put
                 to
                 it
                 what
                 they
                 pleased
                 ,
                 that
                 cannot
                 be
                 constitute
                 by
                 prescription
                 ,
                 as
                 a
                 right
                 being
                 contrary
                 to
                 the
                 very
                 nature
                 and
                 substance
                 of
                 the
                 Servitude
                 ,
                 whereby
                 the
                 pasturage
                 would
                 be
                 destroyed
                 and
                 unprofitable
                 to
                 all
                 ,
                 if
                 not
                 regulable
                 and
                 restrainable
                 to
                 what
                 it
                 might
                 hold
                 ,
                 and
                 that
                 by
                 proportion
                 ;
                 for
                 though
                 some
                 have
                 been
                 in
                 use
                 to
                 put
                 more
                 Goods
                 ,
                 and
                 some
                 fewer
                 ;
                 yet
                 unless
                 the
                 quantities
                 had
                 been
                 determinat
                 and
                 fixed
                 ,
                 others
                 could
                 not
                 be
                 excluded
                 from
                 their
                 proportion
                 ,
                 but
                 such
                 as
                 by
                 fourty
                 years
                 forbearance
                 ,
                 are
                 wholly
                 excluded
                 .
              
               
                 It
                 is
                 accustomed
                 in
                 some
                 places
                 ,
                 to
                 regulate
                 common
                 pasturage
                 by
                 souming
                 and
                 rouming
                 ,
                 which
                 is
                 the
                 determining
                 of
                 the
                 several
                 soums
                 it
                 may
                 hold
                 by
                 particular
                 proportion
                 to
                 every
                 Room
                 of
                 the
                 Dominant
                 Tenement
                 ,
                 but
                 none
                 of
                 the
                 parties
                 interressed
                 can
                 compel
                 the
                 rest
                 to
                 divide
                 ,
                 seing
                 it
                 would
                 be
                 frequently
                 to
                 the
                 disadvantage
                 of
                 severals
                 of
                 the
                 parties
                 Interressed
                 ,
                 as
                 when
                 common
                 pasturage
                 is
                 in
                 a
                 common
                 Muire
                 ,
                 inclosed
                 with
                 a
                 Dyke
                 ,
                 and
                 so
                 needeth
                 none
                 ,
                 at
                 least
                 but
                 one
                 herd
                 for
                 them
                 all
                 ,
                 which
                 if
                 it
                 were
                 divided
                 ,
                 of
                 times
                 the
                 several
                 proportions
                 of
                 most
                 interressed
                 ,
                 could
                 not
                 be
                 worth
                 a
                 several
                 hird
                 ,
                 especially
                 when
                 the
                 property
                 remains
                 in
                 another
                 ,
                 though
                 burdened
                 with
                 this
                 Servitude
                 ,
                 even
                 though
                 the
                 proprietar
                 retain
                 a
                 share
                 in
                 the
                 common
                 Pasturage
                 ,
                 yet
                 he
                 alone
                 is
                 proprietar
                 ;
                 and
                 if
                 any
                 Stone
                 or
                 Coal
                 were
                 found
                 there
                 ,
                 it
                 would
                 belong
                 to
                 him
                 alone
                 :
                 But
                 it
                 is
                 otherways
                 in
                 the
                 Community
                 of
                 the
                 full
                 property
                 ,
                 where
                 ,
                 after
                 division
                 any
                 party
                 may
                 Till
                 and
                 use
                 all
                 Acts
                 of
                 Property
                 .
                 
                 A
                 Servitude
                 of
                 Pasturage
                 of
                 a
                 definite
                 number
                 of
                 Sheep
                 upon
                 large
                 Muirs
                 ,
                 was
                 found
                 not
                 to
                 give
                 Interest
                 to
                 cause
                 the
                 Heretor
                 or
                 Tennents
                 soum
                 the
                 same
                 ,
                 that
                 the
                 ground
                 might
                 not
                 be
                 overflocked
                 ,
                 to
                 the
                 prejudice
                 of
                 the
                 Servitude
                 ,
                 January
                 23.
                 1679.
                 
                 Mr.
                 
                   Alexander
                   Dunlop
                   contra
                
                 Laird
                 of
                 Drumelzier
                 .
              
               
                 Where
                 Pasturage
                 is
                 Constitute
                 upon
                 ground
                 ,
                 a
                 part
                 of
                 which
                 hath
                 been
                 plowed
                 before
                 the
                 Constitution
                 ,
                 it
                 does
                 not
                 hinder
                 the
                 Master
                 of
                 the
                 ground
                 to
                 Plow
                 other
                 places
                 ,
                 then
                 what
                 was
                 formerly
                 Plowed
                 ,
                 but
                 he
                 may
                 Plow
                 as
                 much
                 as
                 he
                 pleaseth
                 ,
                 yet
                 so
                 that
                 whenever
                 the
                 Plowed
                 ground
                 lies
                 Lee
                 ,
                 the
                 pasturage
                 will
                 reach
                 the
                 same
                 ,
                 Jan.
                 20.
                 1680.
                 
                 Earl
                 of
                 
                   Southesk
                   contra
                   Melgam
                
                 and
                 other
                 Heretors
                 about
                 Munrew-mount
                 .
              
               
                 15.
                 
                 The
                 chief
                 and
                 most
                 frequent
                 Servitude
                 in
                 Scotland
                 is
                 Thirlage
                 ,
                 or
                 a
                 restriction
                 of
                 Lands
                 to
                 Milns
                 ,
                 wherein
                 the
                 Miln
                 is
                 Dominant
                 ,
                 and
                 the
                 Lands
                 astricted
                 are
                 servient
                 .
                 For
                 as
                 hath
                 been
                 shown
                 before
                 ,
                 a
                 Miln
                 is
                 a
                 distinct
                 Tenement
                 from
                 Land
                 ,
                 and
                 is
                 not
                 comprehended
                 under
                 the
                 name
                 of
                 part
                 and
                 pertinent
                 thereof
                 ,
                 unless
                 there
                 be
                 an
                 Erection
                 in
                 Barony
                 ,
                 Lordships
                 ,
                 &c.
                 
              
               
                 Milns
                 at
                 first
                 were
                 built
                 ,
                 as
                 sometimes
                 they
                 are
                 yet
                 ,
                 without
                 any
                 astriction
                 or
                 Thirlage
                 ,
                 but
                 only
                 to
                 gain
                 by
                 the
                 Work
                 thereof
                 ,
                 an
                 equivalent
                 hire
                 ,
                 and
                 so
                 it
                 is
                 a
                 voluntary
                 personal
                 Contract
                 of
                 Location
                 and
                 conduction
                 ,
                 none
                 being
                 oblieged
                 to
                 grind
                 their
                 Grain
                 thereat
                 ;
                 but
                 such
                 only
                 come
                 as
                 please
                 ,
                 and
                 for
                 such
                 hire
                 as
                 parties
                 do
                 accord
                 :
                 Yet
                 these
                 who
                 come
                 to
                 a
                 Miln
                 without
                 astriction
                 ,
                 and
                 without
                 express
                 paction
                 ,
                 are
                 understood
                 thereby
                 to
                 agree
                 to
                 the
                 ordinary
                 Multures
                 of
                 Corns
                 not
                 astricted
                 ,
                 which
                 are
                 called
                 Outen-Town-Multures
                 :
                 But
                 now
                 most
                 Lands
                 are
                 astricted
                 to
                 certain
                 Milns
                 ,
                 and
                 for
                 a
                 certain
                 quantity
                 of
                 Multure
                 ,
                 far
                 beyond
                 the
                 value
                 of
                 the
                 work
                 or
                 grinding
                 of
                 the
                 Corns
                 ;
                 but
                 upon
                 other
                 considerations
                 ,
                 whereby
                 it
                 is
                 a
                 part
                 of
                 the
                 Rent
                 of
                 the
                 Lands
                 astricted
                 ,
                 as
                 when
                 an
                 Heretor
                 astricts
                 his
                 own
                 Tennents
                 to
                 his
                 own
                 or
                 anothers
                 Miln
                 ,
                 it
                 is
                 a
                 part
                 of
                 their
                 Rent
                 ,
                 for
                 the
                 more
                 Multure
                 they
                 pay
                 ,
                 they
                 pay
                 the
                 less
                 Rent
                 ;
                 and
                 so
                 it
                 is
                 alike
                 to
                 them
                 ,
                 whether
                 it
                 be
                 great
                 or
                 small
                 ,
                 or
                 otherways
                 .
                 When
                 a
                 Superiour
                 gives
                 out
                 Lands
                 upon
                 condition
                 of
                 Thirlage
                 ,
                 the
                 Multures
                 are
                 a
                 part
                 of
                 the
                 reddendo
                 or
                 price
                 :
                 and
                 it
                 is
                 a
                 general
                 rule
                 ,
                 that
                 none
                 can
                 thirle
                 Lands
                 but
                 he
                 that
                 is
                 Fiar
                 ,
                 and
                 hath
                 power
                 of
                 disposal
                 thereof
                 ;
                 and
                 therefore
                 ,
                 astriction
                 though
                 it
                 be
                 not
                 favourable
                 ,
                 but
                 hath
                 the
                 ordinary
                 odium
                 that
                 other
                 Servitudes
                 have
                 ,
                 yet
                 it
                 is
                 not
                 to
                 be
                 accounted
                 an
                 unjust
                 and
                 intollerable
                 Bondage
                 .
              
               
                 16.
                 
                 There
                 are
                 many
                 questions
                 about
                 Thirlage
                 ,
                 which
                 may
                 be
                 reduced
                 to
                 these
                 two
                 heads
                 ;
                 first
                 ,
                 How
                 Thirlage
                 is
                 constitute
                 and
                 instructed
                 .
                 Secondly
                 ,
                 How
                 far
                 it
                 is
                 to
                 be
                 extended
                 ;
                 As
                 for
                 the
                 first
                 ,
                 we
                 shall
                 proceed
                 from
                 the
                 ways
                 more
                 evident
                 to
                 these
                 ,
                 which
                 are
                 more
                 dubious
                 ;
                 and
                 first
                 positively
                 ,
                 and
                 then
                 negatively
                 .
              
               
                 The
                 first
                 and
                 most
                 unquestionable
                 way
                 of
                 constitution
                 of
                 Thirlage
                 is
                 ,
                 when
                 an
                 Heretor
                 Thirleth
                 his
                 own
                 Lands
                 to
                 his
                 own
                 Miln
                 ,
                 by
                 consent
                 of
                 his
                 Tennents
                 ,
                 whereby
                 the
                 Multure
                 becomes
                 a
                 part
                 of
                 the
                 Rent
                 .
                 Secondly
                 ,
                 When
                 an
                 Heretor
                 dispones
                 his
                 Lands
                 with
                 express
                 condition
                 of
                 Thirlage
                 thereof
                 to
                 his
                 Miln
                 ,
                 or
                 to
                 any
                 other
                 Miln
                 .
                 Thirdly
                 ,
                 When
                 the
                 Heretor
                 of
                 Milns
                 or
                 Lands
                 ,
                 Feues
                 and
                 dispones
                 the
                 Miln
                 with
                 the
                 Multure
                 of
                 his
                 own
                 Lands
                 ,
                 
                   per
                   expressum
                
                 ,
                 all
                 these
                 ways
                 are
                 not
                 contraverse
                 constitutions
                 of
                 thirlage
                 ,
                 whether
                 they
                 be
                 in
                 an
                 Infeftment
                 ,
                 Contract
                 ,
                 bond
                 ,
                 or
                 other
                 personal
                 right
                 ,
                 for
                 these
                 being
                 cled
                 with
                 Possession
                 ,
                 are
                 sufficient
                 to
                 constitute
                 a
                 Servitude
                 ,
                 though
                 the
                 right
                 of
                 the
                 Miln
                 ,
                 being
                 a
                 separate
                 Fee.
                 〈◊〉
                 Infeftment
                 ,
                 Fourthly
                 ,
                 When
                 the
                 Heretor
                 
                 of
                 the
                 Miln
                 〈◊〉
                 or
                 Dispones
                 the
                 same
                 with
                 the
                 Multures
                 used
                 and
                 wont
                 ,
                 though
                 he
                 do
                 not
                 express
                 out
                 of
                 what
                 Lands
                 ,
                 it
                 is
                 sufficient
                 to
                 constitute
                 a
                 Thirlage
                 upon
                 the
                 Lands
                 ,
                 which
                 were
                 wont
                 to
                 pay
                 in
                 
                   Towns
                   Multure
                
                 ,
                 being
                 then
                 his
                 own
                 Lands
                 ;
                 or
                 to
                 convey
                 the
                 right
                 of
                 the
                 Multures
                 of
                 other
                 Lands
                 ,
                 being
                 formerly
                 astricted
                 .
                 But
                 where
                 a
                 Barrony
                 was
                 principally
                 disponed
                 with
                 the
                 Miln
                 thereof
                 ,
                 and
                 the
                 Multures
                 of
                 the
                 Miln
                 used
                 and
                 wont
                 ;
                 it
                 was
                 not
                 found
                 to
                 extend
                 to
                 the
                 Multures
                 of
                 another
                 Barrony
                 ,
                 holden
                 of
                 another
                 Superiour
                 ,
                 though
                 in
                 use
                 to
                 come
                 to
                 that
                 Miln
                 ,
                 December
                 11.
                 1666.
                 
                 Earl
                 of
                 
                   Cassils
                   contra
                
                 Tennents
                 of
                 Dalmortoun
                 and
                 
                   John
                   Whiteford
                
                 .
                 Fifthly
                 ,
                 Thirlage
                 of
                 a
                 whole
                 Barrony
                 is
                 inferred
                 by
                 Infeftment
                 in
                 the
                 Miln
                 of
                 the
                 Barrony
                 ,
                 with
                 the
                 Multures
                 of
                 the
                 said
                 Miln
                 being
                 granted
                 by
                 the
                 Heretor
                 ,
                 both
                 of
                 the
                 Miln
                 and
                 Barrony
                 ,
                 whereby
                 these
                 parts
                 of
                 the
                 Barrony
                 that
                 were
                 not
                 in
                 use
                 of
                 astricted
                 Multures
                 before
                 ,
                 were
                 thereby
                 astricted
                 ,
                 and
                 that
                 according
                 to
                 the
                 use
                 of
                 the
                 rest
                 of
                 the
                 Barrony
                 ,
                 Jan.
                 31.
                 1611.
                 
                 
                   Wilson
                   contra
                   Warrock
                
                 ,
                 here
                 the
                 constitution
                 bore
                 not
                 ,
                 
                   used
                   and
                   wont
                   ,
                   but
                   Multures
                   of
                   the
                   Miln
                   generally
                   .
                
                 The
                 like
                 where
                 the
                 Infeftment
                 bore
                 only
                 ,
                 
                   the
                   Miln
                   of
                   the
                   Barrony
                   ,
                   with
                   astricted
                   Multures
                   ,
                
                 not
                 repeating
                 Multures
                 of
                 the
                 Barrony
                 ,
                 July
                 9.
                 1611.
                 
                 
                   Alexander
                   Moncrief
                   contra
                   Borthwick
                
                 and
                 Pittinweem
                 .
                 Sixthly
                 ,
                 Thirlage
                 is
                 constitute
                 without
                 Infeftment
                 ,
                 or
                 any
                 Write
                 subscrived
                 by
                 the
                 Heretor
                 of
                 the
                 Lands
                 astricted
                 ,
                 but
                 only
                 by
                 an
                 Act
                 or
                 Rolment
                 of
                 Barron
                 Court
                 ,
                 bearing
                 ,
                 
                   the
                   Heretors
                   consent
                   ,
                   and
                   fourty
                   years
                   possession
                   conform
                   ,
                   Hope
                   ,
                
                 Milns
                 and
                 Multures
                 ,
                 Earl
                 of
                 
                   Murray
                   contra
                   Earlesmiln
                
                 .
                 The
                 like
                 by
                 Decreet
                 against
                 the
                 Possessors
                 ,
                 their
                 Master
                 not
                 being
                 called
                 ,
                 or
                 consenting
                 ,
                 but
                 his
                 Bailie
                 inacting
                 them
                 to
                 pay
                 Multure
                 with
                 long
                 possession
                 ,
                 Ibid.
                 Mr.
                 
                   Andrew
                   Miln
                   contra
                   Patrick
                   Falconer
                
                 .
                 Seventhly
                 ,
                 A
                 dry
                 Multure
                 was
                 found
                 constitute
                 and
                 instructed
                 by
                 use
                 of
                 payment
                 ,
                 fourty
                 years
                 without
                 any
                 other
                 adminicle
                 ,
                 because
                 it
                 could
                 not
                 be
                 constructed
                 as
                 a
                 free
                 or
                 voluntary
                 deed
                 ,
                 as
                 other
                 Multures
                 may
                 be
                 ,
                 Hope
                 ,
                 Milns
                 and
                 Multures
                 ,
                 
                   James
                   Dog
                   contra
                   Maxwel
                
                 and
                 the
                 Tennents
                 of
                 
                   Prestoun
                   .
                   July
                
                 23.
                 1675.
                 
                 Sir
                 
                   George
                   Kinaird
                   contra
                
                 Mr.
                 
                   John
                   Drummond
                
                 .
                 Eighthly
                 ,
                 Thirlage
                 is
                 inferred
                 of
                 Lands
                 within
                 Barronies
                 of
                 the
                 Kings
                 Property
                 to
                 the
                 Milns
                 ,
                 holden
                 and
                 repute
                 to
                 be
                 the
                 Milns
                 of
                 that
                 Barrony
                 ,
                 only
                 as
                 being
                 in
                 use
                 ,
                 past
                 memory
                 of
                 man
                 to
                 do
                 deeds
                 of
                 Thirlage
                 ,
                 as
                 paying
                 of
                 Multures
                 ,
                 laying
                 in
                 of
                 Damns
                 ,
                 February
                 5.
                 1635.
                 
                 
                   Dog
                   contra
                   Mushet
                   .
                   January
                
                 8.
                 1662.
                 
                 
                   James
                   Stuart
                   contra
                
                 Feuars
                 of
                 
                   Aberlednoch
                   .
                   January
                
                 4.
                 1662.
                 
                 
                   John
                   Nicolson
                   contra
                
                 Feuars
                 of
                 Tillicoutrie
                 .
                 Nor
                 was
                 it
                 found
                 relevant
                 ,
                 that
                 the
                 Feuars
                 had
                 right
                 ,
                 
                   cum
                   molendinis
                
                 ,
                 in
                 the
                 tenendas
                 ,
                 which
                 was
                 but
                 past
                 of
                 course
                 in
                 Exchequer
                 ,
                 in
                 the
                 common
                 Clause
                 ,
                 as
                 was
                 found
                 in
                 the
                 foresaid
                 case
                 ,
                 January
                 8.
                 1662.
                 
                 
                   James
                   Stuart
                   contra
                
                 Feuars
                 of
                 Aberlednoch
                 .
                 The
                 reason
                 hereof
                 is
                 ,
                 because
                 the
                 Kings
                 Rights
                 are
                 Constitute
                 ,
                 
                   Jure
                   Coronae
                
                 ,
                 without
                 Infeftment
                 or
                 other
                 Write
                 ,
                 which
                 is
                 not
                 requisite
                 ,
                 or
                 accustomed
                 to
                 be
                 keeped
                 ;
                 and
                 therefore
                 ,
                 the
                 presumption
                 from
                 long
                 possession
                 is
                 sufficient
                 ,
                 
                   Craig
                   ,
                   l.
                
                 2.
                 
                 Dieges
                 .
                 8.
                 
                 Relateth
                 it
                 as
                 the
                 opinion
                 of
                 some
                 ,
                 
                   that
                   immemorial
                   Possession
                   is
                   sufficient
                   to
                   instruct
                   the
                   Thirlage
                   of
                   Kirklands
                   ,
                   in
                   the
                   same
                   way
                   as
                   of
                   the
                   Kings
                   Lands
                   ,
                   to
                   which
                   he
                   assenteth
                   not
                
                 ;
                 but
                 the
                 reason
                 seemeth
                 much
                 to
                 be
                 the
                 same
                 ,
                 especially
                 after
                 the
                 Reformation
                 ,
                 when
                 the
                 Evidents
                 of
                 the
                 Kirk
                 were
                 lost
                 or
                 destroyed
                 :
                 So
                 that
                 long
                 possession
                 hath
                 been
                 sufficient
                 to
                 instruct
                 the
                 right
                 of
                 Propperty
                 of
                 Kirklands
                 ;
                 and
                 may
                 much
                 more
                 instruct
                 this
                 Servitude
                 ,
                 unless
                 Milns
                 and
                 Multures
                 had
                 been
                 granted
                 to
                 the
                 Feuars
                 anterior
                 to
                 the
                 Feu
                 of
                 the
                 Miln
                 .
                 But
                 unquestionably
                 ,
                 Thirlage
                 is
                 easilier
                 sustained
                 in
                 Kirk-lands
                 then
                 others
                 ,
                 as
                 it
                 was
                 sustained
                 ,
                 being
                 by
                 an
                 infeftment
                 of
                 a
                 Miln
                 ,
                 
                   cum
                   Multuris
                
                 generally
                 ;
                 and
                 the
                 Bishops
                 Precepts
                 to
                 his
                 Tennents
                 to
                 pay
                 their
                 Multures
                 to
                 that
                 Miln
                 ,
                 with
                 long
                 Possession
                 ,
                 though
                 without
                 consent
                 of
                 the
                 Chapter
                 ,
                 Decemb.
                 7.
                 1665.
                 
                 
                   David
                   Veatch
                   contra
                   John
                   Duncan
                
                 .
              
               
               
                 17.
                 
                 As
                 to
                 the
                 negative
                 ,
                 first
                 ,
                 Thirlage
                 is
                 not
                 inferred
                 by
                 use
                 of
                 coming
                 to
                 the
                 Miln
                 ,
                 and
                 paying
                 Multures
                 there
                 at
                 ,
                 though
                 immemorial
                 ,
                 even
                 though
                 the
                 Multures
                 payed
                 were
                 as
                 great
                 as
                 the
                 thirle
                 Multures
                 ,
                 March
                 13.
                 1635.
                 
                 Gilchrist
                 contra
                 Menzies
                 .
                 The
                 reason
                 hereof
                 is
                 ,
                 because
                 such
                 payment
                 is
                 but
                 
                   voluntatis
                   ,
                   non
                   necessitatis
                
                 ;
                 and
                 therefore
                 ,
                 can
                 no
                 more
                 infer
                 a
                 Servitude
                 ,
                 then
                 they
                 who
                 ,
                 past
                 memory
                 ,
                 came
                 such
                 a
                 way
                 to
                 a
                 Town
                 ,
                 were
                 astricted
                 only
                 to
                 come
                 that
                 way
                 :
                 But
                 Infeftment
                 in
                 a
                 Miln
                 ,
                 with
                 the
                 astricted
                 Multures
                 of
                 such
                 Lands
                 
                   per
                   expressum
                
                 ,
                 and
                 fourty
                 years
                 possession
                 of
                 paying
                 the
                 insucken
                 Multures
                 ,
                 was
                 found
                 to
                 constitute
                 the
                 Thirlage
                 ,
                 though
                 the
                 Feuars
                 were
                 infeft
                 
                   cum
                   molendinis
                
                 ,
                 before
                 the
                 Feu
                 of
                 the
                 Miln
                 ,
                 and
                 sometimes
                 went
                 to
                 other
                 Milns
                 ,
                 which
                 not
                 being
                 frequent
                 ,
                 and
                 for
                 some
                 whole
                 years
                 ,
                 was
                 found
                 but
                 clandestine
                 ,
                 and
                 such
                 as
                 occurs
                 in
                 all
                 Thirlages
                 ,
                 and
                 no
                 legal
                 interruption
                 ,
                 June
                 29.
                 1665.
                 
                 Heretors
                 of
                 the
                 Miln
                 of
                 
                   Kythick
                   contra
                
                 Feuars
                 .
              
               
                 Secondly
                 ,
                 Thirlage
                 is
                 not
                 inferred
                 ,
                 because
                 the
                 Lands
                 are
                 a
                 part
                 of
                 the
                 Superiors
                 Barony
                 ,
                 having
                 a
                 Miln
                 of
                 the
                 Barony
                 ,
                 where
                 the
                 Vassals
                 Infeftment
                 contains
                 
                   cum
                   Molendinis
                   &
                   Multuris
                
                 ,
                 or
                 a
                 Feu-duty
                 
                   pro
                   omni
                   alio
                   onere
                
                 ,
                 or
                 such
                 a
                 Feu-duty
                 allanerly
                 ,
                 Novemb.
                 26.
                 1631.
                 
                 Oliphant
                 contra
                 Earl
                 of
                 Marshal
                 .
                 But
                 where
                 the
                 Barons
                 Disposition
                 contained
                 not
                 these
                 Clauses
                 ,
                 his
                 giving
                 a
                 subaltern
                 Infeftment
                 of
                 a
                 part
                 of
                 his
                 Barony
                 ,
                 which
                 part
                 was
                 thirled
                 to
                 the
                 Miln
                 before
                 ,
                 it
                 was
                 not
                 found
                 liberat
                 ,
                 but
                 continued
                 thirled
                 to
                 the
                 Miln
                 of
                 the
                 Barony
                 ,
                 though
                 the
                 Miln
                 and
                 Multures
                 of
                 the
                 Barony
                 were
                 disponed
                 thereafter
                 to
                 another
                 ,
                 July
                 17.
                 1629.
                 
                 Newlistoun
                 contra
                 Inglis
                 .
                 For
                 ,
                 if
                 the
                 Vassal
                 had
                 acquired
                 that
                 part
                 of
                 the
                 Barony
                 with
                 the
                 Multures
                 ,
                 it
                 would
                 have
                 been
                 exprest
                 particularly
                 or
                 generally
                 ,
                 seing
                 thereby
                 the
                 seller
                 behoved
                 to
                 diminish
                 the
                 rental
                 of
                 his
                 Miln
                 .
              
               
                 Thirdly
                 ,
                 Thirlage
                 of
                 a
                 Barony
                 or
                 any
                 part
                 thereof
                 ,
                 was
                 not
                 inferred
                 by
                 a
                 Disposition
                 or
                 Infeftment
                 of
                 a
                 Miln
                 granted
                 by
                 the
                 Baron
                 ,
                 though
                 it
                 be
                 the
                 only
                 Miln
                 of
                 the
                 Barony
                 ,
                 seing
                 he
                 expressed
                 not
                 it
                 to
                 be
                 so
                 ,
                 nor
                 expressed
                 any
                 Lands
                 nor
                 the
                 Multures
                 thereof
                 ,
                 but
                 only
                 dispo
                 ed
                 the
                 Miln
                 with
                 the
                 pertinents
                 ,
                 July
                 12.
                 1621.
                 
                 
                   William
                   Douglas
                
                 contra
                 Earl
                 of
                 Murray
                 .
                 In
                 this
                 case
                 ,
                 there
                 were
                 several
                 acts
                 of
                 Court
                 thirling
                 the
                 Tennants
                 ,
                 and
                 long
                 possession
                 ,
                 which
                 was
                 not
                 insisted
                 on
                 ,
                 but
                 only
                 the
                 act
                 of
                 Court
                 ,
                 which
                 was
                 not
                 found
                 sufficient
                 ,
                 seing
                 it
                 was
                 only
                 by
                 a
                 Bailie
                 ,
                 without
                 warrand
                 or
                 consent
                 of
                 the
                 Heretor
                 ,
                 albeit
                 cled
                 with
                 fourty
                 years
                 possession
                 .
                 But
                 ,
                 a
                 Decreet
                 against
                 the
                 Tennants
                 for
                 astricted
                 Multures
                 ,
                 and
                 immemorial
                 possession
                 ,
                 was
                 found
                 to
                 constitute
                 Thirlage
                 to
                 the
                 Miln
                 of
                 the
                 Barony
                 ,
                 albeit
                 the
                 defender
                 was
                 infeft
                 
                   cum
                   molendinis
                
                 ,
                 prior
                 to
                 the
                 Infeftment
                 of
                 the
                 Heretor
                 of
                 the
                 Miln
                 ,
                 and
                 did
                 sometimes
                 go
                 to
                 other
                 Milns
                 ,
                 but
                 clandestinely
                 ,
                 and
                 sometimes
                 was
                 brought
                 back
                 by
                 force
                 ,
                 June
                 24.
                 1665.
                 
                 Colonel
                 Montgomery
                 contra
                 Wallace
                 and
                 others
                 which
                 did
                 not
                 import
                 Interruption
                 ,
                 which
                 was
                 not
                 found
                 by
                 clandestine
                 abstraction
                 ,
                 but
                 by
                 paying
                 no
                 Multure
                 ,
                 at
                 least
                 for
                 a
                 whole
                 year
                 .
              
               
                 Fourthly
                 ,
                 Thirlage
                 is
                 not
                 inferred
                 by
                 any
                 deed
                 of
                 Tennants
                 ,
                 Possessors
                 ,
                 Wodsetters
                 ,
                 Liferenters
                 ,
                 or
                 any
                 other
                 but
                 the
                 Fiar
                 ;
                 and
                 therefore
                 ,
                 there
                 will
                 be
                 no
                 Process
                 sustained
                 against
                 the
                 Tennants
                 for
                 Multures
                 ,
                 unless
                 the
                 Fiar
                 be
                 called
                 ,
                 February
                 9.
                 1628.
                 
                 Laird
                 of
                 Wardess
                 contra
                 Laird
                 of
                 Dunkincie
                 or
                 at
                 least
                 ,
                 that
                 there
                 have
                 been
                 prior
                 Decreets
                 wherein
                 he
                 was
                 called
                 ,
                 constituting
                 the
                 Thirlage
                 ,
                 and
                 all
                 〈◊〉
                 and
                 Acts
                 otherwayes
                 are
                 null
                 by
                 exception
                 ,
                 if
                 quarrelled
                 within
                 prescription
                 .
              
               
                 Fifthly
                 ,
                 Thirlage
                 of
                 Lands
                 to
                 another
                 mans
                 Miln
                 ,
                 doth
                 not
                 infer
                 a
                 Thirlage
                 
                 of
                 the
                 Teinds
                 of
                 these
                 Lands
                 ,
                 though
                 acquired
                 by
                 the
                 Heretor
                 who
                 thirled
                 the
                 Lands
                 ,
                 July
                 7.
                 1635.
                 
                 Laird
                 of
                 Innerweek
                 contra
                 Hamiltouns
                 .
                 The
                 like
                 
                   in
                   molendino
                   Regio
                
                 ,
                 where
                 no
                 write
                 was
                 shown
                 ,
                 but
                 possession
                 ,
                 to
                 consttute
                 the
                 Thirlage
                 ,
                 which
                 was
                 found
                 not
                 to
                 extend
                 the
                 Teinds
                 ,
                 January
                 8.
                 1662.
                 
                 
                   James
                   Stewart
                
                 contra
                 Feuars
                 of
                 Aberledno
                 .
                 The
                 like
                 where
                 the
                 Clause
                 of
                 thirlage
                 bore
                 ,
                 
                   omnium
                   granorum
                   crescentium
                   super
                   terris
                   suis
                   :
                
                 Here
                 the
                 Heretor
                 of
                 the
                 Lands
                 thirled
                 had
                 no
                 right
                 to
                 the
                 Teind
                 ,
                 Spots
                 .
                 Milns
                 and
                 Multures
                 ,
                 Laird
                 of
                 Wauchtoun
                 contra
                 Hoom
                 of
                 Foord
                 .
                 The
                 like
                 where
                 the
                 Clause
                 in
                 a
                 Charter
                 ,
                 granted
                 by
                 an
                 Abbot
                 to
                 his
                 Feuars
                 ,
                 bore
                 the
                 astriction
                 ,
                 
                   omnium
                   granorum
                
                 ,
                 which
                 was
                 found
                 to
                 extend
                 to
                 the
                 Teinds
                 which
                 then
                 belonged
                 to
                 the
                 Abbot
                 ;
                 and
                 the
                 Teind
                 was
                 found
                 thirled
                 ,
                 when
                 a
                 Feu-duty
                 was
                 payed
                 both
                 for
                 Stock
                 and
                 Teind
                 ,
                 January
                 21.
                 1681.
                 
                 Greirson
                 contra
                 Gordoun
                 of
                 Spado
                 .
                 Nor
                 will
                 the
                 exception
                 of
                 Teind
                 be
                 sustained
                 in
                 Milns
                 belonging
                 to
                 Kirkmen
                 ,
                 having
                 right
                 to
                 both
                 Stock
                 and
                 Teind
                 .
              
               
                 18.
                 
                 The
                 next
                 point
                 proposed
                 ,
                 was
                 the
                 effect
                 and
                 extent
                 of
                 Thirlage
                 ,
                 being
                 constitute
                 ,
                 which
                 is
                 exceeding
                 various
                 ;
                 for
                 clearing
                 whereof
                 ,
                 advert
                 ,
                 That
                 thirlage
                 is
                 either
                 introduced
                 and
                 instructed
                 by
                 Custom
                 and
                 Prescription
                 ,
                 or
                 by
                 Paction
                 and
                 Write
                 ;
                 when
                 it
                 is
                 by
                 Prescription
                 and
                 Custom
                 ,
                 it
                 is
                 wholly
                 regulat
                 by
                 Custom
                 ,
                 and
                 the
                 Heretor
                 of
                 the
                 Miln
                 and
                 his
                 Tennents
                 ,
                 can
                 get
                 no
                 more
                 ,
                 and
                 wil
                 get
                 less
                 then
                 they
                 instruct
                 to
                 be
                 their
                 ancient
                 custom
                 ,
                 which
                 holds
                 where
                 thirlage
                 is
                 constitute
                 by
                 write
                 ,
                 but
                 generally
                 with
                 the
                 multures
                 ,
                 sequels
                 ,
                 and
                 services
                 used
                 and
                 wont
                 ,
                 for
                 then
                 also
                 custom
                 must
                 rule
                 it
                 ,
                 and
                 the
                 Heretor
                 of
                 the
                 miln
                 will
                 not
                 be
                 put
                 to
                 prove
                 what
                 the
                 custom
                 was
                 before
                 that
                 Write
                 ,
                 though
                 it
                 relate
                 to
                 custom
                 past
                 ;
                 but
                 long
                 custom
                 present
                 will
                 be
                 sufficient
                 presumption
                 and
                 proof
                 of
                 what
                 was
                 that
                 preterit
                 custom
                 ,
                 if
                 the
                 contrary
                 cannot
                 be
                 proven
                 ;
                 and
                 though
                 it
                 should
                 be
                 proven
                 ,
                 yet
                 fourty
                 years
                 possession
                 will
                 alter
                 the
                 case
                 ,
                 and
                 either
                 increase
                 the
                 Servitude
                 or
                 the
                 Freedom
                 .
              
               
                 If
                 the
                 Servitude
                 be
                 constitute
                 by
                 Writ
                 ,
                 special
                 regard
                 is
                 had
                 to
                 the
                 tenor
                 of
                 the
                 Writ
                 ,
                 which
                 therefore
                 varieth
                 thirlage
                 accordingly
                 ;
                 So
                 thirlage
                 simply
                 exprest
                 in
                 the
                 Writ
                 ,
                 without
                 mention
                 of
                 all
                 Grain
                 growing
                 upon
                 the
                 ground
                 ,
                 was
                 found
                 to
                 extend
                 to
                 all
                 Corns
                 growing
                 thereupon
                 ,
                 abstracted
                 to
                 other
                 Milns
                 ,
                 or
                 sold
                 ,
                 though
                 they
                 had
                 payed
                 no
                 Multure
                 past
                 memory
                 for
                 sold
                 Corns
                 ,
                 June
                 26.
                 1635.
                 
                 Laird
                 of
                 Wauchtoun
                 contra
                 Hoom
                 of
                 Foord
                 .
              
               
                 19.
                 
                 A
                 Clause
                 of
                 thirlage
                 bearing
                 ,
                 
                   Una
                   cum
                   Multuris
                   omnium
                   terrarum
                   intra
                   Parochiam
                   ,
                
                 found
                 not
                 to
                 extend
                 to
                 other
                 Corns
                 bought-in
                 ,
                 and
                 not
                 growing
                 within
                 the
                 sucken
                 ,
                 Hope
                 ,
                 Milns
                 and
                 Multures
                 ,
                 
                   Giles
                   Murray
                
                 contra
                 Tennants
                 of
                 Drumsei
                 .
                 A
                 Clause
                 of
                 thirlage
                 ,
                 thirling
                 an
                 Heretors
                 tennants
                 to
                 another
                 mans
                 Miln
                 ,
                 and
                 all
                 the
                 Tennants
                 Grain
                 growing
                 upon
                 the
                 Land
                 ,
                 found
                 not
                 to
                 extend
                 to
                 that
                 Heretors
                 Farm-bear
                 ,
                 whether
                 delivered
                 to
                 him
                 ,
                 or
                 sold
                 by
                 him
                 to
                 his
                 tennants
                 or
                 others
                 ,
                 but
                 that
                 the
                 same
                 was
                 Multure-free
                 ,
                 but
                 yet
                 was
                 thirled
                 ,
                 and
                 behoved
                 to
                 come
                 to
                 the
                 Miln
                 and
                 pay
                 the
                 smal
                 duties
                 only
                 ,
                 Hope
                 ,
                 Milns
                 and
                 Multures
                 ,
                 Lord
                 Keith
                 contra
                 
                   Nathaniel
                   Keith
                
                 :
                 Which
                 is
                 also
                 observed
                 ,
                 with
                 this
                 further
                 ,
                 that
                 
                   invecta
                   &
                   illata
                
                 were
                 not
                 thereby
                 thirled
                 ,
                 
                   Spots
                   .
                   de
                   servitutibus
                
                 .
                 A
                 Clause
                 of
                 thirlage
                 
                   omnium
                   granorum
                   crescentium
                
                 ,
                 was
                 found
                 not
                 to
                 extend
                 to
                 the
                 Heretors
                 Farms
                 who
                 had
                 so
                 thirled
                 his
                 Lands
                 ,
                 not
                 being
                 grund
                 at
                 any
                 other
                 Miln
                 ,
                 but
                 sold
                 or
                 otherwayes
                 made
                 use
                 of
                 :
                 Neither
                 to
                 Corns
                 not
                 growing
                 within
                 the
                 thirle
                 ,
                 though
                 tholing
                 fire
                 and
                 water
                 ,
                 or
                 garnelled
                 there
                 ,
                 July
                 11.
                 1621.
                 
                 Keith
                 contra
                 Tennants
                 of
                 Peterhead
                 .
                 A
                 Clause
                 of
                 thirlage
                 granted
                 by
                 a
                 Town
                 to
                 a
                 Miln
                 ,
                 expressing
                 
                   invecta
                   &
                   illata
                
                 ,
                 found
                 to
                 be
                 extended
                 to
                 all
                 Corns
                 Kilned
                 or
                 Steeped
                 within
                 the
                 Thirle
                 ,
                 though
                 not
                 brought
                 to
                 the
                 Miln
                 ,
                 nor
                 use
                 made
                 of
                 within
                 the
                 thirle
                 ,
                 
                   Spoos
                   .
                   de
                   servitute
                   ,
                   Ruthven
                
                 contra
                 Cuthbert
                 of
                 Drakies
                 .
                 Thirlage
                 of
                 
                   invecta
                   &
                   illata
                
                 constitute
                 by
                 a
                 Towns
                 Charter
                 ,
                 found
                 effectual
                 as
                 to
                 the
                 Grain
                 that
                 grew
                 in
                 the
                 thirle
                 of
                 that
                 Miln
                 ,
                 
                 and
                 was
                 lyable
                 for
                 a
                 greater
                 multure
                 ,
                 as
                 
                   grana
                   crescentia
                
                 ,
                 so
                 that
                 these
                 Corns
                 being
                 bought
                 by
                 the
                 Town
                 ,
                 fell
                 to
                 pay
                 both
                 the
                 ordinary
                 multure
                 ,
                 as
                 growing
                 in
                 the
                 Thirle
                 ,
                 and
                 a
                 lesser
                 multure
                 by
                 a
                 several
                 Thirlage
                 by
                 the
                 Towns
                 Charter
                 ,
                 thirling
                 ,
                 
                   omnia
                   invecta
                   &
                   illata
                
                 in
                 their
                 Town
                 ,
                 to
                 that
                 same
                 miln
                 ,
                 seing
                 the
                 Town
                 might
                 shun
                 the
                 inconvenience
                 of
                 double
                 multure
                 ,
                 by
                 buying
                 only
                 Corns
                 ,
                 which
                 grew
                 not
                 in
                 the
                 Thirle
                 of
                 that
                 miln
                 ,
                 Decemb.
                 11.
                 1678.
                 
                 Sir
                 
                   Andrew
                   Ramsay
                   contra
                
                 the
                 Town
                 of
                 Kirkaldie
                 .
              
               
                 20.
                 
                 In
                 this
                 case
                 
                   invecta
                   &
                   illata
                
                 ,
                 was
                 found
                 to
                 import
                 mault
                 made
                 within
                 the
                 Liberties
                 of
                 the
                 Town
                 ,
                 or
                 Brewed
                 within
                 the
                 same
                 ,
                 but
                 not
                 to
                 meal
                 where
                 they
                 did
                 not
                 buy
                 the
                 Corn
                 ,
                 but
                 bought
                 the
                 meal
                 ,
                 though
                 it
                 was
                 baken
                 in
                 the
                 Town
                 ,
                 in
                 respect
                 it
                 was
                 so
                 proven
                 to
                 be
                 the
                 custom
                 ,
                 November
                 24.
                 1680.
                 
                   inter
                   eosdem
                
                 .
                 But
                 the
                 quantity
                 of
                 abstract
                 multures
                 being
                 referred
                 to
                 the
                 Towns
                 mens
                 oathes
                 ,
                 they
                 were
                 not
                 found
                 olieged
                 to
                 depone
                 that
                 they
                 had
                 payed
                 the
                 whole
                 Multures
                 of
                 years
                 long
                 bygone
                 ;
                 but
                 only
                 if
                 they
                 knew
                 and
                 remembered
                 ,
                 that
                 any
                 part
                 of
                 it
                 was
                 not
                 payed
                 ,
                 and
                 what
                 that
                 part
                 of
                 it
                 was
                 ,
                 December
                 12.
                 1679.
                 
                   inter
                   eosdem
                
                 :
                 But
                 ordinarly
                 ,
                 
                   invecta
                   &
                   illata
                
                 ,
                 or
                 tholing
                 Fire
                 and
                 Water
                 is
                 only
                 interpret
                 of
                 Steeping
                 and
                 Killing
                 ,
                 but
                 not
                 of
                 Baking
                 or
                 Brewing
                 .
              
               
                 A
                 Clause
                 in
                 Feuars
                 Charters
                 Thirling
                 them
                 to
                 the
                 Superiours
                 Milns
                 of
                 such
                 a
                 Paroch
                 ,
                 whereof
                 there
                 were
                 four
                 ,
                 was
                 found
                 not
                 to
                 be
                 put
                 in
                 the
                 option
                 of
                 the
                 Feuars
                 ,
                 to
                 go
                 to
                 any
                 of
                 the
                 four
                 ,
                 but
                 to
                 keep
                 to
                 the
                 particular
                 Miln
                 ,
                 to
                 which
                 they
                 were
                 accustomed
                 ,
                 in
                 respect
                 the
                 Milns
                 had
                 several
                 Suckens
                 ,
                 and
                 the
                 Feuars
                 were
                 in
                 use
                 fourty
                 years
                 to
                 pay
                 Multures
                 ,
                 and
                 do
                 all
                 services
                 thereto
                 ,
                 as
                 was
                 found
                 ,
                 1663.
                 as
                 to
                 the
                 Miln
                 of
                 Catharine
                 .
                 And
                 the
                 like
                 found
                 ,
                 as
                 to
                 the
                 Miln
                 of
                 Dalsangan
                 ,
                 another
                 Miln
                 of
                 Mauchlein
                 about
                 the
                 same
                 time
                 .
              
               
                 
                   Thirlage
                   being
                   constitute
                   ,
                   or
                   determined
                   by
                   custom
                   ,
                   doth
                   ordinarly
                   carry
                   ,
                
                 not
                 only
                 Multures
                 of
                 the
                 Grain
                 growing
                 within
                 the
                 Sucken
                 ,
                 but
                 those
                 that
                 thole
                 fire
                 and
                 water
                 within
                 the
                 same
                 ,
                 by
                 being
                 kilned
                 and
                 steeped
                 ,
                 and
                 in
                 some
                 places
                 brown
                 within
                 the
                 same
                 .
              
               
                 The
                 quantity
                 of
                 the
                 Multure
                 ,
                 if
                 it
                 be
                 not
                 determined
                 by
                 Write
                 ,
                 is
                 determined
                 by
                 use
                 of
                 payment
                 of
                 the
                 Barrony
                 or
                 Sucken
                 ,
                 though
                 a
                 part
                 thereof
                 in
                 question
                 ,
                 payed
                 less
                 formerly
                 ,
                 which
                 did
                 only
                 liberat
                 them
                 from
                 bygones
                 ,
                 July
                 20.
                 1610.
                 
                 Neilson
                 of
                 
                   Craigcaffie
                   contra
                
                 Tennents
                 of
                 Innermesson
                 .
              
               
                 21.
                 
                 Beside
                 the
                 Multures
                 Thirlage
                 ,
                 is
                 extended
                 to
                 Sequels
                 ,
                 which
                 being
                 expressed
                 in
                 Thirlage
                 ,
                 is
                 understood
                 to
                 be
                 the
                 Knaveship
                 ,
                 Bannock
                 ,
                 or
                 lock
                 payable
                 besides
                 the
                 Multures
                 ,
                 to
                 the
                 Milners
                 and
                 their
                 Servants
                 for
                 their
                 service
                 ,
                 according
                 to
                 the
                 use
                 of
                 the
                 several
                 Milns
                 ,
                 though
                 these
                 be
                 not
                 exprest
                 ,
                 March
                 22.
                 1628.
                 
                 Adamson
                 of
                 
                   Braco
                   contra
                
                 Tennents
                 of
                 Shallie
                 .
                 The
                 like
                 before
                 ,
                 even
                 where
                 the
                 Corns
                 were
                 abstracted
                 ,
                 Spots
                 .
                 Milns
                 ,
                 March
                 22.
                 1628.
                 
                 And
                 where
                 the
                 Thirlage
                 is
                 by
                 use
                 and
                 custom
                 ,
                 these
                 small
                 Duties
                 are
                 accordingly
                 due
                 beside
                 the
                 Multure
                 .
              
               
                 22.
                 
                 Thirlage
                 also
                 carries
                 service
                 to
                 the
                 Miln
                 ,
                 
                   as
                   carrying
                   home
                   of
                   Miln-stones
                   ,
                   upholding
                   the
                   Damns
                   ,
                   Watergates
                   ,
                   and
                   of
                   the
                   Miln-house
                   ,
                
                 which
                 are
                 Services
                 diverse
                 ,
                 and
                 regulat
                 according
                 to
                 the
                 customs
                 of
                 the
                 several
                 Milns
                 .
              
               
                 The
                 Thirlage
                 constitute
                 by
                 Infeftment
                 of
                 a
                 Miln
                 ,
                 
                   cum
                   mutturis
                   &
                   sequelis
                
                 ,
                 
                 found
                 to
                 give
                 right
                 to
                 the
                 ordinary
                 Miln
                 Services
                 to
                 the
                 Miln-damn
                 and
                 Miln-stones
                 ,
                 by
                 paction
                 or
                 prescription
                 ,
                 the
                 same
                 were
                 taken
                 away
                 ,
                 February
                 27.
                 1668.
                 
                 
                   Maitland
                   contra
                   Lesly
                
                 .
              
               
                 In
                 proving
                 of
                 the
                 customs
                 of
                 these
                 Duties
                 to
                 Milns
                 ,
                 there
                 is
                 no
                 necessity
                 to
                 prove
                 fourty
                 years
                 constant
                 custom
                 ,
                 but
                 diverse
                 years
                 custom
                 ,
                 
                   in
                   〈◊〉
                
                 ,
                 unless
                 a
                 contrary
                 custom
                 be
                 proven
                 by
                 the
                 Thirled
                 ,
                 
                   Nicol.
                   de
                   servitute
                
                 ,
                 〈◊〉
                 contra
                 Ballachan
                 .
              
               
                 But
                 it
                 was
                 found
                 ,
                 that
                 an
                 Heretor
                 of
                 a
                 Miln
                 being
                 Infeft
                 ,
                 and
                 in
                 possession
                 of
                 the
                 Miln
                 ,
                 with
                 the
                 Multures
                 of
                 the
                 Lands
                 in
                 question
                 ,
                 〈◊〉
                 ,
                 he
                 hath
                 the
                 benefite
                 of
                 a
                 possessory
                 Judgement
                 ,
                 with
                 seven
                 years
                 〈◊〉
                 ,
                 and
                 so
                 it
                 will
                 stand
                 and
                 be
                 effectual
                 ,
                 till
                 it
                 be
                 reduced
                 notwithstanding
                 an
                 anterior
                 Infeftment
                 ,
                 
                   cum
                   mollendinis
                   ,
                   June
                
                 28.
                 1636.
                 
                 
                   Maxwel
                   contra
                   Maxwel
                
                 .
              
               
                 23.
                 
                 Thirlage
                 also
                 is
                 esteemed
                 by
                 some
                 ,
                 to
                 carry
                 this
                 priviledge
                 ,
                 that
                 the
                 Heretor
                 of
                 the
                 Miln
                 may
                 ,
                 
                   brevi
                   manu
                
                 ,
                 cast
                 down
                 any
                 other
                 Miln
                 bigged
                 within
                 the
                 Thirle
                 :
                 But
                 Craigs
                 opinion
                 is
                 in
                 the
                 contrary
                 ,
                 in
                 the
                 forecited
                 place
                 ,
                 and
                 it
                 was
                 so
                 found
                 ,
                 where
                 the
                 Miln
                 so
                 bigged
                 had
                 gone
                 fifteen
                 days
                 ,
                 Spots
                 .
                 Husband
                 and
                 Wife
                 ,
                 Laird
                 of
                 
                   Ludquharn
                   contra
                
                 Earl
                 of
                 Marischal
                 .
                 But
                 whether
                 it
                 may
                 not
                 be
                 hindered
                 ,
                 while
                 the
                 new
                 Miln
                 is
                 in
                 building
                 ,
                 is
                 not
                 so
                 clear
                 ,
                 at
                 least
                 it
                 may
                 be
                 civily
                 interrupted
                 ,
                 
                   nunciatione
                   novi
                   operis
                
                 .
                 In
                 respect
                 of
                 the
                 favour
                 of
                 going
                 Milns
                 ;
                 these
                 are
                 not
                 to
                 be
                 destroyed
                 ,
                 for
                 the
                 publick
                 use
                 of
                 the
                 Countrie
                 ;
                 from
                 which
                 ground
                 it
                 is
                 ,
                 that
                 the
                 Water-gang
                 of
                 a
                 Miln
                 ,
                 passing
                 thorow
                 an
                 Heretors
                 Land
                 ,
                 was
                 not
                 suffered
                 to
                 be
                 stopped
                 ,
                 though
                 it
                 was
                 without
                 consent
                 or
                 prescription
                 ,
                 not
                 being
                 to
                 his
                 prejudice
                 ,
                 Hope
                 ,
                 Milns
                 ,
                 Laird
                 of
                 
                   Bass
                   contra
                
                 Laird
                 of
                 Balgown
                 .
                 But
                 though
                 Milns
                 may
                 not
                 be
                 stopped
                 ,
                 
                   brevi
                   manu
                
                 yet
                 building
                 a
                 Miln
                 within
                 the
                 Thirle
                 on
                 pretence
                 to
                 get
                 Voluntary
                 Multure
                 ;
                 and
                 that
                 the
                 builder
                 will
                 still
                 bring
                 his
                 own
                 Corns
                 to
                 the
                 other
                 Miln
                 ,
                 is
                 unwarrantable
                 ,
                 and
                 contrary
                 the
                 common
                 custom
                 of
                 destroying
                 Querns
                 ,
                 which
                 might
                 have
                 the
                 same
                 pretence
                 ,
                 nor
                 could
                 it
                 be
                 known
                 what
                 were
                 Clandestinely
                 grund
                 at
                 the
                 new
                 Miln
                 ,
                 within
                 the
                 old
                 Thirle
                 ;
                 but
                 Halyards
                 being
                 building
                 a
                 Miln
                 near
                 to
                 Breast-miln
                 ,
                 who
                 craved
                 summarly
                 to
                 stop
                 him
                 ,
                 by
                 Supplication
                 to
                 the
                 Lords
                 ,
                 they
                 did
                 refuse
                 to
                 stop
                 ,
                 because
                 it
                 was
                 not
                 clear
                 that
                 his
                 Land
                 were
                 Thirled
                 ,
                 July
                 29.
                 1673.
                 
              
               
                 Thirlage
                 hath
                 also
                 this
                 effect
                 in
                 someplaces
                 ,
                 that
                 when
                 any
                 person
                 is
                 apprehended
                 ,
                 abstracting
                 Corn
                 ,
                 the
                 Horse
                 and
                 Corn
                 may
                 be
                 seazed
                 upon
                 ,
                 
                   braevi
                   manu
                
                 ,
                 and
                 the
                 Corns
                 confiscated
                 to
                 the
                 Milner
                 ;
                 and
                 Craig
                 relates
                 in
                 the
                 forecited
                 place
                 ,
                 that
                 it
                 is
                 the
                 ordinary
                 custom
                 in
                 France
                 ,
                 that
                 Corns
                 are
                 Escheat
                 to
                 the
                 Lord
                 ,
                 and
                 may
                 be
                 seazed
                 summarly
                 .
                 It
                 is
                 related
                 by
                 
                   Craig
                   ,
                   l.
                
                 2.
                 
                 Dieg.
                 8.
                 out
                 of
                 the
                 Statutes
                 of
                 King
                 William
                 ,
                 that
                 there
                 ought
                 to
                 be
                 a
                 Master
                 and
                 two
                 Servants
                 in
                 every
                 Miln
                 ,
                 sworn
                 to
                 be
                 faithful
                 to
                 the
                 Master
                 of
                 the
                 Ground
                 and
                 his
                 men
                 ,
                 and
                 that
                 the
                 common
                 Multure
                 ,
                 not
                 determined
                 by
                 Infeftment
                 ,
                 is
                 the
                 twentieth
                 Grain
                 ;
                 and
                 that
                 all
                 Grain
                 that
                 shall
                 be
                 set
                 down
                 upon
                 the
                 Ground
                 of
                 another
                 Thirle
                 ,
                 shall
                 pay
                 Multure
                 there
                 ;
                 and
                 that
                 when
                 a
                 Horse
                 carrying
                 Grain
                 ,
                 out
                 of
                 the
                 Thirle
                 is
                 taken
                 ,
                 the
                 Grain
                 is
                 escheat
                 to
                 the
                 Miller
                 ,
                 and
                 the
                 Horse
                 to
                 the
                 Master
                 ;
                 and
                 that
                 he
                 who
                 removes
                 from
                 the
                 Thirle
                 ,
                 shall
                 have
                 his
                 Seed
                 Multure
                 free
                 :
                 These
                 are
                 most
                 part
                 over-ruled
                 by
                 custom
                 ,
                 as
                 hath
                 been
                 before
                 showen
                 .
              
               
                 This
                 far
                 I
                 find
                 it
                 amongst
                 our
                 customes
                 ,
                 that
                 the
                 Spuilzie
                 of
                 a
                 Horse
                 was
                 elided
                 ,
                 because
                 he
                 was
                 seazed
                 upon
                 ,
                 taking
                 Corns
                 out
                 of
                 the
                 Thirle
                 to
                 another
                 
                 Miln
                 ,
                 as
                 was
                 the
                 custom
                 of
                 that
                 place
                 ,
                 and
                 that
                 after
                 carrying
                 back
                 thereof
                 ,
                 the
                 Horse
                 was
                 offered
                 that
                 same
                 night
                 ,
                 January
                 22.
                 1635.
                 
                 
                   Menzies
                   contra
                   Mckie
                
                 ,
                 Thirlage
                 ,
                 
                   omnium
                   granorum
                   crescentium
                
                 ,
                 upon
                 such
                 a
                 Tenement
                 ,
                 found
                 to
                 extend
                 ,
                 not
                 only
                 to
                 the
                 Tennents
                 ,
                 but
                 to
                 the
                 Mains
                 ,
                 July
                 29.
                 1673.
                 
                 Dundas
                 of
                 
                   Breastmiln
                   contra
                   Skeen
                
                 of
                 Halyards
                 .
              
               
                 24.
                 
                 It
                 remains
                 that
                 we
                 confider
                 how
                 Thirlage
                 being
                 Constitute
                 ,
                 is
                 destitute
                 or
                 taken
                 off
                 ;
                 and
                 that
                 is
                 in
                 the
                 like
                 manner
                 as
                 it
                 was
                 constitute
                 ,
                 either
                 by
                 prescription
                 ,
                 whereby
                 Liberty
                 is
                 recovered
                 to
                 the
                 Thirled
                 Lands
                 ,
                 which
                 needs
                 no
                 positive
                 Act
                 to
                 deny
                 the
                 Multures
                 ,
                 but
                 simple
                 forbearance
                 to
                 lift
                 or
                 seek
                 them
                 is
                 enough
                 ,
                 or
                 otherways
                 by
                 any
                 Discharge
                 or
                 Renunciation
                 ,
                 without
                 further
                 solemnity
                 ,
                 for
                 in
                 that
                 way
                 also
                 it
                 is
                 constitute
                 ;
                 but
                 the
                 most
                 ordinary
                 way
                 of
                 taking
                 off
                 Thirlage
                 ,
                 is
                 by
                 granting
                 a
                 Charter
                 ,
                 containing
                 Milns
                 and
                 Multures
                 in
                 the
                 tenendas
                 ,
                 which
                 was
                 not
                 found
                 good
                 as
                 to
                 the
                 Kings
                 Feuars
                 ,
                 because
                 past
                 in
                 Exchequer
                 without
                 notice
                 ,
                 as
                 the
                 common
                 Style
                 ,
                 January
                 8.
                 1662.
                 
                 
                   James
                   Stuart
                   contra
                
                 Feuars
                 of
                 Aberledno
                 ;
                 which
                 is
                 more
                 evident
                 ,
                 when
                 Milns
                 and
                 Multures
                 are
                 in
                 the
                 dispositive
                 Clause
                 ;
                 it
                 hath
                 the
                 like
                 effect
                 when
                 the
                 Miln
                 and
                 Multure
                 is
                 disponed
                 to
                 one
                 party
                 ,
                 and
                 by
                 a
                 prior
                 Disposition
                 or
                 Infeftment
                 ,
                 the
                 same
                 Lands
                 which
                 were
                 of
                 old
                 of
                 the
                 Thirle
                 ,
                 are
                 granted
                 to
                 the
                 Vassals
                 thereof
                 ,
                 
                   cum
                   molendanis
                   &
                   multuris
                
                 ,
                 for
                 thereby
                 the
                 posterior
                 Infeftment
                 of
                 the
                 Miln
                 and
                 Multures
                 ,
                 is
                 a
                 
                   non
                   habente
                   potestatem
                
                 and
                 ineffectual
                 ,
                 Novemb
                 .
                 26.
                 1631.
                 
                 Mr.
                 
                   William
                   Olephant
                   contra
                
                 Earl
                 Marischal
                 .
              
               
                 25.
                 
                 In
                 Thirlage
                 there
                 is
                 only
                 allowance
                 or
                 deduction
                 of
                 Seed
                 and
                 Horse-corn
                 ,
                 but
                 nothing
                 for
                 Expenses
                 of
                 Labouring
                 ,
                 Jan.
                 14.
                 1662.
                 
                 
                   Nicolson
                   contra
                
                 Feuars
                 of
                 Tillicoutrie
                 .
              
               
                 26.
                 
                 Thirlage
                 by
                 a
                 Vassal
                 was
                 not
                 found
                 effectual
                 against
                 the
                 Superiour
                 ,
                 when
                 the
                 Lands
                 fell
                 in
                 his
                 hands
                 by
                 Ward
                 ,
                 unless
                 the
                 Superiour
                 had
                 consented
                 ,
                 Decem.
                 11.
                 1666.
                 
                 Earl
                 of
                 
                   Cassils
                   contra
                
                 Tennents
                 of
                 Dalmortoun
                 .
                 Thirlage
                 by
                 a
                 Vassals
                 Charter
                 ,
                 found
                 not
                 to
                 make
                 him
                 lyable
                 for
                 the
                 Abstraction
                 of
                 his
                 Tennents
                 ,
                 but
                 only
                 the
                 Tennents
                 themselves
                 ,
                 Decemb.
                 10.
                 1667.
                 
                 Earl
                 of
                 
                   Cassils
                   contra
                
                 Sheriff
                 of
                 Galloway
                 .
              
               
                 27.
                 
                 If
                 it
                 be
                 questioned
                 whether
                 Multure
                 be
                 due
                 when
                 the
                 Miln
                 is
                 unable
                 to
                 work
                 by
                 Frost
                 ,
                 breaking
                 of
                 the
                 Damn
                 ,
                 or
                 otherways
                 ,
                 it
                 must
                 be
                 distinguished
                 ,
                 that
                 if
                 the
                 insufficiency
                 of
                 the
                 Miln
                 or
                 the
                 want
                 Servants
                 be
                 through
                 the
                 fault
                 of
                 the
                 Heretor
                 ,
                 or
                 his
                 milner
                 ,
                 these
                 of
                 the
                 Thirle
                 may
                 go
                 to
                 other
                 milns
                 ,
                 and
                 they
                 will
                 not
                 only
                 be
                 free
                 of
                 small
                 duties
                 ,
                 but
                 they
                 may
                 retain
                 for
                 the
                 Reparation
                 of
                 their
                 damnage
                 ;
                 such
                 Out-sucken
                 multures
                 as
                 they
                 payed
                 at
                 the
                 miln
                 they
                 went
                 to
                 ,
                 but
                 if
                 the
                 insufficiency
                 be
                 by
                 accident
                 ,
                 without
                 the
                 milners
                 fault
                 ,
                 they
                 may
                 go
                 elsewhere
                 with
                 what
                 is
                 necessary
                 for
                 the
                 Interim
                 ,
                 and
                 will
                 be
                 free
                 of
                 the
                 small
                 duties
                 thereof
                 ,
                 but
                 of
                 no
                 part
                 of
                 the
                 multure
                 ,
                 because
                 as
                 hath
                 been
                 shown
                 before
                 ,
                 multures
                 are
                 now
                 a
                 distinct
                 Rent
                 ,
                 and
                 are
                 not
                 as
                 the
                 hire
                 of
                 the
                 work
                 ,
                 but
                 besides
                 the
                 multure
                 ,
                 the
                 small
                 duties
                 are
                 the
                 hire
                 ;
                 and
                 therefore
                 ,
                 the
                 milners
                 failzie
                 can
                 only
                 take
                 away
                 these
                 small
                 duties
                 ,
                 it
                 was
                 so
                 found
                 ,
                 February
                 9.
                 1666.
                 
                 Heretrix
                 of
                 
                   John
                   smiln
                   contra
                
                 Feuars
                 .
              
            
             
               
               
                 TITLE
                 XVIII
                 .
                 TEINDS
                 ,
                 Where
                 ,
                 of
                 Benefices
                 ,
                 Stipends
                 ,
                 Presentation
                 ,
                 Collation
                 ,
                 Institution
                 ,
                 Tacks
                 ,
                 Annats
                 ,
                 and
                 Patronage
                 .
              
               
                 
                   1.
                   
                   Teinds
                   affect
                   all
                   Intrometters
                   ,
                   but
                   not
                   singular
                   Successors
                   .
                
                 
                   2.
                   
                   The
                   rise
                   of
                   Teinds
                   .
                
                 
                   3.
                   
                   The
                   first
                   division
                   of
                   Parochs
                   .
                
                 
                   4.
                   
                   Whether
                   Teinds
                   be
                   
                     jure
                     divino
                  
                   .
                
                 
                   5.
                   
                   Kinds
                   of
                   Teinds
                   .
                
                 
                   6.
                   
                   We
                   have
                   no
                   personal
                   Teinds
                   and
                   Viccarage
                   ,
                   is
                   local
                   according
                   to
                   the
                   custome
                   of
                   the
                   several
                   places
                   .
                
                 
                   7.
                   
                   What
                   Lands
                   are
                   Teind-free
                   .
                
                 
                   8.
                   
                   Teinds
                   might
                   not
                   be
                   Feued
                   after
                   the
                   Lateran
                   Council
                   .
                
                 
                   9.
                   
                   Teinds
                   are
                   not
                   annexed
                   to
                   the
                   Crown
                   .
                
                 
                   10.
                   
                   Teinds
                   included
                   .
                
                 
                   11.
                   
                   Surrender
                   of
                   Teinds
                   to
                   the
                   King
                   and
                   his
                   Decreet
                   Arbitral
                   ,
                   for
                   valuing
                   and
                   selling
                   thereof
                   .
                
                 
                   12.
                   
                   Commission
                   for
                   valuating
                   of
                   Teinds
                   .
                
                 
                   13.
                   
                   Annuitie
                   of
                   Teinds
                   .
                
                 
                   14.
                   
                   The
                   Rule
                   for
                   valuing
                   Teinds
                   .
                
                 
                   15.
                   
                   Benefices
                   .
                
                 
                   16.
                   
                   Decimae
                   debentur
                   Parocho
                   :
                
                 
                   17.
                   
                   Consent
                   of
                   the
                   Chapter
                   ,
                   Convent
                   ,
                   or
                   Prebend
                   ,
                   how
                   far
                   requisite
                   .
                
                 
                   
                   18.
                   
                   Diminution
                   of
                   the
                   Rental
                   of
                   Benefices
                   .
                
                 
                   19.
                   
                   Consent
                   of
                   Patrons
                   .
                
                 
                   20.
                   
                   Tacks
                   by
                   Colledges
                   .
                
                 
                   21.
                   
                   The
                   present
                   condition
                   of
                   Teinds
                   .
                
                 
                   22.
                   
                   Drawn
                   Teinds
                   .
                
                 
                   23.
                   
                   Spuilzie
                   of
                   Teinds
                   and
                   Inhibitions
                   .
                
                 
                   24.
                   
                   Rentalled
                   Teind
                   bolls
                   .
                
                 
                   25.
                   
                   The
                   interest
                   of
                   Bishops
                   in
                   their
                   Benefices
                   .
                
                 
                   26.
                   
                   The
                   interest
                   of
                   Ministers
                   in
                   Benenefices
                   .
                
                 
                   27.
                   
                   Kirks
                   Patrimonial
                   ,
                   or
                   Patronate
                   .
                
                 
                   28.
                   
                   Presentation
                   and
                   Collation
                   .
                
                 
                   29.
                   
                   The
                   effect
                   of
                   Possession
                   as
                   to
                   Benefices
                   and
                   Stipends
                   .
                
                 
                   30.
                   
                   Stipends
                   Allocat
                   ,
                   and
                   unallecate
                   .
                
                 
                   31.
                   
                   Teinds
                   change
                   as
                   the
                   Lands
                   are
                   in
                   Grass
                   ,
                   Corn
                   or
                   other
                   Cropt
                   .
                
                 
                   32.
                   
                   Teinds
                   are
                   not
                   
                     debita
                     fundi
                  
                   .
                
                 
                   33.
                   
                   The
                   Legal
                   terms
                   of
                   benefices
                   and
                   Stipends
                   .
                
                 
                   34.
                   
                   The
                   Annat
                   .
                
                 
                   35.
                   
                   Patronage
                   .
                
              
               
                 TEINDS
                 being
                 a
                 burden
                 ,
                 affecting
                 Lands
                 ,
                 and
                 profites
                 thereof
                 ;
                 and
                 being
                 also
                 a
                 disrinct
                 Right
                 from
                 the
                 Lands
                 ,
                 do
                 ,
                 most
                 fitly
                 fall
                 under
                 Consideration
                 here
                 ,
                 and
                 either
                 as
                 a
                 Servitude
                 subjoyned
                 to
                 the
                 preceeding
                 Servitudes
                 ,
                 or
                 as
                 a
                 several
                 Right
                 requires
                 the
                 same
                 Order
                 .
              
               
                 1.
                 
                 Teinds
                 do
                 affect
                 all
                 Intrometters
                 with
                 the
                 Stock
                 and
                 Teind
                 jointly
                 ,
                 or
                 with
                 the
                 Teind
                 severally
                 ;
                 but
                 though
                 they
                 be
                 valued
                 ,
                 they
                 are
                 not
                 
                   debita
                   fundi
                
                 ,
                 affecting
                 singular
                 Successors
                 ,
                 for
                 which
                 the
                 ground
                 can
                 be
                 poinded
                 ,
                 February
                 20.
                 1662.
                 
                 Earl
                 of
                 
                   Callender
                   contra
                   Andrew
                   Monro
                
                 .
                 Neither
                 do
                 they
                 affect
                 the
                 present
                 Heretor
                 ,
                 while
                 a
                 Liferenter
                 possesseth
                 ,
                 June
                 24.
                 1663.
                 
                 
                   Menzies
                   contra
                
                 Laird
                 of
                 Glenurchie
                 .
              
               
                 Teinds
                 ,
                 as
                 the
                 Word
                 denoteth
                 ,
                 signifieth
                 the
                 tenth
                 of
                 that
                 which
                 is
                 Teinded
                 ;
                 and
                 besides
                 the
                 civil
                 Decimations
                 that
                 have
                 been
                 imposed
                 by
                 Soveraigns
                 upon
                 their
                 Subjects
                 ,
                 as
                 a
                 Tribute
                 for
                 defraying
                 of
                 publick
                 Charges
                 ;
                 there
                 have
                 been
                 anciently
                 and
                 frequently
                 Teinds
                 granted
                 for
                 Sacred
                 and
                 Pious
                 uses
                 ;
                 So
                 Abraham
                 gave
                 to
                 Melchisedec
                 ,
                 the
                 Teind
                 of
                 the
                 spoil
                 of
                 his
                 Enemies
                 ,
                 Gen.
                 14.
                 20.
                 
                 Jacob
                 voweth
                 to
                 God
                 also
                 the
                 tenth
                 of
                 all
                 that
                 God
                 should
                 give
                 him
                 ,
                 Gen.
                 28.
                 22.
                 
                 And
                 it
                 is
                 evident
                 that
                 the
                 Lord
                 appointed
                 the
                 tenths
                 of
                 Israel
                 for
                 the
                 Levites
                 ,
                 whom
                 he
                 had
                 set
                 apart
                 for
                 himself
                 ,
                 who
                 were
                 to
                 give
                 a
                 
                 tenth
                 thereof
                 to
                 the
                 Priests
                 ,
                 who
                 served
                 at
                 the
                 Altar
                 ,
                 Numb
                 .
                 18.
                 26
                 ,
                 and
                 28
                 :
                 The
                 Teinds
                 did
                 so
                 continue
                 till
                 the
                 alteration
                 of
                 the
                 Jewish
                 Church
                 .
                 The
                 Heathens
                 also
                 did
                 Consecrate
                 their
                 Teinds
                 to
                 their
                 Idols
                 ,
                 and
                 payed
                 them
                 to
                 their
                 Priests
                 :
                 Thus
                 
                   Plinius
                   ,
                   Cap.
                
                 14
                 ,
                 and
                 19.
                 observeth
                 :
                 And
                 Herodot
                 observeth
                 in
                 his
                 first
                 Book
                 ,
                 the
                 like
                 of
                 Syrus
                 .
              
               
                 3.
                 
                 Aristus
                 Bishop
                 of
                 Rome
                 ,
                 who
                 was
                 the
                 first
                 who
                 divided
                 the
                 Ministerial
                 Charge
                 by
                 Parochs
                 ;
                 the
                 Church
                 before
                 not
                 being
                 so
                 distribute
                 to
                 the
                 several
                 Ministers
                 ;
                 this
                 Order
                 being
                 so
                 convenient
                 ,
                 that
                 by
                 appropriation
                 of
                 a
                 fixed
                 Pastour
                 to
                 a
                 certain
                 flock
                 ,
                 no
                 Pastor
                 might
                 be
                 idle
                 ,
                 and
                 no
                 flock
                 neglected
                 .
                 It
                 hath
                 run
                 over
                 the
                 Christian
                 World
                 ,
                 and
                 the
                 Teinds
                 of
                 these
                 Parochs
                 have
                 been
                 payed
                 to
                 the
                 Pastors
                 and
                 Ministers
                 of
                 the
                 Church
                 .
              
               
                 4.
                 
                 From
                 these
                 and
                 the
                 like
                 grounds
                 ,
                 most
                 of
                 Papists
                 ,
                 and
                 some
                 of
                 Protestant
                 Divines
                 ,
                 have
                 concluded
                 Teinds
                 to
                 be
                 
                   jure
                   divino
                
                 ,
                 as
                 being
                 Institute
                 and
                 Consecrate
                 by
                 God
                 himself
                 ,
                 having
                 a
                 moral
                 and
                 perpetual
                 foundation
                 ,
                 that
                 these
                 who
                 are
                 set
                 apart
                 from
                 worldly
                 affairs
                 ,
                 to
                 the
                 service
                 of
                 God
                 ,
                 should
                 have
                 a
                 competent
                 Liveliehood
                 from
                 these
                 for
                 whom
                 they
                 serve
                 ,
                 but
                 the
                 determination
                 of
                 the
                 Quota
                 ,
                 to
                 be
                 the
                 tenth
                 part
                 rather
                 then
                 any
                 other
                 proportion
                 ,
                 is
                 a
                 positive
                 Law
                 that
                 God
                 manifested
                 ,
                 and
                 was
                 observed
                 before
                 the
                 written
                 Word
                 ;
                 and
                 was
                 retained
                 by
                 the
                 Heathens
                 ,
                 even
                 after
                 they
                 had
                 deviat
                 from
                 the
                 true
                 God
                 :
                 But
                 most
                 of
                 the
                 Protestant
                 Divines
                 ,
                 hold
                 Teinds
                 to
                 be
                 the
                 voluntary
                 Dedication
                 and
                 Consecration
                 of
                 men
                 ,
                 for
                 Pious
                 uses
                 ,
                 and
                 to
                 have
                 continued
                 in
                 a
                 tenth
                 part
                 from
                 the
                 example
                 of
                 
                   Abraham
                   ,
                   the
                   father
                   of
                   the
                   faithful
                   ,
                
                 and
                 of
                 the
                 Divine
                 Constitution
                 ,
                 in
                 the
                 Judicial
                 Law
                 ;
                 but
                 there
                 is
                 no
                 Divine
                 moral
                 Precept
                 in
                 the
                 Word
                 for
                 Teinds
                 ,
                 of
                 which
                 there
                 is
                 no
                 mention
                 in
                 the
                 New
                 Testament
                 ,
                 even
                 where
                 the
                 mentainance
                 of
                 Ministers
                 is
                 purposely
                 spoken
                 to
                 ;
                 but
                 only
                 that
                 these
                 who
                 
                   serve
                   at
                   the
                   Altar
                   should
                   live
                   by
                   the
                   Alter
                   .
                   That
                   these
                   who
                   sow
                   Spiritual
                   things
                   ,
                   should
                   reap
                   Temporal
                   things
                   ,
                
                 which
                 doth
                 hold
                 forth
                 a
                 moral
                 duty
                 of
                 Recompense
                 ,
                 to
                 provide
                 a
                 competent
                 Liveliehood
                 for
                 these
                 who
                 are
                 separat
                 from
                 the
                 World
                 for
                 our
                 cause
                 ,
                 but
                 doth
                 not
                 infer
                 a
                 tenth
                 part
                 or
                 any
                 other
                 determinat
                 proportion
                 ,
                 but
                 what
                 is
                 convenient
                 .
              
               
                 5.
                 
                 Teinds
                 are
                 defined
                 by
                 the
                 Canonists
                 ,
                 to
                 be
                 a
                 tenth
                 part
                 of
                 all
                 profites
                 and
                 increase
                 ;
                 and
                 they
                 are
                 of
                 three
                 kinds
                 ,
                 personal
                 ,
                 predial
                 and
                 mixed
                 :
                 Personal
                 are
                 the
                 Teinds
                 of
                 the
                 profite
                 of
                 personal
                 industry
                 ,
                 as
                 by
                 Trading
                 ,
                 Negotiation
                 ,
                 Artifice
                 ,
                 Science
                 :
                 Predial
                 are
                 of
                 the
                 natural
                 Fruits
                 of
                 the
                 Ground
                 or
                 Water
                 :
                 mixed
                 are
                 of
                 the
                 Industrial
                 Fruits
                 of
                 the
                 Ground
                 .
              
               
                 6.
                 
                 But
                 our
                 custom
                 alloweth
                 of
                 no
                 personal
                 Teinds
                 ;
                 and
                 of
                 these
                 predial
                 and
                 mixed
                 ,
                 such
                 only
                 which
                 have
                 been
                 in
                 use
                 ,
                 according
                 to
                 the
                 Custom
                 of
                 the
                 several
                 places
                 ;
                 such
                 are
                 Teind
                 Fish
                 ,
                 for
                 which
                 the
                 buyers
                 of
                 the
                 Fish
                 were
                 found
                 liable
                 ,
                 because
                 of
                 that
                 custom
                 past
                 memory
                 ,
                 February
                 15.
                 1631.
                 
                 
                   Brice
                   Semple
                
                 and
                 
                   Schaw
                   contra
                   Brown.
                
                 But
                 where
                 the
                 Fishers
                 were
                 fourty
                 years
                 in
                 Possession
                 of
                 Fishing
                 ,
                 without
                 Teind
                 ,
                 in
                 such
                 a
                 Bay
                 ,
                 it
                 was
                 found
                 sufficient
                 to
                 liberate
                 them
                 ,
                 November
                 24.
                 1665.
                 
                 Bishop
                 of
                 the
                 
                   Isles
                   contra
                
                 the
                 Laird
                 of
                 Greenock
                 and
                 others
                 :
                 also
                 in
                 other
                 places
                 ,
                 there
                 is
                 no
                 Teind
                 of
                 Fishes
                 ;
                 in
                 some
                 places
                 ,
                 Hay
                 ,
                 Staigs
                 ,
                 Swine
                 ,
                 Lint
                 ,
                 Hemp
                 are
                 Teinded
                 ,
                 in
                 other
                 places
                 not
                 ,
                 but
                 generally
                 ,
                 Victual
                 is
                 Teinded
                 ,
                 and
                 Stirks
                 ,
                 Lambs
                 ,
                 Wool
                 and
                 Milk.
                 
              
               
                 7.
                 
                 The
                 Viccarage
                 Teinds
                 is
                 local
                 ,
                 according
                 to
                 the
                 custom
                 of
                 every
                 Benefice
                 or
                 Paroch
                 ,
                 and
                 therefore
                 ,
                 was
                 suftained
                 for
                 the
                 Viccarage
                 of
                 Salt
                 ,
                 and
                 so
                 much
                 out
                 of
                 each
                 Loom
                 ,
                 but
                 not
                 upon
                 thirteen
                 years
                 Possession
                 ,
                 but
                 only
                 upon
                 prescription
                 
                 by
                 fourty
                 years
                 Possession
                 ,
                 November
                 29.
                 1678.
                 
                 Mr.
                 
                   John
                   Birnie
                   contra
                
                 Earl
                 of
                 Neth●sda●●
                 and
                 his
                 Tennents
                 :
                 Yea
                 ,
                 in
                 the
                 same
                 Paroch
                 there
                 was
                 found
                 diversity
                 of
                 the
                 Viccarage
                 ,
                 some
                 places
                 having
                 no
                 Viccarage
                 of
                 Cows
                 and
                 other
                 places
                 paying
                 Viccarage
                 of
                 Milk
                 ,
                 and
                 Wool
                 for
                 Sheep
                 ;
                 and
                 other
                 places
                 paying
                 Viccarage
                 of
                 Hay
                 ,
                 Goose
                 and
                 Grice
                 ,
                 July
                 7.
                 1677.
                 
                 Parson
                 of
                 
                   Prestounhaugh
                   contra
                
                 his
                 Parochioners
                 .
                 And
                 Viccarage
                 was
                 not
                 found
                 due
                 out
                 of
                 Yards
                 ,
                 which
                 were
                 a
                 part
                 of
                 the
                 Chanrions
                 Portions
                 ,
                 unless
                 it
                 were
                 proven
                 that
                 they
                 had
                 been
                 in
                 use
                 of
                 payment
                 of
                 Viccarage
                 before
                 .
              
               
                 7.
                 
                 Some
                 Lands
                 also
                 by
                 long
                 custom
                 ,
                 are
                 Teind-free
                 ,
                 as
                 Temple-lands
                 ,
                 being
                 out
                 of
                 use
                 of
                 payment
                 of
                 Teinds
                 for
                 fifty
                 years
                 ,
                 were
                 found
                 free
                 for
                 all
                 time
                 thereafter
                 ,
                 Hope
                 ,
                 Teinds
                 ,
                 Earl
                 of
                 
                   Wigtoun
                   contra
                
                 Lady
                 Torwood
                 .
                 Gleibs
                 and
                 Manses
                 are
                 also
                 Teind-free
                 .
                 And
                 the
                 Teinds
                 of
                 Lands
                 belonging
                 to
                 the
                 Cystertian
                 Order
                 ,
                 Hospitlers
                 and
                 Templers
                 ,
                 were
                 Teind-free
                 ,
                 and
                 so
                 continue
                 in
                 their
                 Feuars
                 ,
                 though
                 the
                 priviledge
                 was
                 only
                 as
                 to
                 what
                 these
                 Orders
                 laboured
                 themselves
                 ;
                 yet
                 the
                 Teind
                 was
                 found
                 to
                 belong
                 to
                 their
                 many
                 Feuars
                 ,
                 for
                 what
                 the
                 Feuars
                 themselves
                 labour
                 ,
                 July
                 15.
                 1664.
                 
                 
                   Thomas
                   Crawford
                   contra
                
                 Laird
                 of
                 Prestoungrange
                 .
              
               
                 8.
                 
                 Teinds
                 were
                 prohibite
                 to
                 be
                 set
                 in
                 Feu
                 to
                 Lay-men
                 ,
                 by
                 the
                 Lateran
                 Council
                 ,
                 held
                 by
                 Pope
                 Innocent
                 the
                 second
                 ,
                 or
                 any
                 way
                 to
                 be
                 alienate
                 from
                 the
                 Church
                 :
                 Though
                 Church-lands
                 might
                 be
                 set
                 Feu
                 ,
                 these
                 being
                 accounted
                 but
                 the
                 Temporality
                 ,
                 and
                 the
                 Teinds
                 the
                 Spirituality
                 ,
                 as
                 flowing
                 from
                 a
                 Spiritual
                 ground
                 or
                 Divine
                 Right
                 .
              
               
                 9.
                 
                 Teinds
                 are
                 also
                 acknowledged
                 with
                 us
                 to
                 be
                 the
                 Patrimony
                 of
                 the
                 Kirk
                 ,
                 Par.
                 1567.
                 cap.
                 10.
                 and
                 they
                 are
                 not
                 annexed
                 to
                 the
                 Crown
                 ,
                 as
                 the
                 temporality
                 of
                 Benefices
                 are
                 .
                 Par.
                 1587.
                 cap.
                 29.
                 
              
               
                 10.
                 
                 Yet
                 
                   decimae
                   inclusae
                
                 are
                 here
                 excepted
                 ,
                 for
                 these
                 are
                 Feued
                 with
                 the
                 Stock
                 ,
                 and
                 can
                 be
                 only
                 such
                 ,
                 as
                 time
                 out
                 of
                 mind
                 have
                 gone
                 along
                 with
                 the
                 Stock
                 ,
                 and
                 never
                 have
                 been
                 drawn
                 nor
                 separate
                 ;
                 and
                 therefore
                 ,
                 are
                 so
                 ordinarly
                 exprest
                 ,
                 
                   decimae
                   ,
                   inclusae
                   ,
                   nunquam
                   antea
                   separatae
                
                 ;
                 and
                 therefore
                 ,
                 such
                 are
                 presumed
                 to
                 have
                 been
                 Feued
                 out
                 with
                 the
                 Stock
                 ,
                 before
                 the
                 Lateran
                 Council
                 ,
                 and
                 so
                 consistent
                 with
                 the
                 Canons
                 :
                 But
                 if
                 it
                 can
                 be
                 proven
                 that
                 once
                 they
                 were
                 separate
                 by
                 Church-men
                 ,
                 though
                 they
                 had
                 right
                 both
                 to
                 Stock
                 and
                 Teind
                 ,
                 and
                 were
                 Feued
                 with
                 Teinds
                 included
                 ,
                 they
                 are
                 not
                 valide
                 
                   decimae
                   inclusae
                
                 ,
                 which
                 no
                 Church-man
                 could
                 Feu
                 after
                 the
                 said
                 Council
                 .
                 Neither
                 can
                 the
                 King
                 constitute
                 Feus
                 ,
                 
                   de
                   novo
                   cum
                   decimis
                   inclusis
                
                 ,
                 so
                 that
                 these
                 Teinds
                 included
                 ,
                 are
                 estimate
                 as
                 no
                 Teinds
                 ,
                 long
                 custom
                 being
                 fufficient
                 to
                 make
                 Lands
                 Teind-free
                 ;
                 and
                 therefore
                 ,
                 they
                 have
                 never
                 come
                 in
                 with
                 Teinds
                 or
                 Benefices
                 in
                 any
                 burden
                 ,
                 affecting
                 Teinds
                 by
                 Law
                 ,
                 as
                 Ministers
                 Stipends
                 ,
                 &c.
                 
              
               
                 11.
                 
                 About
                 the
                 time
                 of
                 Abolition
                 of
                 Popery
                 in
                 Scotland
                 ,
                 the
                 Popish
                 Clergie
                 did
                 grant
                 more
                 frequently
                 long
                 Tacks
                 of
                 their
                 Teinds
                 :
                 the
                 King
                 also
                 gave
                 Donatives
                 of
                 Teinds
                 and
                 erected
                 them
                 with
                 Church-lands
                 into
                 Barronies
                 and
                 Lordships
                 ,
                 so
                 that
                 there
                 remained
                 little
                 of
                 them
                 ,
                 no
                 way
                 able
                 to
                 entertain
                 the
                 Ministers
                 ;
                 and
                 much
                 Contraversie
                 was
                 like
                 to
                 arise
                 about
                 them
                 ,
                 till
                 all
                 parties
                 having
                 interest
                 submitted
                 and
                 surrendered
                 the
                 same
                 to
                 the
                 King.
                 First
                 ,
                 By
                 the
                 general
                 surrender
                 of
                 Erections
                 and
                 Teinds
                 ,
                 Secondly
                 ,
                 By
                 a
                 particular
                 surrender
                 of
                 some
                 Beneficed
                 persons
                 .
                 Thirdly
                 ,
                 Of
                 the
                 Bishops
                 .
                 Fourthly
                 ,
                 Of
                 the
                 Burrows
                 .
                 The
                 King
                 ,
                 upon
                 the
                 2.
                 of
                 September
                 1629.
                 
                 Ordered
                 the
                 whole
                 matter
                 to
                 this
                 effect
                 ,
                 that
                 the
                 whole
                 Teinds
                 should
                 be
                 consolidat
                 with
                 the
                 Stock
                 ,
                 being
                 always
                 affected
                 with
                 competent
                 Stipends
                 to
                 Ministers
                 ,
                 &c.
                 
                 And
                 that
                 
                 therefore
                 ,
                 the
                 Titular
                 or
                 the
                 Tacks-man
                 of
                 the
                 Teinds
                 ,
                 having
                 perpetual
                 or
                 hereditable
                 Right
                 ,
                 should
                 sell
                 the
                 same
                 to
                 the
                 Heretors
                 ,
                 at
                 nine
                 years
                 puchase
                 ;
                 and
                 where
                 the
                 Right
                 was
                 temporary
                 or
                 defective
                 ,
                 the
                 price
                 thereof
                 should
                 be
                 made
                 less
                 accordingly
                 .
              
               
                 12.
                 
                 And
                 for
                 that
                 effect
                 ,
                 a
                 Commission
                 was
                 granted
                 for
                 valuation
                 of
                 Teinds
                 ,
                 and
                 for
                 disponing
                 thereof
                 as
                 aforesaid
                 ,
                 and
                 for
                 modifying
                 and
                 localling
                 Stipendsto
                 the
                 Ministers
                 :
                 His
                 Majesty
                 reserved
                 to
                 Himself
                 only
                 a
                 yearly
                 Annuity
                 of
                 ten
                 shilling
                 Scots
                 out
                 of
                 each
                 Boll
                 of
                 Wheat
                 and
                 Barley
                 ,
                 eight
                 shilling
                 of
                 Pease
                 and
                 Rie
                 ,
                 six
                 shilling
                 of
                 Oats
                 where
                 the
                 Boll
                 rendered
                 a
                 Boll
                 of
                 Meal
                 ,
                 and
                 proportionally
                 less
                 where
                 it
                 rendered
                 less
                 :
                 these
                 Decreets
                 were
                 Ratified
                 and
                 prosecuted
                 by
                 several
                 Acts
                 of
                 Parliament
                 ,
                 1633.
                 cap.
                 8
                 ,
                 15
                 ,
                 17
                 ,
                 19.
                 
                 And
                 1641.
                 cap.
                 30.
                 
                 Par.
                 1647.
                 cap.
                 32.
                 
                 Par.
                 1649.
                 cap.
                 46.
                 
                 Par.
                 1661.
                 cap.
                 61.
                 there
                 was
                 an
                 exception
                 in
                 the
                 Act
                 1633.
                 cap.
                 19
                 ,
                 which
                 ordained
                 the
                 Teinds
                 of
                 all
                 Abbacies
                 and
                 other
                 Benefices
                 ,
                 except
                 the
                 Teinds
                 pertaining
                 to
                 Bishopriks
                 and
                 other
                 Benefices
                 ,
                 which
                 fell
                 not
                 under
                 the
                 submission
                 ;
                 in
                 which
                 ,
                 there
                 is
                 a
                 Clause
                 ,
                 that
                 the
                 saids
                 Bishops
                 and
                 Beneficed
                 persons
                 ,
                 should
                 enjoy
                 the
                 Fruits
                 and
                 Rents
                 of
                 their
                 several
                 Benefices
                 ,
                 as
                 they
                 were
                 possessed
                 by
                 them
                 ,
                 the
                 time
                 of
                 the
                 said
                 Submission
                 ,
                 and
                 therefore
                 ,
                 where
                 they
                 did
                 draw
                 the
                 Teinds
                 by
                 the
                 space
                 of
                 fifteen
                 years
                 before
                 the
                 year
                 1628.
                 or
                 at
                 least
                 seven
                 years
                 of
                 the
                 saids
                 fifteen
                 years
                 ,
                 or
                 had
                 the
                 same
                 in
                 rentalled
                 Bolls
                 ,
                 they
                 should
                 so
                 continue
                 and
                 not
                 be
                 valued
                 ,
                 which
                 provision
                 is
                 repeated
                 ,
                 Par.
                 1662.
                 cap.
                 9.
                 all
                 this
                 proved
                 for
                 the
                 most
                 part
                 ineffectual
                 ;
                 for
                 compelling
                 Titulars
                 and
                 Tacksmen
                 of
                 Teinds
                 to
                 sell
                 their
                 interest
                 in
                 other
                 mens
                 Teinds
                 ,
                 to
                 the
                 proper
                 Heretors
                 ;
                 because
                 these
                 Commissioners
                 ,
                 allowing
                 them
                 an
                 option
                 to
                 allocat
                 whom
                 they
                 pleased
                 ,
                 for
                 the
                 payment
                 of
                 the
                 Ministers
                 Stipend
                 ;
                 few
                 ventured
                 to
                 pursue
                 them
                 for
                 Vendition
                 ,
                 least
                 they
                 might
                 be
                 excluded
                 be
                 allocation
                 ,
                 which
                 they
                 were
                 willing
                 to
                 avert
                 ,
                 by
                 giving
                 the
                 dearest
                 Rates
                 ;
                 but
                 if
                 the
                 Stipend
                 had
                 been
                 laid
                 proportionally
                 upon
                 all
                 ,
                 the
                 Kings
                 favour
                 had
                 been
                 more
                 effectual
                 and
                 equal
                 ;
                 but
                 buying
                 of
                 Teinds
                 being
                 thereby
                 retarded
                 ,
                 the
                 great
                 work
                 of
                 these
                 Commissioners
                 was
                 to
                 value
                 ,
                 modifie
                 and
                 allocat
                 Stipends
                 ,
                 when
                 the
                 Tack-duties
                 of
                 the
                 Tacksmen
                 ,
                 were
                 not
                 found
                 sufficient
                 to
                 make
                 up
                 theStipend
                 ;
                 the
                 Commission
                 did
                 increass
                 the
                 Tack-duties
                 upon
                 the
                 tacks-men
                 ,
                 and
                 in
                 recompense
                 thereof
                 ,
                 prorogat
                 their
                 Tacks
                 ,
                 whereby
                 they
                 ,
                 though
                 at
                 first
                 being
                 but
                 slender
                 Rights
                 ,
                 by
                 many
                 nineteen
                 years
                 Prorogations
                 became
                 little
                 less
                 then
                 Heretable
                 Rights
                 .
              
               
                 13.
                 
                 The
                 Annuities
                 of
                 Teinds
                 not
                 being
                 annexed
                 to
                 the
                 Crown
                 ,
                 were
                 disponed
                 by
                 King
                 Charles
                 the
                 first
                 ,
                 to
                 
                   James
                   Livingstoun
                
                 ,
                 a
                 Groom
                 of
                 His
                 Bed-chamber
                 ,
                 to
                 be
                 uplifted
                 by
                 him
                 till
                 he
                 was
                 satisfied
                 of
                 the
                 sum
                 of
                 Which
                 Right
                 was
                 purchased
                 by
                 the
                 Earl
                 of
                 Lowdoun
                 ,
                 and
                 did
                 receive
                 many
                 stops
                 ,
                 and
                 took
                 litle
                 effect
                 till
                 the
                 Kings
                 return
                 ,
                 who
                 gave
                 a
                 Commission
                 to
                 the
                 late
                 Earl
                 of
                 Lowdoun
                 ,
                 to
                 transact
                 for
                 the
                 bygone
                 Annuities
                 ,
                 and
                 to
                 Dispone
                 them
                 with
                 the
                 full
                 Right
                 thereof
                 in
                 all
                 time
                 coming
                 ,
                 and
                 his
                 Disposition
                 with
                 consent
                 of
                 two
                 Members
                 of
                 Exchequer
                 was
                 declared
                 sufficient
                 Rights
                 to
                 the
                 buyers
                 ,
                 and
                 were
                 appointed
                 to
                 be
                 Recorded
                 in
                 the
                 Books
                 of
                 Exchequer
                 ,
                 that
                 the
                 sums
                 gotten
                 therefore
                 might
                 be
                 known
                 ,
                 and
                 imputed
                 unto
                 the
                 sum
                 ,
                 for
                 which
                 the
                 Right
                 to
                 the
                 Annuity
                 was
                 granted
                 ;
                 according
                 to
                 which
                 ,
                 many
                 have
                 bought
                 their
                 Annuities
                 .
                 The
                 Commission
                 did
                 also
                 give
                 power
                 to
                 value
                 the
                 Teinds
                 ,
                 that
                 the
                 Annuity
                 might
                 be
                 known
                 ,
                 and
                 to
                 uplift
                 and
                 compone
                 for
                 the
                 bygone
                 ,
                 and
                 the
                 Current
                 Annuities
                 until
                 they
                 were
                 sold
                 ,
                 and
                 accordingly
                 Collectors
                 were
                 appointed
                 by
                 the
                 Earl
                 of
                 Lowdoun
                 ,
                 in
                 several
                 places
                 of
                 the
                 Kingdom
                 .
                 The
                 like
                 Commission
                 was
                 renewed
                 to
                 James
                 Earl
                 
                 of
                 Lowdoun
                 ,
                 after
                 his
                 Fathers
                 death
                 ,
                 who
                 did
                 make
                 some
                 progress
                 therein
                 ,
                 in
                 the
                 same
                 way
                 as
                 his
                 Father
                 had
                 done
                 ,
                 but
                 a
                 stop
                 was
                 put
                 thereto
                 by
                 the
                 Kings
                 Warrant
                 ,
                 in
                 anno
                 1674.
                 which
                 doth
                 yet
                 still
                 continue
                 :
                 and
                 with
                 this
                 stop
                 ,
                 by
                 a
                 Proclamation
                 from
                 the
                 King
                 ,
                 all
                 the
                 arrears
                 of
                 the
                 Annuity
                 before
                 the
                 year
                 1660.
                 were
                 simply
                 Discharged
                 .
              
               
                 14.
                 
                 The
                 Rule
                 prescribed
                 by
                 the
                 King
                 ,
                 for
                 valuation
                 of
                 Teinds
                 ,
                 to
                 fix
                 them
                 to
                 a
                 constant
                 yearly
                 duty
                 ,
                 was
                 this
                 ,
                 that
                 where
                 the
                 Teinds
                 were
                 severally
                 known
                 from
                 the
                 Stock
                 ,
                 and
                 set
                 by
                 Tack
                 or
                 Rental
                 ,
                 the
                 same
                 should
                 be
                 also
                 valued
                 severally
                 ,
                 deducing
                 a
                 fifth
                 part
                 for
                 the
                 ease
                 of
                 the
                 Heretor
                 ,
                 because
                 frequently
                 the
                 Church-men
                 had
                 drawn
                 the
                 rate
                 of
                 the
                 Teind
                 above
                 the
                 just
                 value
                 ,
                 by
                 their
                 Stocked
                 and
                 Rental
                 Bolls
                 :
                 But
                 where
                 the
                 Stock
                 and
                 Teind
                 were
                 not
                 severally
                 known
                 ,
                 the
                 fifth
                 part
                 of
                 the
                 Rent
                 was
                 decerned
                 to
                 be
                 for
                 the
                 Teind
                 .
              
               
                 15.
                 
                 Teinds
                 by
                 the
                 Canon
                 Law
                 ,
                 were
                 all
                 constitute
                 into
                 Benefices
                 ,
                 which
                 follow
                 the
                 several
                 Offices
                 in
                 the
                 Roman
                 Church
                 ,
                 which
                 were
                 either
                 Prelacies
                 or
                 inferiour
                 to
                 Prelacies
                 :
                 Prelacies
                 were
                 the
                 sewho
                 had
                 Chapters
                 and
                 Convents
                 ,
                 And
                 therefore
                 ,
                 one
                 had
                 the
                 Prelacy
                 or
                 preserence
                 amongst
                 the
                 rest
                 of
                 their
                 Colleagues
                 ,
                 such
                 were
                 Arch-Bishops
                 ,
                 Bishops
                 ,
                 Abbots
                 ,
                 Priors
                 ,
                 Prioresses
                 :
                 Abbots
                 and
                 Priors
                 had
                 the
                 Prelacy
                 amongst
                 the
                 Mouks
                 ,
                 of
                 several
                 Monasteries
                 ,
                 as
                 the
                 Prioresses
                 had
                 over
                 the
                 Nuns
                 .
              
               
                 There
                 were
                 also
                 some
                 few
                 Monasteries
                 which
                 keeped
                 the
                 name
                 of
                 Monasteries
                 or
                 Ministries
                 ,
                 and
                 the
                 Prelate
                 was
                 called
                 Minister
                 ,
                 of
                 which
                 there
                 are
                 four
                 in
                 Scotland
                 ;
                 the
                 Minister
                 of
                 
                   Fale
                   ,
                   Peebles
                   ,
                   Scotland-wall
                
                 ,
                 and
                 the
                 Trinity-friers
                 of
                 Aberdene
                 :
                 Next
                 unto
                 these
                 ,
                 were
                 the
                 Provosts
                 of
                 Collegiat
                 Kirks
                 ,
                 instituted
                 for
                 singing
                 of
                 Mess
                 ,
                 specially
                 for
                 their
                 Founders
                 and
                 Patrons
                 ;
                 these
                 Provosts
                 governing
                 their
                 Prebend
                 ,
                 who
                 were
                 skilful
                 in
                 Musick
                 ,
                 and
                 had
                 their
                 several
                 Stalls
                 in
                 which
                 they
                 sat
                 ,
                 for
                 the
                 more
                 orderly
                 singing
                 of
                 their
                 parts
                 of
                 musick
                 ,
                 from
                 which
                 these
                 Prebends
                 were
                 designed
                 of
                 the
                 first
                 ,
                 second
                 ,
                 or
                 other
                 Stall
                 .
                 Some
                 of
                 the
                 Colledge-Kirks
                 were
                 founded
                 by
                 the
                 King
                 and
                 great
                 Families
                 :
                 The
                 Chapel-Royal
                 is
                 a
                 Collegiat-Church
                 ,
                 Governed
                 by
                 the
                 Dean
                 of
                 the
                 Chapel
                 ;
                 which
                 Office
                 is
                 now
                 annexed
                 to
                 the
                 Bishop
                 of
                 Dumblain
                 ,
                 under
                 whom
                 are
                 the
                 Prebends
                 of
                 the
                 Chapel-Royal
                 .
                 The
                 Earl
                 of
                 Fife
                 sounded
                 the
                 Colledge
                 Kirk
                 of
                 Kirkheugh
                 .
                 The
                 Earl
                 of
                 March
                 founded
                 the
                 Colledge-Kirk
                 of
                 Dumbar
                 .
                 The
                 Earl
                 of
                 Bothwel
                 ,
                 the
                 Colledge-Kirk
                 of
                 Chrightoun
                 .
                 The
                 Earl
                 of
                 Lennox
                 ,
                 the
                 Colledge-Kirk
                 of
                 Dumbarten
                 .
                 The
                 Earl
                 of
                 Ross
                 ,
                 the
                 Colledge
                 Kirk
                 of
                 Tain
                 .
                 Other
                 Families
                 Erected
                 Chapels
                 ,
                 Officiat
                 by
                 one
                 Chaplain
                 :
                 Inferiour
                 to
                 these
                 Prelacies
                 ,
                 were
                 Parsons
                 ,
                 Viccars
                 ,
                 Chaplains
                 ,
                 Prebendars
                 ,
                 these
                 had
                 Patrons
                 ,
                 whose
                 advice
                 and
                 protection
                 ,
                 they
                 used
                 in
                 stead
                 of
                 a
                 Chapter
                 and
                 Convent
                 which
                 Prelacies
                 only
                 had
                 .
              
               
                 16.
                 
                 The
                 general
                 rule
                 by
                 the
                 Canon
                 Law
                 was
                 ,
                 that
                 
                   decinta
                   debentur
                   parocho
                   de
                   jure
                
                 ,
                 the
                 Parsonage
                 Teinds
                 to
                 the
                 Parson
                 ;
                 the
                 Viccarage
                 ,
                 or
                 small
                 Teind
                 to
                 the
                 Viccar
                 ;
                 and
                 where
                 no
                 other
                 appeared
                 to
                 instruct
                 Right
                 ,
                 the
                 Teinds
                 were
                 
                   ipso
                   jure
                
                 ,
                 due
                 to
                 parsons
                 and
                 Viccars
                 ,
                 it
                 was
                 so
                 found
                 ;
                 and
                 that
                 the
                 Kings
                 Gift
                 was
                 not
                 sufficient
                 to
                 carry
                 the
                 Right
                 of
                 Teinds
                 ,
                 from
                 the
                 imcumbents
                 ,
                 unless
                 mortification
                 thereof
                 to
                 any
                 other
                 Office
                 or
                 Benefice
                 possession
                 thereof
                 by
                 another
                 Office
                 were
                 instructed
                 ,
                 June
                 27.
                 1665.
                 
                 
                   Alexander
                   Ferguson
                   contra
                   Stuart
                
                 of
                 Ascog
                 .
              
               
               
                 The
                 Bishops
                 and
                 such
                 Prelacies
                 as
                 had
                 
                   curam
                   animarum
                
                 ,
                 had
                 Chapters
                 ;
                 and
                 the
                 Priors
                 ,
                 Prioresses
                 ,
                 Abbots
                 ,
                 &c.
                 had
                 Convents
                 ,
                 whose
                 consent
                 in
                 all
                 masters
                 of
                 Benefices
                 being
                 Chapterly
                 conveened
                 ,
                 was
                 necessary
                 ,
                 and
                 in
                 evidence
                 thereof
                 ,
                 the
                 Seals
                 of
                 the
                 Chapter
                 or
                 Convent
                 were
                 appended
                 .
                 Viccars
                 were
                 either
                 such
                 as
                 were
                 substitute
                 by
                 Parsons
                 and
                 other
                 Clerks
                 ,
                 or
                 such
                 as
                 had
                 a
                 distinct
                 Office
                 ;
                 and
                 therefore
                 ,
                 were
                 not
                 changeable
                 by
                 their
                 Constituents
                 ,
                 and
                 were
                 called
                 Viccars
                 of
                 cure
                 
                   cum
                   cura
                   animarum
                
                 ;
                 or
                 perpetual
                 Viccars
                 :
                 Chaplains
                 were
                 Clerks
                 ,
                 having
                 curam
                 institute
                 for
                 their
                 accommodation
                 who
                 were
                 far
                 from
                 ordinary
                 Churches
                 ;
                 and
                 therefore
                 ,
                 were
                 Erected
                 upon
                 the
                 Expenses
                 of
                 the
                 Founders
                 ,
                 who
                 were
                 therefore
                 Patrons
                 ;
                 and
                 of
                 all
                 other
                 Patrons
                 supposed
                 to
                 have
                 greatest
                 interest
                 in
                 these
                 Benefice
                 ;
                 so
                 that
                 after
                 the
                 Reformation
                 ,
                 these
                 Chaplanries
                 and
                 Prebendaries
                 ,
                 were
                 declared
                 to
                 return
                 and
                 be
                 disposed
                 upon
                 by
                 their
                 Patrons
                 ,
                 to
                 Bursers
                 of
                 Colledges
                 ,
                 Par.
                 1592.
                 cap.
                 158.
                 
                 Likeways
                 Prebendars
                 were
                 such
                 as
                 had
                 Prebendam
                 or
                 a
                 Benefice
                 ,
                 which
                 was
                 at
                 first
                 a
                 common
                 name
                 ,
                 but
                 was
                 made
                 special
                 by
                 use
                 to
                 these
                 Clerks
                 ,
                 who
                 had
                 no
                 other
                 special
                 name
                 .
              
               
                 These
                 Prebendars
                 were
                 either
                 
                   cum
                   cura
                   animarum
                
                 ,
                 or
                 
                   sine
                   cura
                
                 ,
                 as
                 Parsons
                 preparing
                 for
                 orders
                 ,
                 most
                 of
                 them
                 were
                 Institute
                 in
                 Colledge-Kirks
                 ,
                 for
                 singing
                 of
                 Mess
                 ,
                 specially
                 for
                 the
                 Founder
                 and
                 his
                 Family
                 ,
                 over
                 whom
                 was
                 a
                 Provest
                 ,
                 having
                 the
                 power
                 of
                 Prelacy
                 ;
                 in
                 these
                 also
                 the
                 Patrons
                 were
                 held
                 as
                 Founders
                 ,
                 and
                 had
                 the
                 chief
                 Interest
                 in
                 the
                 Benefice
                 ,
                 which
                 therefore
                 ,
                 after
                 the
                 Reformation
                 ,
                 returned
                 as
                 void
                 to
                 them
                 ;
                 the
                 chief
                 Prebendars
                 were
                 these
                 of
                 the
                 Kings
                 Chapel-Royal
                 ;
                 the
                 intent
                 of
                 Constitution
                 of
                 these
                 Offices
                 ,
                 as
                 aforesaid
                 ,
                 was
                 mainly
                 to
                 secure
                 the
                 Benefice
                 and
                 Patrimony
                 of
                 the
                 Church
                 against
                 Dilapidation
                 ,
                 the
                 incumbents
                 being
                 Administrators
                 ,
                 or
                 at
                 best
                 Liferenters
                 ,
                 night
                 other
                 ways
                 have
                 wronged
                 their
                 Successors
                 ,
                 in
                 favours
                 of
                 their
                 Friends
                 and
                 Relations
                 ;
                 and
                 therefore
                 ,
                 Prelates
                 could
                 do
                 nothing
                 of
                 moment
                 ,
                 without
                 consent
                 of
                 their
                 Chapters
                 or
                 Convents
                 ,
                 or
                 other
                 Beneficed
                 persons
                 ,
                 without
                 consent
                 of
                 their
                 Patrons
                 .
                 Though
                 these
                 Offices
                 were
                 abolished
                 by
                 the
                 Reformation
                 ,
                 there
                 was
                 no
                 other
                 way
                 fallen
                 upon
                 ,
                 for
                 managing
                 of
                 Benefices
                 ,
                 but
                 by
                 giving
                 Secular
                 persons
                 the
                 Designations
                 of
                 these
                 Offices
                 ,
                 who
                 therefore
                 were
                 called
                 Titulars
                 ,
                 because
                 they
                 had
                 the
                 naked
                 Title
                 without
                 the
                 Office
                 of
                 Bishops
                 ,
                 Priors
                 ,
                 Abbots
                 ,
                 Provests
                 ,
                 &c.
                 who
                 in
                 Lieu
                 of
                 the
                 consent
                 of
                 Chapters
                 and
                 Convents
                 ,
                 appended
                 only
                 the
                 common
                 Seal
                 thereof
                 ;
                 and
                 when
                 Bishops
                 were
                 set
                 up
                 again
                 ,
                 and
                 Chapters
                 appointed
                 for
                 them
                 ,
                 the
                 consent
                 of
                 the
                 major
                 part
                 thereof
                 was
                 requisite
                 ,
                 with
                 the
                 Seal
                 ;
                 Yet
                 it
                 was
                 not
                 necessary
                 that
                 they
                 should
                 be
                 Chapterly
                 conveened
                 ,
                 Parliament
                 1606.
                 cap.
                 3.
                 
              
               
                 17.
                 
                 But
                 before
                 the
                 Reformation
                 ,
                 according
                 to
                 the
                 Canon
                 Law
                 ,
                 there
                 were
                 these
                 Restraints
                 upon
                 Beneficed
                 persons
                 ,
                 in
                 order
                 to
                 their
                 Benefices
                 ,
                 as
                 to
                 Teinds
                 ,
                 they
                 could
                 grant
                 no
                 Feus
                 at
                 all
                 ,
                 neither
                 could
                 they
                 grant
                 Tacks
                 without
                 consent
                 of
                 the
                 Chapter
                 or
                 Convents
                 of
                 Prelats
                 ,
                 the
                 members
                 whereof
                 were
                 found
                 sufficiently
                 proven
                 by
                 Feues
                 ,
                 and
                 Presentations
                 granted
                 by
                 Prelates
                 ,
                 and
                 subscribed
                 by
                 these
                 persons
                 as
                 members
                 of
                 the
                 Convent
                 ,
                 without
                 necessity
                 to
                 show
                 the
                 Erection
                 or
                 Foundation
                 ,
                 or
                 these
                 persons
                 Admission
                 ,
                 and
                 that
                 there
                 were
                 no
                 more
                 members
                 of
                 the
                 Convent
                 ,
                 then
                 the
                 eight
                 subscribing
                 several
                 Writes
                 ,
                 June
                 24.
                 1623.
                 
                 Laird
                 of
                 
                   Drumlanring
                   contra
                   Maxvel
                
                 of
                 
                   Hills
                   .
                   Spots
                
                 .
                 Kirkmen
                 ,
                 Parson
                 of
                 
                   Kinkel
                   contra
                
                 Laird
                 of
                 Coulter
                 .
                 The
                 consent
                 of
                 most
                 part
                 of
                 Prebenders
                 ,
                 was
                 necessary
                 ,
                 not
                 reckoning
                 the
                 Prebenders
                 ,
                 that
                 were
                 out
                 of
                 the
                 Countrey
                 ;
                 this
                 was
                 also
                 observed
                 by
                 the
                 Earl
                 of
                 
                   Haddingtoun
                   ,
                   March
                
                 10.
                 1612.
                 
                   inter
                   eosdem
                
                 .
              
               
               
                 The
                 consent
                 of
                 the
                 Chapter
                 was
                 found
                 ,
                 not
                 only
                 necessary
                 to
                 the
                 Deeds
                 of
                 the
                 Prelat
                 ,
                 but
                 to
                 the
                 Deeds
                 of
                 the
                 members
                 of
                 the
                 Chapters
                 ;
                 and
                 so
                 a
                 Tack
                 set
                 by
                 a
                 Dean
                 ,
                 though
                 of
                 Teinds
                 mortified
                 to
                 a
                 Colledge
                 ,
                 whereof
                 the
                 Principal
                 was
                 Dean
                 ,
                 was
                 found
                 null
                 ,
                 for
                 want
                 of
                 the
                 Chapters
                 consent
                 ,
                 Spots
                 .
                 Kirkmen
                 ,
                 Colledge
                 of
                 
                   Aberdene
                   contra
                
                 Lord
                 Frazer
                 ;
                 where
                 he
                 observes
                 ,
                 that
                 the
                 same
                 was
                 found
                 twice
                 before
                 ,
                 yet
                 it
                 was
                 not
                 found
                 necessary
                 to
                 the
                 Tacks
                 of
                 the
                 several
                 members
                 of
                 the
                 new
                 Erected
                 Chapters
                 of
                 St.
                 Andrews
                 ,
                 whereof
                 many
                 Ministers
                 were
                 of
                 laick
                 Patronage
                 ,
                 Hope
                 ,
                 Teinds
                 ,
                 Tennents
                 of
                 
                   Craighal
                   contra
                
                 Mr.
                 
                   Walter
                   Kinninmont
                
                 .
                 But
                 the
                 old
                 priviledge
                 of
                 the
                 Bishop
                 of
                 St.
                 Andrews
                 ,
                 which
                 is
                 yet
                 ccontinued
                 is
                 ,
                 that
                 the
                 appending
                 of
                 his
                 Seal
                 is
                 sufficient
                 ,
                 both
                 for
                 him
                 and
                 the
                 Chapter
                 ,
                 without
                 necessity
                 of
                 their
                 subscription
                 ,
                 Par.
                 1606.
                 cap.
                 3.
                 
              
               
                 18.
                 
                 Secondly
                 ,
                 Beneficed
                 persons
                 were
                 restrained
                 from
                 setting
                 Tacks
                 of
                 their
                 Teinds
                 ,
                 even
                 with
                 consent
                 of
                 their
                 Chapters
                 ,
                 with
                 Diminution
                 of
                 their
                 Rental
                 ;
                 and
                 therefore
                 ,
                 Ministers
                 provided
                 to
                 Benefices
                 ,
                 granting
                 pensions
                 ,
                 tacks
                 or
                 feues
                 of
                 their
                 Benefices
                 ,
                 with
                 Diminution
                 of
                 the
                 Rental
                 ,
                 they
                 found
                 at
                 their
                 Entry
                 ,
                 the
                 same
                 are
                 declared
                 null
                 ,
                 and
                 they
                 to
                 be
                 deprived
                 ,
                 Par.
                 1581.
                 cap.
                 101.
                 
                 And
                 also
                 all
                 Beneficed
                 persons
                 were
                 ordained
                 to
                 find
                 Caution
                 to
                 leave
                 their
                 Benefices
                 in
                 as
                 good
                 case
                 as
                 they
                 found
                 them
                 ;
                 and
                 all
                 Tacks
                 ,
                 provisions
                 ,
                 or
                 changing
                 of
                 Victual
                 in
                 Money
                 .
                 in
                 Diminution
                 of
                 the
                 Rental
                 ,
                 which
                 was
                 at
                 their
                 Entry
                 declared
                 null
                 ,
                 Par.
                 1585.
                 cap.
                 11.
                 
                 But
                 by
                 Act
                 of
                 Par.
                 1606.
                 cap.
                 3.
                 
                 It
                 is
                 declared
                 lawful
                 to
                 the
                 Bishops
                 to
                 set
                 as
                 many
                 Tacks
                 of
                 the
                 Fruits
                 and
                 Duties
                 belonging
                 to
                 their
                 Benefice
                 ,
                 either
                 short
                 or
                 long
                 Tacks
                 as
                 they
                 please
                 ,
                 and
                 for
                 as
                 many
                 years
                 as
                 they
                 think
                 expedient
                 ;
                 which
                 may
                 subsist
                 of
                 the
                 Law
                 without
                 Restraint
                 or
                 Limitation
                 of
                 any
                 time
                 ;
                 which
                 Tack
                 being
                 once
                 set
                 ,
                 shall
                 be
                 accounted
                 ,
                 the
                 Rental
                 not
                 to
                 be
                 diminished
                 thereafter
                 ;
                 but
                 there
                 is
                 no
                 restriction
                 in
                 relation
                 to
                 any
                 Rental
                 ,
                 preceeding
                 the
                 said
                 Act
                 ;
                 but
                 it
                 is
                 only
                 recommended
                 to
                 the
                 Bishops
                 to
                 set
                 to
                 a
                 competent
                 avail
                 near
                 the
                 worth
                 ;
                 but
                 by
                 the
                 Act
                 of
                 Par.
                 1617.
                 cap.
                 4.
                 
                 Bishops
                 are
                 prohibit
                 to
                 set
                 Tacks
                 for
                 longer
                 space
                 then
                 nineteen
                 years
                 :
                 And
                 all
                 Pensions
                 or
                 Tacks
                 of
                 the
                 thirds
                 of
                 Benefices
                 ,
                 which
                 then
                 belonged
                 to
                 the
                 Church
                 ,
                 set
                 in
                 Diminution
                 of
                 the
                 Rental
                 ,
                 payed
                 at
                 the
                 first
                 assumption
                 of
                 the
                 Benefice
                 ,
                 were
                 declared
                 null
                 ,
                 par
                 .
                 1597.
                 cap.
                 240.
                 
              
               
                 19.
                 
                 Thirdly
                 ,
                 inferiour
                 Beneficed
                 persons
                 could
                 set
                 no
                 longer
                 Tacks
                 of
                 any
                 part
                 of
                 their
                 Benefice
                 ,
                 then
                 three
                 years
                 without
                 consent
                 of
                 the
                 Patron
                 ,
                 par
                 .
                 1594.
                 cap.
                 200.
                 which
                 was
                 extended
                 to
                 Deeds
                 done
                 by
                 Provests
                 and
                 Prebendars
                 ,
                 though
                 having
                 a
                 resemblance
                 with
                 Prelacies
                 ,
                 seing
                 the
                 Patron
                 hath
                 so
                 great
                 Interest
                 ,
                 Hope
                 ,
                 Patron
                 ,
                 Laird
                 of
                 
                   Drumlanrig
                   contra
                   Cowhil
                
                 and
                 others
                 .
                 And
                 Beneficed
                 persons
                 below
                 Prelats
                 ,
                 are
                 discharged
                 to
                 set
                 Tacks
                 of
                 any
                 part
                 of
                 their
                 Benefice
                 longer
                 then
                 their
                 life
                 ,
                 and
                 five
                 years
                 after
                 ;
                 and
                 if
                 these
                 Tacks
                 be
                 not
                 Registrate
                 in
                 a
                 Book
                 keeped
                 by
                 the
                 Clerk-Register
                 for
                 that
                 effect
                 ,
                 within
                 fourty
                 days
                 after
                 the
                 date
                 thereof
                 ,
                 they
                 are
                 null
                 ,
                 par
                 .
                 1617.
                 cap.
                 4.
                 
                 Yet
                 in
                 these
                 long
                 Tacks
                 ,
                 the
                 consent
                 of
                 the
                 Patron
                 is
                 still
                 necessary
                 ;
                 and
                 therefore
                 ,
                 a
                 Tack
                 of
                 Teinds
                 ,
                 without
                 consent
                 of
                 the
                 Patron
                 ,
                 was
                 only
                 found
                 valid
                 as
                 to
                 three
                 years
                 ,
                 and
                 null
                 as
                 to
                 the
                 rest
                 of
                 the
                 years
                 contained
                 therein
                 ,
                 July
                 18.
                 1668.
                 
                 Mr.
                 
                   George
                   Johnstoun
                   contra
                
                 of
                 Howdoun
                 .
                 And
                 a
                 Tack
                 of
                 Teinds
                 for
                 more
                 then
                 three
                 years
                 without
                 consent
                 of
                 the
                 Patron
                 ,
                 was
                 sustained
                 by
                 his
                 subsequent
                 consent
                 ,
                 having
                 accepted
                 a
                 Right
                 to
                 the
                 Tack
                 ,
                 and
                 obtained
                 prorogation
                 thereupon
                 ,
                 January
                 19.
                 1669.
                 
                 Earl
                 of
                 
                   Athol
                   contra
                   Rohertson
                
                 of
                 Strouan
                 .
              
               
               
                 20.
                 
                 A
                 TackofTeinds
                 set
                 by
                 an
                 University
                 for
                 a
                 definite
                 time
                 ,
                 with
                 an
                 obliegement
                 to
                 renew
                 the
                 same
                 in
                 all
                 time
                 thereafter
                 ,
                 was
                 found
                 not
                 effectual
                 after
                 the
                 definite
                 time
                 ,
                 though
                 the
                 same
                 Rent
                 was
                 received
                 for
                 years
                 after
                 ,
                 which
                 was
                 not
                 sustained
                 as
                 homologation
                 ,
                 but
                 as
                 tacite
                 relocation
                 ,
                 July
                 13.
                 1669.
                 
                 Old
                 Colledge
                 of
                 Aberdeen
                 contra
                 the
                 Town
                 of
                 Aberdeen
                 .
              
               
                 21.
                 
                 To
                 come
                 to
                 the
                 condition
                 of
                 Teinds
                 ,
                 as
                 it
                 now
                 stands
                 :
                 a
                 great
                 part
                 of
                 them
                 is
                 in
                 the
                 hands
                 of
                 the
                 Heretors
                 to
                 whom
                 the
                 Stock
                 belongs
                 ;
                 a
                 part
                 also
                 is
                 in
                 the
                 hands
                 of
                 Titulars
                 and
                 Lords
                 of
                 Erection
                 ,
                 and
                 tacksmen
                 having
                 right
                 to
                 other
                 Heretors
                 teinds
                 ,
                 who
                 have
                 ordinarly
                 prorogation
                 of
                 their
                 tacks
                 ;
                 the
                 rest
                 belongs
                 to
                 Ministers
                 ,
                 or
                 Royal
                 Burghs
                 ,
                 for
                 the
                 maintainance
                 of
                 their
                 Ministers
                 ,
                 Colledges
                 or
                 Hospitals
                 .
                 Of
                 these
                 teinds
                 which
                 are
                 not
                 in
                 the
                 Heretors
                 own
                 hand
                 ;
                 some
                 are
                 drawn
                 in
                 kinde
                 ,
                 
                   ipsa
                   corpora
                
                 ;
                 some
                 are
                 in
                 old
                 stocked
                 rental
                 Bolls
                 ;
                 some
                 are
                 in
                 tack
                 or
                 use
                 of
                 payment
                 ,
                 and
                 others
                 under
                 Valuation
                 .
                 We
                 need
                 to
                 say
                 nothing
                 ,
                 as
                 to
                 teinds
                 that
                 are
                 in
                 the
                 hands
                 of
                 Heretors
                 to
                 whom
                 the
                 Stock
                 belongs
                 ,
                 about
                 which
                 there
                 can
                 be
                 little
                 controversie
                 ,
                 except
                 in
                 the
                 case
                 of
                 new
                 Erections
                 or
                 Augmentations
                 ;
                 for
                 teinds
                 ,
                 through
                 whatsoever
                 hands
                 they
                 pass
                 ,
                 carry
                 alwayes
                 along
                 with
                 them
                 ,
                 as
                 a
                 burden
                 affecting
                 them
                 ,
                 competent
                 Stipends
                 for
                 the
                 Ministers
                 who
                 are
                 or
                 shall
                 be
                 erected
                 .
                 Neither
                 is
                 there
                 any
                 other
                 debate
                 concerning
                 teinds
                 orderly
                 valued
                 ,
                 being
                 thereby
                 liquidate
                 and
                 clear
                 ;
                 nor
                 concerning
                 these
                 teinds
                 which
                 are
                 in
                 tack
                 during
                 the
                 tack
                 ,
                 further
                 then
                 hath
                 been
                 said
                 before
                 of
                 the
                 Requisites
                 for
                 setting
                 such
                 tacks
                 .
                 It
                 remains
                 to
                 consider
                 drawn
                 teinds
                 and
                 rentalled
                 teind
                 Bolls
                 ,
                 and
                 conclude
                 with
                 the
                 present
                 interest
                 of
                 Ministers
                 and
                 Patrons
                 .
              
               
                 22.
                 
                 As
                 to
                 the
                 drawn
                 Teinds
                 ,
                 the
                 manner
                 thereof
                 is
                 prescribed
                 ,
                 Par.
                 1617.
                 cap.
                 9.
                 
                 That
                 the
                 possessors
                 may
                 require
                 the
                 teind-master
                 ,
                 once
                 for
                 teinding
                 of
                 Croft
                 or
                 In-sield
                 Corn
                 ;
                 next
                 ,
                 for
                 teinding
                 Barley
                 ;
                 thirdly
                 ,
                 for
                 Out-field
                 Corn
                 ,
                 within
                 eight
                 dayes
                 after
                 the
                 shearing
                 of
                 these
                 three
                 several
                 kindes
                 of
                 Corn
                 ;
                 or
                 at
                 least
                 ,
                 when
                 the
                 same
                 are
                 shorn
                 till
                 about
                 a
                 tenth
                 part
                 ,
                 to
                 come
                 and
                 teind
                 the
                 same
                 within
                 four
                 dayes
                 ;
                 and
                 the
                 teind-master
                 ,
                 if
                 he
                 dwell
                 not
                 within
                 the
                 Paroch
                 ,
                 is
                 ordained
                 to
                 have
                 a
                 servant
                 for
                 teinding
                 ,
                 and
                 to
                 intimat
                 his
                 name
                 publickly
                 the
                 last
                 Sabboth
                 of
                 July
                 ,
                 or
                 first
                 Sabboth
                 of
                 August
                 :
                 So
                 that
                 upon
                 requisition
                 to
                 the
                 teind-master
                 personally
                 ,
                 or
                 at
                 his
                 dwelling-place
                 in
                 the
                 Paroch
                 ,
                 or
                 to
                 his
                 servant
                 so
                 designed
                 ,
                 the
                 possessor
                 might
                 proceed
                 to
                 the
                 teinding
                 of
                 his
                 own
                 Corns
                 ;
                 and
                 if
                 the
                 teind-master
                 resided
                 not
                 in
                 the
                 Paroch
                 ,
                 nor
                 had
                 any
                 servant
                 designed
                 ,
                 or
                 if
                 upon
                 intimation
                 they
                 appeared
                 not
                 ,
                 the
                 possessor
                 might
                 before
                 witnesses
                 teind
                 his
                 own
                 Corns
                 ,
                 and
                 was
                 only
                 oblieged
                 to
                 keep
                 the
                 teind
                 skaithless
                 for
                 eight
                 dayes
                 after
                 the
                 separation
                 ;
                 but
                 if
                 any
                 medled
                 with
                 the
                 teinds
                 any
                 other
                 way
                 ,
                 he
                 is
                 lyable
                 for
                 wrongous
                 intromission
                 .
              
               
                 23.
                 
                 Spuilzie
                 of
                 teinds
                 is
                 only
                 competent
                 in
                 the
                 case
                 of
                 violence
                 ,
                 where
                 the
                 teind-master
                 being
                 in
                 present
                 possession
                 and
                 use
                 of
                 drawing
                 the
                 teind
                 ,
                 doth
                 orderly
                 come
                 to
                 teind
                 ,
                 and
                 is
                 debarred
                 by
                 force
                 ;
                 or
                 when
                 the
                 teind-master
                 ,
                 being
                 in
                 use
                 that
                 same
                 year
                 or
                 the
                 former
                 year
                 to
                 draw
                 the
                 teind
                 ,
                 any
                 other
                 intrometteth
                 therewith
                 .
                 The
                 former
                 act
                 is
                 like
                 Ejection
                 ,
                 and
                 this
                 is
                 like
                 Intrusion
                 ,
                 especially
                 if
                 the
                 Teind-master
                 have
                 used
                 Inhibition
                 by
                 publick
                 Letters
                 ,
                 published
                 at
                 the
                 Paroch-Church
                 where
                 the
                 Teinds
                 lye
                 ,
                 as
                 an
                 intimation
                 to
                 all
                 parties
                 having
                 interest
                 ,
                 to
                 forbear
                 medling
                 with
                 the
                 Teinds
                 ,
                 otherwayes
                 then
                 by
                 order
                 of
                 Law
                 ,
                 which
                 may
                 be
                 execute
                 by
                 any
                 person
                 as
                 Sheriff
                 in
                 that
                 part
                 ,
                 January
                 27.
                 1666.
                 
                 Earl
                 of
                 Eglintoun
                 contra
                 Laird
                 of
                 Cunninghamhead
                 .
              
               
               
                 This
                 Inhibition
                 is
                 the
                 competent
                 legal
                 way
                 to
                 take
                 off
                 tacite
                 relocation
                 ,
                 when
                 Teinds
                 have
                 been
                 set
                 in
                 Tack
                 ,
                 and
                 the
                 Tack
                 expired
                 ;
                 and
                 when
                 they
                 are
                 in
                 use
                 of
                 payment
                 of
                 certain
                 duty
                 ,
                 and
                 hath
                 then
                 the
                 same
                 effect
                 that
                 Warning
                 hath
                 in
                 relation
                 to
                 Tennants
                 of
                 Lands
                 ,
                 and
                 being
                 once
                 duly
                 used
                 ,
                 it
                 interrupts
                 tacite
                 relocation
                 ,
                 or
                 use
                 of
                 payment
                 ,
                 not
                 only
                 for
                 the
                 years
                 wherein
                 it
                 is
                 used
                 ,
                 but
                 for
                 all
                 other
                 subsequent
                 years
                 ,
                 March
                 18.
                 1628.
                 
                 Lord
                 Blantyre
                 contra
                 Parochioners
                 of
                 Bothwel
                 .
                 But
                 the
                 Titular
                 may
                 not
                 by
                 force
                 draw
                 the
                 Teinds
                 after
                 Inhibition
                 ,
                 but
                 must
                 pursue
                 therefore
                 where
                 there
                 was
                 any
                 pretence
                 of
                 title
                 ,
                 else
                 it
                 is
                 a
                 Spuilzie
                 in
                 him
                 ,
                 January
                 27.
                 1665.
                 
                 Laird
                 of
                 Bairfoord
                 and
                 Beanstoun
                 contra
                 Lord
                 
                   Kingstoun
                   ..
                
              
               
                 Upon
                 Process
                 ,
                 Spuilzie
                 was
                 sustained
                 against
                 the
                 Heretor
                 ,
                 receiving
                 a
                 joint
                 duty
                 for
                 Stock
                 and
                 Teind
                 ,
                 March
                 16.
                 1627.
                 
                 
                   John
                   Inglis
                
                 contra
                 
                   Gilbert
                   Kirkwood
                
                 :
                 But
                 it
                 is
                 not
                 effectual
                 to
                 infer
                 Spuilzie
                 against
                 Tennants
                 ,
                 continuing
                 to
                 pay
                 their
                 Masters
                 a
                 joint
                 duty
                 for
                 Stock
                 and
                 Teind
                 ,
                 as
                 they
                 were
                 in
                 use
                 before
                 ,
                 though
                 the
                 Inhibition
                 was
                 particularly
                 intimat
                 to
                 the
                 tennents
                 ,
                 seing
                 they
                 knew
                 not
                 how
                 to
                 distinguish
                 the
                 proportion
                 of
                 Stock
                 and
                 Teind
                 ,
                 having
                 still
                 payed
                 a
                 joint
                 duty
                 promiscuously
                 for
                 both
                 ,
                 December
                 12.
                 1627.
                 
                 Arbuthnet
                 contra
                 tennants
                 of
                 Fairnieflat
                 .
                 But
                 the
                 priviledge
                 of
                 tennants
                 paying
                 to
                 their
                 Masters
                 for
                 stock
                 and
                 teind
                 jointly
                 ,
                 was
                 not
                 extended
                 to
                 a
                 Merchant
                 buying
                 a
                 whole
                 Cropt
                 together
                 ,
                 who
                 was
                 found
                 lyable
                 for
                 the
                 teind
                 ,
                 though
                 he
                 payed
                 before
                 any
                 diligence
                 ,
                 June
                 24.
                 1662.
                 
                 Mr.
                 
                   Alexander
                   Verner
                
                 contra
                 
                   George
                   Allan
                
                 .
                 In
                 like
                 manner
                 ,
                 Merchants
                 buying
                 the
                 Herring
                 where
                 they
                 were
                 taken
                 in
                 the
                 Isles
                 ,
                 were
                 found
                 lyable
                 for
                 the
                 teind
                 by
                 immemorial
                 possession
                 ,
                 so
                 to
                 uplift
                 the
                 teind-fish
                 from
                 the
                 Merchants
                 ,
                 who
                 bought
                 whole
                 boat-fulls
                 of
                 the
                 Herring
                 green
                 ,
                 December
                 13.
                 1664.
                 
                 Bishop
                 of
                 the
                 Isles
                 contra
                 the
                 Merchants
                 of
                 Edinburgh
                 .
                 But
                 ,
                 as
                 Warning
                 ,
                 so
                 Inhibition
                 of
                 Teinds
                 is
                 taken
                 off
                 by
                 accepting
                 the
                 old
                 duty
                 thereafter
                 ,
                 or
                 of
                 the
                 ordinary
                 taxation
                 accustomed
                 to
                 be
                 payed
                 for
                 the
                 tack-duty
                 ,
                 Hope
                 ,
                 teinds
                 ,
                 Lord
                 
                   Garleis
                   contra
                
                 tennants
                 of
                 Whitehorn
                 ,
                 or
                 by
                 a
                 small
                 part
                 of
                 the
                 old
                 tack-duty
                 ,
                 ibidem
                 ,
                 Mr.
                 
                   Andrew
                   Balfour
                
                 contra
                 Lord
                 
                   Balmerino
                   ,
                   John
                   Glendinning
                
                 contra
                 tennants
                 of
                 Partoun
                 .
              
               
                 24.
                 
                 Rentalled
                 teind-bolls
                 is
                 ,
                 when
                 the
                 teinds
                 have
                 been
                 liquidate
                 and
                 settled
                 for
                 so
                 many
                 Bolls
                 yearly
                 by
                 Rental
                 ,
                 or
                 old
                 use
                 of
                 payment
                 which
                 presumeth
                 a
                 Rental
                 .
                 By
                 this
                 means
                 ,
                 the
                 beneficed
                 persons
                 gained
                 an
                 advantage
                 of
                 the
                 possessors
                 ;
                 and
                 therefore
                 ,
                 by
                 the
                 Kings
                 Decreet
                 Arbitral
                 ,
                 such
                 teinds
                 which
                 are
                 separat
                 ,
                 and
                 severally
                 set
                 or
                 known
                 from
                 the
                 Stock
                 ,
                 had
                 a
                 diverse
                 and
                 dearer
                 valuation
                 ;
                 and
                 therefore
                 ,
                 rentalled
                 teind-bolls
                 were
                 found
                 due
                 by
                 use
                 of
                 payment
                 immediately
                 preceeding
                 the
                 debate
                 ,
                 though
                 exceeding
                 the
                 worth
                 of
                 the
                 teind
                 ,
                 till
                 the
                 teind
                 in
                 kind
                 were
                 offered
                 ,
                 and
                 intimation
                 made
                 that
                 the
                 party
                 would
                 not
                 continue
                 the
                 use
                 of
                 payment
                 of
                 rentalled
                 Bolls
                 ,
                 March
                 22.
                 1626.
                 
                 Lennox
                 of
                 Branshogle
                 contra
                 tennants
                 of
                 Balfroon
                 .
              
               
                 Teind-bolls
                 were
                 found
                 due
                 according
                 to
                 the
                 old
                 Rental
                 ,
                 though
                 a
                 lesser
                 quantity
                 was
                 received
                 by
                 a
                 Minister
                 for
                 several
                 years
                 :
                 Here
                 the
                 Bishop
                 to
                 whose
                 Bishoprick
                 the
                 Teinds
                 of
                 that
                 Paroch
                 were
                 annexed
                 ,
                 opposed
                 the
                 alteration
                 of
                 the
                 old
                 rentalled
                 Bolls
                 ,
                 whereof
                 a
                 part
                 only
                 was
                 allocat
                 to
                 ,
                 and
                 received
                 by
                 the
                 Minister
                 ,
                 July
                 3.
                 1630.
                 
                 Mr.
                 
                   George
                   Summer
                
                 contra
                 Stewart
                 of
                 Balgillo
                 .
                 The
                 like
                 where
                 there
                 was
                 a
                 Decreet
                 formerly
                 for
                 the
                 Teind-bolls
                 ,
                 but
                 prejudice
                 to
                 offer
                 the
                 Teind
                 in
                 kinde
                 in
                 time
                 coming
                 ,
                 Feb.
                 20.
                 1633.
                 
                 Colledge
                 of
                 Glasgow
                 contra
                 Mr.
                 
                   James
                   Stewart
                
                 .
              
               
               
                 25.
                 
                 The
                 interest
                 of
                 Bishops
                 in
                 their
                 Benefices
                 ,
                 is
                 much
                 alike
                 with
                 Ministers
                 as
                 to
                 their
                 entry
                 ,
                 which
                 is
                 regulat
                 by
                 their
                 Consecration
                 or
                 Translation
                 ,
                 which
                 if
                 before
                 Whitsonday
                 ,
                 gives
                 them
                 the
                 benesit
                 of
                 that
                 year
                 ;
                 and
                 if
                 after
                 Whitsonday
                 ,
                 it
                 gives
                 them
                 the
                 half
                 .
                 During
                 their
                 incumbence
                 ,
                 they
                 have
                 not
                 only
                 the
                 Fruits
                 and
                 Rents
                 of
                 the
                 Benefice
                 ,
                 but
                 the
                 power
                 to
                 set
                 Tacks
                 for
                 nineteen
                 years
                 ,
                 with
                 consent
                 of
                 their
                 Chapters
                 ,
                 Vide
                 §
                 17.
                 and
                 to
                 receive
                 Vassals
                 ,
                 and
                 to
                 constitute
                 Commissars
                 ;
                 all
                 which
                 are
                 effectual
                 after
                 their
                 death
                 or
                 removal
                 .
                 They
                 have
                 also
                 the
                 Quots
                 of
                 Testaments
                 confirmed
                 by
                 all
                 their
                 Commissars
                 during
                 their
                 life
                 ,
                 or
                 within
                 the
                 time
                 of
                 their
                 Ann
                 after
                 their
                 death
                 ;
                 but
                 they
                 have
                 no
                 Quots
                 of
                 Testaments
                 not
                 then
                 confirmed
                 ,
                 although
                 the
                 persons
                 died
                 in
                 their
                 life
                 ,
                 or
                 during
                 their
                 Ann
                 ,
                 because
                 the
                 Quot
                 is
                 due
                 for
                 the
                 Confirmation
                 ,
                 as
                 was
                 found
                 ,
                 July
                 6.
                 1676.
                 
                 Bishop
                 of
                 Edinburgh
                 contra
                 Captain
                 Wishart
                 :
                 and
                 for
                 the
                 same
                 reason
                 ,
                 they
                 have
                 not
                 the
                 Compositions
                 or
                 Duplications
                 of
                 Heirs
                 ,
                 Apprisers
                 or
                 Adjudgers
                 ,
                 whom
                 they
                 do
                 not
                 actually
                 receive
                 in
                 their
                 life
                 ,
                 which
                 will
                 not
                 belong
                 to
                 Executours
                 ,
                 or
                 fall
                 within
                 their
                 Ann
                 ,
                 but
                 to
                 the
                 next
                 Intrant
                 ,
                 who
                 only
                 can
                 receive
                 these
                 Vassals
                 .
              
               
                 26.
                 
                 The
                 Interest
                 of
                 Ministers
                 in
                 the
                 Teinds
                 may
                 be
                 considered
                 ,
                 either
                 in
                 their
                 entry
                 during
                 their
                 incumbency
                 ,
                 or
                 after
                 their
                 removal
                 .
                 In
                 all
                 which
                 ,
                 the
                 Ministers
                 interest
                 is
                 of
                 two
                 kindes
                 ;
                 for
                 either
                 he
                 hath
                 the
                 Benefice
                 ,
                 Parsonage
                 or
                 Viccarage
                 ,
                 or
                 hath
                 only
                 a
                 Stipend
                 modified
                 thereof
                 ;
                 for
                 these
                 Benefices
                 did
                 ordinarly
                 belong
                 to
                 the
                 incumbents
                 of
                 particular
                 Paroches
                 ,
                 and
                 sollowed
                 the
                 Office
                 of
                 serving
                 the
                 Cure
                 there
                 :
                 and
                 therefore
                 ,
                 when
                 these
                 Benefices
                 were
                 not
                 erected
                 in
                 Temporal
                 Baronies
                 and
                 Lordships
                 ,
                 or
                 otherwayes
                 so
                 affected
                 by
                 Titles
                 ,
                 Tacks
                 or
                 new
                 Erections
                 ,
                 that
                 the
                 Ministers
                 thereby
                 could
                 not
                 have
                 a
                 competency
                 ,
                 they
                 betook
                 themselves
                 to
                 the
                 Benefice
                 ,
                 and
                 had
                 the
                 same
                 Right
                 and
                 Priviledges
                 as
                 to
                 them
                 ,
                 as
                 beneficed
                 persons
                 formerly
                 had
                 ,
                 and
                 might
                 set
                 Tacks
                 thereof
                 in
                 the
                 same
                 way
                 ,
                 and
                 with
                 the
                 same
                 restriction
                 ,
                 as
                 is
                 before
                 declared
                 .
                 But
                 more
                 frequently
                 ,
                 the
                 Ministers
                 had
                 modified
                 Stipends
                 ,
                 which
                 were
                 appointed
                 by
                 the
                 King
                 and
                 Parliament
                 to
                 be
                 modified
                 out
                 of
                 the
                 Teinds
                 ,
                 whatever
                 the
                 Title
                 or
                 Interest
                 of
                 any
                 other
                 person
                 were
                 therein
                 ;
                 which
                 they
                 could
                 not
                 reach
                 ,
                 if
                 they
                 took
                 them
                 to
                 the
                 Benefice
                 it self
                 ,
                 as
                 they
                 might
                 have
                 done
                 by
                 the
                 Act
                 of
                 Par.
                 1581.
                 cap.
                 102.
                 
                 Ordaining
                 ,
                 
                   That
                   all
                   Benefices
                   of
                   Cure
                   under
                   Prelacies
                   ,
                   should
                   be
                   provided
                   only
                   in
                   favours
                   of
                   able
                   Ministers
                   .
                
              
               
                 27.
                 
                 The
                 Interest
                 of
                 Ministers
                 was
                 according
                 to
                 the
                 nature
                 of
                 the
                 Benefices
                 whereunto
                 they
                 were
                 to
                 have
                 right
                 ,
                 or
                 out
                 of
                 which
                 their
                 Stipends
                 were
                 to
                 be
                 modified
                 ;
                 for
                 all
                 Kirks
                 were
                 either
                 Patrimonial
                 ,
                 or
                 Patronat
                 ,
                 and
                 by
                 clearing
                 Patronage
                 ,
                 it
                 will
                 easily
                 appear
                 what
                 Kirks
                 are
                 Patrimonial
                 :
                 For
                 ,
                 this
                 distinction
                 is
                 taken
                 from
                 that
                 of
                 persons
                 in
                 the
                 Civil
                 Law
                 ,
                 in
                 these
                 who
                 are
                 ingenui
                 or
                 fully
                 free
                 ,
                 and
                 libertini
                 or
                 become
                 free
                 ,
                 but
                 with
                 some
                 acknowledgements
                 and
                 services
                 to
                 the
                 Authors
                 of
                 their
                 freedom
                 ,
                 who
                 were
                 therefore
                 called
                 their
                 Patrons
                 :
                 So
                 there
                 stood
                 the
                 like
                 relation
                 betwixt
                 Patrons
                 and
                 Kirks
                 patronat
                 ,
                 as
                 betwixt
                 Patrons
                 and
                 Libertines
                 ,
                 the
                 ground
                 whereof
                 was
                 an
                 eminent
                 good
                 deed
                 done
                 by
                 the
                 Patron
                 or
                 his
                 Predecessor
                 to
                 that
                 Kirk
                 ,
                 especially
                 these
                 acknowledged
                 in
                 Law
                 ,
                 
                   
                     Patronum
                     faciunt
                     ,
                     Dos
                     ,
                     AEdificatio
                     ,
                     fundus
                     .
                  
                
                 Signifying
                 the
                 building
                 of
                 the
                 Church
                 ,
                 or
                 giving
                 of
                 the
                 Stipend
                 ,
                 or
                 of
                 the
                 Ground
                 necessary
                 for
                 the
                 Church
                 ,
                 Church-yard
                 ,
                 Manse
                 or
                 Gleib
                 ,
                 were
                 the
                 grounds
                 for
                 constituting
                 the
                 Patronage
                 ,
                 which
                 were
                 sufficiently
                 instructed
                 by
                 custom
                 of
                 the
                 Kirks
                 ,
                 acknowledging
                 such
                 a
                 Patron
                 .
              
               
               
                 It
                 was
                 lately
                 contraverted
                 who
                 should
                 be
                 patron
                 of
                 a
                 second
                 Minister
                 ,
                 whose
                 Stipend
                 was
                 constitute
                 ,
                 not
                 out
                 of
                 the
                 Teinds
                 ,
                 but
                 by
                 Contribution
                 ,
                 and
                 ingagement
                 of
                 a
                 Town
                 for
                 the
                 greatest
                 part
                 ,
                 and
                 the
                 Heretors
                 of
                 the
                 Landwart
                 paroch
                 for
                 the
                 rest
                 ;
                 whether
                 the
                 patronage
                 and
                 power
                 to
                 present
                 that
                 second
                 Minister
                 ,
                 should
                 belong
                 to
                 the
                 patron
                 of
                 the
                 Kirk
                 ,
                 having
                 the
                 unquestionable
                 power
                 of
                 presenting
                 the
                 first
                 Minister
                 ,
                 or
                 the
                 Contributers
                 ,
                 in
                 which
                 competition
                 ,
                 the
                 patron
                 of
                 the
                 Kirk
                 was
                 preferred
                 ,
                 because
                 the
                 contributers
                 had
                 never
                 been
                 in
                 possession
                 of
                 presenting
                 ,
                 nor
                 had
                 reserved
                 the
                 patronage
                 nor
                 power
                 of
                 presenting
                 in
                 the
                 erection
                 of
                 the
                 second
                 Minister
                 ,
                 which
                 was
                 only
                 by
                 an
                 Act
                 of
                 the
                 Bishop
                 and
                 presbytry
                 ,
                 bearing
                 the
                 shares
                 contributed
                 for
                 a
                 second
                 Minister
                 ;
                 but
                 neither
                 Reservation
                 nor
                 protestation
                 by
                 them
                 concerning
                 the
                 patronage
                 or
                 power
                 of
                 presenting
                 the
                 second
                 Minister
                 ;
                 nor
                 was
                 any
                 thing
                 of
                 custom
                 or
                 possession
                 to
                 show
                 the
                 meaning
                 of
                 the
                 parties
                 ,
                 November
                 18.
                 1680.
                 
                 Town
                 of
                 
                   Haddingtoun
                   contra
                
                 the
                 Earl
                 of
                 Haddingtoun
                 .
                 This
                 case
                 will
                 not
                 prejudge
                 Erections
                 of
                 second
                 Ministers
                 in
                 most
                 of
                 other
                 Towns
                 in
                 the
                 Kingdom
                 ,
                 where
                 the
                 Erection
                 doth
                 bear
                 
                   reservation
                   of
                   the
                   patronage
                
                 .
                 But
                 for
                 clearing
                 of
                 the
                 derived
                 Right
                 from
                 the
                 first
                 patron
                 ,
                 especially
                 to
                 singular
                 successors
                 ,
                 the
                 patronage
                 was
                 ordinarly
                 conveyed
                 by
                 Infeftments
                 ,
                 carrying
                 expresly
                 ,
                 
                   Advocation
                   ,
                   Donation
                   ,
                   and
                   right
                   of
                   patronage
                   of
                   such
                   Kirks
                   .
                
                 Such
                 Kirks
                 then
                 as
                 acknowledged
                 no
                 patron
                 are
                 fully
                 free
                 ;
                 and
                 these
                 are
                 provided
                 ,
                 not
                 by
                 presentation
                 ,
                 but
                 the
                 ordinar
                 conveyeth
                 ,
                 
                   pleno
                   jure
                
                 ,
                 whereby
                 the
                 Incumbent
                 hath
                 right
                 to
                 the
                 Benefice
                 ,
                 and
                 full
                 Fruites
                 :
                 But
                 in
                 Mensal
                 Kirks
                 ,
                 the
                 Incumbent
                 hath
                 but
                 a
                 Stipend
                 ,
                 and
                 these
                 belong
                 to
                 the
                 proper
                 patrimony
                 of
                 Prelats
                 ,
                 who
                 have
                 right
                 to
                 the
                 Fruits
                 thereof
                 ,
                 as
                 a
                 part
                 of
                 their
                 own
                 Benefice
                 ;
                 and
                 therefore
                 ,
                 are
                 called
                 
                   patrimonial
                   or
                   mensal
                
                 .
              
               
                 Patronage
                 is
                 also
                 ,
                 either
                 Laick
                 or
                 Ecclesiastick
                 ;
                 Laick
                 is
                 that
                 which
                 belongs
                 to
                 secular
                 persons
                 ;
                 Ecclesiastick
                 ,
                 that
                 which
                 belongs
                 to
                 Church-men
                 ,
                 as
                 when
                 a
                 Bishop
                 hath
                 the
                 right
                 of
                 presentation
                 to
                 a
                 Kirk
                 ,
                 not
                 in
                 his
                 own
                 Diocess
                 ;
                 there
                 he
                 presents
                 ,
                 but
                 another
                 must
                 confer
                 as
                 Ordinar
                 ,
                 and
                 so
                 he
                 is
                 but
                 Ecclesiastick
                 patron
                 .
              
               
                 28.
                 
                 Kirks
                 patronat
                 required
                 for
                 the
                 entry
                 of
                 Ministers
                 ,
                 a
                 presentation
                 of
                 the
                 patron
                 ,
                 presenting
                 a
                 person
                 to
                 the
                 Church
                 and
                 Benefice
                 ,
                 to
                 be
                 tryed
                 by
                 Church-men
                 having
                 that
                 power
                 ,
                 and
                 giving
                 him
                 the
                 right
                 of
                 the
                 Benefice
                 ,
                 or
                 Stipend
                 ,
                 being
                 found
                 qualified
                 ,
                 and
                 Collation
                 of
                 the
                 Office
                 and
                 Institution
                 therein
                 by
                 Church-men
                 upon
                 tryal
                 ,
                 without
                 which
                 ,
                 the
                 Incumbent
                 could
                 have
                 no
                 right
                 ;
                 yet
                 where
                 the
                 Bishop
                 had
                 the
                 power
                 of
                 Collation
                 and
                 Institution
                 and
                 to
                 confer
                 ,
                 
                   pleno
                   jure
                
                 ,
                 a
                 Gift
                 from
                 the
                 Bishop
                 ,
                 conferring
                 and
                 admitting
                 ,
                 was
                 found
                 sufficient
                 without
                 a
                 distinct
                 Presentation
                 and
                 Collation
                 ,
                 July
                 4.
                 1627.
                 
                 Minister
                 of
                 
                   Sklate
                   contra
                
                 parochioners
                 .
                 But
                 in
                 Kirks
                 not
                 patronat
                 ,
                 Institution
                 and
                 Collation
                 was
                 sufficient
                 .
                 And
                 of
                 late
                 ,
                 the
                 Act
                 of
                 Ordination
                 or
                 Admission
                 of
                 Ministers
                 by
                 presbytries
                 ,
                 served
                 for
                 all
                 :
                 But
                 in
                 Benefices
                 without
                 cure
                 ,
                 as
                 prebendries
                 or
                 Chaplanries
                 ,
                 presentation
                 is
                 sufficient
                 without
                 Collation
                 and
                 Institution
                 ,
                 March
                 14.
                 1622.
                 
                 
                   Scot
                   contra
                   Penman
                
                 .
              
               
                 29.
                 
                 Ministers
                 being
                 thus
                 Entred
                 ,
                 have
                 Right
                 to
                 their
                 Benefices
                 or
                 Stipends
                 ,
                 during
                 their
                 incumbency
                 ,
                 which
                 they
                 need
                 not
                 instruct
                 by
                 Write
                 ,
                 but
                 it
                 is
                 sufficient
                 to
                 prove
                 by
                 Witnesses
                 ,
                 that
                 the
                 Minister
                 or
                 his
                 predecessors
                 have
                 been
                 in
                 possession
                 of
                 that
                 which
                 is
                 contraverted
                 ,
                 as
                 a
                 part
                 of
                 the
                 Benefice
                 or
                 Stipend
                 of
                 that
                 Kirk
                 ,
                 and
                 that
                 is
                 commonly
                 holden
                 and
                 repute
                 to
                 be
                 a
                 part
                 thereof
                 ;
                 for
                 there
                 being
                 no
                 competent
                 way
                 to
                 preserve
                 the
                 Rights
                 and
                 Evidents
                 
                 of
                 the
                 Kirk
                 amongst
                 successors
                 in
                 Office
                 ,
                 as
                 there
                 is
                 of
                 other
                 Rights
                 amongst
                 other
                 Successors
                 .
                 The
                 Canon
                 Law
                 attributeth
                 much
                 more
                 to
                 possession
                 then
                 the
                 Civil
                 ;
                 for
                 thereby
                 
                   possessor
                   decennalis
                
                 ,
                 or
                 
                   triennalis
                   ,
                   nontenetur
                   docere
                   detitulo
                
                 :
                 Which
                 was
                 not
                 only
                 extended
                 to
                 instruct
                 that
                 the
                 thing
                 possessed
                 belonged
                 to
                 the
                 Benefice
                 ,
                 but
                 that
                 the
                 incumbent
                 had
                 sufficient
                 right
                 ;
                 and
                 therefore
                 ,
                 liberated
                 prebendars
                 from
                 production
                 of
                 their
                 provisions
                 ,
                 in
                 the
                 case
                 of
                 improbation
                 ,
                 Hope
                 ,
                 improbation
                 ,
                 Bishop
                 of
                 Galloway
                 and
                 Dean
                 of
                 the
                 Chapel-Royal
                 contra
                 the
                 prebendars
                 :
                 This
                 presumption
                 would
                 not
                 be
                 elided
                 by
                 any
                 extrinsick
                 Right
                 ;
                 Yea
                 ,
                 it
                 will
                 liberate
                 from
                 preduction
                 of
                 any
                 written
                 Right
                 in
                 Reduction
                 and
                 Improbation
                 ,
                 where
                 there
                 is
                 no
                 Right
                 extent
                 :
                 But
                 if
                 a
                 Right
                 be
                 found
                 by
                 the
                 oaths
                 of
                 Church-men
                 or
                 others
                 ,
                 to
                 be
                 extent
                 in
                 their
                 hands
                 ,
                 the
                 same
                 will
                 be
                 presumed
                 to
                 be
                 the
                 Right
                 ,
                 by
                 which
                 they
                 posses
                 ;
                 and
                 it
                 may
                 be
                 improven
                 by
                 a
                 positive
                 probation
                 ,
                 but
                 not
                 by
                 a
                 presumptive
                 probation
                 ,
                 by
                 way
                 of
                 certification
                 ,
                 concluding
                 it
                 false
                 ,
                 because
                 the
                 possessors
                 declined
                 to
                 produce
                 it
                 ,
                 or
                 to
                 abide
                 by
                 it
                 ;
                 when
                 the
                 Right
                 is
                 produced
                 ,
                 any
                 exception
                 may
                 be
                 proponed
                 upon
                 any
                 thing
                 contained
                 therein
                 ;
                 and
                 therefore
                 ,
                 an
                 Annualrent
                 of
                 ten
                 Chalders
                 of
                 Victual
                 ,
                 mortified
                 by
                 the
                 King
                 to
                 the
                 Chapel-royal
                 was
                 excluded
                 by
                 a
                 Redemption
                 thereof
                 ,
                 granted
                 by
                 the
                 King
                 voluntarly
                 upon
                 payment
                 ,
                 when
                 the
                 Bishops
                 were
                 supprest
                 ,
                 in
                 respect
                 the
                 mortification
                 boresuch
                 
                   a
                   Right
                   mortified
                
                 ,
                 which
                 had
                 therein
                 a
                 Reversion
                 ;
                 and
                 therefore
                 ,
                 after
                 ,
                 Redemption
                 ,
                 thirteen
                 years
                 possession
                 could
                 not
                 relieve
                 ,
                 the
                 Right
                 being
                 Redeemed
                 :
                 Neither
                 could
                 the
                 Act
                 of
                 Restitution
                 of
                 Bishops
                 ,
                 restoring
                 them
                 to
                 the
                 Rights
                 and
                 possession
                 they
                 had
                 before
                 1637.
                 seing
                 that
                 could
                 not
                 hinder
                 another
                 party
                 ro
                 redeem
                 ,
                 July
                 11.
                 1676.
                 
                 Bishop
                 of
                 
                   Dumblain
                   contra
                   Francis
                   Kinloch
                
                 .
                 A
                 Ministers
                 Stipend
                 ,
                 as
                 to
                 the
                 use
                 of
                 payment
                 and
                 quantity
                 ,
                 was
                 found
                 probable
                 by
                 witnesses
                 without
                 write
                 ,
                 
                   in
                   possessorio
                
                 ,
                 as
                 was
                 lalely
                 found
                 ,
                 Ministers
                 Relict
                 contra
                 Earl
                 of
                 Caithness
                 .
                 As
                 to
                 the
                 time
                 sufficient
                 to
                 give
                 a
                 possessory
                 Judgement
                 in
                 Benefices
                 or
                 Stipends
                 upon
                 possession
                 ,
                 without
                 Evidents
                 in
                 write
                 ;
                 but
                 being
                 holden
                 and
                 repute
                 as
                 a
                 part
                 of
                 the
                 Benefice
                 :
                 The
                 Canon
                 Law
                 ,
                 
                   Regula
                   Cancellariae
                
                 ,
                 33.
                 determines
                 it
                 to
                 three
                 years
                 peaceable
                 possession
                 ,
                 which
                 is
                 rather
                 as
                 to
                 the
                 Incumbents
                 Right
                 ;
                 that
                 after
                 three
                 years
                 possession
                 ,
                 he
                 cannot
                 be
                 questioned
                 during
                 his
                 Life
                 .
                 I
                 find
                 not
                 our
                 Decisions
                 so
                 clear
                 in
                 it
                 ,
                 but
                 it
                 cannot
                 exceed
                 seven
                 years
                 possession
                 ,
                 which
                 gives
                 a
                 possessory
                 Judgement
                 in
                 Infeftment
                 of
                 property
                 ,
                 &c.
                 it
                 was
                 so
                 found
                 ,
                 November
                 25.
                 1665.
                 
                 
                   James
                   Petrie
                   contra
                   John
                   Mitchelson
                
                 ,
                 The
                 like
                 about
                 that
                 same
                 time
                 ,
                 Mr.
                 
                   Alexander
                   Ferguson
                   contra
                
                 Lievtennant
                 Collonel
                 
                   Alexander
                   Agnew
                
                 .
              
               
                 Ministers
                 also
                 during
                 their
                 Incumbencie
                 ,
                 may
                 set
                 Tacks
                 according
                 to
                 the
                 Rules
                 for
                 setting
                 of
                 Tacks
                 ,
                 by
                 Beneficed
                 persons
                 before
                 exprest
                 ,
                 which
                 are
                 valide
                 and
                 effectual
                 ,
                 though
                 the
                 Incumbent
                 be
                 deprived
                 or
                 transported
                 ,
                 par
                 .
                 1592.
                 cap.
                 115.
                 
              
               
                 30.
                 
                 Ministers
                 Stipend
                 are
                 ordinarly
                 allocat
                 out
                 of
                 the
                 Teinds
                 of
                 particular
                 Lands
                 ,
                 and
                 when
                 they
                 are
                 allocat
                 ,
                 all
                 Intrometters
                 with
                 the
                 Teinds
                 of
                 these
                 Lands
                 allocat
                 are
                 lyable
                 for
                 the
                 Stipend
                 ,
                 not
                 proportionally
                 with
                 other
                 Intrometters
                 ,
                 but
                 in
                 so
                 far
                 as
                 their
                 whole
                 Intromission
                 can
                 reach
                 ,
                 even
                 though
                 they
                 made
                 payment
                 before
                 they
                 were
                 charged
                 by
                 the
                 Minister
                 ,
                 which
                 they
                 alledged
                 was
                 
                   bona
                   fide
                
                 ,
                 to
                 the
                 Heretor
                 or
                 Tacksman
                 ,
                 February
                 19.
                 1629.
                 
                 
                   Kirk
                   contra
                   Gilchrist
                
                 .
                 And
                 if
                 there
                 be
                 no
                 Allocation
                 ,
                 the
                 Stipend
                 is
                 a
                 burden
                 ,
                 affecting
                 the
                 whole
                 Teind
                 ,
                 out
                 of
                 which
                 it
                 is
                 modified
                 ;
                 and
                 the
                 Minister
                 may
                 take
                 
                 himself
                 ,
                 either
                 to
                 the
                 Heretor
                 or
                 possessor
                 ,
                 Spots
                 .
                 Kirk-men
                 ,
                 Mr.
                 
                   Andrew
                   Ker
                   contra
                   William
                   Gilchrist
                   .
                   December
                
                 3.
                 1664.
                 
                 Mr.
                 
                   J.
                   Hutcheson
                   contra
                
                 Earl
                 of
                 Cassils
                 :
                 In
                 which
                 case
                 it
                 was
                 found
                 ,
                 that
                 the
                 Minister
                 might
                 take
                 himself
                 to
                 any
                 of
                 the
                 Heretors
                 of
                 the
                 Paroch
                 for
                 the
                 whole
                 Teind
                 ,
                 inso
                 far
                 as
                 his
                 modified
                 Stipend
                 went
                 ,
                 seing
                 he
                 had
                 no
                 Locality
                 ,
                 and
                 that
                 the
                 Heretor
                 distrest
                 ,
                 behoved
                 to
                 seek
                 his
                 relief
                 proportionally
                 from
                 the
                 rest
                 .
                 And
                 a
                 Minister
                 was
                 found
                 to
                 have
                 right
                 to
                 pursue
                 an
                 Heretor
                 for
                 his
                 Stipend
                 ,
                 payed
                 out
                 of
                 his
                 Lands
                 ;
                 and
                 that
                 accepting
                 an
                 Assignation
                 to
                 a
                 part
                 of
                 the
                 Tennents
                 duties
                 ,
                 did
                 not
                 liberat
                 the
                 Heretor
                 further
                 then
                 what
                 the
                 Minister
                 received
                 ,
                 unless
                 the
                 Assignation
                 bore
                 ,
                 
                   in
                   full
                   satisfaction
                   ,
                   November
                
                 9.
                 1677.
                 
                 Mr.
                 
                   John
                   Rutherford
                   contra
                   Murray
                
                 of
                 Skirling
                 .
                 Yea
                 ,
                 though
                 an
                 Heretor
                 was
                 but
                 an
                 Appryzer
                 of
                 the
                 Stock
                 and
                 Teinds
                 ,
                 he
                 was
                 found
                 lyable
                 personally
                 ,
                 though
                 he
                 had
                 not
                 intrometted
                 ,
                 and
                 though
                 he
                 offered
                 to
                 assign
                 as
                 much
                 of
                 the
                 Rent
                 ,
                 December
                 20.
                 1622.
                 
                 Sir
                 
                   John
                   Prestoun
                   contra
                
                 Sir
                 
                   John
                   Ker.
                
                 And
                 though
                 the
                 intrometter
                 was
                 but
                 a
                 Wodsetter
                 ,
                 both
                 of
                 Stock
                 and
                 Teind
                 ,
                 having
                 no
                 more
                 but
                 his
                 Annualrent
                 ,
                 and
                 there
                 being
                 sufficient
                 Teind
                 beside
                 the
                 Wodset
                 ,
                 March
                 21.
                 1633.
                 
                 Mr
                 
                   William
                   Keith
                   contra
                   James
                   Gray
                
                 and
                 others
                 .
                 But
                 where
                 a
                 Liferenter
                 possessed
                 ,
                 she
                 was
                 only
                 found
                 lyable
                 ,
                 not
                 the
                 Fiar
                 ,
                 June
                 24.
                 1663.
                 
                 
                   Menzies
                   contra
                
                 Laird
                 of
                 Glenurchie
                 .
              
               
                 31.
                 
                 But
                 Teinds
                 before
                 valuation
                 ,
                 are
                 only
                 due
                 according
                 to
                 the
                 Cropt
                 and
                 Goods
                 ,
                 without
                 restraining
                 the
                 Heretor
                 in
                 the
                 free
                 use
                 of
                 his
                 Ground
                 ,
                 who
                 may
                 leave
                 it
                 all
                 Grass
                 ,
                 though
                 it
                 had
                 never
                 been
                 so
                 long
                 Corn
                 ,
                 and
                 may
                 Stock
                 it
                 with
                 yeld
                 Goods
                 ,
                 which
                 will
                 yield
                 no
                 Viccarage
                 ;
                 and
                 therefore
                 ,
                 having
                 inclosed
                 a
                 parcel
                 of
                 Ground
                 ,
                 and
                 sown
                 it
                 with
                 Kail
                 ,
                 Carrets
                 ,
                 and
                 Herbs
                 ,
                 the
                 same
                 was
                 found
                 Teind
                 free
                 ,
                 unless
                 these
                 were
                 accustomed
                 to
                 pay
                 Teind
                 in
                 that
                 place
                 ,
                 June
                 9.
                 1676.
                 
                 
                   Alexander
                   Burnet
                   contra
                   William
                   Gibb
                
                 .
              
               
                 32
                 ,
                 Even
                 after
                 valuation
                 ,
                 Teinds
                 are
                 not
                 
                   debita
                   fundi
                
                 ,
                 nor
                 do
                 affect
                 singular
                 Successors
                 ,
                 as
                 to
                 bygones
                 before
                 their
                 Right
                 ,
                 February
                 28.
                 1662.
                 
                 Earl
                 of
                 
                   Callender
                   contra
                   Andrew
                   Monro
                
                 .
              
               
                 33.
                 
                 The
                 legal
                 terms
                 of
                 Benefices
                 and
                 Stipends
                 ,
                 whereby
                 they
                 are
                 due
                 to
                 the
                 Incumbents
                 ,
                 are
                 Whitsonday
                 at
                 which
                 the
                 Fruits
                 are
                 held
                 to
                 be
                 fully
                 sown
                 ,
                 and
                 Michaelmess
                 ,
                 at
                 which
                 they
                 are
                 presumed
                 to
                 be
                 fully
                 separate
                 ;
                 and
                 therefore
                 ,
                 if
                 the
                 Incumbents
                 Entry
                 be
                 before
                 Whitsonday
                 ,
                 he
                 hath
                 that
                 whole
                 year
                 ,
                 So
                 if
                 he
                 be
                 Deposed
                 or
                 transported
                 before
                 Whitsonday
                 ,
                 he
                 hath
                 no
                 part
                 of
                 that
                 year
                 ,
                 if
                 after
                 Whitsonday
                 and
                 before
                 Michaelmess
                 ,
                 he
                 hath
                 the
                 half
                 ,
                 July
                 24.
                 1662.
                 
                 Mr.
                 
                   Patrick
                   Weims
                   contra
                   Cunninghame
                
                 .
                 If
                 after
                 Michaelmess
                 ,
                 he
                 hath
                 the
                 whole
                 :
                 But
                 if
                 the
                 Incumbent
                 die
                 he
                 hath
                 further
                 interest
                 in
                 his
                 Benefice
                 ,
                 even
                 after
                 his
                 death
                 .
              
               
                 34.
                 
                 Ministers
                 dying
                 ,
                 their
                 Wives
                 ,
                 Bairns
                 ,
                 or
                 Executors
                 ,
                 have
                 the
                 Annat
                 of
                 their
                 Beneficeor
                 Stipends
                 ,
                 which
                 is
                 acknowledged
                 to
                 be
                 their
                 ancient
                 Right
                 ,
                 Parl.
                 1571.
                 cap.
                 41.
                 whereby
                 it
                 is
                 declared
                 ,
                 
                   that
                   Beneficed
                   persons
                   dying
                   ,
                   shall
                   have
                   right
                   to
                   the
                   fruits
                   of
                   their
                   Benefice
                   upon
                   the
                   ground
                   ,
                   and
                   the
                   Annat
                   thereafter
                   to
                   pertain
                   to
                   their
                   Executors
                   :
                
                 But
                 the
                 question
                 is
                 ,
                 what
                 the
                 Annat
                 importeth
                 ,
                 there
                 is
                 a
                 Letter
                 concerning
                 it
                 written
                 by
                 the
                 King
                 to
                 the
                 General
                 Assembly
                 ,
                 and
                 ratified
                 by
                 them
                 .
                 All
                 do
                 agree
                 ,
                 that
                 if
                 the
                 Incumbent
                 die
                 after
                 Michaelmess
                 ,
                 he
                 hath
                 right
                 to
                 that
                 whole
                 year
                 by
                 his
                 Service
                 ,
                 and
                 to
                 the
                 half
                 of
                 the
                 next
                 year
                 by
                 the
                 Annat
                 :
                 But
                 if
                 he
                 die
                 before
                 Michaelmess
                 ,
                 he
                 hath
                 right
                 to
                 the
                 half
                 of
                 the
                 Stipend
                 ,
                 if
                 he
                 survived
                 
                   Whitsonday
                   ,
                   proprio
                   jure
                
                 ,
                 And
                 to
                 the
                 other
                 
                 half
                 ,
                 as
                 the
                 Ann
                 which
                 his
                 Executors
                 have
                 right
                 to
                 ;
                 but
                 all
                 the
                 question
                 is
                 ,
                 when
                 the
                 Incumbent
                 doth
                 not
                 only
                 survive
                 Michaelmess
                 ,
                 whereby
                 he
                 hath
                 the
                 half
                 of
                 the
                 next
                 year
                 ;
                 but
                 if
                 he
                 survive
                 the
                 last
                 of
                 Dec.
                 whether
                 he
                 hath
                 right
                 to
                 the
                 whole
                 Stipend
                 of
                 that
                 year
                 ;
                 as
                 to
                 which
                 ,
                 that
                 Rule
                 hath
                 been
                 sustained
                 ,
                 
                   in
                   favorabilibus
                   annus
                   incaptus
                   habetur
                   ,
                   pro
                   completo
                
                 ;
                 &
                 therefore
                 ,
                 the
                 Ann
                 was
                 the
                 whose
                 year
                 ,
                 which
                 was
                 so
                 decided
                 ,
                 July
                 5.
                 1662.
                 
                 Executors
                 of
                 Mr.
                 
                   James
                   Fairlie
                   contra
                
                 his
                 Parochioners
                 ;
                 but
                 the
                 Anns
                 of
                 Bishops
                 and
                 Ministers
                 ,
                 are
                 now
                 brought
                 to
                 a
                 much
                 more
                 equal
                 way
                 by
                 Act
                 of
                 〈◊〉
                 ,
                 August
                 23.
                 1672.
                 whereby
                 it
                 is
                 Statute
                 ,
                 
                   that
                   the
                   Ann
                   in
                   alltime
                   thereafter
                   ,
                   shall
                   be
                   half
                   a
                   years
                   Rent
                   of
                   the
                   Benefice
                   or
                   Stipend
                   ,
                   over
                   and
                   above
                   what
                   is
                   due
                   to
                   the
                   Defunct
                   for
                   his
                   Incumbency
                   ,
                
                 viz.
                 
                   if
                   he
                   survive
                
                 Whitsonday
                 ,
                 
                   he
                   shall
                   have
                   the
                   half
                   of
                   that
                   year
                   for
                   his
                   incumbency
                   ,
                   and
                   the
                   other
                   half
                   for
                   his
                   Ann
                   ,
                   and
                   if
                   he
                   survive
                
                 Michaelmess
                 ,
                 
                   he
                   shall
                   have
                   the
                   half
                   of
                   the
                   next
                   year
                   for
                   his
                   Ann
                
                 ;
                 whereas
                 before
                 if
                 he
                 survived
                 Michaelmess
                 ,
                 and
                 lived
                 but
                 till
                 the
                 last
                 of
                 December
                 ,
                 his
                 Ann
                 was
                 but
                 the
                 half
                 of
                 the
                 next
                 year
                 ;
                 but
                 if
                 he
                 lived
                 till
                 the
                 first
                 of
                 January
                 ,
                 his
                 Ann
                 was
                 that
                 whole
                 year
                 ,
                 whereby
                 the
                 next
                 Incumbent
                 had
                 nothing
                 to
                 expect
                 for
                 a
                 year
                 ,
                 during
                 which
                 the
                 Kirk
                 was
                 like
                 to
                 ly
                 Vacant
                 .
              
               
                 The
                 Annat
                 divides
                 betwixt
                 the
                 Relict
                 and
                 nearest
                 of
                 Kin
                 ,
                 if
                 there
                 be
                 no
                 Bairns
                 ,
                 and
                 is
                 extended
                 to
                 the
                 profite
                 of
                 the
                 Gleib
                 ,
                 if
                 there
                 be
                 no
                 new
                 Intrant
                 ,
                 July
                 19.
                 1664.
                 
                 
                   Elizabeth
                   Scrimzour
                
                 Relict
                 of
                 Mr.
                 
                   John
                   Murray
                   contra
                
                 his
                 Executors
                 :
                 But
                 where
                 there
                 is
                 an
                 Intrant
                 ,
                 the
                 Gleib
                 belongs
                 to
                 him
                 ,
                 and
                 is
                 not
                 part
                 of
                 the
                 Ann
                 ,
                 nor
                 did
                 belong
                 to
                 the
                 former
                 Minister
                 ,
                 unless
                 it
                 had
                 been
                 sown
                 by
                 him
                 ,
                 and
                 the
                 Cropt
                 upon
                 it
                 ,
                 at
                 the
                 Entry
                 of
                 the
                 Intrant
                 ,
                 July
                 6.
                 1665.
                 
                 Mr.
                 
                   John
                   Colvil
                   contra
                
                 Lord
                 Balnterino
                 .
                 Where
                 it
                 was
                 also
                 found
                 ,
                 that
                 the
                 Defunct
                 had
                 his
                 Ann
                 ,
                 though
                 he
                 had
                 neither
                 Wife
                 nor
                 Bairns
                 .
              
               
                 35.
                 
                 To
                 conclude
                 this
                 Title
                 with
                 the
                 Interest
                 of
                 Patrons
                 in
                 Benefices
                 ,
                 we
                 have
                 already
                 shown
                 their
                 Original
                 and
                 Kindes
                 ,
                 their
                 interest
                 in
                 the
                 Benefices
                 or
                 Stipends
                 ,
                 is
                 ,
                 first
                 the
                 Right
                 of
                 Presentation
                 of
                 a
                 qualified
                 person
                 for
                 the
                 Ministry
                 ,
                 whom
                 the
                 Presbytrie
                 behoved
                 to
                 try
                 and
                 admit
                 ,
                 if
                 he
                 were
                 qualified
                 :
                 whereanent
                 the
                 Patron
                 might
                 appeal
                 to
                 the
                 Synod
                 ,
                 and
                 thence
                 to
                 the
                 General
                 Assembly
                 ;
                 and
                 if
                 that
                 person
                 be
                 still
                 rejected
                 ,
                 he
                 must
                 present
                 another
                 ,
                 which
                 must
                 be
                 done
                 within
                 six
                 moneths
                 after
                 the
                 Vacancy
                 ,
                 may
                 come
                 to
                 his
                 knowledge
                 :
                 Otherways
                 the
                 Kirk
                 may
                 admit
                 a
                 qualified
                 person
                 for
                 that
                 time
                 ,
                 Par.
                 1592.
                 cap.
                 115.
                 
                 Par.
                 1606.
                 cap.
                 2.
                 
                 Par.
                 1609.
                 cap.
                 12.
                 
                 Since
                 the
                 Restitution
                 of
                 Bishops
                 ;
                 Presentations
                 must
                 be
                 directed
                 to
                 them
                 in
                 their
                 several
                 Diocesses
                 .
              
               
                 Secondly
                 ,
                 During
                 the
                 Vacancy
                 without
                 the
                 Patrons
                 default
                 ,
                 but
                 by
                 the
                 default
                 of
                 the
                 Presbytery
                 ,
                 refusing
                 to
                 admit
                 a
                 qualified
                 person
                 ,
                 he
                 had
                 power
                 〈◊〉
                 detain
                 the
                 whole
                 Fruits
                 of
                 the
                 Benefice
                 in
                 his
                 own
                 hands
                 ,
                 as
                 is
                 clear
                 in
                 the
                 said
                 last
                 Act
                 ,
                 Par.
                 1592.
                 cap.
                 115.
                 
              
               
                 Thirdly
                 ,
                 Patrons
                 are
                 Tutors
                 and
                 Guardians
                 to
                 their
                 Church
                 ,
                 without
                 whose
                 consent
                 the
                 Incumbent
                 can
                 set
                 no
                 Tack
                 longer
                 then
                 for
                 three
                 years
                 ,
                 Par.
                 1594.
                 
                 Cap.
                 200.
                 
                 Patrons
                 had
                 also
                 an
                 indirect
                 interest
                 in
                 their
                 own
                 Benefices
                 ,
                 where
                 the
                 Ministers
                 had
                 an
                 ordinary
                 Stipend
                 ,
                 settled
                 to
                 them
                 by
                 long
                 custom
                 or
                 modification
                 ,
                 yet
                 far
                 within
                 the
                 worth
                 of
                 the
                 Benefice
                 .
              
               
                 The
                 Patrons
                 used
                 to
                 present
                 them
                 to
                 the
                 Benefice
                 ,
                 but
                 withal
                 took
                 Tack
                 of
                 them
                 to
                 confident
                 persons
                 to
                 their
                 own
                 behove
                 ,
                 carrying
                 the
                 superplus
                 of
                 the
                 profite
                 of
                 the
                 Benefice
                 ,
                 over
                 and
                 above
                 the
                 accustomed
                 Stipend
                 of
                 their
                 predecessors
                 ,
                 
                 which
                 hath
                 not
                 been
                 quarrelled
                 as
                 a
                 Symoniacal
                 Paction
                 or
                 Dilapidation
                 .
                 It
                 seems
                 also
                 ,
                 that
                 Patrons
                 for
                 resemblance
                 of
                 personal
                 Patronages
                 ought
                 to
                 be
                 Alimented
                 out
                 of
                 the
                 Benefice
                 ,
                 if
                 they
                 come
                 to
                 necessity
                 ,
                 according
                 as
                 their
                 Benefice
                 may
                 bear
                 ,
                 though
                 there
                 hath
                 occurred
                 no
                 occasion
                 to
                 question
                 or
                 try
                 this
                 point
                 ,
                 but
                 by
                 the
                 Act
                 of
                 
                   Par.
                   July
                
                 23.
                 1644.
                 
                 Session
                 1.
                 c.
                 20.
                 
                 The
                 power
                 of
                 disposing
                 of
                 the
                 vacant
                 Benefice
                 or
                 Stipend
                 ,
                 was
                 taken
                 from
                 the
                 Patron
                 and
                 Stated
                 in
                 the
                 Presbytrie
                 and
                 Paroch
                 to
                 be
                 disposed
                 upon
                 for
                 pious
                 uses
                 and
                 by
                 Act
                 of
                 par
                 .
                 1949.
                 c.
                 39.
                 
                 The
                 power
                 of
                 presentation
                 is
                 also
                 taken
                 away
                 ,
                 yet
                 thetitle
                 〈◊〉
                 unsitly
                 design
                 that
                 Act
                 an
                 abolution
                 of
                 patronage
                 ,
                 for
                 there
                 is
                 no
                 more
                 there
                 taken
                 away
                 but
                 the
                 power
                 of
                 presentation
                 :
                 but
                 on
                 the
                 contrary
                 ,
                 where
                 the
                 patron
                 could
                 have
                 no
                 Interest
                 in
                 the
                 Benefice
                 of
                 Teinds
                 ,
                 but
                 indirectly
                 as
                 aforesaid
                 ,
                 that
                 declares
                 the
                 Heretable
                 Right
                 of
                 the
                 Teinds
                 ,
                 over
                 and
                 above
                 the
                 Stipend
                 ,
                 to
                 be
                 in
                 the
                 Patron
                 ,
                 but
                 with
                 necessity
                 to
                 dispone
                 the
                 same
                 to
                 the
                 Heretors
                 ,
                 for
                 six
                 years
                 purchase
                 ,
                 but
                 these
                 Acts
                 are
                 now
                 Rescinded
                 ,
                 and
                 patrons
                 returned
                 to
                 their
                 ancient
                 Rights
                 ,
                 but
                 they
                 are
                 excluded
                 from
                 the
                 Fruits
                 in
                 the
                 Vacancie
                 ,
                 which
                 are
                 applyed
                 to
                 pious
                 uses
                 ,
                 for
                 seven
                 years
                 ,
                 and
                 thereafter
                 during
                 his
                 Majesties
                 pleasure
                 ,
                 par
                 .
                 1661.
                 cap.
                 52.
                 and
                 the
                 Vacancies
                 for
                 seven
                 years
                 after
                 the
                 year
                 1672.
                 are
                 applyed
                 to
                 Universities
                 ,
                 par
                 .
                 1672.
                 cap.
                 20.
                 
              
               
                 Ecclesiastical
                 Benefices
                 were
                 so
                 ordinarly
                 patronat
                 ,
                 that
                 there
                 were
                 scarce
                 any
                 free
                 ,
                 but
                 all
                 were
                 presumed
                 o
                 be
                 patronat
                 ;
                 and
                 where
                 the
                 right
                 of
                 patronage
                 did
                 not
                 appear
                 to
                 be
                 established
                 in
                 any
                 other
                 ,
                 the
                 Pope
                 was
                 presumed
                 patron
                 before
                 the
                 Reformation
                 ;
                 and
                 after
                 the
                 Reformation
                 ,
                 the
                 King
                 is
                 presumed
                 patron
                 ,
                 
                   jure
                   Corona
                
                 ,
                 where
                 the
                 right
                 of
                 another
                 patron
                 appeareth
                 not
                 .
                 There
                 are
                 other
                 patronages
                 belong
                 to
                 the
                 King
                 ,
                 
                   jure
                   privato
                
                 ,
                 as
                 when
                 the
                 King
                 or
                 his
                 predecessors
                 acquired
                 any
                 rights
                 of
                 patronages
                 from
                 any
                 private
                 person
                 ;
                 or
                 when
                 the
                 King
                 or
                 his
                 predecessors
                 founded
                 or
                 doted
                 the
                 Benefice
                 ;
                 or
                 when
                 any
                 Lands
                 or
                 Baronies
                 fall
                 in
                 the
                 Kings
                 hand
                 as
                 Superiour
                 ,
                 by
                 recognition
                 or
                 forefaulture
                 ,
                 all
                 such
                 having
                 annexed
                 thereto
                 ,
                 or
                 comprehended
                 therein
                 ,
                 the
                 Advocation
                 ,
                 Donation
                 and
                 Right
                 of
                 patronage
                 of
                 any
                 Kirk
                 ,
                 the
                 King
                 doth
                 thereby
                 become
                 patron
                 ;
                 all
                 those
                 patronages
                 are
                 at
                 the
                 Kings
                 dispose
                 ,
                 and
                 transmissible
                 to
                 any
                 Subject
                 by
                 the
                 Kings
                 proper
                 deed
                 ,
                 either
                 annexing
                 or
                 incorporating
                 the
                 same
                 in
                 Baronies
                 or
                 Lordships
                 ,
                 or
                 by
                 distinct
                 Gifts
                 ,
                 for
                 the
                 patronage
                 doth
                 ordinarly
                 pass
                 as
                 annexed
                 to
                 Lands
                 ,
                 Charters
                 of
                 Burghs
                 ,
                 Baronies
                 ,
                 or
                 Lordships
                 ,
                 yet
                 they
                 may
                 pass
                 without
                 Infeftments
                 ,
                 as
                 
                   jura
                   incorporalia
                
                 .
              
               
                 But
                 there
                 are
                 other
                 patronages
                 which
                 by
                 Act
                 of
                 Parliament
                 ,
                 are
                 annexed
                 to
                 the
                 Crown
                 ,
                 either
                 expresly
                 ,
                 or
                 when
                 Baronies
                 ,
                 Lordships
                 ,
                 or
                 Benefices
                 are
                 annexed
                 to
                 the
                 Crown
                 ,
                 if
                 therein
                 patronages
                 of
                 any
                 Benefice
                 were
                 comprehended
                 ,
                 they
                 are
                 annexed
                 though
                 not
                 exprest
                 ;
                 for
                 Barony
                 or
                 Benefice
                 are
                 
                   nomina
                   universitatis
                
                 ,
                 being
                 united
                 and
                 erected
                 ;
                 and
                 therefore
                 ,
                 the
                 Barony
                 or
                 Benefice
                 ,
                 without
                 expressing
                 Patronage
                 ,
                 do
                 carry
                 the
                 same
                 by
                 Resignation
                 ,
                 Appryzing
                 ,
                 Adjudication
                 ,
                 Recognition
                 or-Forefaulture
                 ,
                 as
                 well
                 as
                 Salmond
                 fishing
                 or
                 Milns
                 :
                 But
                 these
                 Patronages
                 being
                 a
                 part
                 of
                 the
                 annexed
                 Patrimony
                 of
                 the
                 Crown
                 ,
                 cannot
                 be
                 disposed
                 by
                 the
                 King
                 ,
                 without
                 a
                 publick
                 Law
                 ,
                 or
                 by
                 a
                 special
                 Act
                 of
                 Dissolution
                 for
                 particular
                 reasons
                 of
                 publick
                 good
                 ,
                 anterior
                 to
                 the
                 Kings
                 Gift
                 and
                 Ratifications
                 in
                 Parliament
                 ,
                 which
                 pass
                 of
                 course
                 ,
                 and
                 are
                 accounted
                 but
                 private
                 Rights
                 ,
                 which
                 will
                 not
                 establish
                 the
                 same
                 ,
                 though
                 in
                 the
                 
                 Ratification
                 there
                 be
                 a
                 Clause
                 of
                 Dissolution
                 ,
                 which
                 is
                 always
                 understood
                 to
                 be
                 as
                 a
                 private
                 Right
                 and
                 not
                 a
                 publick
                 Law.
                 
              
               
                 The
                 Patronages
                 of
                 all
                 Bishopricks
                 belong
                 to
                 the
                 King
                 ,
                 who
                 designs
                 the
                 person
                 to
                 be
                 Bishop
                 ,
                 and
                 though
                 the
                 Chapter
                 may
                 use
                 the
                 formality
                 of
                 Election
                 ,
                 they
                 do
                 not
                 refuse
                 the
                 Kings
                 Designation
                 :
                 The
                 order
                 of
                 this
                 Election
                 is
                 prescrived
                 ,
                 Parliament
                 1617.
                 cap.
                 1.
                 where
                 the
                 Dean
                 and
                 Chapter
                 are
                 ordained
                 to
                 choose
                 the
                 person
                 ,
                 whom
                 the
                 King
                 pleases
                 to
                 nominat
                 and
                 recommend
                 ,
                 he
                 always
                 being
                 an
                 uctual
                 Minister
                 of
                 the
                 Kirk
                 ,
                 who
                 being
                 Elected
                 ,
                 hath
                 sufficient
                 right
                 to
                 the
                 Spirituality
                 of
                 his
                 Benefice
                 ,
                 but
                 not
                 to
                 the
                 Temporality
                 ,
                 till
                 he
                 have
                 a
                 Charter
                 from
                 the
                 King
                 ,
                 and
                 do
                 homage
                 ,
                 and
                 swear
                 obedience
                 to
                 him
                 ;
                 but
                 the
                 Arch-bishop
                 of
                 Saint
                 Andrews
                 is
                 to
                 be
                 elected
                 by
                 the
                 Bishops
                 of
                 
                   Dunkel
                   ,
                   Aberdene
                   ,
                   Brichen
                   ,
                   Dumblane
                   ,
                   Ross
                   ,
                   Murray
                   ,
                   Orknay
                   ,
                   Caithness
                   ,
                
                 the
                 Principal
                 of
                 Saint
                 Leanards
                 Colledge
                 ,
                 the
                 Arch-Dean
                 of
                 Saint
                 Andrews
                 ,
                 the
                 Viccars
                 of
                 Saint
                 
                   Andrews
                   ,
                   Leuchers
                
                 and
                 Couper
                 ,
                 or
                 most
                 part
                 of
                 them
                 ,
                 Parliament
                 1617.
                 cap.
                 2.
                 
                 And
                 by
                 the
                 same
                 Act
                 the
                 Arch-Bishop
                 of
                 Glasgow
                 is
                 to
                 be
                 Elected
                 by
                 the
                 Bishop
                 of
                 
                   Galloway
                   ,
                   Argile
                
                 and
                 Isles
                 ,
                 and
                 the
                 ordinar
                 Chapter
                 of
                 Glasgow
                 ,
                 or
                 most
                 of
                 them
                 ,
                 the
                 Bishop
                 of
                 Galloway
                 being
                 Conveener
                 of
                 the
                 Electors
                 ;
                 and
                 now
                 the
                 Bishop
                 of
                 Edinburgh
                 since
                 that
                 Bishoprick
                 was
                 Erected
                 ,
                 is
                 by
                 the
                 Erection
                 made
                 an
                 Elector
                 and
                 Conveener
                 .
              
               
                 The
                 King
                 is
                 also
                 Patron
                 of
                 many
                 Laick
                 Patronages
                 ,
                 and
                 there
                 are
                 several
                 other
                 Laick
                 Patronages
                 belonging
                 to
                 Subjects
                 ,
                 Ecclesiastick
                 Patronages
                 belong
                 now
                 only
                 to
                 the
                 Bishops
                 ,
                 to
                 whom
                 some
                 Kirks
                 are
                 patrimonial
                 or
                 Mensal
                 ,
                 the
                 Fruits
                 whereof
                 are
                 a
                 part
                 of
                 the
                 Bishops
                 Benefice
                 ,
                 and
                 the
                 several
                 Paroch
                 Kirks
                 are
                 not
                 distinct
                 Benefices
                 ,
                 but
                 
                   partes
                   beneficii
                
                 ,
                 but
                 most
                 be
                 served
                 by
                 the
                 Bishop
                 himself
                 ,
                 or
                 a
                 Minister
                 who
                 is
                 a
                 Stipendiary
                 ,
                 and
                 by
                 the
                 19.
                 
                 
                   Act
                   Parl.
                
                 1633.
                 all
                 Ministers
                 are
                 appointed
                 to
                 be
                 provided
                 with
                 sufficient
                 Stipends
                 ,
                 being
                 eight
                 Chalders
                 of
                 Victual
                 ,
                 or
                 eight
                 hundereth
                 Merks
                 at
                 least
                 ,
                 except
                 in
                 singular
                 cases
                 ,
                 referred
                 to
                 the
                 Commissioners
                 for
                 plantation
                 of
                 Kirks
                 ,
                 who
                 are
                 authorized
                 as
                 Commissioners
                 of
                 Parliament
                 ,
                 to
                 value
                 Teinds
                 ,
                 modifie
                 Stipends
                 ,
                 and
                 grant
                 Localities
                 for
                 fixing
                 thereof
                 upon
                 particular
                 Lands
                 .
              
               
                 The
                 Bishops
                 have
                 the
                 Patronage
                 of
                 some
                 Kirks
                 without
                 their
                 Diocies
                 ,
                 and
                 do
                 present
                 to
                 the
                 Bishop
                 of
                 that
                 Diocie
                 ,
                 but
                 if
                 the
                 Bishop
                 should
                 acquire
                 any
                 patronage
                 of
                 a
                 Kirk
                 within
                 his
                 own
                 Diocie
                 ,
                 that
                 Kirk
                 cannot
                 be
                 Patronat
                 ,
                 but
                 becomes
                 free
                 ,
                 and
                 is
                 conferred
                 by
                 the
                 Bishop
                 ,
                 
                   pleno
                   jure
                
                 ,
                 for
                 he
                 cannot
                 present
                 to
                 himself
                 ,
                 yet
                 by
                 the
                 Collation
                 ,
                 the
                 person
                 Collated
                 is
                 not
                 a
                 Stipendiar
                 ,
                 but
                 is
                 Parson
                 or
                 Viccar
                 ,
                 and
                 hath
                 the
                 full
                 benefite
                 of
                 the
                 Fruits
                 ,
                 except
                 in
                 so
                 far
                 as
                 they
                 are
                 restricted
                 by
                 Tacks
                 ,
                 set
                 lawfully
                 by
                 them
                 or
                 their
                 Predecessors
                 .
              
               
                 The
                 common
                 Kirks
                 which
                 were
                 to
                 be
                 provided
                 by
                 the
                 Bishops
                 and
                 their
                 Chapters
                 in
                 common
                 ,
                 were
                 not
                 properly
                 Patronat
                 by
                 Presentations
                 ,
                 but
                 by
                 Nominations
                 and
                 Collations
                 ,
                 yet
                 the
                 Incumbents
                 were
                 not
                 Stipendiaries
                 ,
                 but
                 enjoyed
                 these
                 Kirks
                 as
                 Benefices
                 .
                 But
                 after
                 the
                 Reformation
                 ,
                 when
                 Bishops
                 and
                 Chapters
                 were
                 supprest
                 ,
                 these
                 common
                 Kirks
                 were
                 declared
                 to
                 be
                 of
                 the
                 same
                 nature
                 with
                 other
                 Parsonages
                 and
                 Viccarages
                 ,
                 and
                 to
                 be
                 conferred
                 by
                 Presentations
                 of
                 the
                 lawful
                 Patrons
                 and
                 Collation
                 ,
                 whereby
                 they
                 become
                 then
                 Patronate
                 ;
                 the
                 King
                 ,
                 or
                 these
                 to
                 whom
                 he
                 gave
                 right
                 being
                 Patrons
                 ;
                 but
                 after
                 the
                 Restitution
                 of
                 Bishops
                 and
                 Chapters
                 ,
                 Parliament
                 1617.
                 cap.
                 2.
                 these
                 common
                 Kirks
                 were
                 restored
                 to
                 their
                 ancient
                 condition
                 .
                 Colledge
                 Kirks
                 were
                 Benefices
                 ,
                 whereof
                 the
                 King
                 was
                 Patron
                 ,
                 except
                 some
                 few
                 which
                 belonged
                 to
                 Subjects
                 ,
                 
                 Chaplainries
                 ,
                 and
                 Altarages
                 were
                 under
                 Patronage
                 of
                 the
                 Founders
                 or
                 their
                 Successors
                 .
              
               
                 Before
                 the
                 Reformation
                 there
                 were
                 but
                 few
                 inferior
                 benefices
                 below
                 Prelacies
                 ,
                 viz.
                 Collegiat
                 and
                 common
                 Kirks
                 ,
                 Parsonage
                 and
                 Viccarages
                 ,
                 which
                 are
                 but
                 very
                 few
                 ,
                 and
                 many
                 be
                 found
                 by
                 the
                 Stent
                 Rolls
                 ,
                 whereby
                 eveny
                 Parsonage
                 and
                 Viccarage
                 are
                 Taxed
                 apart
                 ,
                 as
                 distinct
                 Benefices
                 ;
                 the
                 far
                 greater
                 part
                 of
                 all
                 the
                 Teinds
                 of
                 Scotland
                 did
                 belong
                 to
                 Prelacies
                 ,
                 such
                 as
                 Bishopricks
                 and
                 Abbacies
                 ,
                 and
                 all
                 the
                 paroch
                 Kirks
                 which
                 belong
                 to
                 them
                 ,
                 are
                 not
                 distinct
                 benefices
                 ,
                 but
                 a
                 part
                 of
                 their
                 patrimony
                 ,
                 and
                 were
                 served
                 by
                 themselves
                 ,
                 their
                 Viccars
                 ,
                 or
                 their
                 Substitutes
                 ,
                 without
                 any
                 fixed
                 maintenance
                 ,
                 but
                 
                   ad
                   placitum
                
                 ,
                 so
                 that
                 there
                 was
                 no
                 patronages
                 of
                 all
                 these
                 Kirks
                 ,
                 and
                 the
                 ordinar
                 provision
                 thereof
                 was
                 ,
                 the
                 Viccarage
                 or
                 small
                 Teind
                 ,
                 and
                 sometimes
                 Viccar
                 pensions
                 out
                 of
                 the
                 parsonage
                 Teinds
                 .
              
               
                 After
                 the
                 Reformation
                 all
                 monasteries
                 being
                 supprest
                 ,
                 they
                 return
                 to
                 the
                 King
                 ,
                 
                   jure
                   Coronae
                
                 ,
                 as
                 to
                 their
                 whole
                 benefices
                 ,
                 both
                 the
                 Teinds
                 or
                 Spitituality
                 ,
                 and
                 Lands
                 and
                 Baronies
                 or
                 other
                 Temporal
                 Rights
                 ;
                 but
                 the
                 King
                 gifted
                 the
                 most
                 part
                 of
                 these
                 benefices
                 ,
                 both
                 Spirituality
                 and
                 Temporality
                 ,
                 to
                 the
                 Nobility
                 and
                 Gentry
                 ,
                 and
                 Erected
                 the
                 same
                 in
                 Temporal
                 Baronies
                 and
                 Lordships
                 ,
                 but
                 with
                 burden
                 of
                 competent
                 provisions
                 to
                 the
                 Ministers
                 of
                 all
                 the
                 Kirks
                 ,
                 which
                 were
                 parts
                 of
                 the
                 patrimony
                 of
                 the
                 saids
                 great
                 benefices
                 ,
                 whereby
                 the
                 Lords
                 of
                 Erection
                 ,
                 coming
                 in
                 place
                 of
                 these
                 Monasteries
                 ,
                 had
                 right
                 to
                 all
                 the
                 Teinds
                 of
                 the
                 Kirks
                 ,
                 which
                 were
                 the
                 patrimony
                 thereof
                 ;
                 and
                 the
                 Abbots
                 and
                 Priors
                 ,
                 did
                 nominate
                 their
                 Viccars
                 in
                 these
                 Kirks
                 ,
                 so
                 the
                 Lords
                 of
                 Erection
                 did
                 nominate
                 the
                 Ministers
                 to
                 the
                 same
                 ,
                 and
                 presented
                 them
                 to
                 the
                 Church-men
                 ,
                 to
                 be
                 tryed
                 and
                 admitted
                 ,
                 and
                 thereupon
                 assumed
                 the
                 Title
                 of
                 patrons
                 ,
                 though
                 properly
                 they
                 were
                 not
                 such
                 ,
                 because
                 the
                 Ministers
                 had
                 no
                 benefices
                 ,
                 but
                 were
                 Stipendaries
                 ,
                 having
                 no
                 Rights
                 to
                 the
                 Fruits
                 till
                 the
                 year
                 1587.
                 when
                 the
                 Temporalities
                 of
                 all
                 benefices
                 belonging
                 to
                 Arch-bishops
                 ,
                 Bishops
                 ,
                 Priors
                 ,
                 Prioresses
                 ,
                 or
                 whatsomever
                 Ecclesiastical
                 benefite
                 belonging
                 to
                 any
                 Abbay
                 ,
                 Cloister
                 ,
                 Friers
                 ,
                 Monks
                 ,
                 Channons
                 ,
                 Common-kirks
                 ,
                 and
                 Collegiat
                 kirks
                 ,
                 were
                 annexed
                 unto
                 the
                 Crown
                 ,
                 with
                 several
                 exceptions
                 ,
                 Act
                 29.
                 par
                 .
                 1587.
                 and
                 though
                 that
                 Act
                 seem
                 only
                 to
                 annex
                 the
                 Temporality
                 then
                 belonging
                 to
                 these
                 Church-men
                 ,
                 and
                 not
                 to
                 extend
                 to
                 the
                 Temporalities
                 already
                 Erected
                 to
                 secular
                 persons
                 ,
                 yet
                 by
                 the
                 exceptions
                 of
                 the
                 many
                 Erections
                 therein
                 contained
                 ,
                 it
                 hath
                 been
                 ever
                 held
                 as
                 an
                 Annexation
                 of
                 all
                 the
                 Temporalities
                 that
                 did
                 belong
                 to
                 these
                 benefices
                 :
                 but
                 the
                 Spirituality
                 or
                 Teinds
                 ,
                 are
                 declared
                 not
                 to
                 be
                 annexed
                 ,
                 but
                 by
                 the
                 Act
                 ,
                 115
                 ,
                 Parliament
                 1592.
                 
                 Erections
                 either
                 of
                 kirk-lands
                 or
                 Teinds
                 in
                 Temporal
                 Lordships
                 ,
                 after
                 the
                 said
                 Act
                 of
                 Annexation
                 ,
                 are
                 declared
                 null
                 ,
                 except
                 such
                 parts
                 and
                 portions
                 of
                 the
                 kirk-lands
                 ,
                 already
                 erected
                 in
                 Temporal
                 Lordships
                 ,
                 to
                 such
                 persons
                 ,
                 as
                 since
                 the
                 Act
                 of
                 Annexation
                 ,
                 have
                 received
                 the
                 honours
                 of
                 Lords
                 of
                 parliament
                 ,
                 and
                 have
                 sitten
                 and
                 votted
                 in
                 parliament
                 ,
                 as
                 Temporal
                 Lords
                 ,
                 whence
                 the
                 question
                 ariseth
                 ,
                 whether
                 that
                 exception
                 derogates
                 only
                 from
                 this
                 Act
                 ,
                 or
                 also
                 from
                 the
                 said
                 general
                 Act
                 of
                 Annexation
                 ,
                 but
                 by
                 the
                 195.
                 
                 Act
                 parliament
                 1594.
                 all
                 Erections
                 since
                 the
                 said
                 general
                 Act
                 of
                 Annexation
                 ,
                 not
                 excepted
                 in
                 the
                 said
                 Act
                 ,
                 are
                 declared
                 null
                 ,
                 which
                 doth
                 also
                 leave
                 a
                 doubt
                 as
                 to
                 to
                 the
                 Erections
                 ,
                 preceeding
                 the
                 said
                 Act
                 of
                 Annexation
                 ;
                 and
                 by
                 the
                 second
                 Act
                 ,
                 parliament
                 1606.
                 
                 Restoring
                 bishops
                 ,
                 it
                 is
                 declared
                 for
                 the
                 better
                 satisfaction
                 of
                 His
                 Majesties
                 Subjects
                 and
                 faithful
                 Servants
                 ,
                 whom
                 His
                 Majesty
                 hath
                 rewarded
                 with
                 Erections
                 ,
                 Feues
                 ,
                 patronages
                 ,
                 Teinds
                 and
                 Confirmations
                 of
                 Teinds
                 ,
                 patronages
                 and
                 other
                 Rights
                 of
                 Abbacies
                 ,
                 and
                 that
                 they
                 may
                 not
                 be
                 put
                 in
                 mistrust
                 ,
                 
                 
                 
                 therefore
                 ratifies
                 the
                 hail
                 Erections
                 ,
                 Infeftments
                 ,
                 Confirmations
                 ,
                 Patronages
                 ,
                 Tacks
                 ,
                 and
                 other
                 securities
                 of
                 Benefices
                 ,
                 not
                 being
                 Bishopricks
                 given
                 ,
                 disponed
                 ,
                 and
                 confirmed
                 by
                 His
                 Majesty
                 ,
                 during
                 the
                 Parliament
                 ,
                 1587.
                 before
                 or
                 sinsine
                 ,
                 agreeable
                 to
                 the
                 saids
                 Laws
                 and
                 Acts
                 of
                 Parliament
                 ,
                 and
                 faithfully
                 promits
                 ,
                 
                   in
                   verbo
                   principis
                
                 ,
                 never
                 to
                 quarrel
                 the
                 same
                 ,
                 which
                 seems
                 to
                 give
                 further
                 ground
                 to
                 Erections
                 ,
                 though
                 qualified
                 with
                 that
                 provision
                 ,
                 that
                 the
                 saids
                 Erections
                 be
                 conform
                 to
                 the
                 Acts
                 of
                 Annexation
                 and
                 Laws
                 made
                 sinsine
                 ,
                 whereby
                 the
                 same
                 might
                 only
                 extend
                 to
                 the
                 Erections
                 ,
                 excepted
                 and
                 warranted
                 in
                 the
                 said
                 Act
                 of
                 Annexation
                 ,
                 which
                 excepts
                 several
                 Erections
                 formerly
                 made
                 ,
                 and
                 leaves
                 some
                 Kirk-lands
                 to
                 the
                 Kings
                 dispose
                 ,
                 by
                 subsequent
                 Erection
                 :
                 In
                 this
                 case
                 did
                 King
                 James
                 leave
                 the
                 condition
                 of
                 Kirk-lands
                 ,
                 Teinds
                 and
                 Patronages
                 .
              
               
                 King
                 Charles
                 the
                 first
                 coming
                 to
                 the
                 Crown
                 ,
                 and
                 being
                 informed
                 of
                 the
                 great
                 Benefite
                 His
                 Father
                 might
                 have
                 made
                 by
                 suppressing
                 of
                 Popery
                 ,
                 and
                 the
                 Popish
                 Benefices
                 ,
                 if
                 He
                 had
                 not
                 gifted
                 them
                 away
                 before
                 He
                 consider
                 ,
                 did
                 resolve
                 to
                 recover
                 the
                 same
                 to
                 the
                 Crown
                 ;
                 and
                 therefore
                 made
                 a
                 very
                 ample
                 Revocation
                 of
                 all
                 Deeds
                 done
                 in
                 prejudice
                 of
                 the
                 Crown
                 ,
                 or
                 any
                 of
                 His
                 Royal
                 Progenitors
                 ,
                 and
                 in
                 the
                 year
                 1627.
                 there
                 was
                 a
                 Reduction
                 intended
                 of
                 all
                 Erections
                 of
                 Kirk-lands
                 ,
                 Teinds
                 ,
                 Patronages
                 ,
                 which
                 did
                 pertain
                 to
                 whatsomever
                 Abbacy
                 ,
                 Priory
                 or
                 other
                 Benefice
                 ,
                 and
                 Acts
                 of
                 Parliament
                 Ratifying
                 the
                 same
                 ,
                 with
                 all
                 Infeftments
                 of
                 Heretable
                 Offices
                 or
                 Regalities
                 :
                 Which
                 Revocation
                 and
                 Process
                 having
                 made
                 a
                 great
                 noise
                 ,
                 the
                 King
                 gave
                 Commission
                 to
                 several
                 Noblemen
                 ,
                 and
                 others
                 ,
                 to
                 endeavour
                 an
                 agreement
                 with
                 these
                 who
                 had
                 right
                 to
                 Erections
                 ,
                 or
                 any
                 right
                 to
                 Kirklands
                 or
                 Teinds
                 ,
                 whereupon
                 there
                 was
                 a
                 Submission
                 made
                 by
                 many
                 persons
                 who
                 had
                 right
                 to
                 Kirk-lands
                 and
                 Teinds
                 ,
                 containing
                 a
                 Procuratory
                 of
                 Resignation
                 in
                 the
                 Kings
                 hands
                 ,
                 
                   ad
                   perpetuam
                   remanentiam
                
                 ,
                 of
                 the
                 Superiority
                 of
                 all
                 Lands
                 ,
                 and
                 other
                 Temporal
                 Rights
                 ,
                 pertaining
                 to
                 whatsomever
                 Erection
                 of
                 the
                 Temporality
                 of
                 Benefices
                 ,
                 reserving
                 and
                 excepting
                 the
                 Property
                 of
                 all
                 the
                 saids
                 Lands
                 ,
                 and
                 others
                 whereunto
                 they
                 had
                 right
                 ,
                 before
                 or
                 after
                 ;
                 the
                 saids
                 Erections
                 ,
                 paying
                 the
                 ancient
                 Feu-duties
                 to
                 His
                 Majesty
                 ,
                 that
                 were
                 payable
                 to
                 Kirk-men
                 ,
                 and
                 that
                 such
                 demains
                 and
                 mensal
                 Lands
                 of
                 the
                 saids
                 Benefices
                 ,
                 as
                 were
                 never
                 set
                 in
                 Feu
                 or
                 Rental
                 by
                 the
                 ancient
                 Titulars
                 ,
                 before
                 the
                 Act
                 of
                 Annexation
                 ,
                 nor
                 by
                 the
                 King
                 ,
                 and
                 were
                 then
                 possessed
                 by
                 any
                 of
                 the
                 Lords
                 of
                 Erection
                 ,
                 should
                 be
                 Feued
                 to
                 them
                 and
                 no
                 others
                 ,
                 for
                 such
                 Feu-duties
                 as
                 His
                 Majesties
                 Commissioners
                 should
                 appoint
                 ;
                 they
                 did
                 thereby
                 also
                 submit
                 to
                 His
                 Majesty
                 ,
                 what
                 satisfaction
                 He
                 should
                 give
                 them
                 for
                 the
                 Feu-duties
                 ,
                 and
                 other
                 constant
                 Rent
                 of
                 the
                 Superiorities
                 Resigned
                 ;
                 and
                 all
                 rights
                 of
                 Teithes
                 that
                 they
                 had
                 ,
                 that
                 His
                 Majesty
                 might
                 appoint
                 the
                 quantity
                 ,
                 rate
                 and
                 price
                 thereof
                 ,
                 to
                 be
                 payed
                 by
                 the
                 Heretors
                 to
                 the
                 saids
                 Titulars
                 of
                 Erection
                 ,
                 with
                 a
                 burden
                 of
                 Annuity
                 to
                 the
                 King
                 ,
                 excepting
                 the
                 Teinds
                 of
                 the
                 Surrenderers
                 own
                 proper
                 Lands
                 ,
                 being
                 always
                 subject
                 to
                 His
                 Majesties
                 Annuity
                 :
                 Which
                 Submission
                 His
                 Majesty
                 accepted
                 ,
                 and
                 there
                 followed
                 thereupon
                 an
                 Instrument
                 of
                 Resignation
                 at
                 
                   Whitehall
                   ,
                   May
                
                 14.
                 1628.
                 
                 There
                 was
                 also
                 a
                 Submission
                 made
                 by
                 the
                 Bishops
                 ,
                 of
                 all
                 Teinds
                 belonging
                 to
                 them
                 ,
                 or
                 their
                 Patrimonial
                 Kirks
                 ,
                 providing
                 they
                 be
                 not
                 damnified
                 in
                 their
                 Benefices
                 ,
                 as
                 they
                 were
                 then
                 possessed
                 ,
                 either
                 in
                 quantity
                 or
                 quality
                 ,
                 whether
                 the
                 samine
                 were
                 payed
                 in
                 Rental
                 Bolls
                 ,
                 or
                 drawn
                 Teind
                 ,
                 so
                 that
                 the
                 Submission
                 did
                 only
                 reach
                 to
                 Teinds
                 that
                 were
                 in
                 Tack
                 ,
                 or
                 other
                 use
                 of
                 payment
                 ,
                 and
                 whereof
                 the
                 Bishops
                 or
                 beneficed
                 Persons
                 ,
                 were
                 not
                 then
                 in
                 Possession
                 by
                 Rental
                 Bolls
                 ,
                 or
                 drawn
                 Teind
                 ;
                 this
                 Submission
                 was
                 in
                 Anno
                 1628.
                 
                 There
                 is
                 also
                 a
                 Submission
                 by
                 the
                 Burrows
                 of
                 their
                 Teinds
                 ,
                 in
                 the
                 same
                 year
                 ;
                 and
                 
                 a
                 fourth
                 Submission
                 ,
                 by
                 several
                 persons
                 having
                 right
                 to
                 Teinds
                 ,
                 in
                 Anno
                 1629.
                 
              
               
                 The
                 King
                 did
                 pronounce
                 His
                 Decreet
                 Arbitral
                 ,
                 upon
                 the
                 Submission
                 of
                 the
                 Lords
                 of
                 Erection
                 ,
                 upon
                 the
                 second
                 of
                 September
                 one
                 thousand
                 six
                 hundred
                 and
                 twenty
                 nine
                 ,
                 whereby
                 He
                 Ordains
                 the
                 Lords
                 of
                 Erection
                 to
                 have
                 ten
                 years
                 Purchase
                 for
                 the
                 Feu-duties
                 ;
                 and
                 all
                 their
                 constant
                 Rents
                 ,
                 consisting
                 of
                 Victual
                 or
                 Money
                 ;
                 the
                 Victual
                 being
                 reckoned
                 at
                 an
                 hundred
                 Merks
                 the
                 Chalder
                 ,
                 deducing
                 so
                 much
                 of
                 the
                 Feu-duties
                 ,
                 as
                 were
                 equivalent
                 to
                 the
                 Blensh-duties
                 ,
                 contained
                 in
                 the
                 Infeftments
                 of
                 Erection
                 ,
                 for
                 which
                 nothing
                 was
                 to
                 be
                 payed
                 ;
                 and
                 allowing
                 the
                 Lords
                 of
                 Erection
                 to
                 retain
                 the
                 Feu-duties
                 untill
                 they
                 were
                 redeemed
                 :
                 His
                 Majesty
                 did
                 also
                 decern
                 ,
                 that
                 each
                 Heretor
                 shall
                 have
                 his
                 own
                 Teinds
                 ,
                 that
                 such
                 as
                 have
                 right
                 to
                 other
                 mens
                 Teinds
                 ,
                 shall
                 after
                 valuation
                 thereof
                 ,
                 whereby
                 the
                 fifth
                 part
                 of
                 the
                 constant
                 Rent
                 ,
                 which
                 each
                 Land
                 pays
                 in
                 Stock
                 and
                 Teind
                 ,
                 is
                 declared
                 to
                 be
                 the
                 Teind
                 ;
                 and
                 where
                 the
                 Teind
                 is
                 valued
                 severally
                 ,
                 that
                 the
                 Heretor
                 shall
                 have
                 the
                 fifth
                 part
                 of
                 the
                 yearly
                 value
                 thereof
                 ,
                 deduced
                 for
                 the
                 Kings
                 ease
                 ;
                 and
                 the
                 price
                 of
                 the
                 said
                 Teind
                 for
                 an
                 Heretable
                 Right
                 ,
                 was
                 made
                 nine
                 years
                 purchase
                 :
                 And
                 for
                 other
                 Right
                 of
                 Teinds
                 ,
                 inferiour
                 to
                 Heretable
                 Rights
                 proportionably
                 according
                 to
                 the
                 worth
                 thereof
                 ,
                 to
                 be
                 determined
                 by
                 a
                 Commission
                 to
                 be
                 granted
                 by
                 His
                 Majesty
                 to
                 that
                 effect
                 ,
                 and
                 that
                 both
                 for
                 Tacks
                 of
                 Teinds
                 and
                 Patronages
                 .
                 There
                 are
                 also
                 Decreets
                 by
                 His
                 Majesty
                 upon
                 the
                 other
                 Submission
                 ,
                 to
                 the
                 same
                 purpose
                 ,
                 and
                 by
                 the
                 tenth
                 and
                 fourteenth
                 Act
                 ,
                 Par.
                 1633.
                 the
                 Superiorities
                 of
                 all
                 Kirk-lands
                 are
                 annexed
                 to
                 the
                 Crown
                 ,
                 except
                 these
                 belonging
                 to
                 Bishops
                 ,
                 with
                 the
                 Feu-duties
                 of
                 the
                 said
                 Superiorities
                 ,
                 reserving
                 to
                 the
                 Lords
                 and
                 Titulars
                 of
                 Erections
                 ,
                 who
                 subscribed
                 the
                 general
                 Surrender
                 of
                 Submissions
                 .
                 Their
                 Feu-duties
                 till
                 they
                 be
                 redeemed
                 at
                 ten
                 years
                 purchase
                 ,
                 and
                 reserving
                 to
                 them
                 the
                 Property
                 holden
                 of
                 His
                 Majesty
                 ,
                 for
                 payment
                 of
                 the
                 Feu-duties
                 contained
                 in
                 the
                 old
                 Infeftments
                 ,
                 preceeding
                 the
                 Annexation
                 .
              
               
                 By
                 the
                 12.
                 
                 
                   Act
                   Par.
                
                 1633.
                 the
                 King
                 restricts
                 his
                 general
                 Revocation
                 in
                 October
                 1625.
                 
                 Registrate
                 in
                 the
                 Books
                 of
                 Secret
                 Council
                 ,
                 February
                 9.
                 1626.
                 in
                 a
                 Proclamation
                 then
                 emitted
                 ;
                 and
                 another
                 ,
                 July
                 21.
                 1626.
                 to
                 the
                 annulling
                 all
                 pretended
                 Rights
                 to
                 the
                 Property
                 of
                 the
                 Crown
                 ,
                 as
                 well
                 annexed
                 as
                 not
                 annexed
                 ,
                 whereof
                 an
                 account
                 hath
                 been
                 made
                 in
                 Exchequer
                 ,
                 and
                 of
                 the
                 principality
                 unlawfully
                 disponed
                 by
                 His
                 Predecessors
                 ,
                 against
                 the
                 Laws
                 and
                 Acts
                 then
                 standing
                 ;
                 and
                 to
                 the
                 annulling
                 of
                 Erections
                 and
                 other
                 Dispositions
                 of
                 whatsoever
                 Lands
                 ,
                 Teinds
                 ,
                 Patronages
                 ,
                 and
                 Benefices
                 ,
                 formerly
                 belonging
                 to
                 the
                 Kirk
                 ,
                 and
                 since
                 annexed
                 to
                 the
                 Crown
                 ,
                 and
                 any
                 other
                 Lands
                 and
                 Benefices
                 ,
                 Mortified
                 to
                 pious
                 uses
                 ,
                 and
                 of
                 Regalities
                 and
                 Heretable
                 Offices
                 ,
                 and
                 the
                 change
                 from
                 Ward
                 to
                 Blensh
                 or
                 Taxt-ward
                 ,
                 since
                 the
                 year
                 ,
                 1540.
                 
              
               
                 Upon
                 this
                 progress
                 it
                 may
                 be
                 questioned
                 ,
                 whether
                 the
                 Patronages
                 that
                 formerly
                 belonged
                 to
                 Church-men
                 ,
                 and
                 were
                 annexed
                 to
                 the
                 Lands
                 ,
                 Burrows
                 or
                 Benefices
                 ,
                 and
                 thereafter
                 were
                 erected
                 in
                 Temporal
                 Estates
                 ,
                 do
                 belong
                 to
                 the
                 King
                 or
                 Lords
                 of
                 Erection
                 .
                 And
                 next
                 ,
                 whether
                 these
                 more
                 improper
                 Patronages
                 of
                 the
                 Patrimonial
                 Kirks
                 of
                 Abbacies
                 ,
                 whereby
                 the
                 Lords
                 of
                 Erection
                 coming
                 in
                 the
                 Abbots
                 place
                 ,
                 do
                 claim
                 the
                 Right
                 of
                 Presentation
                 ,
                 or
                 Nomination
                 of
                 Stipendiary
                 Ministers
                 to
                 these
                 Kirks
                 ,
                 do
                 belong
                 to
                 them
                 or
                 the
                 King.
                 
              
               
               
                 As
                 to
                 the
                 first
                 ,
                 there
                 seems
                 less
                 difficulty
                 that
                 the
                 Patronage
                 which
                 did
                 belong
                 to
                 Abbots
                 of
                 Kirks
                 ,
                 which
                 were
                 not
                 of
                 their
                 Patrimony
                 ,
                 but
                 whereof
                 they
                 had
                 only
                 
                   jus
                   presentandi
                
                 ,
                 do
                 belong
                 to
                 the
                 King
                 ,
                 because
                 such
                 Patronages
                 are
                 annexed
                 to
                 the
                 Crown
                 ,
                 by
                 the
                 general
                 Act
                 of
                 Annexation
                 ,
                 which
                 though
                 it
                 does
                 not
                 mention
                 Patronages
                 ,
                 yet
                 the
                 Barony
                 or
                 Benefice
                 wherein
                 such
                 Patronages
                 were
                 comprehended
                 ,
                 were
                 expresly
                 annexed
                 :
                 And
                 Barony
                 or
                 Benefice
                 ,
                 being
                 
                   nomina
                   universitatis
                
                 ,
                 will
                 comprehend
                 Patronages
                 Incorporate
                 therein
                 ,
                 or
                 annexed
                 thereto
                 ,
                 so
                 that
                 without
                 Dissolution
                 ,
                 no
                 Subject
                 can
                 pretend
                 right
                 to
                 the
                 Ecclesiastick
                 Patronages
                 of
                 Abbots
                 ,
                 Priors
                 ,
                 &c.
                 and
                 as
                 to
                 the
                 Lords
                 of
                 erection
                 ,
                 who
                 fall
                 under
                 the
                 exceptions
                 of
                 the
                 general
                 Act
                 of
                 Annexation
                 ,
                 they
                 having
                 submitted
                 and
                 surrendered
                 all
                 their
                 Titles
                 of
                 erection
                 to
                 the
                 King
                 ,
                 and
                 particularly
                 their
                 Patronages
                 ;
                 and
                 thereupon
                 the
                 King
                 having
                 by
                 His
                 Decreet
                 Arbitral
                 ,
                 Ratified
                 in
                 Parliament
                 ,
                 reserved
                 only
                 to
                 them
                 their
                 Property
                 ,
                 Lands
                 and
                 Teinds
                 ,
                 and
                 Feu-duties
                 till
                 they
                 be
                 redeemed
                 ;
                 and
                 the
                 Superiority
                 being
                 again
                 annexed
                 ,
                 which
                 is
                 the
                 
                   dominium
                   directum
                
                 of
                 these
                 ecclesiastical
                 Baronies
                 ,
                 the
                 ecclesiastick
                 Patronage
                 of
                 the
                 Abbots
                 comprehended
                 ,
                 
                   in
                   nomine
                   Barroniae
                
                 ,
                 do
                 therewith
                 belong
                 to
                 the
                 King
                 unless
                 they
                 have
                 been
                 Disponed
                 after
                 Dissolutlon
                 ;
                 or
                 a
                 Subjects
                 Title
                 to
                 the
                 Advocation
                 ,
                 Donation
                 ,
                 or
                 Right
                 of
                 Patronage
                 of
                 such
                 Kirks
                 ,
                 be
                 perfited
                 by
                 prescription
                 ;
                 for
                 the
                 act
                 of
                 prescription
                 ,
                 1617.
                 hath
                 no
                 exception
                 of
                 the
                 Kings
                 Right
                 ,
                 to
                 which
                 the
                 prior
                 act
                 that
                 the
                 King
                 should
                 not
                 be
                 prejudged
                 by
                 the
                 neglect
                 of
                 His
                 Officers
                 ,
                 doth
                 not
                 extend
                 ,
                 but
                 that
                 interruption
                 within
                 the
                 fourty
                 year
                 ,
                 is
                 requisite
                 even
                 for
                 the
                 King
                 ,
                 the
                 form
                 whereof
                 was
                 ordered
                 by
                 the
                 Lords
                 of
                 Session
                 ,
                 and
                 approven
                 by
                 Parliament
                 ,
                 1633.
                 cap.
                 12.
                 
                 But
                 there
                 is
                 much
                 more
                 difficulty
                 as
                 to
                 the
                 other
                 point
                 concerning
                 the
                 Patronage
                 of
                 these
                 Kirks
                 ,
                 that
                 were
                 parts
                 of
                 the
                 Patrimony
                 of
                 the
                 Abbots
                 ,
                 which
                 before
                 the
                 Reformation
                 were
                 not
                 Kirks
                 patronat
                 ,
                 but
                 patrimonial
                 ;
                 but
                 thereafter
                 being
                 dissolved
                 ,
                 and
                 declared
                 distinct
                 Paroch
                 Kirks
                 .
                 The
                 Abbots
                 power
                 of
                 nomination
                 of
                 Viccars
                 in
                 these
                 kirks
                 ,
                 became
                 to
                 be
                 exercised
                 by
                 Presentations
                 to
                 the
                 Kirks
                 ,
                 which
                 Presentations
                 were
                 given
                 by
                 the
                 King
                 to
                 some
                 Kirks
                 ,
                 even
                 where
                 there
                 were
                 erections
                 ;
                 but
                 in
                 most
                 erections
                 ,
                 the
                 Lords
                 of
                 erection
                 did
                 present
                 ,
                 as
                 coming
                 in
                 place
                 of
                 the
                 Abbots
                 ,
                 and
                 did
                 in
                 their
                 Original
                 or
                 subsequent
                 Right
                 ,
                 insert
                 the
                 Patronage
                 of
                 some
                 ,
                 or
                 all
                 of
                 the
                 Patrimonial
                 Kirks
                 of
                 these
                 Abbacies
                 ;
                 and
                 where
                 the
                 Right
                 of
                 Patronage
                 is
                 not
                 exprest
                 ,
                 the
                 Lords
                 of
                 erection
                 have
                 but
                 small
                 ground
                 to
                 pretend
                 to
                 these
                 ;
                 and
                 where
                 they
                 are
                 exprest
                 and
                 perfited
                 by
                 Prescription
                 ,
                 they
                 are
                 secure
                 ,
                 so
                 that
                 the
                 question
                 will
                 remain
                 as
                 to
                 the
                 power
                 of
                 presentation
                 ,
                 to
                 the
                 patrimonial
                 Kirks
                 of
                 Abbacies
                 ,
                 where
                 prescription
                 hath
                 not
                 cleared
                 the
                 question
                 ,
                 but
                 that
                 sometimes
                 the
                 King
                 ,
                 sometimes
                 the
                 Lords
                 of
                 Erection
                 have
                 presented
                 ,
                 which
                 was
                 largely
                 debated
                 in
                 November
                 1677.
                 concerning
                 the
                 Patronage
                 of
                 the
                 Kirk
                 of
                 Allan
                 ,
                 whereunto
                 the
                 Laird
                 of
                 Watertoun
                 had
                 presented
                 as
                 deriving
                 Right
                 to
                 an
                 erection
                 prior
                 to
                 the
                 Act
                 of
                 Annexation
                 ,
                 and
                 having
                 desired
                 from
                 the
                 Council
                 ,
                 Letters
                 to
                 Charge
                 the
                 Bishop
                 to
                 grant
                 Collation
                 upon
                 the
                 foresaid
                 Act
                 of
                 Parliament
                 ,
                 ordaining
                 Bishops
                 to
                 try
                 and
                 Collate
                 upon
                 the
                 Patrons
                 presentation
                 ,
                 the
                 matter
                 was
                 remitted
                 by
                 the
                 Privy
                 Council
                 ,
                 to
                 the
                 Lords
                 of
                 Session
                 ,
                 in
                 respect
                 that
                 the
                 Officers
                 of
                 State
                 ,
                 did
                 claim
                 right
                 to
                 that
                 patronage
                 ,
                 as
                 belonging
                 to
                 the
                 King
                 ,
                 whereupon
                 the
                 Lords
                 did
                 at
                 first
                 ,
                 sist
                 any
                 further
                 progress
                 in
                 admitting
                 either
                 the
                 person
                 presented
                 by
                 the
                 King
                 ,
                 or
                 by
                 Watertoun
                 ,
                 till
                 the
                 matter
                 were
                 discussed
                 ,
                 but
                 after
                 hearing
                 ,
                 the
                 Cause
                 at
                 length
                 in
                 their
                 presence
                 ,
                 Wattertoun
                 having
                 alledged
                 that
                 his
                 Author
                 had
                 an
                 erection
                 ,
                 bearing
                 the
                 Patronage
                 of
                 this
                 Kirk
                 ,
                 
                   per
                   expressum
                
                 ;
                 and
                 that
                 such
                 Patronages
                 were
                 not
                 annexed
                 to
                 the
                 Crown
                 ,
                 because
                 they
                 were
                 not
                 comprehended
                 in
                 the
                 Abbots
                 Rights
                 ;
                 such
                 Kirks
                 not
                 being
                 
                 then
                 Patronat
                 but
                 Patrimonial
                 ,
                 and
                 that
                 the
                 King
                 in
                 his
                 Decrect
                 Arbitral
                 had
                 determined
                 nothing
                 anent
                 Patronages
                 ,
                 but
                 that
                 the
                 Lords
                 of
                 erection
                 had
                 always
                 enjoyed
                 the
                 same
                 ,
                 and
                 that
                 the
                 Lords
                 of
                 erection
                 retaining
                 the
                 right
                 of
                 the
                 Teinds
                 ,
                 the
                 patronage
                 belong
                 to
                 them
                 as
                 consequent
                 to
                 the
                 Teinds
                 ,
                 out
                 of
                 which
                 the
                 provisions
                 for
                 the
                 Kirk
                 is
                 payable
                 ,
                 and
                 it
                 being
                 answered
                 for
                 the
                 King
                 ,
                 that
                 though
                 the
                 Abbots
                 had
                 not
                 the
                 formal
                 Right
                 of
                 presentation
                 ,
                 because
                 the
                 Kirks
                 were
                 not
                 then
                 patronat
                 ,
                 yet
                 they
                 had
                 the
                 right
                 of
                 Nomination
                 ,
                 or
                 substitution
                 of
                 the
                 Viccars
                 who
                 served
                 in
                 these
                 Kirks
                 ,
                 in
                 place
                 of
                 whom
                 are
                 now
                 the
                 Stipendiary
                 Ministers
                 ;
                 these
                 new
                 patronages
                 arise
                 form
                 the
                 Dissolution
                 of
                 these
                 Abbacies
                 into
                 distinct
                 parochs
                 ,
                 must
                 belong
                 to
                 the
                 King
                 ,
                 and
                 the
                 power
                 of
                 nomination
                 or
                 presentation
                 of
                 these
                 Stipendiars
                 ,
                 was
                 comprehended
                 in
                 ,
                 and
                 annexed
                 with
                 these
                 Benefices
                 to
                 the
                 Crown
                 ,
                 by
                 the
                 first
                 Act
                 of
                 Annexation
                 ,
                 but
                 especially
                 by
                 the
                 Annexations
                 ,
                 1633.
                 whereby
                 upon
                 the
                 surrender
                 of
                 the
                 Lords
                 of
                 erection
                 ,
                 of
                 all
                 their
                 Rights
                 ,
                 and
                 specially
                 of
                 their
                 Patronages
                 ;
                 the
                 King
                 by
                 his
                 Decreet
                 Arbitral
                 ,
                 had
                 decerned
                 to
                 them
                 only
                 ten
                 years
                 purchase
                 for
                 the
                 Feu-duty
                 ,
                 and
                 nine
                 years
                 purchase
                 for
                 the
                 Teind
                 ,
                 they
                 could
                 pretend
                 to
                 no
                 more
                 ,
                 and
                 so
                 to
                 no
                 right
                 of
                 Patronage
                 .
                 Likeas
                 the
                 King
                 in
                 the
                 Interruption
                 made
                 by
                 the
                 12
                 Act
                 of
                 Parliament
                 1633.
                 did
                 expressly
                 declare
                 ,
                 that
                 he
                 will
                 insist
                 in
                 his
                 general
                 Revocation
                 ,
                 as
                 to
                 the
                 particulars
                 enumerat
                 in
                 the
                 Act
                 of
                 Interruption
                 ,
                 whereof
                 patronage
                 is
                 one
                 :
                 In
                 this
                 debate
                 the
                 Lords
                 being
                 desirous
                 that
                 the
                 matter
                 might
                 be
                 determined
                 upon
                 the
                 clearest
                 grounds
                 ,
                 and
                 to
                 know
                 if
                 prescription
                 had
                 cleared
                 the
                 matter
                 ,
                 and
                 either
                 party
                 having
                 alledged
                 possession
                 ,
                 the
                 Lords
                 before
                 answer
                 ,
                 Ordained
                 either
                 party
                 to
                 adduce
                 all
                 the
                 evidence
                 they
                 could
                 ,
                 whether
                 the
                 King
                 or
                 Wattertoun
                 and
                 his
                 authors
                 had
                 been
                 in
                 possession
                 ,
                 how
                 long
                 and
                 what
                 way
                 .
              
            
             
               
               
                 TITLE
                 XIX
                 .
                 TACKS
                 ,
                 Where
                 ,
                 of
                 Rentals
                 ,
                 tacite
                 Relocation
                 and
                 Removing
                 .
              
               
                 
                   1.
                   
                   The
                   nature
                   of
                   Tacks
                   .
                
                 
                   2.
                   
                   How
                   Tacks
                   become
                   as
                   real
                   Right
                   ,
                   effectual
                   against
                   singular
                   Successors
                   .
                
                 
                   3.
                   
                   Who
                   may
                   grant
                   Tacks
                   .
                
                 
                   4.
                   
                   How
                   Tacks
                   may
                   be
                   set
                   .
                
                 
                   5.
                   
                   The
                   tenor
                   of
                   Tacks
                   .
                
                 
                   6.
                   
                   The
                   effect
                   of
                   obliegements
                   to
                   set
                   tacks
                   .
                
                 
                   7.
                   
                   Tacks
                   become
                   real
                   Rights
                   by
                   possession
                   .
                
                 
                   8.
                   
                   Tacks
                   in
                   Wodests
                   after
                   Redemption
                   become
                   valid
                   .
                
                 
                   9.
                   
                   The
                   extent
                   and
                   effects
                   of
                   Tacks
                   .
                
                 
                   10.
                   
                   Tacks-men
                   in
                   possession
                   need
                   not
                   dispute
                   the
                   setters
                   right
                   ,
                   disputing
                   as
                   Heretable
                   proprietar
                   .
                
                 
                   11.
                   
                   The
                   effect
                   of
                   Tacks
                   ,
                   whereof
                   the
                   Tack
                   duty
                   is
                   payable
                   to
                   Creditors
                   .
                
                 
                   12.
                   
                   Tacks
                   are
                   good
                   active
                   Titles
                   for
                   Mails
                   and
                   Duties
                   .
                
                 
                   13.
                   
                   The
                   effect
                   of
                   Tacks
                   set
                   to
                   Husband
                   and
                   Wife
                   .
                
                 
                   14.
                   
                   Kinds
                   of
                   Tacks
                   .
                
                 
                   15.
                   
                   Rentals
                   .
                
                 
                   16.
                   
                   The
                   effect
                   of
                   Assignations
                   or
                   Sub-tacks
                   of
                   Rentals
                   or
                   other
                   Tacks
                   .
                
                 
                   17.
                   
                   The
                   effect
                   of
                   Sub-tacks
                   ,
                   as
                   to
                   Tutors
                   and
                   Donatars
                   .
                
                 
                   18.
                   
                   The
                   effect
                   of
                   Rentals
                   in
                   Court
                   Books
                   ,
                   or
                   Rental
                   Books
                   only
                   .
                
                 
                   19.
                   
                   The
                   endurance
                   of
                   Rentals
                   .
                
                 
                   
                   20.
                   
                   The
                   effect
                   of
                   Grassoums
                   .
                
                 
                   21.
                   
                   How
                   far
                   Rentals
                   become
                   void
                   by
                   Alegnation
                   ,
                   Assignation
                   or
                   Subtack
                   .
                
                 
                   22.
                   
                   Defect
                   of
                   Sub-tacks
                   .
                
                 
                   23.
                   
                   Tacite
                   Relocation
                   .
                
                 
                   24.
                   
                   How
                   Tacks
                   fall
                   in
                   escheat
                   .
                
                 
                   25.
                   
                   Tacks
                   sleep
                   during
                   Ward
                   and
                   Non-entry
                   of
                   the
                   setter
                   ,
                   and
                   are
                   valid
                   against
                   his
                   LiferentEsheat
                   .
                
                 
                   26.
                   
                   Tacks
                   are
                   
                     Strictissimi
                     juris
                  
                   ,
                   and
                   extend
                   not
                   to
                   Heirs
                   ,
                   or
                   voluntary
                   Assignays
                   ,
                   or
                   Sub-tacks
                   ,
                   or
                   Removing
                   ,
                   but
                   when
                   exprest
                   ,
                   except
                   Tacks
                   for
                   Liferent
                   or
                   equivalent
                   .
                
                 
                   27.
                   
                   Tacks
                   without
                   Ish
                   are
                   null
                   .
                
                 
                   28.
                   
                   How
                   far
                   Tacks
                   to
                   endure
                   till
                   a
                   sum
                   be
                   payed
                   are
                   valid
                   .
                
                 
                   29.
                   
                   Tacks
                   are
                   null
                   without
                   a
                   Tack
                   Duty
                   .
                
                 
                   30.
                   
                   Tacks
                   are
                   valid
                   though
                   not
                   expressing
                   the
                   Entry
                   .
                
                 
                   31.
                   
                   Tennents
                   must
                   labour
                   and
                   not
                   waste
                   or
                   open
                   the
                   ground
                   for
                   any
                   Minerals
                   .
                
                 
                   32.
                   
                   Tacks
                   become
                   void
                   by
                   two
                   years
                   not
                   payment
                   of
                   the
                   Tack-Duty
                   .
                
                 
                   33.
                   
                   Or
                   for
                   not
                   finding
                   Caution
                   to
                   pay
                   the
                   Tack-duty
                   bygome
                   ,
                   and
                   in
                   time
                   to
                   come
                   .
                
                 
                   34.
                   
                   Or
                   by
                   the
                   Tennents
                   Renounciation
                   .
                
                 
                   35.
                   
                   By
                   contrary
                   consent
                   of
                   both
                   parties
                   .
                
                 
                   36.
                   
                   By
                   deeds
                   contrary
                   to
                   the
                   Tack
                   .
                
                 
                   37.
                   
                   Or
                   by
                   removing
                   .
                
                 
                   38.
                   
                   Summar
                   Removing
                   without
                   warning
                   ,
                   in
                   what
                   cases
                   .
                
                 
                   39.
                   
                   The
                   old
                   way
                   of
                   Removing
                   Tennents
                   .
                
                 
                   40.
                   
                   Warning
                   of
                   Tennents
                   to
                   Remove
                   .
                
                 
                   41.
                   
                   The
                   active
                   Title
                   in
                   Removeings
                   .
                
                 
                   42.
                   
                   Exceptions
                   against
                   Removings
                   ,
                   not
                   instantly
                   Verified
                   ,
                   are
                   not
                   receiveable
                   till
                   Caution
                   be
                   found
                   for
                   the
                   Violent
                   profites
                   .
                
                 
                   43.
                   
                   Defences
                   against
                   Removing
                   and
                   replys
                   thereto
                   .
                
                 
                   44.
                   
                   Violent
                   profites
                   .
                
                 
                   45.
                   
                   Succeeding
                   in
                   the
                   Vice
                   of
                   Tennents
                   Removed
                   .
                
              
               
               
                 1.
                 
                 ATACk
                 of
                 it self
                 is
                 no
                 more
                 then
                 a
                 personal
                 Contract
                 of
                 Location
                 ,
                 whereby
                 Land
                 or
                 any
                 other
                 thing
                 having
                 profite
                 ,
                 or
                 fruit
                 ,
                 is
                 set
                 to
                 the
                 Tacks-man
                 for
                 enjoying
                 the
                 fruit
                 or
                 profite
                 thereof
                 ,
                 for
                 a
                 hyre
                 ,
                 which
                 is
                 called
                 the
                 Tack-duty
                 ;
                 which
                 therefore
                 did
                 only
                 obliege
                 the
                 Setter
                 and
                 his
                 Heirs
                 ,
                 to
                 make
                 it
                 effectual
                 to
                 the
                 Tacks-man
                 ,
                 but
                 did
                 not
                 introduce
                 any
                 real
                 Right
                 ,
                 affecting
                 the
                 thing
                 set
                 ,
                 and
                 carried
                 therewith
                 to
                 singular
                 Successours
                 .
              
               
                 2.
                 
                 But
                 so
                 soon
                 as
                 the
                 thing
                 set
                 ceassed
                 to
                 be
                 the
                 setters
                 ,
                 the
                 Tacks
                 could
                 not
                 reach
                 it
                 :
                 Thus
                 it
                 was
                 with
                 us
                 tillthe
                 Statute
                 ,
                 Par.
                 1449.
                 cap.
                 18.
                 whereby
                 purchasers
                 and
                 singular
                 Successors
                 were
                 disenabled
                 to
                 brake
                 the
                 Tacks
                 set
                 to
                 the
                 Tennents
                 :
                 By
                 this
                 Statute
                 ,
                 Tacks
                 become
                 as
                 real
                 Rights
                 ,
                 affecting
                 the
                 ground
                 :
                 And
                 because
                 they
                 cannot
                 come
                 the
                 length
                 to
                 be
                 esteemed
                 as
                 Rights
                 of
                 Property
                 ,
                 they
                 are
                 ranked
                 here
                 amongst
                 Servitudes
                 personal
                 ;
                 for
                 as
                 Liferent-rights
                 are
                 real
                 Rights
                 ,
                 putting
                 a
                 Servitude
                 upon
                 Hereditaments
                 to
                 the
                 person
                 of
                 the
                 Liferenter
                 ,
                 during
                 life
                 ,
                 whereof
                 a
                 Liferent-tack
                 is
                 a
                 kind
                 ;
                 so
                 other
                 Tacks
                 do
                 subject
                 the
                 thing
                 set
                 to
                 the
                 Tacks-man
                 for
                 a
                 time
                 ,
                 and
                 affect
                 the
                 same
                 ,
                 though
                 it
                 pass
                 to
                 singular
                 Successors
                 ,
                 albeit
                 the
                 Statute
                 only
                 expresseth
                 ,
                 
                   that
                   buyers
                   shall
                   not
                   break
                   Tacks
                   ,
                   and
                   is
                   in
                   favours
                   of
                   the
                   poor
                   Labourers
                   of
                   the
                   ground
                   ,
                   for
                   whose
                   security
                   it
                   was
                   chiefly
                   intended
                
                 ;
                 yet
                 it
                 is
                 extended
                 against
                 all
                 singular
                 Successors
                 ,
                 whether
                 by
                 Sale
                 ,
                 Exchange
                 ,
                 Appryzing
                 ,
                 Adjudication
                 ,
                 or
                 any
                 other
                 way
                 ,
                 as
                 the
                 Statute
                 beares
                 ,
                 
                   in
                   whose
                   hands
                   soever
                   the
                   Lands
                   come
                
                 ;
                 and
                 also
                 in
                 favours
                 of
                 all
                 Tacks-men
                 ,
                 
                   whether
                   they
                   be
                   labourers
                   of
                   the
                   :
                   ground
                   or
                   not
                
                 ;
                 whereby
                 Tacks
                 are
                 now
                 become
                 the
                 most
                 ordinary
                 and
                 important
                 Rights
                 ;
                 and
                 if
                 the
                 great
                 favour
                 of
                 this
                 Statute
                 made
                 them
                 not
                 in
                 other
                 thingsto
                 be
                 strictly
                 interpret
                 ,
                 they
                 would
                 render
                 Infeftments
                 of
                 small
                 effect
                 .
              
               
                 That
                 we
                 may
                 proceed
                 orderly
                 in
                 this
                 matter
                 ,
                 we
                 shall
                 consider
                 ;
                 First
                 ,
                 The
                 constitution
                 of
                 Tacks
                 .
                 Secondly
                 ,
                 The
                 extent
                 and
                 effect
                 of
                 them
                 .
                 Thirdly
                 ,
                 The
                 kindes
                 of
                 them
                 .
                 Fourthly
                 ,
                 The
                 restricstions
                 and
                 defects
                 of
                 them
                 .
                 Fifthly
                 ,
                 The
                 avoiding
                 and
                 removing
                 of
                 them
                 .
              
               
                 As
                 to
                 the
                 First
                 ,
                 Tacks
                 are
                 also
                 called
                 Assedations
                 ,
                 as
                 a
                 setting
                 or
                 setling
                 of
                 the
                 Tenement
                 in
                 the
                 Land
                 ,
                 the
                 English
                 call
                 them
                 Leasses
                 .
                 Some
                 Tacks
                 are
                 also
                 called
                 Rentals
                 ,
                 as
                 being
                 the
                 constitution
                 of
                 a
                 fixed
                 Rent
                 ,
                 and
                 they
                 are
                 of
                 longer
                 endurance
                 then
                 ordinary
                 Tacks
                 ,
                 being
                 of
                 one
                 or
                 more
                 Liserents
                 ,
                 and
                 have
                 somewhat
                 special
                 in
                 them
                 ,
                 of
                 which
                 hereafter
                 .
              
               
                 3.
                 
                 As
                 to
                 the
                 Constitution
                 of
                 a
                 Tack
                 ,
                 consider
                 ;
                 First
                 ,
                 Who
                 may
                 Constitute
                 it
                 .
                 Secondly
                 ,
                 Of
                 what
                 .
                 Thirdly
                 ,
                 How.
                 For
                 the
                 First
                 ,
                 to
                 the
                 Constitution
                 of
                 an
                 effectual
                 Tack
                 ,
                 the
                 setter
                 must
                 not
                 only
                 have
                 all
                 the
                 Capacities
                 requisite
                 to
                 Contract
                 ,
                 but
                 he
                 must
                 have
                 right
                 to
                 the
                 thing
                 set
                 ,
                 and
                 
                 power
                 to
                 administrate
                 ,
                 which
                 being
                 Tacks
                 ,
                 may
                 either
                 be
                 granted
                 by
                 Commission
                 ,
                 if
                 it
                 be
                 special
                 ,
                 as
                 to
                 the
                 Tacks
                 ,
                 or
                 at
                 least
                 as
                 to
                 matters
                 of
                 great
                 importance
                 ;
                 and
                 a
                 general
                 Clause
                 for
                 others
                 ,
                 or
                 otherways
                 by
                 Tutors
                 ,
                 Curators
                 ,
                 or
                 other
                 Administrators
                 of
                 the
                 affairs
                 of
                 others
                 ,
                 concerning
                 whom
                 
                   Craig
                   lib.
                
                 2.
                 
                 Dieg.
                 10.
                 moveth
                 and
                 removeth
                 this
                 doubt
                 ,
                 whether
                 Tutors
                 ,
                 &c.
                 may
                 set
                 Tacks
                 for
                 longer
                 time
                 then
                 during
                 their
                 Office
                 ,
                 which
                 he
                 resolveth
                 negatively
                 ,
                 even
                 though
                 it
                 were
                 without
                 the
                 Minors
                 Detriment
                 ,
                 continuing
                 the
                 ancient
                 Tack-duty
                 ,
                 seing
                 he
                 is
                 so
                 far
                 hurt
                 as
                 not
                 to
                 have
                 the
                 free
                 disposal
                 of
                 his
                 own
                 :
                 The
                 subject
                 whereof
                 ,
                 Tacks
                 are
                 ordinarly
                 set
                 are
                 Lands
                 ;
                 but
                 it
                 may
                 be
                 any
                 other
                 thing
                 having
                 fruite
                 or
                 profite
                 ,
                 as
                 a
                 Fishing
                 ,
                 an
                 Office
                 ,
                 or
                 a
                 Casuality
                 .
              
               
                 As
                 to
                 the
                 manner
                 of
                 Constituting
                 Tacks
                 ,
                 they
                 must
                 be
                 considered
                 in
                 themselves
                 ;
                 First
                 ,
                 As
                 personal
                 Rights
                 .
                 Secondly
                 ,
                 As
                 by
                 the
                 Statute
                 becoming
                 real
                 ;
                 as
                 they
                 are
                 personal
                 Rights
                 ,
                 the
                 consent
                 of
                 the
                 setter
                 ,
                 and
                 Tack-man
                 agreeing
                 in
                 the
                 rent
                 ,
                 is
                 sufficient
                 .
              
               
                 4.
                 
                 But
                 as
                 Tacks
                 are
                 become
                 real
                 Rights
                 ,
                 there
                 is
                 a
                 necessity
                 of
                 write
                 ,
                 except
                 in
                 a
                 Tack
                 of
                 one
                 year
                 ,
                 which
                 may
                 be
                 verbal
                 ,
                 but
                 if
                 the
                 agreement
                 be
                 for
                 more
                 years
                 ,
                 the
                 setter
                 may
                 resile
                 ;
                 and
                 though
                 the
                 Tacks-man
                 be
                 in
                 possession
                 ,
                 if
                 he
                 resile
                 ,
                 it
                 will
                 have
                 no
                 effect
                 as
                 to
                 subsequent
                 years
                 ,
                 July
                 16.
                 1636.
                 
                 
                   Alexander
                   Keith
                   Contra
                
                 his
                 Tennents
                 ;
                 the
                 like
                 though
                 the
                 Tennent
                 possessed
                 and
                 builded
                 Houses
                 conform
                 to
                 the
                 agreement
                 ,
                 yet
                 the
                 penalty
                 of
                 paying
                 a
                 years
                 rent
                 by
                 the
                 failzier
                 to
                 the
                 observer
                 ,
                 was
                 found
                 to
                 stand
                 ,
                 July
                 15.
                 1637.
                 
                 Mr.
                 
                   Andrew
                   Skein
                   contra
                
                 But
                 if
                 once
                 there
                 be
                 a
                 Tack
                 ,
                 the
                 setters
                 promise
                 not
                 to
                 remove
                 the
                 Tennent
                 during
                 his
                 life
                 ,
                 was
                 found
                 effectual
                 ,
                 and
                 not
                 to
                 be
                 resiled
                 from
                 ,
                 
                   Nicol.
                   de
                   migrando
                
                 ,
                 Lumbsden
                 contra
                 Black.
                 
              
               
                 5.
                 
                 The
                 write
                 requisite
                 to
                 constitute
                 a
                 Tack
                 ,
                 requireth
                 not
                 many
                 Solemnities
                 ;
                 but
                 if
                 the
                 thing
                 set
                 ,
                 the
                 Parties
                 ,
                 the
                 Rent
                 and
                 the
                 Time
                 ,
                 be
                 cleared
                 ,
                 the
                 Tack
                 will
                 be
                 valid
                 :
                 It
                 was
                 ordinarly
                 granted
                 by
                 the
                 setter
                 to
                 the
                 Tacks-man
                 for
                 such
                 a
                 Duty
                 ,
                 without
                 any
                 mutual
                 obliegement
                 upon
                 his
                 part
                 ,
                 like
                 unto
                 a
                 Charter
                 ;
                 but
                 because
                 the
                 Tennent
                 not
                 being
                 bound
                 ,
                 might
                 at
                 the
                 end
                 of
                 any
                 year
                 before
                 Whitsonday
                 ,
                 renounce
                 such
                 a
                 Tack
                 and
                 be
                 free
                 ,
                 as
                 being
                 in
                 his
                 favour
                 ,
                 therefore
                 they
                 are
                 now
                 ordinarly
                 by
                 Contract
                 ,
                 whereby
                 the
                 Tacks-man
                 as
                 well
                 as
                 the
                 Setter
                 ,
                 is
                 oblieged
                 to
                 stand
                 thereto
                 .
              
               
                 6.
                 
                 Craig
                 saith
                 in
                 the
                 fore-cited
                 place
                 ,
                 
                   Pactum
                   de
                   assedatione
                   facienda
                   ,
                   &
                   ipsa
                   assedatio
                   ,
                   parificantur
                   ,
                   praecipue
                   si
                   possessio
                   sequatur
                   ,
                
                 which
                 is
                 unquestionable
                 as
                 to
                 the
                 setter
                 and
                 his
                 heirs
                 ;
                 and
                 was
                 also
                 found
                 against
                 a
                 singular
                 Successor
                 ,
                 by
                 a
                 personal
                 obliegement
                 in
                 a
                 Contract
                 of
                 Marriage
                 ,
                 providing
                 Lands
                 to
                 a
                 wise
                 ,
                 and
                 warranding
                 the
                 same
                 free
                 of
                 all
                 Teinds
                 ,
                 except
                 such
                 a
                 quantity
                 which
                 was
                 in
                 use
                 to
                 be
                 payed
                 ,
                 whereby
                 a
                 posteriour
                 Assignation
                 to
                 the
                 Tack
                 of
                 these
                 Teinds
                 was
                 excluded
                 ,
                 March
                 20.
                 1629.
                 
                 Laird
                 of
                 Finmouth
                 contra
                 Weyms
                 .
                 The
                 like
                 of
                 a
                 Tack
                 and
                 Decreet
                 Arbitral
                 ,
                 decerning
                 a
                 Tack
                 to
                 be
                 granted
                 :
                 This
                 was
                 in
                 a
                 Spuilzie
                 ,
                 Hope
                 ,
                 Spuilzie
                 
                   John
                   Crawford
                
                 contra
              
               
                 7.
                 
                 As
                 a
                 Tack
                 becometh
                 a
                 real
                 Right
                 ,
                 it
                 must
                 necessarily
                 be
                 cled
                 with
                 possession
                 ,
                 but
                 requireth
                 no
                 Seasine
                 or
                 Instrument
                 ,
                 or
                 other
                 solemnity
                 ,
                 July
                 11.
                 1627.
                 
                 Wallace
                 contra
                 
                   Harvie
                   ,
                   January
                
                 22.
                 1611.
                 
                 Laird
                 of
                 Pitsligo
                 contra
                 Philorth
                 .
                 The
                 like
                 ,
                 though
                 the
                 Tacks-man
                 was
                 in
                 possession
                 ,
                 yet
                 not
                 by
                 vertue
                 of
                 the
                 Tack
                 ,
                 but
                 by
                 vertue
                 of
                 a
                 Wodset
                 ,
                 though
                 the
                 Tack
                 was
                 renewed
                 the
                 time
                 of
                 
                 the
                 time
                 of
                 the
                 Wodset
                 ,
                 Hope
                 removing
                 ,
                 
                   Walter
                   Ord
                   contra
                
                 Tennents
                 of
                 Fydie
                 ;
                 and
                 therefore
                 ,
                 a
                 posterior
                 Tack
                 being
                 first
                 cled
                 with
                 possession
                 ,
                 was
                 preferred
                 to
                 a
                 prior
                 Tack
                 ,
                 June
                 23.
                 1627.
                 
                 Mr.
                 
                   John
                   Mcmillan
                   contra
                   Gordoun
                
                 of
                 Troquhan
                 .
              
               
                 8.
                 
                 Yet
                 a
                 Tack
                 after
                 redemption
                 of
                 Wodsett
                 Lands
                 ,
                 is
                 valide
                 against
                 singular
                 Successors
                 ,
                 as
                 a
                 part
                 of
                 the
                 Reversion
                 ,
                 though
                 it
                 attain
                 no
                 possession
                 before
                 the
                 setter
                 be
                 denuded
                 :
                 But
                 it
                 is
                 contrary
                 in
                 a
                 Back-tack
                 ,
                 appointed
                 to
                 follow
                 a
                 Redemption
                 of
                 an
                 Annualrent
                 for
                 it
                 ,
                 and
                 〈◊〉
                 Lands
                 are
                 diverse
                 ,
                 and
                 the
                 possession
                 thereof
                 diverse
                 ,
                 Nicolson
                 removing
                 ,
                 
                   Gawin
                   Hamiltoun
                   contra
                   Alexander
                
                 and
                 others
                 ;
                 but
                 the
                 prorogation
                 of
                 a
                 Tack
                 is
                 the
                 renovation
                 of
                 it
                 ,
                 and
                 hath
                 the
                 same
                 effect
                 ,
                 as
                 a
                 new
                 Tack
                 of
                 that
                 date
                 ,
                 for
                 the
                 years
                 in
                 the
                 prorogation
                 .
              
               
                 9.
                 
                 As
                 to
                 the
                 extension
                 and
                 effect
                 of
                 Tacks
                 ,
                 they
                 are
                 little
                 less
                 then
                 of
                 Infeftments
                 ,
                 for
                 thereby
                 the
                 Tacks-man
                 is
                 maintained
                 against
                 all
                 parties
                 having
                 interest
                 till
                 the
                 Tack
                 be
                 out-run
                 ,
                 and
                 be
                 warned
                 ,
                 even
                 though
                 set
                 by
                 a
                 Liferenter
                 ,
                 it
                 will
                 maintain
                 the
                 Tennent
                 against
                 the
                 Fiar
                 ,
                 either
                 from
                 removing
                 till
                 warning
                 ,
                 or
                 from
                 paying
                 more
                 then
                 the
                 Liferenters
                 Tack
                 duty
                 ,
                 though
                 it
                 be
                 small
                 ,
                 July
                 6.
                 1610.
                 
                 Mr.
                 
                   Robert
                   Bruce
                   contra
                
                 Captain
                 Bruce
                 .
                 Yea
                 ,
                 though
                 the
                 Tack-duty
                 was
                 elusory
                 ,
                 set
                 by
                 an
                 Appriser
                 to
                 a
                 person
                 being
                 no
                 labourer
                 of
                 the
                 ground
                 ,
                 February
                 3.
                 1631.
                 
                 Blaues
                 contra
                 Winrham
                 .
                 The
                 reason
                 why
                 Tacks
                 by
                 Liferenters
                 are
                 effectual
                 ,
                 for
                 the
                 year
                 in
                 which
                 the
                 Liferenter
                 died
                 ;
                 because
                 by
                 Act
                 of
                 Parliament
                 ,
                 Tennents
                 can
                 only
                 be
                 warned
                 to
                 remove
                 fourty
                 dayes
                 preceeding
                 Whitsonday
                 ;
                 So
                 that
                 if
                 the
                 Liferenters
                 live
                 till
                 thirty
                 nine
                 dayes
                 before
                 Whitsonday
                 ,
                 their
                 Tennents
                 cannot
                 be
                 removed
                 ,
                 but
                 brooks
                 
                   per
                   tacitam
                   relocationem
                
                 ,
                 till
                 the
                 new
                 time
                 of
                 warning
                 .
              
               
                 10.
                 
                 A
                 Tack
                 hath
                 also
                 the
                 benefit
                 of
                 a
                 possessory
                 judgement
                 upon
                 seven
                 years
                 peaceable
                 possession
                 ,
                 as
                 an
                 Infeftment
                 ,
                 without
                 necessity
                 to
                 dispute
                 the
                 setters
                 right
                 ,
                 July
                 13.
                 1636.
                 
                 Bishop
                 of
                 Edinburgh
                 contra
                 
                   Gilbert
                   Brown
                
                 ,
                 which
                 was
                 found
                 where
                 the
                 Tack
                 did
                 bear
                 to
                 be
                 granted
                 by
                 the
                 setter
                 as
                 heretable
                 Proprietar
                 .
                 Otherwayes
                 ,
                 a
                 Tack
                 by
                 a
                 Liferenter
                 ,
                 Tennent
                 or
                 Donator
                 ,
                 might
                 claim
                 the
                 benefit
                 ,
                 December
                 1.
                 1676.
                 
                 Mr.
                 
                   Patrick
                   Home
                
                 contra
                 Sir
                 
                   Laurence
                   Scot.
                
                 And
                 therefore
                 ,
                 if
                 it
                 were
                 alledged
                 ,
                 that
                 the
                 setter
                 or
                 liferenter
                 had
                 any
                 other
                 temporary
                 title
                 ,
                 it
                 would
                 be
                 admitted
                 without
                 Reduction
                 ,
                 if
                 the
                 Liferenter
                 or
                 beneficed
                 person
                 granter
                 thereof
                 were
                 dead
                 .
              
               
                 11.
                 
                 A
                 Tack
                 set
                 by
                 an
                 Heretor
                 for
                 a
                 Tack-duty
                 to
                 be
                 payed
                 to
                 his
                 Creditors
                 ,
                 was
                 found
                 a
                 real
                 Right
                 effectual
                 to
                 the
                 Tennents
                 ;
                 but
                 whether
                 it
                 would
                 be
                 found
                 a
                 real
                 right
                 in
                 favours
                 of
                 the
                 Creditors
                 in
                 the
                 same
                 cause
                 ,
                 it
                 was
                 first
                 determined
                 negativè
                 ,
                 and
                 thereafter
                 affirmative
                 :
                 But
                 it
                 is
                 not
                 like
                 ,
                 the
                 Lords
                 would
                 continue
                 it
                 ,
                 not
                 being
                 the
                 habile
                 way
                 to
                 secure
                 Creditors
                 ,
                 and
                 being
                 a
                 great
                 mean
                 of
                 insecurity
                 to
                 purchasers
                 ,
                 February
                 13.
                 1627.
                 
                 Samuel
                 contra
                 Samuel
                 .
                 The
                 negative
                 is
                 also
                 observed
                 by
                 Spots
                 Tacks
                 ,
                 
                   James
                   Morison
                
                 contra
                 Brown
                 of
                 Nunlands
                 .
              
               
                 A
                 Tack
                 was
                 preferred
                 to
                 an
                 Apprising
                 ,
                 whereof
                 the
                 denunciation
                 was
                 fix
                 dayes
                 after
                 the
                 date
                 of
                 the
                 Tack
                 ,
                 though
                 the
                 Apprising
                 was
                 led
                 before
                 possession
                 upon
                 the
                 Tack
                 ,
                 
                   March
                   25.
                   1628.
                   
                   Peter
                   Blackburn
                
                 contra
                 
                   William
                   Gibsone
                
                 .
              
               
               
                 12.
                 
                 A
                 Tack
                 is
                 a
                 sufficient
                 Title
                 for
                 Mails
                 and
                 Duties
                 ,
                 and
                 against
                 all
                 poffessors
                 ,
                 and
                 it
                 is
                 obligator
                 against
                 the
                 setters
                 Heir
                 for
                 the
                 profit
                 of
                 the
                 Land
                 ,
                 though
                 the
                 Tacksman
                 was
                 never
                 in
                 possession
                 ,
                 nor
                 used
                 diligence
                 therefore
                 during
                 the
                 setters
                 life
                 ,
                 which
                 was
                 a
                 long
                 time
                 ,
                 July
                 13.
                 1610.
                 
                 Porterfield
                 contra
                 Ker
                 ;
                 and
                 in
                 some
                 cases
                 ,
                 it
                 is
                 a
                 good
                 title
                 for
                 removing
                 .
              
               
                 13.
                 
                 A
                 Tack
                 set
                 by
                 a
                 Husband
                 and
                 his
                 Wife
                 ,
                 whereof
                 the
                 duty
                 was
                 payable
                 to
                 the
                 longest
                 liver
                 of
                 them
                 two
                 ,
                 found
                 to
                 give
                 her
                 right
                 to
                 the
                 Tack-duty
                 after
                 his
                 death
                 against
                 his
                 Heir
                 ,
                 though
                 she
                 had
                 no
                 other
                 right
                 of
                 the
                 Lands
                 ,
                 and
                 was
                 otherwayes
                 sufficiently
                 provided
                 ,
                 February
                 14.
                 1637.
                 
                 Home
                 contra
                 Hepburn
                 .
              
               
                 A
                 Tack
                 set
                 to
                 a
                 man
                 and
                 his
                 wife
                 for
                 nineteen
                 years
                 ,
                 found
                 to
                 belong
                 to
                 the
                 wife
                 as
                 Liferenter
                 ,
                 if
                 she
                 survive
                 ,
                 and
                 not
                 to
                 be
                 disposable
                 by
                 the
                 Husband
                 without
                 her
                 consent
                 ,
                 Spots
                 .
                 Marriage
                 ,
                 
                   William
                   Gourlay
                
                 contra
                 
                   Jean
                   Megill
                
                 .
              
               
                 14.
                 
                 As
                 to
                 the
                 third
                 point
                 proposed
                 ,
                 concerning
                 several
                 kindes
                 of
                 Tacks
                 ,
                 they
                 are
                 either
                 verbal
                 or
                 by
                 write
                 .
                 Liferent-tacks
                 are
                 for
                 certain
                 years
                 ;
                 ordinary
                 Tacks
                 or
                 Rentals
                 ,
                 principal
                 Tacks
                 or
                 Sub-tacks
                 ,
                 express
                 Tacks
                 or
                 by
                 tacite
                 relocation
                 ;
                 and
                 these
                 which
                 are
                 set
                 by
                 Wodsetters
                 to
                 the
                 granters
                 of
                 the
                 Wodset
                 ,
                 are
                 called
                 back-tacks
                 ,
                 amongst
                 which
                 there
                 are
                 few
                 specialities
                 but
                 what
                 concerns
                 Rentals
                 ,
                 Sub-tacks
                 or
                 tacite
                 Relocations
                 .
              
               
                 15.
                 
                 A
                 Rental
                 is
                 a
                 Tack
                 set
                 to
                 kindly
                 Tennents
                 ,
                 which
                 are
                 the
                 Successors
                 of
                 the
                 ancient
                 possessors
                 ,
                 or
                 these
                 who
                 are
                 received
                 by
                 the
                 Heretor
                 ,
                 with
                 the
                 like
                 priviledge
                 as
                 if
                 they
                 were
                 ancient
                 possessors
                 :
                 And
                 therefore
                 ,
                 when
                 Tacks
                 are
                 set
                 to
                 persons
                 ,
                 acknowledging
                 or
                 constituting
                 them
                 kindly
                 Tennents
                 ,
                 they
                 are
                 equiparat
                 to
                 these
                 that
                 are
                 set
                 expresly
                 under
                 the
                 name
                 of
                 Rentals
                 .
              
               
                 16.
                 
                 Such
                 Tacks
                 are
                 understood
                 to
                 comprehend
                 more
                 kindeness
                 and
                 friendship
                 in
                 the
                 Tennent
                 to
                 his
                 Master
                 ,
                 then
                 other
                 Tennents
                 ;
                 And
                 therefore
                 ,
                 the
                 Rentaller
                 may
                 not
                 assign
                 them
                 ,
                 nor
                 introduce
                 a
                 sub-tennent
                 ,
                 unless
                 the
                 Rental
                 bear
                 expresly
                 that
                 power
                 ,
                 but
                 may
                 himself
                 remain
                 upon
                 the
                 ground
                 as
                 colonus
                 ,
                 the
                 same
                 being
                 in
                 his
                 own
                 labourage
                 .
                 And
                 Rentals
                 are
                 strictly
                 interpret
                 as
                 to
                 this
                 point
                 ,
                 but
                 are
                 more
                 favourably
                 extended
                 then
                 other
                 Tacks
                 ,
                 as
                 to
                 any
                 other
                 point
                 ;
                 because
                 of
                 the
                 kindness
                 and
                 friendship
                 designed
                 to
                 the
                 Rentaller
                 thereby
                 :
                 and
                 no
                 Tack
                 is
                 accounted
                 a
                 Rental
                 unless
                 it
                 bear
                 so
                 ,
                 or
                 that
                 the
                 Teunent
                 is
                 acknowledged
                 as
                 kindly
                 Tennent
                 .
                 And
                 albeit
                 after
                 the
                 expiring
                 of
                 Rentals
                 ,
                 there
                 successors
                 have
                 no
                 right
                 to
                 maintain
                 them
                 in
                 possession
                 ;
                 yet
                 frequently
                 of
                 favour
                 they
                 are
                 continued
                 ,
                 and
                 pay
                 grass-sums
                 at
                 the
                 renovation
                 of
                 their
                 Rentals
                 ,
                 wherein
                 they
                 have
                 ordinarly
                 considerable
                 ease
                 .
              
               
                 17.
                 
                 And
                 therefore
                 ,
                 the
                 ordinary
                 Tacks
                 must
                 contain
                 an
                 express
                 and
                 terminat
                 endurance
                 ,
                 otherwayes
                 they
                 are
                 null
                 ,
                 not
                 only
                 as
                 to
                 singular
                 successors
                 ,
                 but
                 even
                 as
                 to
                 the
                 setter
                 and
                 his
                 Heirs
                 ,
                 because
                 they
                 are
                 not
                 constitute
                 
                   habili
                   modo
                
                 .
                 And
                 therefore
                 ,
                 if
                 they
                 have
                 no
                 time
                 ,
                 they
                 laste
                 but
                 for
                 a
                 year
                 ;
                 and
                 if
                 they
                 have
                 no
                 determinate
                 time
                 of
                 ish
                 ,
                 they
                 last
                 no
                 longer
                 ;
                 and
                 they
                 do
                 not
                 ordinarly
                 give
                 power
                 of
                 Assignation
                 or
                 Sub-tack
                 ,
                 unless
                 this
                 be
                 exprest
                 :
                 Yet
                 the
                 granting
                 of
                 them
                 does
                 not
                 annul
                 the
                 Tack
                 ,
                 but
                 only
                 the
                 Assignation
                 or
                 Sub-tack
                 ,
                 without
                 warrant
                 annuls
                 these
                 ,
                 but
                 they
                 annul
                 Rentals
                 ,
                 like
                 to
                 the
                 alienations
                 ofWard-vassals
                 .
              
               
               
                 18.
                 
                 Rentals
                 do
                 require
                 write
                 ,
                 not
                 only
                 as
                 a
                 probation
                 ,
                 but
                 as
                 a
                 solemnity
                 in
                 their
                 constitution
                 ,
                 and
                 can
                 be
                 granted
                 by
                 none
                 but
                 the
                 Heretor
                 of
                 the
                 Ground
                 ;
                 but
                 if
                 they
                 be
                 renewed
                 by
                 Tutors
                 for
                 the
                 accustomed
                 Grassums
                 ,
                 it
                 may
                 be
                 accounted
                 as
                 an
                 Act
                 of
                 lawful
                 administration
                 ,
                 much
                 rather
                 then
                 that
                 Tutors
                 should
                 have
                 power
                 to
                 expell
                 the
                 kindly
                 tennents
                 .
                 It
                 hath
                 not
                 come
                 in
                 controversie
                 ,
                 whether
                 Donatars
                 of
                 Ward
                 ,
                 Non-entry
                 ,
                 or
                 Liferenters
                 may
                 expel
                 kindly
                 Tennents
                 :
                 Or
                 whether
                 their
                 Title
                 would
                 not
                 be
                 relevant
                 to
                 defend
                 in
                 removings
                 against
                 them
                 ,
                 though
                 not
                 against
                 the
                 Heretor
                 ,
                 wherein
                 this
                 would
                 make
                 for
                 them
                 ,
                 that
                 all
                 these
                 temporary
                 possessors
                 have
                 not
                 ,
                 
                   plenum
                   dominium
                
                 ,
                 and
                 can
                 but
                 make
                 use
                 of
                 the
                 Fee
                 as
                 the
                 proprietars
                 did
                 ,
                 though
                 they
                 may
                 out-put
                 and
                 in-put
                 ordinary
                 tennents
                 .
              
               
                 The
                 old
                 Decisions
                 have
                 varied
                 whether
                 a
                 Rental
                 be
                 sufficient
                 ,
                 being
                 in
                 the
                 Heretors
                 Court
                 or
                 Rental
                 Book
                 ,
                 though
                 the
                 Rentaller
                 can
                 show
                 no
                 original
                 subscribed
                 by
                 the
                 Heretor
                 ;
                 yet
                 there
                 are
                 Decisions
                 for
                 it
                 ,
                 more
                 then
                 against
                 it
                 ,
                 July
                 5.
                 1625.
                 
                 
                   Maxwel
                   contra
                   Grahame
                   .
                   Nicol.
                
                 removing
                 ,
                 Lady
                 
                   Lugtoun
                   contra
                
                 hertennents
                 .
              
               
                 19.
                 
                 Some
                 old
                 Decisions
                 sustain
                 Rentals
                 only
                 for
                 a
                 year
                 ,
                 when
                 they
                 mention
                 no
                 endurance
                 ,
                 though
                 they
                 be
                 set
                 expresly
                 as
                 Rentals
                 ,
                 which
                 do
                 not
                 quadrat
                 to
                 the
                 nature
                 and
                 design
                 of
                 Rentals
                 ,
                 whereby
                 the
                 Rentaller
                 being
                 entered
                 ,
                 is
                 only
                 to
                 be
                 understood
                 to
                 be
                 for
                 his
                 Life
                 ;
                 and
                 his
                 Successors
                 ever
                 to
                 be
                 in
                 his
                 Masters
                 power
                 ,
                 to
                 renew
                 or
                 not
                 to
                 renew
                 ,
                 according
                 to
                 the
                 Rentaler
                 and
                 his
                 Successors
                 carriage
                 ,
                 except
                 the
                 Contract
                 be
                 very
                 clear
                 and
                 express
                 ;
                 and
                 therefore
                 ,
                 a
                 Rental
                 set
                 to
                 the
                 Rentaller
                 and
                 his
                 heirs
                 ,
                 without
                 expressing
                 a
                 certain
                 number
                 of
                 heirs
                 ,
                 was
                 found
                 only
                 to
                 stand
                 during
                 the
                 life
                 of
                 the
                 Rentaller
                 ,
                 July
                 5.
                 1625.
                 
                 Laird
                 of
                 
                   Aitoun
                   contra
                
                 Lady
                 
                   Wedderburn
                   .
                   Hope
                
                 rental
                 ,
                 Lord
                 
                   Seatoun
                   contra
                
                 his
                 tennents
                 .
                 Nicol.
                 removing
                 ,
                 Laird
                 of
                 
                   Corsbie
                   contra
                   Donaldson
                
                 .
                 And
                 where
                 a
                 rental
                 bore
                 
                   to
                   Heirs
                   indefinitely
                
                 ,
                 the
                 right
                 of
                 the
                 first
                 heir
                 wassustained
                 by
                 the
                 custom
                 of
                 the
                 Barony
                 ,
                 March
                 15.
                 1631.
                 
                 Earl
                 of
                 
                   Galloway
                   contra
                
                 Burgesses
                 of
                 Wigtoun
                 .
                 And
                 a
                 Rental
                 bearing
                 to
                 the
                 Rentallers
                 heirs
                 Heretable
                 ,
                 
                   ad
                   perpetuam
                   remanentiam
                
                 ,
                 was
                 sustained
                 as
                 to
                 the
                 first
                 heir
                 of
                 the
                 rentaller
                 ,
                 without
                 necessity
                 to
                 alledge
                 ,
                 custom
                 so
                 to
                 set
                 ,
                 March
                 13.
                 1632.
                 
                 Achannay
                 of
                 
                   Kirkdale
                   contra
                   Aitoun
                
                 .
                 Albeit
                 the
                 tenor
                 of
                 it
                 was
                 contrary
                 the
                 nature
                 of
                 a
                 Tack
                 ,
                 and
                 might
                 have
                 been
                 excluded
                 ,
                 as
                 to
                 any
                 Heirs
                 ,
                 and
                 sustained
                 only
                 as
                 to
                 the
                 rentaller
                 himself
                 ,
                 unless
                 the
                 custome
                 of
                 the
                 Barony
                 had
                 altered
                 the
                 case
                 ,
                 which
                 ,
                 
                   in
                   dubio
                
                 ,
                 is
                 always
                 to
                 be
                 respected
                 .
              
               
                 20.
                 
                 Grassum
                 do
                 presume
                 kindliness
                 ;
                 and
                 in
                 some
                 Baronies
                 these
                 are
                 renewed
                 ,
                 both
                 at
                 the
                 death
                 of
                 the
                 Heretor
                 ,
                 and
                 at
                 the
                 death
                 of
                 the
                 tennent
                 ;
                 but
                 more
                 ordinarly
                 at
                 the
                 death
                 of
                 the
                 tennent
                 only
                 ;
                 yet
                 in
                 either
                 case
                 if
                 the
                 grassum
                 be
                 received
                 from
                 the
                 tennent
                 ,
                 and
                 thereby
                 he
                 acknowledged
                 by
                 write
                 ,
                 as
                 a
                 kindly
                 tennent
                 ,
                 he
                 cannot
                 be
                 removed
                 by
                 the
                 Heretor
                 or
                 his
                 heirs
                 ,
                 even
                 though
                 he
                 had
                 not
                 a
                 formal
                 Rental
                 ,
                 because
                 the
                 matter
                 is
                 not
                 intire
                 by
                 receipt
                 of
                 the
                 Grassum
                 ;
                 and
                 therefore
                 ,
                 there
                 is
                 no
                 
                   locus
                   penetentiae
                
                 ,
                 upon
                 restoring
                 thereof
                 ,
                 especially
                 as
                 to
                 the
                 Successors
                 of
                 old
                 tennents
                 ,
                 paying
                 Grassum
                 before
                 ;
                 and
                 therefore
                 ,
                 Rentals
                 expresly
                 so
                 granted
                 ;
                 or
                 to
                 tennents
                 Constitute
                 kindly
                 tennents
                 ,
                 though
                 they
                 contain
                 no
                 Ish
                 ,
                 should
                 not
                 be
                 annulled
                 for
                 want
                 of
                 an
                 Ish
                 ,
                 which
                 is
                 implyed
                 in
                 the
                 nature
                 of
                 a
                 Rental
                 to
                 be
                 a
                 Life-rent
                 ;
                 and
                 it
                 would
                 be
                 far
                 contrary
                 to
                 that
                 favour
                 ,
                 that
                 in
                 other
                 cases
                 is
                 allowed
                 them
                 to
                 sustain
                 them
                 ,
                 but
                 as
                 verbal
                 Tacks
                 ,
                 lasting
                 for
                 a
                 year
                 ;
                 Upon
                 this
                 ground
                 it
                 is
                 ,
                 that
                 a
                 Rental
                 granted
                 to
                 a
                 man
                 and
                 his
                 wife
                 ,
                 not
                 bearing
                 ,
                 
                   the
                   longest
                   liver
                
                 ,
                 nor
                 any
                 issue
                 was
                 yet
                 found
                 to
                 Constitute
                 them
                 both
                 Rentallers
                 ,
                 
                 during
                 their
                 life
                 ,
                 and
                 their
                 wife
                 surviving
                 to
                 enjoy
                 the
                 same
                 ,
                 February
                 20.
                 1629.
                 
                 Laird
                 of
                 Ley
                 younger
                 
                   contra
                   Kirkwood
                
                 .
              
               
                 21.
                 
                 Rentals
                 do
                 ordinarly
                 contain
                 a
                 Clause
                 ,
                 not
                 to
                 subset
                 ,
                 assign
                 ,
                 or
                 annalzie
                 ,
                 which
                 if
                 it
                 be
                 contraveened
                 ,
                 not
                 only
                 the
                 assignation
                 or
                 sub-tack
                 is
                 void
                 ,
                 but
                 the
                 Rental
                 it self
                 ,
                 February
                 28.
                 1610.
                 
                 
                   John
                   Hamiltoun
                   contra
                   Thomas
                   Boid
                
                 .
                 The
                 like
                 being
                 subset
                 ,
                 as
                 to
                 a
                 part
                 ,
                 
                   pro
                   tanto
                
                 ,
                 Hope
                 rentals
                 ,
                 Lord
                 
                   Douglas
                   contra
                   Walkinshaw
                
                 .
                 But
                 if
                 the
                 Assignation
                 or
                 Sub-tack
                 was
                 to
                 the
                 Major
                 part
                 ,
                 it
                 did
                 annul
                 the
                 whole
                 Rental
                 ,
                 November
                 13.
                 22.
                 
                 Laird
                 of
                 
                   Craigie
                   Wallace
                   contra
                
                 his
                 Tennents
                 .
                 Yea
                 ,
                 though
                 the
                 Subtack
                 was
                 only
                 granted
                 for
                 certain
                 years
                 ,
                 and
                 these
                 expyred
                 before
                 the
                 pursuit
                 ,
                 Hope
                 rentals
                 ,
                 Earl
                 of
                 
                   Roxburgh
                   contra
                   Ker.
                
                 This
                 is
                 so
                 far
                 extended
                 ,
                 as
                 being
                 in
                 the
                 nature
                 of
                 a
                 Rental
                 ,
                 without
                 any
                 such
                 Clause
                 ,
                 that
                 it
                 falleth
                 in
                 whole
                 in
                 the
                 same
                 manner
                 ,
                 as
                 Ward-lands
                 recognosce
                 by
                 alienating
                 or
                 subsetting
                 the
                 whole
                 ,
                 or
                 major
                 part
                 if
                 Possession
                 follow
                 ,
                 and
                 that
                 by
                 exception
                 or
                 reply
                 ,
                 March
                 15.
                 1631.
                 
                 Earl
                 of
                 
                   Galloway
                   contra
                
                 Burgesses
                 of
                 Wigtoun
                 .
                 Though
                 the
                 alienation
                 was
                 by
                 Excambion
                 ,
                 and
                 was
                 conditional
                 ,
                 if
                 the
                 Heretor
                 consented
                 ,
                 else
                 to
                 be
                 null
                 .
                 The
                 like
                 where
                 the
                 Rentaller
                 had
                 given
                 a
                 Disposition
                 of
                 the
                 Rentalled
                 Room
                 ,
                 whereupon
                 the
                 acquirer
                 was
                 in
                 possession
                 ,
                 which
                 was
                 found
                 to
                 annull
                 the
                 Rental
                 ,
                 albeit
                 it
                 bore
                 
                   Assigneys
                   and
                   to
                   exclude
                   a
                   Sub-tack
                   by
                   the
                   Rentaller
                   to
                   that
                   same
                   party
                   before
                   any
                   contraversie
                   moved
                   ,
                   February
                
                 21.
                 1632.
                 
                 Laird
                 of
                 
                   Johnstoun
                   contra
                   Jamison
                
                 .
                 The
                 like
                 though
                 the
                 Sub-tennents
                 offered
                 to
                 repone
                 the
                 Rentaller
                 ,
                 November
                 13.
                 1622.
                 
                 
                   Bonar
                   contra
                   Nicolson
                
                 .
                 The
                 like
                 upon
                 an
                 Assignation
                 of
                 an
                 Rental
                 ,
                 though
                 it
                 contained
                 a
                 power
                 to
                 sub-set
                 ,
                 and
                 in-put
                 and
                 out-put
                 Tennents
                 ,
                 March
                 21.
                 1623.
                 
                 Laird
                 of
                 
                   Craigie
                   Wallace
                   contra
                
                 his
                 Tennents
                 .
                 But
                 this
                 taketh
                 no
                 place
                 if
                 the
                 Sub-tack
                 be
                 set
                 to
                 the
                 Rentallers
                 eldest
                 son
                 who
                 was
                 to
                 succeed
                 ,
                 March
                 19.
                 1622.
                 
                 Earl
                 of
                 
                   Roxburgh
                   contra
                   Robert
                   Gray
                
                 .
                 It
                 will
                 also
                 be
                 elided
                 ,
                 if
                 the
                 Heretor
                 receive
                 duty
                 from
                 the
                 Assigney
                 as
                 Assigney
                 ,
                 Hopehic
                 ,
                 Laird
                 of
                 
                   Craigie
                   contra
                
                 his
                 Tennents
                 .
                 But
                 it
                 will
                 not
                 be
                 inferred
                 by
                 the
                 Rentallers
                 entering
                 another
                 in
                 Possession
                 ,
                 without
                 granting
                 him
                 a
                 Right
                 in
                 Write
                 ,
                 July
                 5.
                 1625.
                 
                 Laird
                 of
                 
                   Aitoun
                   contra
                
                 Laird
                 of
                 Wedderburn
                 ,
                 last
                 of
                 January
                 1633.
                 
                 Laird
                 of
                 
                   Cleghorn
                   contra
                   Crawfoord
                
                 ;
                 unless
                 the
                 Rental
                 contain
                 an
                 obliegement
                 to
                 put
                 no
                 other
                 in
                 Possession
                 ;
                 and
                 then
                 it
                 became
                 null
                 by
                 granting
                 tollerance
                 ,
                 and
                 that
                 by
                 exception
                 against
                 the
                 person
                 having
                 tollerance
                 ,
                 without
                 calling
                 the
                 Rentaller
                 ,
                 July
                 15.
                 1628.
                 
                 
                   Maxwel
                   contra
                
                 A
                 Rental
                 setting
                 the
                 keeping
                 of
                 a
                 House
                 ,
                 Yard
                 ,
                 and
                 others
                 ,
                 to
                 the
                 Rentaller
                 and
                 his
                 Heirs
                 ,
                 as
                 kindly
                 Tennents
                 ,
                 was
                 not
                 found
                 null
                 by
                 demolishing
                 the
                 House
                 and
                 Yard
                 ,
                 whereby
                 the
                 Rentaller
                 failed
                 in
                 his
                 duty
                 ,
                 and
                 in
                 the
                 cause
                 of
                 granting
                 the
                 Rental
                 ,
                 January
                 29.
                 1628.
                 
                 Duke
                 of
                 
                   Lennox
                   contra
                   Houstoun
                
                 .
              
               
                 22.
                 
                 A
                 Sub-tack
                 is
                 that
                 which
                 is
                 granted
                 by
                 the
                 principal
                 Tacks-man
                 to
                 his
                 Subtennent
                 ,
                 who
                 doth
                 not
                 thereby
                 become
                 Tennent
                 to
                 the
                 setter
                 of
                 the
                 principal
                 Tack
                 ,
                 this
                 is
                 competent
                 to
                 Tacks-men
                 ,
                 where
                 Lands
                 are
                 set
                 to
                 them
                 or
                 their
                 Subtennents
                 ,
                 or
                 that
                 they
                 have
                 power
                 to
                 out-put
                 and
                 in-put
                 Tennents
                 ;
                 and
                 it
                 is
                 like
                 a
                 subaltern
                 Infeftment
                 ,
                 it
                 hath
                 the
                 same
                 effect
                 to
                 defend
                 the
                 possession
                 as
                 the
                 principal
                 Tack
                 it self
                 ,
                 if
                 it
                 be
                 cled
                 with
                 possession
                 ,
                 and
                 cannot
                 be
                 taken
                 away
                 by
                 any
                 Renounciation
                 granted
                 by
                 the
                 principal
                 Tacks-man
                 ,
                 though
                 his
                 Tack
                 bore
                 not
                 Assigneys
                 (
                 but
                 though
                 it
                 be
                 not
                 observed
                 ,
                 it
                 hath
                 born
                 either
                 power
                 to
                 in-put
                 Tennents
                 or
                 Sub-tennents
                 )
                 July
                 14.
                 1625.
                 
                 Earl
                 of
                 
                   Mortoun
                   contra
                
                 his
                 Tennents
                 :
                 Yea
                 ,
                 when
                 the
                 principal
                 Tack
                 was
                 reduced
                 for
                 not
                 production
                 ,
                 the
                 Sub-tacks-men
                 not
                 having
                 been
                 called
                 ,
                 the
                 Sub-tack
                 was
                 sustained
                 as
                 a
                 defence
                 ,
                 notwithstanding
                 the
                 Reduction
                 ,
                 seing
                 the
                 Heretor
                 had
                 consented
                 to
                 the
                 Sub-tack
                 ,
                 December
                 13.
                 1626.
                 
                 Earl
                 of
                 
                   Galloway
                   contra
                   
                   
                   
                   Meculloch
                   :
                
                 Yet
                 otherways
                 ,
                 the
                 Heretor
                 is
                 not
                 oblieged
                 to
                 know
                 the
                 Sub-tack
                 ,
                 nor
                 to
                 call
                 the
                 Sub-tacksmen
                 ,
                 in
                 the
                 Reduction
                 of
                 the
                 principal
                 Tack
                 ,
                 and
                 it
                 becomes
                 null
                 by
                 exception
                 ,
                 unless
                 the
                 Substacks-man
                 had
                 appeared
                 and
                 produced
                 his
                 interest
                 in
                 the
                 Reduction
                 ;
                 or
                 in
                 the
                 second
                 instance
                 ,
                 can
                 propone
                 a
                 defence
                 sufficient
                 for
                 the
                 principal
                 Tacks-man
                 ,
                 or
                 himself
                 ;
                 after
                 which
                 it
                 did
                 not
                 defend
                 him
                 ,
                 as
                 
                   bon
                   a
                   fidei
                
                 ,
                 possessor
                 after
                 Inhibition
                 ,
                 or
                 drawing
                 the
                 teind
                 ,
                 Decem.
                 11.
                 1623.
                 
                 Earl
                 of
                 
                   Wigtoun
                   contra
                
                 Parochioners
                 of
                 Stobo
                 ;
                 but
                 otherways
                 the
                 Sub-tack
                 would
                 be
                 sufficient
                 till
                 warning
                 .
              
               
                 This
                 is
                 the
                 effect
                 of
                 a
                 Sub-tack
                 passive
                 ,
                 but
                 active
                 ,
                 it
                 is
                 not
                 a
                 sufficient
                 title
                 to
                 pursue
                 without
                 instructing
                 the
                 principal
                 Tack
                 ,
                 unless
                 it
                 had
                 been
                 acknowledged
                 by
                 the
                 defender
                 ,
                 or
                 cled
                 with
                 possession
                 ,
                 sufficient
                 for
                 a
                 possessory
                 Judgement
                 ,
                 March
                 29.
                 1622.
                 
                 Sir
                 
                   James
                   Cleiland
                   contra
                
                 Tennents
                 of
                 Arbuckle
                 :
                 For
                 ,
                 in
                 Intrusions
                 or
                 Ejections
                 ,
                 
                   Sole
                   Possession
                   is
                   the
                   Title
                
                 .
              
               
                 23.
                 
                 Tacite
                 Relocation
                 is
                 that
                 which
                 is
                 presumed
                 to
                 be
                 the
                 minde
                 of
                 both
                 parties
                 after
                 expiring
                 of
                 a
                 Tack
                 ,
                 when
                 neither
                 the
                 setter
                 warneth
                 ,
                 nor
                 the
                 Tacks-man
                 renounceth
                 ,
                 for
                 other
                 significations
                 of
                 the
                 alterations
                 of
                 their
                 mindes
                 will
                 not
                 suffice
                 these
                 ,
                 being
                 the
                 habile
                 way
                 of
                 voiding
                 Tacks
                 ,
                 which
                 is
                 now
                 much
                 more
                 strengthened
                 by
                 the
                 Statute
                 ,
                 Prohibiting
                 tennents
                 to
                 be
                 put
                 out
                 without
                 warning
                 before
                 Whitsonday
                 :
                 But
                 where
                 warning
                 is
                 not
                 requisite
                 ,
                 though
                 other
                 competent
                 ways
                 of
                 evacuating
                 the
                 Tack
                 will
                 be
                 sufficient
                 ,
                 as
                 Inhibition
                 in
                 teinds
                 ,
                 or
                 actions
                 for
                 removing
                 ,
                 summarly
                 from
                 Fortalices
                 ,
                 Coalheughts
                 ,
                 &c.
                 
                 Yea
                 ,
                 though
                 warning
                 hath
                 been
                 used
                 ,
                 if
                 it
                 prescrive
                 by
                 three
                 years
                 not
                 pursuing
                 thereupon
                 ,
                 it
                 hath
                 no
                 effect
                 even
                 against
                 tacite
                 Relocation
                 ,
                 July
                 6.
                 1610.
                 
                 Mr.
                 
                   Robert
                   Bruice
                   contra
                
                 Captain
                 
                   Andrew
                   Bruice
                
                 .
              
               
                 There
                 is
                 a
                 kind
                 of
                 tacite
                 Relocation
                 ,
                 by
                 taking
                 the
                 Rent
                 before
                 the
                 hand
                 ,
                 during
                 which
                 time
                 ,
                 as
                 Craig
                 observeth
                 in
                 the
                 forecited
                 place
                 ,
                 the
                 setter
                 cannot
                 remove
                 the
                 Defuncts
                 Successor
                 for
                 the
                 years
                 ensuing
                 ,
                 in
                 both
                 which
                 cases
                 he
                 is
                 understood
                 to
                 relocate
                 tacitely
                 by
                 these
                 deeds
                 .
              
               
                 Tacite
                 Relocation
                 hath
                 the
                 same
                 effect
                 to
                 maintain
                 Possession
                 ,
                 that
                 the
                 Tack
                 had
                 even
                 against
                 singular
                 Successors
                 ,
                 and
                 that
                 not
                 only
                 to
                 the
                 Tacksmen
                 ,
                 but
                 to
                 the
                 sub-tennents
                 being
                 Possessors
                 ,
                 who
                 alledged
                 the
                 principal
                 Tacks-man
                 was
                 not
                 warned
                 ,
                 and
                 were
                 not
                 oblieged
                 to
                 alledge
                 he
                 had
                 a
                 Tack
                 for
                 terms
                 to
                 run
                 ,
                 but
                 only
                 that
                 he
                 was
                 not
                 warned
                 ,
                 December
                 2.
                 1628.
                 
                 Mr.
                 
                   Walter
                   Whitefoord
                   contra
                   Johnstoun
                
                 .
                 But
                 where
                 the
                 Sub-tennent
                 was
                 warned
                 ,
                 tacite
                 Ralocation
                 alledged
                 by
                 the
                 Sub-tennent
                 ,
                 was
                 not
                 sustained
                 without
                 producing
                 a
                 standing
                 Tack
                 to
                 the
                 principal
                 Tacks-man
                 ,
                 January
                 30.
                 1663
                 
                 
                   Riccart
                   contra
                
                 Laird
                 of
                 Udnie
                 .
                 Here
                 the
                 warning
                 was
                 by
                 a
                 singular
                 Successor
                 who
                 is
                 oblieged
                 to
                 know
                 or
                 warn
                 none
                 but
                 the
                 natural
                 Possessor
                 ,
                 which
                 was
                 not
                 in
                 the
                 former
                 case
                 .
                 And
                 tacite
                 Relocation
                 will
                 be
                 sufficient
                 after
                 a
                 verbal
                 Tack
                 ,
                 or
                 where
                 the
                 Tack
                 is
                 presumed
                 upon
                 use
                 of
                 payment
                 ,
                 though
                 none
                 can
                 be
                 shown
                 or
                 proven
                 :
                 Yea
                 ,
                 tacite
                 Relocation
                 was
                 sustained
                 for
                 more
                 years
                 then
                 the
                 setter
                 could
                 expresly
                 set
                 ;
                 and
                 is
                 ordinarly
                 in
                 the
                 case
                 of
                 tacite
                 Relocation
                 ,
                 upon
                 Liferenters
                 Tacks
                 ,
                 which
                 continue
                 still
                 after
                 their
                 death
                 ,
                 till
                 warning
                 ,
                 and
                 was
                 so
                 found
                 in
                 a
                 Patrons
                 Tack
                 of
                 teinds
                 ,
                 after
                 the
                 Patrons
                 right
                 to
                 set
                 ,
                 by
                 the
                 Act
                 of
                 Par.
                 1649.
                 was
                 rescinded
                 ,
                 January
                 16.
                 1663.
                 
                 Earl
                 of
                 
                   Errol
                   contra
                
                 Tennents
                 of
                 Urie
                 .
              
               
               
                 Relocation
                 is
                 valide
                 against
                 the
                 Donatar
                 of
                 a
                 Ward
                 ,
                 till
                 Warning
                 or
                 Citation
                 ,
                 though
                 the
                 Tack-duty
                 be
                 elusory
                 ,
                 and
                 that
                 the
                 Tack
                 then
                 sleep
                 ,
                 Spots
                 .
                 removing
                 ,
                 Laird
                 of
                 
                   Lie
                   contra
                   Glen
                
                 of
                 Barn.
                 But
                 tacite
                 Relocation
                 is
                 no
                 relevant
                 active
                 Title
                 against
                 any
                 ,
                 but
                 these
                 who
                 have
                 right
                 from
                 the
                 Tacks-man
                 ,
                 though
                 they
                 had
                 acknowledged
                 the
                 same
                 by
                 payment
                 to
                 him
                 for
                 years
                 anterior
                 ,
                 Decem.
                 12.
                 1621.
                 
                 Laird
                 of
                 
                   Lag
                   contra
                
                 Porochioners
                 of
                 Leymon
                 .
              
               
                 By
                 what
                 hath
                 been
                 said
                 ,
                 it
                 may
                 appear
                 that
                 the
                 force
                 and
                 effect
                 of
                 Tacks
                 is
                 so
                 great
                 ,
                 by
                 reason
                 of
                 the
                 foresaid
                 Statute
                 and
                 Custom
                 ,
                 extending
                 the
                 same
                 ,
                 that
                 it
                 would
                 swallow
                 up
                 all
                 Heretable
                 Rights
                 ,
                 and
                 make
                 Infeftments
                 useless
                 ,
                 unless
                 Tacks
                 had
                 their
                 own
                 Retrincnments
                 and
                 defects
                 ,
                 making
                 Infeftments
                 necessary
                 .
              
               
                 24.
                 
                 First
                 ,
                 Tacks
                 not
                 being
                 Liferent-tacks
                 ,
                 fall
                 in
                 single
                 Escheat
                 ,
                 but
                 these
                 fall
                 by
                 Liferent-escheat
                 ,
                 Par.
                 1617.
                 cap
                 15.
                 
              
               
                 25.
                 
                 Secondly
                 Tacks
                 have
                 no
                 effect
                 against
                 Superiours
                 ,
                 but
                 sleep
                 during
                 the
                 time
                 of
                 Wards
                 ,
                 Non-entires
                 ,
                 &c.
                 
                 For
                 Infeftments
                 Feu
                 are
                 then
                 valide
                 only
                 in
                 some
                 cases
                 :
                 Yet
                 Tacks
                 are
                 valide
                 against
                 Liferent-escheat
                 ,
                 which
                 is
                 a
                 casuality
                 falling
                 ,
                 not
                 by
                 the
                 nature
                 of
                 Fees
                 ,
                 but
                 by
                 Statute
                 or
                 Custom
                 ,
                 
                   Vide
                   Title
                
                 14.
                 
                 §
                 .
                 Liferent-escheat
                 .
              
               
                 26.
                 
                 Thirdly
                 ,
                 Tacks
                 are
                 
                   strictissimi
                   juris
                
                 ,
                 and
                 no
                 further
                 extended
                 then
                 is
                 exprest
                 ;
                 and
                 therefore
                 ,
                 are
                 not
                 extended
                 to
                 Assigneys
                 ,
                 unless
                 exprest
                 ;
                 and
                 therefore
                 ,
                 Tacks
                 granted
                 to
                 Women
                 fall
                 by
                 their
                 Marriage
                 ,
                 which
                 is
                 a
                 legal
                 Assignation
                 ,
                 and
                 cannot
                 be
                 annulled
                 ,
                 yet
                 may
                 revive
                 by
                 the
                 Husbands
                 death
                 ,
                 unexpired
                 ,
                 
                   Vide
                   Craig
                   ,
                   lib.
                
                 2.
                 
                 Dieges
                 .
                 10.
                 
                 Upon
                 the
                 same
                 ground
                 a
                 Tack
                 not
                 bearing
                 
                   to
                   Assigneys
                
                 ,
                 was
                 not
                 found
                 to
                 accress
                 to
                 a
                 Relict
                 ,
                 as
                 infeft
                 with
                 absolute
                 Warrandice
                 ,
                 as
                 
                   jus
                   superveniens
                   authori
                   ,
                   June
                
                 18.
                 1680.
                 
                 
                   Margaret
                   Home
                   contra
                   Janet
                   Lyel
                
                 ,
                 which
                 is
                 to
                 be
                 limited
                 thus
                 ,
                 that
                 it
                 doth
                 not
                 exclude
                 legal
                 Assignations
                 by
                 Appryzing
                 and
                 Adjudication
                 :
                 But
                 only
                 voluntary
                 Assignations
                 ,
                 
                   Hope
                   hic
                
                 ,
                 Lord
                 
                   Elphingstoun
                   contra
                
                 Laird
                 of
                 
                   Airth
                   .
                   November
                
                 16.
                 1680.
                 
                 Drummond
                 of
                 
                   Carlourie
                   contra
                
                 Sir
                 
                   John
                   Dalrymple
                
                 .
                 Liferent-tacks
                 also
                 may
                 be
                 assigned
                 ,
                 not
                 mentioning
                 assigneys
                 ,
                 February
                 last
                 1637.
                 
                 
                   Home
                   contra
                   Craw.
                   July
                
                 16.
                 1672.
                 
                 
                   Duff
                   contra
                   Fouler
                
                 .
                 The
                 like
                 when
                 it
                 is
                 of
                 more
                 value
                 then
                 a
                 Liferent-tack
                 ,
                 as
                 being
                 of
                 many
                 nineteen
                 years
                 ,
                 
                   Spots
                   .
                   hic
                
                 ,
                 Ross
                 contra
                 Blair
                 .
              
               
                 The
                 like
                 holdeth
                 in
                 the
                 power
                 of
                 making
                 Sub-tacks
                 ,
                 or
                 out-putting
                 and
                 inputting
                 of
                 Tennents
                 ,
                 or
                 Removings
                 ,
                 which
                 are
                 not
                 competent
                 thereupon
                 ,
                 unless
                 express
                 ,
                 or
                 unless
                 it
                 be
                 against
                 these
                 who
                 had
                 the
                 possession
                 from
                 the
                 Tacks-man
                 ,
                 except
                 in
                 Liferent-tacks
                 ,
                 and
                 these
                 of
                 greater
                 importance
                 .
              
               
                 27.
                 
                 Tacks
                 cannot
                 be
                 perpetual
                 ;
                 and
                 therefore
                 ,
                 necessarly
                 must
                 have
                 an
                 Ish
                 ,
                 or
                 else
                 they
                 are
                 null
                 ,
                 what
                 favour
                 is
                 herein
                 granted
                 to
                 Rentals
                 ,
                 is
                 herein
                 showen
                 .
              
               
                 28.
                 
                 If
                 there
                 be
                 no
                 particular
                 Ish
                 ,
                 but
                 to
                 endure
                 till
                 the
                 payment
                 of
                 a
                 sum
                 ,
                 it
                 hath
                 been
                 variously
                 decided
                 ,
                 whether
                 it
                 be
                 effectual
                 against
                 a
                 singular
                 Successor
                 negative
                 ,
                 July
                 13.
                 1621.
                 
                 Laird
                 of
                 
                   Mckal
                   contra
                
                 his
                 Tennents
                 .
                 March
                 5.
                 1629.
                 
                 Laird
                 of
                 Lie
                 younger
                 
                   contra
                   Kirkwood
                
                 .
                 Affirmative
                 ,
                 
                   Hope
                   hic
                
                 ,
                 Laird
                 of
                 
                   Clackmannan
                   contra
                
                 Tennents
                 of
                 Balmaino
                 .
                 The
                 like
                 in
                 a
                 Tack
                 set
                 to
                 a
                 Smith
                 so
                 long
                 as
                 he
                 should
                 worke
                 the
                 setters
                 work
                 ,
                 July
                 11.
                 1610.
                 
                 Sir
                 
                   James
                   
                   Lundie
                   contra
                   Smith
                
                 of
                 Lundie
                 .
                 This
                 is
                 unquestionable
                 in
                 Back-tacks
                 ,
                 which
                 have
                 no
                 Ish
                 ,
                 but
                 during
                 the
                 Non-redemption
                 .
                 And
                 in
                 other
                 cases
                 the
                 Affirmative
                 is
                 stronger
                 ,
                 both
                 in
                 reason
                 and
                 practice
                 ;
                 but
                 it
                 holds
                 not
                 ,
                 if
                 it
                 be
                 but
                 an
                 obliegement
                 not
                 to
                 remove
                 the
                 Tennent
                 ,
                 until
                 such
                 a
                 sum
                 be
                 payed
                 ,
                 that
                 is
                 only
                 personal
                 :
                 And
                 neither
                 a
                 Tack
                 nor
                 an
                 obliegement
                 for
                 a
                 Tack
                 ,
                 unless
                 it
                 be
                 contained
                 in
                 a
                 tack
                 ,
                 bearing
                 
                   such
                   a
                   sum
                   to
                   be
                   due
                   to
                   the
                   tacks-man
                   ,
                   and
                   for
                   seourity
                   thereof
                   ,
                   the
                   Lands
                   to
                   be
                   set
                   ,
                   and
                   the
                   rent
                   to
                   be
                   as
                   satisfaction
                   of
                   the
                   Annualrent
                   ,
                   pro
                   tanto
                   ,
                
                 was
                 found
                 valide
                 against
                 a
                 singular
                 Successor
                 ,
                 and
                 that
                 the
                 tack
                 wanted
                 not
                 an
                 Ish
                 ,
                 because
                 the
                 payment
                 of
                 the
                 Money
                 was
                 the
                 Ish
                 ,
                 January
                 22.
                 1625.
                 
                 
                   Isobel
                   Ronald
                   contra
                   Strang.
                
                 But
                 the
                 contrary
                 was
                 found
                 ,
                 March
                 5.
                 1629.
                 
                 Laird
                 of
                 
                   Lie
                   contra
                   Kirkwood
                
                 .
                 A
                 Bond
                 assigning
                 to
                 the
                 Ferms
                 till
                 a
                 sum
                 were
                 payed
                 ,
                 was
                 not
                 found
                 valid
                 against
                 a
                 singular
                 Successor
                 ,
                 July
                 2.
                 1624.
                 
                 
                   Mitchelson
                   contra
                   Law.
                
                 So
                 a
                 tack
                 set
                 for
                 seven
                 years
                 ,
                 for
                 a
                 certain
                 tack-duty
                 exprest
                 ,
                 with
                 a
                 Clause
                 ,
                 
                   that
                   the
                   tacks-man
                   should
                   retain
                   a
                   part
                   of
                   the
                   tack-duty
                   for
                   the
                   annualrent
                   of
                   a
                   sum
                   ,
                   due
                   to
                   him
                   by
                   the
                   setter
                   ,
                   and
                   should
                   not
                   be
                   removed
                   till
                   the
                   sum
                   were
                   payed
                   ,
                
                 was
                 found
                 valide
                 against
                 a
                 singular
                 Successor
                 for
                 the
                 seven
                 years
                 ,
                 because
                 there
                 was
                 an
                 excresce
                 above
                 the
                 annualrent
                 ,
                 which
                 remained
                 for
                 the
                 Tack-duty
                 ,
                 but
                 not
                 for
                 the
                 rest
                 ,
                 being
                 but
                 a
                 personal
                 obliegement
                 not
                 to
                 remove
                 ,
                 June
                 ,
                 15.
                 1664.
                 
                 
                   Thomson
                   contra
                   Reid
                   .
                   January
                
                 27.
                 1674.
                 
                 
                   Peacock
                   contra
                   Lauder
                
                 .
                 The
                 like
                 where
                 a
                 Tack
                 was
                 set
                 by
                 a
                 Liferenter
                 for
                 four
                 years
                 .
                 And
                 while
                 a
                 sum
                 were
                 payed
                 ,
                 found
                 valide
                 against
                 the
                 Liferenters
                 Assignayes
                 the
                 18
                 of
                 December
                 1668.
                 
                 Mr.
                 
                   Robert
                   Smitoun
                   contra
                
                 Mr.
                 
                   John
                   Brown.
                
                 The
                 like
                 was
                 found
                 in
                 a
                 Tack
                 against
                 an
                 Appryzer
                 ,
                 allowing
                 the
                 Tack-duty
                 for
                 the
                 annualrent
                 of
                 the
                 sums
                 ,
                 there
                 remaining
                 a
                 several
                 Tack-duty
                 ,
                 December
                 11.
                 1677.
                 
                 
                   Charles
                   Oliphant
                   contra
                   James
                   Currie
                
                 .
              
               
                 29.
                 
                 Fifthly
                 ,
                 Tacks
                 are
                 not
                 valide
                 as
                 real
                 rights
                 against
                 singular
                 Successors
                 ,
                 unless
                 they
                 have
                 a
                 Tack-duty
                 ;
                 yea
                 if
                 they
                 have
                 one
                 but
                 in
                 the
                 Tack
                 it self
                 ,
                 it
                 be
                 wholly
                 discharged
                 ,
                 yet
                 the
                 Tack
                 is
                 valide
                 ;
                 neither
                 will
                 the
                 discharge
                 of
                 the
                 Tack-duty
                 be
                 valide
                 against
                 the
                 setters
                 singular
                 Successor
                 ,
                 January
                 31.
                 1627.
                 
                 Mr.
                 
                   James
                   Ross
                   contra
                   Blair
                
                 .
              
               
                 30.
                 
                 But
                 the
                 want
                 of
                 an
                 Entry
                 vitiats
                 not
                 a
                 Tack
                 ;
                 for
                 when
                 there
                 is
                 no
                 Entry
                 ,
                 the
                 date
                 or
                 the
                 next
                 Term
                 is
                 the
                 Entry
                 ,
                 December
                 4.
                 1629.
                 
                 Mr.
                 
                   William
                   Oliphant
                   contra
                
                 Mr.
                 
                   Heugh
                   Peebles
                
                 .
              
               
                 31.
                 
                 Sixthly
                 ,
                 All
                 Tennents
                 are
                 burdened
                 with
                 necessity
                 to
                 enter
                 and
                 labour
                 the
                 ground
                 ,
                 that
                 the
                 Master
                 may
                 have
                 ready
                 execution
                 ,
                 February
                 27.
                 1623.
                 
                 
                   Samfoord
                   contra
                   Crombie
                
                 ,
                 and
                 not
                 to
                 rive
                 out
                 Meadow
                 or
                 Greens
                 never
                 plowed
                 ,
                 or
                 destroy
                 Mosses
                 ,
                 or
                 deteriorat
                 the
                 ground
                 worse
                 nor
                 he
                 found
                 it
                 ,
                 February
                 6.
                 1633.
                 
                 Laird
                 of
                 
                   Haddo
                   contra
                   Johnstouns
                
                 :
                 and
                 must
                 leave
                 the
                 Houses
                 as
                 good
                 as
                 at
                 his
                 entry
                 ,
                 February
                 27.
                 1610.
                 contra
                 All
                 which
                 are
                 without
                 express
                 provision
                 :
                 Neither
                 may
                 the
                 Tennent
                 open
                 the
                 ground
                 for
                 winning
                 of
                 any
                 Mineral
                 ,
                 Coal
                 ,
                 or
                 Clay
                 for
                 Pipes
                 ,
                 without
                 that
                 power
                 be
                 exprest
                 ,
                 the
                 15.
                 of
                 February
                 1668.
                 
                 
                   John
                   Colqhoun
                   contra
                   Watson
                
                 .
              
               
                 Seventhly
                 ,
                 Albeit
                 Tacks
                 be
                 by
                 Statute
                 as
                 real
                 Rights
                 ,
                 yet
                 they
                 are
                 affected
                 with
                 Back-bond
                 granted
                 by
                 the
                 Tacks-man
                 ,
                 which
                 are
                 relevant
                 againstthe
                 Tacks-mans
                 singular
                 Successor
                 ,
                 though
                 neither
                 Registrat
                 nor
                 Intimat
                 ,
                 January
                 8.
                 1668.
                 
                 
                   Margaret
                   Forbes
                   contra
                
              
               
               
                 It
                 remains
                 now
                 to
                 consider
                 how
                 Tacks
                 are
                 destitute
                 and
                 taken
                 off
                 ;
                 And
                 first
                 ,
                 as
                 to
                 the
                 point
                 of
                 Right
                 .
                 Next
                 ,
                 as
                 to
                 Possession
                 .
                 As
                 to
                 the
                 point
                 of
                 Right
                 ,
                 we
                 shall
                 not
                 speak
                 of
                 the
                 nullities
                 of
                 Tacks
                 ,
                 by
                 which
                 they
                 were
                 never
                 truly
                 Constitute
                 ,
                 and
                 so
                 needs
                 not
                 be
                 destitute
                 :
                 But
                 when
                 they
                 have
                 once
                 a
                 real
                 Beeing
                 ,
                 they
                 ceasse
                 ;
                 First
                 ,
                 By
                 any
                 deed
                 contrary
                 to
                 the
                 Tenor
                 or
                 nature
                 thereof
                 ,
                 as
                 hath
                 been
                 before
                 shown
                 in
                 Rentals
                 ,
                 which
                 is
                 not
                 so
                 in
                 ordinary
                 Tacks
                 ,
                 unless
                 there
                 be
                 a
                 Clause
                 irritant
                 ,
                 and
                 that
                 be
                 declared
                 ,
                 and
                 so
                 is
                 not
                 competent
                 by
                 exception
                 ,
                 
                   Spots
                   .
                   hic
                   ,
                   Robert
                   Stevinson
                   contra
                   Alexander
                   Barcley
                   .
                
              
               
                 32.
                 
                 Secondly
                 ,
                 They
                 become
                 void
                 by
                 not
                 payment
                 of
                 the
                 Tack-duty
                 ,
                 in
                 the
                 same
                 manner
                 as
                 a
                 Feu
                 Right
                 by
                 the
                 delay
                 of
                 two
                 years
                 ,
                 unless
                 the
                 Tacks-man
                 offered
                 payment
                 at
                 such
                 a
                 time
                 ,
                 November
                 23.
                 1629.
                 
                 
                   Romanno
                   contra
                   Nisbit
                
                 .
              
               
                 33.
                 
                 Thirdly
                 ,
                 If
                 the
                 Tacks-man
                 be
                 pursued
                 to
                 find
                 Caution
                 for
                 the
                 Duties
                 resting
                 ,
                 and
                 in
                 time
                 coming
                 if
                 he
                 find
                 no
                 Caution
                 ,
                 the
                 Tack
                 becomes
                 void
                 and
                 he
                 may
                 be
                 removed
                 summarly
                 without
                 warning
                 ;
                 this
                 was
                 also
                 sustained
                 against
                 a
                 Back-tack
                 in
                 Wodsetts
                 ,
                 though
                 having
                 no
                 Clause
                 irritant
                 ,
                 Hope
                 ,
                 Confirmation
                 ,
                 Sir
                 
                   Thomas
                   Dischingtoun
                   contra
                
                 .
                 Laird
                 of
                 Pitmeden
                 ,
                 Idem
                 ,
                 
                   William
                   Hamiltoun
                   contra
                
                 Earl
                 of
                 Argile
                 .
                 It
                 was
                 also
                 sustained
                 ,
                 though
                 the
                 Duty
                 was
                 small
                 ,
                 the
                 ground
                 plenished
                 ,
                 and
                 but
                 one
                 year
                 resting
                 ,
                 February
                 27.
                 1627.
                 
                 
                   Lawson
                   contra
                   Scot.
                
                 But
                 it
                 is
                 not
                 sustainable
                 where
                 there
                 are
                 no
                 bygones
                 resting
                 :
                 Neither
                 was
                 it
                 sustained
                 ,
                 unless
                 a
                 year
                 were
                 resting
                 the
                 time
                 of
                 the
                 Citation
                 ,
                 at
                 least
                 at
                 Litiscontestation
                 ,
                 albeit
                 the
                 tacks-man
                 was
                 Bankrupt
                 ,
                 and
                 in
                 prison
                 for
                 Debt
                 ,
                 January
                 3.
                 1672.
                 
                 Lady
                 
                   Binnie
                   contra
                   Heugh
                   Sinclar
                
                 .
              
               
                 34.
                 
                 Fourthly
                 ,
                 Tacks
                 ceass
                 by
                 the
                 expyring
                 of
                 the
                 Terms
                 thereof
                 ,
                 and
                 the
                 setters
                 warning
                 ,
                 or
                 other
                 deeds
                 to
                 take
                 off
                 tacite
                 Relocation
                 ,
                 or
                 the
                 Tennants
                 Renounciation
                 ;
                 the
                 form
                 whereof
                 is
                 ,
                 the
                 tennent
                 fourty
                 days
                 before
                 Whitsonday
                 ,
                 subscrives
                 and
                 delivers
                 to
                 his
                 Master
                 a
                 Renunciation
                 of
                 his
                 tack
                 and
                 possession
                 ,
                 consenting
                 that
                 he
                 enter
                 
                   braevi
                   manu
                
                 ,
                 without
                 hazard
                 of
                 ejection
                 ,
                 whereupon
                 there
                 must
                 be
                 taken
                 an
                 Instrument
                 of
                 Renunciation
                 in
                 the
                 hands
                 of
                 a
                 Nottar
                 ,
                 as
                 a
                 Solemnity
                 requisite
                 ,
                 which
                 is
                 sufficient
                 to
                 instruct
                 the
                 overgiving
                 ,
                 astbeing
                 the
                 habile
                 way
                 approven
                 in
                 Law
                 ;
                 albeit
                 in
                 other
                 cases
                 not
                 approven
                 in
                 Law
                 ;
                 Instruments
                 of
                 Nottars
                 prove
                 not
                 the
                 deed
                 of
                 the
                 party
                 ,
                 in
                 this
                 case
                 it
                 avoideth
                 the
                 tack
                 ,
                 and
                 is
                 probable
                 by
                 Instrument
                 ,
                 if
                 the
                 tack
                 be
                 expired
                 ,
                 but
                 during
                 the
                 tack
                 the
                 Instrument
                 will
                 not
                 prove
                 the
                 acceptance
                 of
                 the
                 Renunciation
                 .
              
               
                 35.
                 
                 Fifthly
                 ,
                 Tacks
                 are
                 taken
                 off
                 by
                 the
                 contrary
                 consent
                 of
                 both
                 parties
                 ,
                 though
                 they
                 be
                 not
                 expired
                 ,
                 as
                 when
                 they
                 are
                 really
                 left
                 by
                 the
                 tennent
                 ,
                 and
                 possessed
                 by
                 the
                 Master
                 :
                 Or
                 when
                 by
                 write
                 they
                 are
                 renunced
                 and
                 accepted
                 ;
                 for
                 verbal
                 renunciations
                 may
                 be
                 resiled
                 from
                 before
                 they
                 be
                 perfected
                 in
                 write
                 ,
                 in
                 the
                 same
                 manner
                 as
                 verbal
                 tacks
                 may
                 ,
                 and
                 much
                 more
                 promises
                 to
                 renunce
                 ;
                 this
                 way
                 of
                 renunciation
                 is
                 express
                 and
                 direct
                 .
              
               
                 36.
                 
                 Sixthly
                 ,
                 Tacks
                 are
                 taken
                 away
                 by
                 tacite
                 and
                 implyed
                 renunciation
                 ,
                 and
                 by
                 passing
                 therefrom
                 ,
                 as
                 by
                 taking
                 a
                 posterior
                 tack
                 for
                 fewer
                 years
                 ,
                 and
                 making
                 use
                 thereof
                 ,
                 albeit
                 but
                 a
                 minute
                 ,
                 not
                 by
                 Contract
                 ,
                 nor
                 subscribed
                 by
                 the
                 tacksman
                 ,
                 nor
                 in
                 his
                 hand
                 ,
                 but
                 his
                 acceptance
                 proven
                 by
                 witnesses
                 ,
                 and
                 by
                 paying
                 conform
                 ,
                 January
                 17.
                 1632.
                 
                 Earl
                 of
                 
                   Lawderdail
                   contra
                   Waterstoun
                
                 .
                 
                 By
                 accepting
                 a
                 posterior
                 Factory
                 of
                 the
                 same
                 Lands
                 ,
                 Hope
                 ,
                 action
                 of
                 reduction
                 ,
                 Earl
                 of
                 
                   Tillibairn
                   contra
                   James
                   Dalzel
                
                 .
                 By
                 paying
                 a
                 greater
                 duty
                 ,
                 February
                 27.
                 1610.
                 
                 Atcheson
                 of
                 
                   Gossoord
                   contra
                
                 his
                 Tennents
                 .
                 
                   Lethem
                   contra
                
                 his
                 Tennents
                 .
                 But
                 not
                 by
                 paying
                 of
                 more
                 presents
                 ,
                 Ibid
                 ,
                 
                   Robert
                   Hamiltoun
                   contra
                
                 Tennents
                 of
                 Melburn
                 .
                 Neither
                 by
                 Sub-tennents
                 paying
                 a
                 greater
                 duty
                 ,
                 without
                 warrand
                 of
                 the
                 principal
                 Tennent
                 ,
                 June
                 5.
                 1611.
                 
                 Laird
                 of
                 
                   Phairnieherst
                   contra
                
                 Minister
                 of
                 Innerkeithing
                 .
                 Also
                 by
                 taking
                 an
                 heretable
                 right
                 of
                 the
                 same
                 thing
                 ;
                 but
                 it
                 holds
                 not
                 ,
                 if
                 the
                 heretable
                 right
                 were
                 reduced
                 ,
                 for
                 then
                 the
                 Tack
                 revives
                 ,
                 Spots
                 .
                 appryzing
                 ,
                 Laird
                 of
                 
                   Garthland
                   contra
                   Campbel
                
                 .
                 Neither
                 is
                 it
                 taken
                 off
                 by
                 a
                 posterior
                 appryzing
                 in
                 the
                 Tacks-mans
                 person
                 ,
                 seing
                 it
                 was
                 satisfied
                 and
                 declared
                 extinct
                 against
                 him
                 ,
                 last
                 of
                 February
                 1623.
                 
                 
                   Brice
                   Semple
                   contra
                
                 Tennents
                 of
                 Closseburn
                 .
              
               
                 37.
                 
                 Tacks
                 are
                 taken
                 off
                 as
                 to
                 possession
                 ,
                 by
                 removing
                 of
                 the
                 Tennents
                 ,
                 either
                 voluntarly
                 ,
                 as
                 is
                 before
                 exprest
                 ;
                 or
                 more
                 ordinarly
                 ,
                 judicially
                 by
                 Process
                 of
                 removing
                 ,
                 which
                 is
                 most
                 frequent
                 and
                 important
                 ;
                 and
                 therefore
                 ,
                 is
                 reserved
                 to
                 be
                 spoken
                 of
                 together
                 in
                 this
                 place
                 ,
                 though
                 there
                 be
                 diverse
                 kinds
                 of
                 removings
                 ,
                 having
                 respect
                 to
                 diverse
                 Titles
                 ;
                 for
                 though
                 removing
                 be
                 competent
                 against
                 all
                 Possessors
                 ,
                 whether
                 possessing
                 without
                 any
                 Title
                 ,
                 or
                 by
                 an
                 insufficient
                 Title
                 ,
                 as
                 an
                 invalide
                 Infeftment
                 or
                 the
                 like
                 ,
                 yet
                 the
                 rise
                 thereof
                 is
                 for
                 removing
                 of
                 Tennents
                 .
              
               
                 38.
                 
                 Removing
                 is
                 either
                 summar
                 without
                 warning
                 ,
                 or
                 solemn
                 upon
                 warning
                 ;
                 again
                 summar
                 removing
                 is
                 either
                 by
                 paction
                 or
                 Law
                 ;
                 By
                 Paction
                 when
                 it
                 is
                 so
                 agreed
                 by
                 the
                 Tack
                 or
                 other
                 Write
                 ,
                 that
                 the
                 Tennant
                 shall
                 remove
                 at
                 such
                 a
                 Term
                 without
                 warning
                 ,
                 which
                 will
                 be
                 sufficient
                 at
                 that
                 time
                 ,
                 
                   Craig
                   hic
                
                 .
                 This
                 will
                 hold
                 upon
                 Dispositions
                 ,
                 whereupon
                 the
                 Disponer
                 may
                 be
                 compelled
                 to
                 remove
                 summarly
                 without
                 any
                 such
                 express
                 Clause
                 ,
                 which
                 was
                 also
                 extended
                 in
                 favours
                 of
                 Appryzers
                 ,
                 against
                 their
                 Debitors
                 possessing
                 a
                 House
                 ,
                 March
                 26.
                 1612.
                 
                 January
                 18.
                 1623.
                 
                 Earl
                 of
                 
                   Lothian
                   contra
                
                 Sir
                 
                   John
                   Ker
                
                 and
                 his
                 Son.
                 But
                 it
                 is
                 more
                 questionable
                 ,
                 whether
                 it
                 will
                 be
                 sufficient
                 at
                 any
                 time
                 thereafter
                 ,
                 if
                 the
                 Tennent
                 be
                 suffered
                 to
                 possess
                 ,
                 
                   per
                   tacitum
                   relocationem
                
                 ;
                 especially
                 ,
                 seing
                 the
                 Statute
                 for
                 warning
                 is
                 a
                 publick
                 Law
                 ,
                 introduced
                 for
                 the
                 good
                 of
                 poor
                 Tennents
                 ,
                 whose
                 rusticitie
                 is
                 excuseable
                 ,
                 if
                 they
                 advert
                 not
                 to
                 anterior
                 Pactions
                 ,
                 
                   Nam
                   pacta
                   privatorum
                   non
                   derogant
                   juri
                   communi
                   :
                
                 Yet
                 upon
                 the
                 contrary
                 ,
                 
                   cuique
                   libet
                   〈◊〉
                   juri
                   pro
                   se
                   introducto
                   :
                
                 Betwixt
                 which
                 ,
                 I
                 conceive
                 this
                 temperament
                 will
                 hold
                 ,
                 that
                 such
                 pactions
                 ,
                 though
                 recent
                 ,
                 may
                 be
                 effectual
                 at
                 the
                 precise
                 Term
                 ,
                 or
                 at
                 any
                 Term
                 or
                 time
                 thereafter
                 upon
                 intimation
                 ,
                 if
                 it
                 be
                 so
                 agreed
                 upon
                 in
                 Write
                 ;
                 for
                 promises
                 in
                 this
                 case
                 may
                 be
                 resiled
                 from
                 (
                 as
                 before
                 is
                 shown
                 )
                 but
                 in
                 either
                 case
                 the
                 Tennent
                 must
                 have
                 intimation
                 before
                 the
                 Term
                 ,
                 which
                 will
                 suffice
                 without
                 the
                 solemnities
                 of
                 warning
                 ;
                 but
                 it
                 must
                 be
                 of
                 that
                 length
                 ,
                 that
                 the
                 tennent
                 may
                 provide
                 for
                 himself
                 ,
                 and
                 remove
                 his
                 goods
                 ,
                 which
                 will
                 be
                 in
                 the
                 arbitriment
                 of
                 the
                 Iudge
                 ;
                 and
                 I
                 suppose
                 that
                 they
                 will
                 walk
                 most
                 fairly
                 and
                 safely
                 ,
                 who
                 shall
                 intimate
                 the
                 same
                 to
                 the
                 Tennent
                 fourty
                 days
                 before
                 the
                 Term
                 :
                 Or
                 otherways
                 ,
                 all
                 the
                 effect
                 is
                 like
                 to
                 be
                 ,
                 that
                 he
                 will
                 be
                 discerned
                 to
                 remove
                 at
                 the
                 next
                 Whitsonday
                 after
                 the
                 Process
                 ,
                 without
                 violent
                 profites
                 ,
                 as
                 uses
                 to
                 be
                 done
                 when
                 there
                 is
                 any
                 probable
                 excuse
                 for
                 the
                 Tennents
                 not
                 removing
                 .
              
               
                 Summar
                 removing
                 is
                 competent
                 by
                 Law
                 without
                 Paction
                 ,
                 in
                 all
                 cases
                 where
                 the
                 Statute
                 appointing
                 warning
                 ,
                 takes
                 no
                 place
                 ,
                 which
                 is
                 chiefly
                 regulate
                 by
                 the
                 reason
                 of
                 the
                 Statute
                 ,
                 that
                 Tennents
                 be
                 not
                 put
                 at
                 unaworse
                 to
                 seek
                 their
                 
                 habitations
                 ,
                 or
                 at
                 an
                 unseasonable
                 time
                 of
                 the
                 year
                 ;
                 and
                 therefore
                 ,
                 it
                 is
                 not
                 necessary
                 in
                 several
                 cases
                 .
              
               
                 First
                 ,
                 where
                 the
                 Possessor
                 is
                 not
                 Tennent
                 ,
                 but
                 a
                 vitious
                 Possessor
                 ;
                 or
                 where
                 the
                 Possessor
                 hath
                 nothing
                 but
                 an
                 insufficient
                 Infeftment
                 or
                 tollerance
                 :
                 For
                 the
                 Statute
                 is
                 only
                 in
                 favours
                 of
                 Tennents
                 ,
                 who
                 are
                 lyable
                 for
                 Mails
                 and
                 Duties
                 .
              
               
                 Secondly
                 ,
                 Warning
                 was
                 not
                 found
                 necessary
                 for
                 removing
                 Possessor
                 from
                 a
                 Tower
                 or
                 Fortalice
                 ,
                 though
                 set
                 in
                 Tack
                 ,
                 
                   Hope
                   hic
                
                 ,
                 Lady
                 
                   Saltoun
                   contra
                
                 Mr.
                 
                   William
                   Livingstoun
                
                 ,
                 or
                 from
                 a
                 Coal
                 ,
                 
                   Ibid.
                   Wolmet
                   contra
                   Niddrie
                
                 .
                 Or
                 from
                 the
                 possession
                 of
                 a
                 Liferenters
                 House
                 or
                 Land
                 ,
                 after
                 the
                 Liferenters
                 death
                 ,
                 and
                 that
                 upon
                 suplication
                 ,
                 it
                 was
                 obtained
                 without
                 Process
                 ,
                 Hope
                 Liserent
                 ,
                 
                   Prestoun
                   contra
                   Cockpen
                
                 .
                 And
                 this
                 was
                 competent
                 at
                 the
                 instance
                 of
                 a
                 Liferenter
                 against
                 these
                 who
                 continued
                 the
                 possession
                 of
                 a
                 former
                 Liferenter
                 ,
                 after
                 her
                 death
                 ,
                 January
                 12.
                 1622.
                 
                 Lady
                 
                   Kincaid
                   contra
                
                 her
                 Tennents
                 .
                 The
                 like
                 ,
                 but
                 to
                 take
                 effect
                 at
                 Whitsonday
                 after
                 the
                 Process
                 ,
                 against
                 a
                 Liferenters
                 servant
                 ,
                 possessing
                 without
                 a
                 Tack
                 in
                 write
                 ,
                 and
                 also
                 without
                 violent
                 profites
                 ,
                 February
                 16.
                 1628.
                 
                 
                   Thomson
                   contra
                   Merstoun
                
                 .
                 But
                 if
                 the
                 possession
                 from
                 the
                 Liferenter
                 be
                 by
                 vertue
                 of
                 a
                 Tack
                 ,
                 the
                 possessor
                 must
                 be
                 warned
                 ,
                 as
                 hath
                 been
                 shown
                 amongst
                 the
                 effects
                 of
                 Tacks
                 .
                 Removing
                 is
                 also
                 competent
                 by
                 sorce
                 of
                 of
                 Law
                 upon
                 a
                 Process
                 ,
                 to
                 find
                 caution
                 for
                 the
                 rent
                 ,
                 or
                 to
                 remove
                 ;
                 of
                 which
                 before
                 .
                 As
                 to
                 what
                 is
                 special
                 in
                 Tacks
                 of
                 teinds
                 ,
                 hath
                 been
                 considered
                 in
                 that
                 Title
                 .
              
               
                 The
                 prime
                 kind
                 of
                 removing
                 is
                 that
                 which
                 is
                 solemn
                 upon
                 Warning
                 ;
                 for
                 clearing
                 whereof
                 ,
                 we
                 shall
                 first
                 consider
                 the
                 order
                 pre-required
                 .
                 Secondly
                 ,
                 The
                 interest
                 of
                 the
                 pursuer
                 .
                 Thirdly
                 The
                 exceptions
                 of
                 the
                 Defender
                 .
                 Fourthly
                 ,
                 The
                 effects
                 of
                 removing
                 .
              
               
                 39.
                 
                 The
                 Order
                 of
                 removing
                 of
                 old
                 was
                 thus
                 ;
                 The
                 Master
                 of
                 the
                 ground
                 did
                 only
                 verbally
                 intimate
                 to
                 the
                 Tennent
                 to
                 remove
                 at
                 the
                 next
                 Whitsonday
                 ;
                 and
                 the
                 only
                 solemnity
                 requisite
                 was
                 ,
                 that
                 before
                 the
                 said
                 term
                 he
                 appeared
                 before
                 the
                 door
                 of
                 the
                 Tennent
                 and
                 broke
                 a
                 Lance
                 there
                 ,
                 as
                 a
                 Symbol
                 of
                 his
                 breaking
                 the
                 tacite
                 relocation
                 betwixt
                 them
                 ;
                 whereupon
                 the
                 second
                 day
                 after
                 Whitsonday
                 ,
                 he
                 came
                 
                   braevi
                   manu
                
                 ,
                 and
                 expelled
                 the
                 tennent
                 ;
                 or
                 at
                 least
                 laid
                 out
                 some
                 of
                 his
                 Goods
                 to
                 compleat
                 the
                 solemnity
                 of
                 his
                 removing
                 ,
                 
                   Craig
                   hic
                
                 ,
                 Hence
                 arose
                 many
                 quarrels
                 ,
                 violences
                 and
                 breaches
                 of
                 the
                 publick
                 Peace
                 ;
                 when
                 the
                 tennent
                 had
                 any
                 reason
                 or
                 pretence
                 ,
                 for
                 which
                 not
                 to
                 remove
                 ,
                 or
                 otherways
                 was
                 unwilling
                 ,
                 and
                 not
                 compelled
                 by
                 Law
                 or
                 publick
                 Authority
                 ,
                 but
                 by
                 private
                 force
                 .
              
               
                 40.
                 
                 
                   For
                   remeid
                   whereof
                   ,
                   that
                   excellent
                   Statute
                   concerning
                   warning
                   and
                   removing
                   of
                   tennents
                   was
                   made
                   ,
                
                 Par.
                 1555.
                 cap.
                 39.
                 
                   prescriving
                   the
                   Order
                   of
                   removing
                   thus
                
                 ;
                 That
                 the
                 Master
                 of
                 the
                 Ground
                 give
                 a
                 Precept
                 of
                 warning
                 in
                 write
                 ,
                 commanding
                 his
                 Officer
                 (
                 which
                 may
                 be
                 any
                 person
                 he
                 pleaseth
                 )
                 for
                 whose
                 name
                 ,
                 a
                 blank
                 is
                 set
                 in
                 the
                 Precept
                 ,
                 to
                 go
                 fourty
                 dayes
                 preceeding
                 Whitsonday
                 ,
                 and
                 intimate
                 to
                 the
                 tennent
                 that
                 he
                 remove
                 himself
                 ,
                 his
                 family
                 ,
                 sub-tennents
                 ,
                 goods
                 and
                 gear
                 ,
                 at
                 the
                 said
                 term
                 ,
                 and
                 leave
                 the
                 tenement
                 void
                 and
                 red
                 ,
                 that
                 the
                 warner
                 may
                 enter
                 in
                 Possession
                 :
                 
                   this
                   may
                   be
                   done
                   either
                   personnally
                   or
                   at
                   his
                   dwelling
                   house
                   .
                
              
               
               
                 Secondly
                 ,
                 The
                 Precept
                 must
                 authorize
                 the
                 Officer
                 to
                 make
                 the
                 said
                 denounciation
                 ,
                 fourty
                 days
                 before
                 the
                 term
                 upon
                 the
                 ground
                 of
                 the
                 Land
                 ,
                 leaving
                 a
                 Copy
                 thereof
                 affixed
                 thereupon
                 ,
                 and
                 by
                 the
                 same
                 space
                 ,
                 it
                 must
                 be
                 done
                 at
                 the
                 Kirk-door
                 ,
                 at
                 the
                 time
                 of
                 dissolving
                 the
                 Congregation
                 ,
                 from
                 the
                 first
                 Sermon
                 ,
                 leaving
                 a
                 Copy
                 thereof
                 affixed
                 upon
                 the
                 Kirk-door
                 ;
                 all
                 which
                 must
                 be
                 done
                 before
                 two
                 witnesse
                 ,
                 required
                 for
                 that
                 effect
                 ,
                 and
                 Executions
                 made
                 conform
                 by
                 the
                 Officer
                 ,
                 which
                 without
                 any
                 other
                 Instrument
                 or
                 Solemnity
                 doth
                 sufficiently
                 prove
                 ,
                 unless
                 it
                 be
                 improven
                 ,
                 upon
                 this
                 order
                 the
                 pursuer
                 hath
                 a
                 priviledged
                 action
                 upon
                 six
                 days
                 warning
                 only
                 ,
                 without
                 continuation
                 ,
                 Par.
                 1555.
                 cap.
                 39.
                 and
                 that
                 because
                 of
                 the
                 necessity
                 of
                 the
                 dispatch
                 ,
                 that
                 the
                 new
                 tennents
                 who
                 hath
                 taken
                 may
                 be
                 put
                 in
                 Possession
                 ,
                 and
                 the
                 Land
                 not
                 left
                 waste
                 ,
                 both
                 to
                 publick
                 and
                 private
                 detriment
                 :
                 This
                 Order
                 must
                 be
                 used
                 ,
                 though
                 the
                 term
                 of
                 the
                 Tack
                 be
                 not
                 at
                 Whitsonday
                 but
                 at
                 Martimess
                 or
                 Candlesmess
                 ;
                 and
                 it
                 will
                 not
                 suffice
                 to
                 be
                 made
                 fourty
                 days
                 before
                 these
                 terms
                 ,
                 June
                 15.
                 1631.
                 
                 
                   Ramsay
                   contra
                   Weir
                
                 .
                 The
                 reason
                 hereof
                 is
                 ,
                 because
                 the
                 warning
                 is
                 appointed
                 that
                 the
                 tennents
                 may
                 timeously
                 provide
                 for
                 themselves
                 ,
                 which
                 cannot
                 be
                 but
                 before
                 Whitsonday
                 ,
                 the
                 ordinary
                 time
                 Lands
                 use
                 to
                 be
                 set
                 ,
                 if
                 the
                 parties
                 removed
                 be
                 out
                 of
                 the
                 Countrey
                 ,
                 it
                 will
                 suffice
                 to
                 warn
                 them
                 upon
                 the
                 ground
                 ,
                 and
                 at
                 the
                 Kirk-door
                 upon
                 fourty
                 days
                 ,
                 but
                 the
                 Citation
                 must
                 be
                 upon
                 sixty
                 dayes
                 ,
                 which
                 is
                 consequent
                 from
                 the
                 Statute
                 ,
                 which
                 prescrives
                 nothing
                 different
                 from
                 the
                 ordinary
                 course
                 of
                 Law
                 ;
                 in
                 the
                 case
                 of
                 parties
                 out
                 of
                 the
                 Countrey
                 it
                 was
                 so
                 decided
                 ,
                 January
                 11.
                 1622.
                 
                 Laird
                 of
                 
                   Faldenside
                   contra
                   Bimerside
                   .
                   February
                
                 20.
                 1666.
                 
                 
                   Mebrair
                   contra
                
                 Sir
                 
                   Robert
                   Chrightoun
                
                 alias
                 Murray
                 .
                 This
                 Statute
                 reacheth
                 not
                 warnings
                 from
                 tenements
                 within
                 Burgh
                 ,
                 which
                 are
                 regulat
                 by
                 the
                 custom
                 of
                 Burgh
                 :
                 Thus
                 the
                 Town
                 Officer
                 by
                 command
                 of
                 a
                 Bailie
                 ,
                 though
                 without
                 write
                 ,
                 warneth
                 only
                 at
                 the
                 tenement
                 ,
                 fourty
                 days
                 preceeding
                 Whitsonday
                 ,
                 and
                 in
                 evidence
                 thereof
                 ,
                 useth
                 to
                 Chalk
                 the
                 Door
                 ,
                 
                   Craig
                   hic
                   ,
                   Nicolson
                
                 removing
                 ,
                 
                   Andrew
                   Ker
                   contra
                   Euphan
                   Moor
                
                 :
                 this
                 was
                 extended
                 to
                 a
                 house
                 within
                 Burgh
                 of
                 Barony
                 ,
                 July
                 18.
                 1634.
                 
                 Mr.
                 
                   John
                   Hart
                   contra
                
              
               
                 Nor
                 was
                 warning
                 before
                 Whitsonday
                 found
                 necessary
                 for
                 removing
                 a
                 tennent
                 from
                 a
                 Soap-work
                 ,
                 November
                 21.
                 1671.
                 
                 
                   James
                   Riddel
                   contra
                   Charles
                   Zinzan
                
                 .
              
               
                 41.
                 
                 We
                 come
                 now
                 to
                 the
                 Tit.
                 requisite
                 for
                 removing
                 ,
                 which
                 must
                 be
                 a
                 real
                 Right
                 of
                 the
                 ground
                 ,
                 except
                 the
                 question
                 be
                 against
                 a
                 party
                 who
                 is
                 personally
                 oblieged
                 to
                 remove
                 ;
                 And
                 therefore
                 ,
                 first
                 ,
                 there
                 needs
                 no
                 Title
                 against
                 such
                 parties
                 ,
                 who
                 had
                 the
                 possession
                 from
                 the
                 pursuer
                 ,
                 for
                 these
                 can
                 never
                 question
                 his
                 Title
                 ,
                 whose
                 interest
                 depends
                 thereupon
                 ,
                 but
                 acknowledging
                 him
                 by
                 payment
                 of
                 Mails
                 and
                 duties
                 ,
                 will
                 not
                 be
                 sufficient
                 without
                 a
                 Right
                 in
                 the
                 pursuer
                 .
              
               
                 Secondly
                 ,
                 a
                 personal
                 or
                 incompleat
                 right
                 is
                 a
                 sufficient
                 Title
                 for
                 removing
                 against
                 the
                 granter
                 of
                 it
                 ,
                 or
                 his
                 Heirs
                 ,
                 if
                 it
                 contain
                 a
                 Clause
                 to
                 remove
                 ,
                 or
                 put
                 the
                 pursuer
                 in
                 possession
                 ,
                 expresly
                 or
                 by
                 consequence
                 .
              
               
                 Thirdly
                 ,
                 Infeftment
                 of
                 property
                 or
                 Liferent
                 is
                 a
                 sufficient
                 Title
                 in
                 removing
                 ,
                 and
                 that
                 upon
                 production
                 of
                 the
                 Seasine
                 only
                 ;
                 where
                 the
                 Defender
                 shows
                 no
                 better
                 Right
                 ,
                 Nicol.
                 removing
                 ,
                 
                   Adam
                   Wat
                   contra
                   Ord
                
                 :
                 But
                 the
                 Seasine
                 must
                 be
                 both
                 before
                 the
                 warning
                 and
                 the
                 term
                 ,
                 except
                 first
                 in
                 the
                 case
                 of
                 Heirs
                 ,
                 this
                 being
                 a
                 possessory
                 judgement
                 ,
                 and
                 a
                 continuance
                 of
                 the
                 predecessors
                 possession
                 ;
                 so
                 that
                 the
                 Tennent
                 cannot
                 be
                 in
                 doubt
                 or
                 hazard
                 to
                 quite
                 the
                 possession
                 ,
                 
                 as
                 he
                 may
                 be
                 in
                 other
                 cases
                 ,
                 where
                 he
                 may
                 be
                 lyable
                 ,
                 both
                 for
                 the
                 rent
                 and
                 rendering
                 the
                 possession
                 to
                 another
                 party
                 ,
                 and
                 so
                 it
                 was
                 sustained
                 at
                 the
                 instance
                 of
                 an
                 Heir
                 ,
                 though
                 his
                 retour
                 and
                 Seasine
                 were
                 after
                 the
                 warning
                 ,
                 February
                 9.
                 1610.
                 
                 Earl
                 of
                 
                   Kingborn
                   contra
                   Arbuthnet
                
                 .
                 Hope
                 
                   hic
                   ,
                   John
                   Small
                   contra
                
                 Tennents
                 of
                 Baltersaw
                 ,
                 in
                 the
                 case
                 of
                 an
                 Apprizer
                 ,
                 whose
                 Appryzing
                 was
                 before
                 the
                 Warning
                 ,
                 it
                 was
                 found
                 valide
                 ,
                 though
                 the
                 Infeftment
                 was
                 after
                 ,
                 against
                 the
                 Debitor
                 from
                 whom
                 the
                 Lands
                 were
                 Apprized
                 ,
                 but
                 to
                 take
                 effect
                 at
                 Whitsonday
                 thereafter
                 ,
                 and
                 without
                 violent
                 Profites
                 ,
                 December
                 18.
                 1632.
                 
                 
                   Dalrimple
                   contra
                   Douglas
                
                 .
                 And
                 removing
                 was
                 sustained
                 at
                 the
                 instance
                 of
                 an
                 Heir
                 ,
                 Retoured
                 and
                 Infeft
                 ,
                 pursued
                 upon
                 a
                 warning
                 used
                 by
                 his
                 Predecessor
                 ,
                 though
                 his
                 Infeftment
                 was
                 after
                 the
                 Term
                 ,
                 July
                 28.
                 1637.
                 
                 Earl
                 of
                 
                   Hadingtoun
                   contra
                
                 his
                 Tennents
                 .
                 It
                 was
                 also
                 sustained
                 at
                 the
                 instance
                 of
                 a
                 Fiar
                 upon
                 a
                 Warning
                 made
                 by
                 a
                 Liferenter
                 and
                 Fiar
                 joyntly
                 ,
                 November
                 27.
                 1629.
                 
                 
                   Ramsay
                   contra
                   Hoom.
                
                 But
                 a
                 removing
                 was
                 not
                 sustained
                 upon
                 a
                 warning
                 made
                 by
                 the
                 Fiar
                 ,
                 before
                 the
                 Liferenters
                 death
                 ,
                 no
                 not
                 to
                 take
                 effect
                 at
                 the
                 next
                 Whitsonday
                 without
                 a
                 new
                 warning
                 ,
                 June
                 30.
                 1669.
                 
                 
                   Agnew
                   contra
                
                 Tennents
                 of
                 Dronlaw
                 .
              
               
                 Though
                 Infeftment
                 be
                 the
                 best
                 Title
                 for
                 removing
                 ,
                 yet
                 it
                 must
                 be
                 limited
                 ;
              
               
                 First
                 ,
                 It
                 takes
                 no
                 place
                 being
                 upon
                 Infeftment
                 ,
                 proceeding
                 upon
                 a
                 Precept
                 of
                 
                   Clare
                   constat
                   ,
                   Hope
                   hic
                   ,
                   Stevinson
                   contra
                   Stevinson
                
                 ;
                 and
                 that
                 in
                 respect
                 this
                 Precept
                 is
                 but
                 the
                 Assertion
                 of
                 the
                 granter
                 :
                 Yet
                 if
                 either
                 the
                 Predecessour
                 of
                 that
                 Heir
                 was
                 in
                 Possession
                 ,
                 or
                 the
                 Superiour
                 himself
                 ,
                 it
                 would
                 suffice
                 .
              
               
                 Secondly
                 ,
                 It
                 holds
                 not
                 in
                 base
                 Infeftments
                 ,
                 not
                 cled
                 with
                 Possession
                 ,
                 unless
                 the
                 Authors
                 Right
                 be
                 instructed
                 or
                 acknowledged
                 ,
                 if
                 the
                 Defender
                 have
                 any
                 Title
                 .
              
               
                 Thirdly
                 ,
                 A
                 Tercers
                 Service
                 and
                 Kenning
                 to
                 her
                 Terce
                 ,
                 is
                 a
                 sufficient
                 Title
                 in
                 removing
                 .
              
               
                 Fourthlie
                 ,
                 The
                 Courtesie
                 of
                 Scotland
                 is
                 a
                 good
                 Title
                 for
                 removing
                 after
                 a
                 Wifes
                 death
                 ,
                 without
                 any
                 Seasine
                 or
                 Solemnity
                 ,
                 or
                 the
                 Husbands
                 
                   jus
                   mariti
                
                 ,
                 before
                 her
                 death
                 ,
                 which
                 will
                 be
                 effectual
                 ,
                 though
                 she
                 die
                 before
                 Sentence
                 or
                 Process
                 ,
                 to
                 the
                 effect
                 ,
                 that
                 the
                 Husband
                 may
                 get
                 the
                 benefite
                 of
                 the
                 violent
                 profites
                 ,
                 for
                 the
                 time
                 preceeding
                 her
                 death
                 ,
                 though
                 he
                 cannot
                 attain
                 the
                 Possession
                 .
              
               
                 Fifthly
                 ,
                 An
                 Executor
                 may
                 insist
                 for
                 a
                 removing
                 upon
                 a
                 warning
                 used
                 by
                 the
                 Defunct
                 ,
                 to
                 the
                 effect
                 he
                 may
                 obtain
                 the
                 violent
                 profites
                 ,
                 due
                 before
                 the
                 Defuncts
                 death
                 .
              
               
                 Sixthly
                 ,
                 a
                 tack
                 is
                 a
                 sufficient
                 Title
                 for
                 removing
                 ,
                 if
                 it
                 contain
                 expressely
                 the
                 power
                 to
                 out-put
                 and
                 in-put
                 Tennents
                 ,
                 or
                 if
                 it
                 be
                 a
                 Liferent-tack
                 ,
                 or
                 for
                 nineteen
                 years
                 or
                 above
                 ,
                 as
                 hath
                 been
                 now
                 shown
                 amongst
                 the
                 effects
                 of
                 Tacks
                 ;
                 but
                 this
                 must
                 proceed
                 either
                 upon
                 the
                 setters
                 Right
                 or
                 a
                 Possessory
                 judgement
                 in
                 the
                 setter
                 or
                 Tacks-man
                 .
              
               
               
                 Removing
                 is
                 not
                 sustainable
                 upon
                 an
                 incompleat
                 right
                 ,
                 as
                 upon
                 an
                 Appryzing
                 ,
                 though
                 the
                 Superiour
                 be
                 charged
                 ,
                 and
                 the
                 Letters
                 have
                 been
                 found
                 orderly
                 proceeded
                 against
                 him
                 ,
                 to
                 infeft
                 the
                 Apprizer
                 ;
                 and
                 the
                 objection
                 only
                 proponed
                 by
                 Tennents
                 ,
                 pretending
                 no
                 right
                 ,
                 March
                 25.
                 1628.
                 
                 
                   Bar
                   Lockhart
                   contra
                
                 his
                 Tennents
                 .
                 Yea
                 ,
                 though
                 the
                 removing
                 was
                 against
                 the
                 Debitor
                 himself
                 ,
                 February
                 20.
                 1629.
                 
                 Mr.
                 
                   John
                   Galloway
                   contra
                   〈◊〉
                
                 .
                 Though
                 it
                 hath
                 been
                 now
                 shown
                 that
                 an
                 Appryzer
                 being
                 Infeft
                 ,
                 obtained
                 removing
                 from
                 an
                 House
                 ,
                 against
                 his
                 Debitor
                 without
                 warning
                 .
                 The
                 like
                 holds
                 in
                 Adjudications
                 ,
                 and
                 in
                 the
                 case
                 of
                 the
                 Superiours
                 pursuing
                 upon
                 the
                 Vassals
                 Liferent-escheat
                 ,
                 it
                 not
                 being
                 declared
                 ,
                 
                   Hope
                   hic
                   ,
                   Patrick
                   Butter
                   contra
                   Andrew
                   Harvie
                   .
                
                 And
                 so
                 consequently
                 in
                 all
                 other
                 rights
                 of
                 Superiority
                 ,
                 where
                 Declarator
                 is
                 required
                 ;
                 and
                 though
                 the
                 Superiour
                 needs
                 show
                 no
                 Title
                 ,
                 unless
                 the
                 Vassal
                 disclaim
                 him
                 ;
                 yet
                 his
                 Donatar
                 pursuing
                 upon
                 a
                 Liferent-escheat
                 ,
                 was
                 not
                 admitted
                 till
                 the
                 Superiours
                 Seasine
                 was
                 produced
                 ,
                 
                   Hope
                   hic
                   ,
                   David
                   M'call
                   contra
                
                 Tennents
                 :
                 And
                 it
                 is
                 so
                 in
                 all
                 cases
                 wherein
                 the
                 Superiour
                 or
                 the
                 Vassal
                 are
                 singular
                 successors
                 ,
                 and
                 so
                 have
                 ground
                 to
                 doubt
                 ,
                 and
                 cannot
                 be
                 put
                 to
                 disclaim
                 .
              
               
                 42.
                 
                 We
                 come
                 now
                 to
                 the
                 Exceptions
                 against
                 removing
                 ,
                 to
                 speak
                 nothing
                 here
                 of
                 common
                 Exceptions
                 ,
                 or
                 of
                 thr
                 pursuers
                 want
                 of
                 a
                 sufficient
                 Title
                 ,
                 which
                 are
                 rather
                 objections
                 then
                 exceptions
                 ,
                 and
                 are
                 sufficiently
                 cleared
                 by
                 what
                 we
                 have
                 said
                 upon
                 the
                 Titles
                 of
                 Removing
                 .
                 It
                 must
                 be
                 adverted
                 ,
                 that
                 before
                 the
                 Defender
                 can
                 have
                 any
                 exception
                 admitted
                 to
                 his
                 probation
                 ,
                 he
                 must
                 find
                 Caution
                 for
                 the
                 violent
                 profites
                 ,
                 if
                 he
                 succumb
                 :
                 And
                 that
                 by
                 the
                 said
                 Statute
                 ,
                 1555.
                 
                 Cap.
                 39.
                 justly
                 introduced
                 in
                 respect
                 of
                 the
                 contentiousness
                 of
                 parties
                 to
                 keep
                 possession
                 ;
                 yet
                 this
                 will
                 not
                 hinder
                 objections
                 against
                 the
                 Titles
                 or
                 the
                 like
                 ,
                 being
                 instantly
                 verified
                 and
                 not
                 making
                 delay
                 ,
                 that
                 being
                 the
                 motive
                 of
                 that
                 Act
                 to
                 prevent
                 delays
                 .
              
               
                 43.
                 
                 These
                 exceptions
                 ,
                 though
                 they
                 be
                 many
                 ,
                 may
                 be
                 thus
                 Martialled
                 ;
                 they
                 are
                 first
                 against
                 the
                 order
                 and
                 warning
                 .
                 Secondly
                 ,
                 Upon
                 deeds
                 done
                 by
                 the
                 Pursuer
                 .
                 Thirdly
                 ,
                 Upon
                 the
                 interest
                 of
                 the
                 Defenders
                 Master
                 .
                 Fourthly
                 ,
                 Upon
                 the
                 Defenders
                 own
                 interest
                 .
                 Fifthly
                 ,
                 Upon
                 obedience
                 .
              
               
                 For
                 the
                 first
                 ,
                 every
                 point
                 of
                 the
                 warning
                 now
                 related
                 ,
                 is
                 so
                 necessary
                 that
                 the
                 omitting
                 of
                 any
                 one
                 affoordeth
                 a
                 sufficient
                 defence
                 ;
                 yer
                 a
                 warning
                 was
                 not
                 found
                 null
                 ,
                 though
                 made
                 at
                 a
                 Kirk-door
                 ,
                 where
                 there
                 were
                 no
                 divine
                 service
                 accustomed
                 ,
                 being
                 in
                 the
                 time
                 that
                 divine
                 service
                 used
                 to
                 be
                 performed
                 ,
                 and
                 the
                 Kirk
                 being
                 known
                 a
                 distinct
                 Kirk
                 ,
                 
                   Nicolson
                   hic
                   ,
                   Hoom
                   contra
                
              
               
                 Removing
                 may
                 be
                 excluded
                 by
                 deeds
                 done
                 by
                 the
                 pursuer
                 ,
                 either
                 by
                 any
                 personal
                 obliegement
                 not
                 to
                 remove
                 ,
                 or
                 any
                 deed
                 importing
                 the
                 same
                 ,
                 as
                 a
                 Disposition
                 or
                 Obliegement
                 to
                 Infeft
                 ,
                 which
                 are
                 sufficient
                 against
                 him
                 ,
                 but
                 not
                 against
                 his
                 singular
                 Successors
                 ;
                 or
                 if
                 he
                 renunce
                 or
                 pass
                 from
                 the
                 warning
                 or
                 action
                 ,
                 either
                 directly
                 or
                 by
                 deeds
                 importing
                 the
                 same
                 ,
                 as
                 taking
                 Rents
                 before
                 the
                 hand
                 ,
                 or
                 taking
                 a
                 Herezeld
                 as
                 to
                 the
                 year
                 ensuing
                 ,
                 March
                 20.
                 1629.
                 
                 
                   Auchinleck
                   contra
                   Mathie
                
                 :
                 Or
                 by
                 accepting
                 the
                 old
                 accustomed
                 Mails
                 for
                 Terms
                 after
                 the
                 warning
                 ,
                 
                   Nicolson
                   de
                   migrando
                
                 ,
                 Irving
                 contra
                 French
                 ,
                 
                   Hope
                   hic
                   ,
                   Carnousie
                   contra
                
                 Or
                 by
                 receipt
                 of
                 Taxation
                 for
                 Terms
                 since
                 the
                 Decreet
                 of
                 removing
                 ,
                 ibid.
                 Or
                 by
                 accepting
                 services
                 contained
                 in
                 the
                 Tack
                 ,
                 for
                 the
                 Terms
                 after
                 the
                 warning
                 ;
                 but
                 this
                 is
                 
                 not
                 relevant
                 ,
                 if
                 the
                 same
                 be
                 at
                 the
                 command
                 of
                 the
                 pursuers
                 Factor
                 or
                 Grieve
                 ,
                 without
                 special
                 order
                 ,
                 March
                 5.
                 1629.
                 
                 Laird
                 of
                 Lie
                 younger
                 
                   contra
                   Kirkwood
                
                 .
                 Neither
                 by
                 accepting
                 presents
                 ,
                 though
                 accustomed
                 ,
                 not
                 being
                 special
                 in
                 the
                 Tack
                 ,
                 these
                 being
                 interpret
                 gratuitous
                 ,
                 as
                 before
                 is
                 shown
                 .
              
               
                 Removing
                 is
                 also
                 elided
                 by
                 prescription
                 ,
                 upon
                 three
                 years
                 forbearance
                 to
                 pursue
                 ;
                 And
                 that
                 by
                 the
                 Statute
                 ,
                 1579.
                 cap.
                 82.
                 for
                 thereby
                 the
                 pursuer
                 is
                 presumed
                 to
                 pass
                 from
                 his
                 warning
                 ;
                 but
                 these
                 three
                 years
                 are
                 not
                 accounted
                 ,
                 
                   anni
                   continui
                
                 ,
                 but
                 
                   anni
                   utiles
                
                 :
                 from
                 the
                 warning
                 without
                 accounting
                 the
                 time
                 betwixt
                 the
                 warning
                 and
                 Term
                 ,
                 but
                 from
                 the
                 Term
                 ,
                 to
                 which
                 the
                 warning
                 was
                 made
                 ;
                 because
                 none
                 can
                 be
                 said
                 to
                 delay
                 to
                 pursue
                 ,
                 before
                 he
                 be
                 necessitate
                 to
                 pursue
                 ,
                 which
                 is
                 not
                 till
                 after
                 the
                 Term
                 ,
                 it
                 was
                 so
                 decided
                 February
                 6.
                 1629.
                 
                 Lady
                 
                   Borthwick
                   contra
                   Scot
                
                 of
                 Goldilands
                 .
                 But
                 removing
                 may
                 be
                 sustained
                 before
                 the
                 Term
                 ,
                 that
                 it
                 may
                 take
                 effect
                 precisely
                 at
                 the
                 Term
                 :
                 Otherways
                 many
                 Tennents
                 may
                 be
                 disappointed
                 ,
                 who
                 take
                 upon
                 the
                 warning
                 of
                 other
                 Tennents
                 ,
                 their
                 Rooms
                 ,
                 and
                 renunce
                 their
                 own
                 ,
                 or
                 are
                 warned
                 therefrom
                 ;
                 and
                 so
                 removing
                 was
                 sustained
                 before
                 the
                 Term
                 ,
                 to
                 take
                 effect
                 then
                 ,
                 November
                 21.
                 1671.
                 
                 
                   James
                   Riddel
                   contra
                   Charles
                   Zinsan
                
                 .
                 But
                 the
                 process
                 being
                 once
                 intended
                 ,
                 it
                 continues
                 till
                 the
                 great
                 prescription
                 of
                 fourty
                 years
                 ,
                 except
                 such
                 as
                 are
                 not
                 wakened
                 every
                 five
                 years
                 ,
                 for
                 such
                 prescrive
                 in
                 ten
                 years
                 by
                 the
                 Act
                 9.
                 
                 Par.
                 1669.
                 
              
               
                 The
                 exceptions
                 of
                 removing
                 at
                 the
                 instance
                 of
                 the
                 Master
                 of
                 the
                 ground
                 ,
                 are
                 very
                 frequent
                 and
                 various
                 ;
                 for
                 it
                 is
                 ordinarly
                 proponed
                 and
                 sustained
                 ,
                 that
                 the
                 Defenders
                 are
                 Tennents
                 by
                 payment
                 of
                 Mail
                 and
                 Duty
                 to
                 a
                 third
                 party
                 ,
                 who
                 is
                 not
                 warned
                 nor
                 called
                 ;
                 neither
                 are
                 they
                 put
                 to
                 dispute
                 their
                 Masters
                 Right
                 to
                 be
                 valide
                 ,
                 which
                 holdeth
                 ,
                 whether
                 his
                 Right
                 be
                 an
                 Infeftment
                 ,
                 Liferent-right
                 or
                 Tack
                 ;
                 and
                 though
                 the
                 Tennent
                 hath
                 been
                 put
                 to
                 condescend
                 what
                 the
                 Right
                 is
                 ,
                 and
                 that
                 in
                 specie
                 ,
                 it
                 is
                 a
                 valide
                 Right
                 ,
                 though
                 he
                 needs
                 not
                 dispute
                 the
                 particular
                 defects
                 of
                 it
                 ,
                 nor
                 the
                 competition
                 of
                 it
                 with
                 any
                 other
                 Right
                 :
                 That
                 hath
                 been
                 done
                 ,
                 that
                 the
                 pursuer
                 might
                 know
                 how
                 to
                 quarrel
                 their
                 Masters
                 Right
                 ;
                 but
                 I
                 have
                 never
                 observed
                 that
                 Litiscontestation
                 has
                 been
                 made
                 ,
                 or
                 a
                 Term
                 assigned
                 to
                 Tennents
                 ,
                 to
                 instruct
                 their
                 Masters
                 Right
                 ;
                 therefore
                 this
                 defence
                 is
                 but
                 dilatory
                 ,
                 and
                 should
                 not
                 be
                 sustained
                 ,
                 unless
                 instantly
                 verified
                 by
                 Tacks
                 or
                 Discharges
                 from
                 the
                 alledged
                 Master
                 ,
                 which
                 would
                 be
                 repelled
                 ,
                 if
                 the
                 Tennents
                 have
                 interverted
                 the
                 pursuer
                 or
                 his
                 authors
                 Possession
                 ;
                 or
                 if
                 the
                 pursuer
                 were
                 singular
                 Successor
                 ,
                 not
                 presumed
                 to
                 know
                 any
                 interest
                 but
                 of
                 the
                 Possessors
                 ,
                 if
                 the
                 Tennent
                 ,
                 produce
                 his
                 Masters
                 Seasine
                 ,
                 with
                 his
                 Tack
                 or
                 Discharge
                 ,
                 it
                 would
                 instruct
                 this
                 Dilator
                 ,
                 which
                 is
                 sufficient
                 upon
                 the
                 not
                 calling
                 the
                 Tennents
                 Master
                 ,
                 for
                 his
                 not
                 being
                 warned
                 is
                 proper
                 for
                 himself
                 to
                 alledge
                 ,
                 and
                 the
                 partie
                 will
                 in
                 the
                 same
                 Process
                 get
                 warrand
                 to
                 cite
                 that
                 Master
                 ,
                 who
                 must
                 defend
                 himself
                 upon
                 his
                 own
                 Rights
                 ;
                 and
                 therefore
                 ,
                 this
                 defence
                 was
                 sustained
                 to
                 Tennents
                 ,
                 though
                 they
                 condescended
                 upon
                 no
                 other
                 Right
                 to
                 their
                 Master
                 ,
                 but
                 tacite
                 Relocation
                 ,
                 December
                 2.
                 1628.
                 
                 Mr.
                 
                   Walter
                   Whitefoord
                   contra
                
                 Laird
                 Johnstoun
                 .
                 It
                 hath
                 also
                 been
                 sometimes
                 sustained
                 ,
                 that
                 the
                 defenders
                 were
                 Tennents
                 by
                 payment
                 of
                 mail
                 and
                 duty
                 to
                 an
                 Appryzer
                 ,
                 though
                 not
                 Infeft
                 ,
                 
                   Hope
                   hic
                   ,
                   Crawfoord
                   contra
                   Brown.
                   
                
              
               
                 This
                 exception
                 is
                 also
                 elided
                 by
                 this
                 reply
                 ,
                 that
                 the
                 defenders
                 had
                 acknowledged
                 the
                 pursuer
                 by
                 payment
                 of
                 Mail
                 and
                 Duty
                 ,
                 
                   Nicol
                   hic
                
                 ,
                 Lady
                 
                   Evandale
                   contra
                
                 her
                 Tennents
                 .
                 It
                 is
                 also
                 elided
                 by
                 alledging
                 that
                 the
                 defenders
                 Masters
                 Right
                 was
                 reduced
                 at
                 the
                 pursuers
                 instance
                 ,
                 December
                 12.
                 1622.
                 
                 
                   Spading
                   contra
                   
                   Fleming
                
                 .
                 The
                 like
                 where
                 his
                 right
                 was
                 reduced
                 at
                 the
                 instance
                 of
                 the
                 pursuers
                 author
                 ,
                 
                   Spots
                   .
                   hic
                   ,
                   Maxwel
                   contra
                
                 Tennents
                 of
                 Glassock
                 .
                 Earl
                 of
                 
                   Nithisdale
                   contra
                
                 his
                 Tennents
                 .
              
               
                 The
                 exceptions
                 against
                 removing
                 upon
                 the
                 defenders
                 own
                 right
                 ;
                 are
                 either
                 in
                 respect
                 of
                 his
                 right
                 to
                 the
                 Land
                 in
                 question
                 ,
                 or
                 to
                 the
                 other
                 Lands
                 brooked
                 by
                 him
                 ,
                 
                   pro
                   indiviso
                
                 ,
                 with
                 it
                 ;
                 For
                 the
                 first
                 ,
                 there
                 are
                 as
                 many
                 such
                 defences
                 as
                 there
                 are
                 rights
                 competent
                 for
                 defending
                 possession
                 ;
                 and
                 they
                 are
                 either
                 founded
                 upon
                 the
                 benefite
                 of
                 a
                 possessory
                 judgement
                 ,
                 which
                 how
                 conpetent
                 may
                 be
                 seen
                 at
                 large
                 ,
                 
                   Title
                   Infeftment
                
                 ,
                 13.
                 
                 §
                 .
                 82.
                 which
                 needs
                 not
                 to
                 be
                 repeated
                 ;
                 Or
                 if
                 that
                 be
                 not
                 competent
                 ,
                 the
                 defender
                 must
                 found
                 himself
                 upon
                 the
                 point
                 of
                 right
                 which
                 ordinarly
                 infers
                 a
                 competition
                 of
                 rights
                 ;
                 But
                 in
                 either
                 case
                 the
                 defence
                 will
                 not
                 be
                 sustained
                 upon
                 any
                 right
                 ,
                 if
                 the
                 possession
                 was
                 not
                 attained
                 there
                 upon
                 ,
                 bat
                 upon
                 the
                 pursuers
                 right
                 ;
                 which
                 Possession
                 must
                 be
                 restored
                 ,
                 and
                 the
                 defender
                 left
                 to
                 his
                 action
                 ,
                 upon
                 the
                 others
                 right
                 ,
                 as
                 accords
                 ,
                 as
                 if
                 after
                 redemption
                 of
                 a
                 temporary
                 right
                 ,
                 whereby
                 the
                 defender
                 entered
                 in
                 Possession
                 ,
                 he
                 should
                 defend
                 upon
                 another
                 right
                 which
                 will
                 not
                 be
                 sustained
                 in
                 this
                 possessory
                 judgdement
                 ,
                 against
                 him
                 or
                 his
                 Successor
                 ,
                 from
                 whom
                 he
                 had
                 the
                 Possession
                 ,
                 November
                 22.
                 1677.
                 
                 Sir
                 
                   Archibald
                   Stuart
                
                 of
                 
                   Castlemilk
                   contra
                
                 Duke
                 of
                 Hamiltoun
                 .
              
               
                 The
                 exception
                 
                   pro
                   indiviso
                
                 ,
                 is
                 very
                 pregnant
                 ,
                 and
                 taketh
                 not
                 only
                 place
                 in
                 solemn
                 removings
                 ,
                 but
                 in
                 the
                 Action
                 to
                 find
                 Caution
                 for
                 Mails
                 and
                 Duties
                 ,
                 or
                 to
                 remove
                 ,
                 though
                 the
                 Excipient
                 had
                 taken
                 Tacks
                 from
                 the
                 Pursuer
                 ,
                 December
                 6.
                 1623.
                 
                 〈…〉
                 
                   contra
                   Carmichael
                
                 .
                 Yet
                 it
                 was
                 not
                 found
                 relevant
                 ,
                 to
                 stop
                 removing
                 from
                 the
                 pursuers
                 part
                 of
                 a
                 Coal-heugh
                 in
                 Lands
                 undevided
                 ,
                 because
                 the
                 Coals
                 are
                 divisible
                 by
                 measure
                 as
                 they
                 are
                 raised
                 out
                 of
                 the
                 Coal-pot
                 ,
                 Spots
                 .
                 removing
                 ,
                 
                   Hugh
                   Somervel
                   contra
                   Dickson
                
                 .
                 Neither
                 was
                 it
                 found
                 sufficient
                 to
                 maintain
                 a
                 Relict
                 in
                 possession
                 of
                 a
                 House
                 ,
                 which
                 could
                 not
                 be
                 divided
                 ,
                 whereof
                 she
                 had
                 a
                 third
                 part
                 ,
                 and
                 possest
                 the
                 other
                 two
                 thir●s
                 ,
                 
                   pro
                   indiviso
                
                 ;
                 but
                 the
                 Fiar
                 having
                 the
                 two
                 thirds
                 ,
                 was
                 to
                 be
                 preferred
                 to
                 the
                 Po●●ession
                 ,
                 paying
                 her
                 the
                 third
                 of
                 the
                 Mail
                 ,
                 upon
                 condition
                 that
                 if
                 he
                 se●
                 the
                 Tenement
                 ,
                 she
                 should
                 be
                 preferred
                 ,
                 giving
                 as
                 much
                 Mail
                 as
                 another
                 ,
                 January
                 26.
                 1665.
                 
                 
                   Legan
                   contra
                   Galbraith
                
                 .
              
               
                 The
                 last
                 exception
                 against
                 removing
                 is
                 ,
                 obedience
                 by
                 voluntary
                 removing
                 ,
                 conform
                 to
                 the
                 warning
                 ,
                 and
                 leaving
                 the
                 Land
                 void
                 and
                 red
                 at
                 the
                 Term
                 ,
                 without
                 necessity
                 of
                 a
                 renunciation
                 in
                 write
                 ,
                 March
                 2.
                 1637.
                 
                 
                   Keith
                   contra
                   Simpson
                
                 .
                 The
                 like
                 ,
                 the
                 defender
                 finding
                 Caution
                 to
                 desist
                 from
                 the
                 Possession
                 ,
                 
                   Nicol.
                   de
                   migrando
                   ,
                   Wallace
                   contra
                   Mitchel
                   .
                
                 But
                 the
                 alledgeance
                 of
                 obedience
                 was
                 not
                 found
                 relevant
                 upon
                 an
                 exception
                 ,
                 bearing
                 ,
                 
                   that
                   the
                   Land
                   was
                   left
                   void
                   and
                   red
                   at
                   the
                   Term
                   ,
                
                 seing
                 that
                 it
                 bore
                 not
                 ,
                 
                   that
                   the
                   Possession
                   was
                   offered
                   to
                   the
                   Charger
                
                 ;
                 in
                 respect
                 that
                 at
                 the
                 time
                 of
                 his
                 removing
                 ,
                 another
                 party
                 entered
                 in
                 his
                 Vice
                 ,
                 
                   January
                   penult
                
                 1624.
                 
                 
                   Greenlaw
                   contra
                   Adamson
                
                 .
                 But
                 the
                 obedience
                 must
                 be
                 full
                 ,
                 according
                 to
                 the
                 warning
                 by
                 the
                 defenders
                 removing
                 himself
                 ,
                 his
                 Family
                 ,
                 Sub-tennents
                 and
                 Cottars
                 ,
                 Goods
                 and
                 Gear
                 ;
                 So
                 that
                 the
                 pursuer
                 may
                 enter
                 in
                 Possession
                 ;
                 and
                 therefore
                 ,
                 Decreet
                 would
                 be
                 obtained
                 against
                 the
                 principal
                 Tacks-man
                 ,
                 and
                 the
                 Letters
                 still
                 put
                 to
                 execution
                 against
                 him
                 ,
                 till
                 all
                 these
                 be
                 removed
                 ;
                 and
                 if
                 the
                 pursuer
                 please
                 ,
                 he
                 may
                 pursue
                 them
                 to
                 remove
                 ,
                 without
                 other
                 warning
                 then
                 what
                 was
                 made
                 to
                 the
                 principal
                 Tacks-man
                 ;
                 So
                 it
                 was
                 sustained
                 against
                 a
                 Son
                 upon
                 a
                 warning
                 against
                 his
                 Father
                 ,
                 even
                 after
                 his
                 Fathers
                 death
                 ,
                 January
                 26.
                 1630.
                 
                 
                   Hoom
                   contra
                   Hoom.
                
                 
              
               
               
                 As
                 to
                 the
                 last
                 point
                 concerning
                 the
                 effects
                 of
                 Decreets
                 of
                 Removing
                 ,
                 it
                 is
                 not
                 only
                 the
                 attaining
                 Possession
                 of
                 the
                 Land
                 it self
                 ,
                 but
                 sometimes
                 also
                 the
                 Corns
                 growing
                 thereupon
                 ,
                 as
                 being
                 a
                 part
                 thereof
                 ,
                 being
                 a
                 Possession
                 violent
                 ,
                 Hope
                 Spuilzie
                 ,
                 
                   John
                   Elliot
                   contra
                
                 Lord
                 Balcleugh
                 .
                 Yea
                 ,
                 of
                 the
                 Hay
                 of
                 that
                 Cropt
                 ,
                 though
                 separate
                 and
                 Stacked
                 by
                 the
                 person
                 removed
                 ,
                 Hope
                 Spuilzie
                 ,
                 Sir
                 
                   James
                   Balmuire
                   contra
                   Williamson
                
                 .
                 But
                 the
                 main
                 effect
                 is
                 ,
                 the
                 obtaining
                 the
                 violent
                 profites
                 of
                 the
                 Land
                 ,
                 until
                 the
                 possessors
                 obedience
                 ,
                 and
                 that
                 both
                 against
                 these
                 who
                 are
                 warned
                 ,
                 and
                 against
                 these
                 who
                 succeed
                 in
                 the
                 vice
                 of
                 warned
                 or
                 removed
                 Tennents
                 .
              
               
                 44.
                 
                 Violent
                 profites
                 are
                 so
                 called
                 ,
                 because
                 they
                 are
                 such
                 profites
                 as
                 are
                 due
                 by
                 ,
                 and
                 for
                 violent
                 Possessioa
                 ,
                 whatsoever
                 way
                 it
                 be
                 ,
                 by
                 warning
                 and
                 removing
                 ,
                 ejection
                 ,
                 intrusion
                 ,
                 or
                 succeeding
                 in
                 the
                 Vice
                 ,
                 and
                 they
                 are
                 opposite
                 to
                 ordinary
                 profites
                 ,
                 which
                 were
                 due
                 by
                 tacit
                 Relocation
                 ,
                 or
                 were
                 formerly
                 accustomed
                 to
                 be
                 payed
                 .
                 Violent
                 profites
                 are
                 pursued
                 for
                 by
                 a
                 several
                 Action
                 ,
                 after
                 the
                 Decreet
                 of
                 removing
                 is
                 obtained
                 :
                 Wherein
                 the
                 Decreet
                 of
                 removing
                 is
                 both
                 a
                 sufficient
                 Title
                 ,
                 and
                 probation
                 of
                 the
                 violent
                 Possession
                 ,
                 against
                 the
                 parties
                 removed
                 therein
                 ,
                 and
                 their
                 Possession
                 needs
                 not
                 again
                 be
                 proven
                 ,
                 and
                 their
                 defences
                 hindering
                 the
                 pursuer
                 to
                 obtain
                 Possession
                 ,
                 would
                 not
                 be
                 sufficient
                 ,
                 unless
                 they
                 offer
                 to
                 prove
                 the
                 pursuer
                 himself
                 was
                 in
                 Possession
                 ,
                 or
                 others
                 by
                 his
                 warrand
                 ,
                 June
                 19.
                 1610.
                 
                 
                   Hector
                   Monroe
                   contra
                
                 Laird
                 of
                 Balnagoun
                 .
                 Neither
                 will
                 any
                 other
                 thing
                 but
                 real
                 obedience
                 ,
                 by
                 giving
                 ,
                 or
                 at
                 least
                 offering
                 the
                 void
                 Possession
                 ,
                 take
                 them
                 away
                 though
                 the
                 Land
                 lye
                 waste
                 .
              
               
                 But
                 violent
                 profites
                 were
                 also
                 found
                 competent
                 against
                 these
                 who
                 were
                 not
                 warned
                 ,
                 against
                 whom
                 Decreet
                 of
                 removing
                 was
                 not
                 obtained
                 ,
                 to
                 wit
                 ,
                 against
                 any
                 who
                 suspended
                 the
                 Decreet
                 ,
                 and
                 thereby
                 hindered
                 the
                 defenders
                 attaining
                 Possession
                 ,
                 Hope
                 Mails
                 and
                 Duties
                 ,
                 Ker
                 of
                 
                   Fairnieherst
                   contra
                   Turnbul
                
                 .
                 Yea
                 ,
                 a
                 party
                 obtaining
                 Possession
                 by
                 a
                 Decreet
                 of
                 removing
                 ,
                 after
                 Litiscontestation
                 ,
                 in
                 the
                 reduction
                 of
                 the
                 Decreet
                 ,
                 was
                 found
                 a
                 violent
                 Possessor
                 ,
                 and
                 lyable
                 to
                 violent
                 profites
                 himself
                 ,
                 Hope
                 Possession
                 ,
                 Gordon
                 of
                 
                   Abergeldie
                   contra
                
                 Lord
                 Forbes
                 .
              
               
                 As
                 to
                 the
                 quantity
                 of
                 violent
                 profites
                 by
                 the
                 custom
                 of
                 Burgh
                 ,
                 it
                 is
                 double
                 Mail
                 of
                 the
                 Tenements
                 within
                 Burgh
                 ,
                 Hope
                 Mails
                 and
                 Duties
                 ,
                 
                   Christian
                   Buchan
                   contra
                   Marion
                   Seaton
                
                 .
                 But
                 in
                 Lands
                 ,
                 it
                 is
                 the
                 greatest
                 profites
                 that
                 the
                 pursuer
                 can
                 prove
                 he
                 could
                 have
                 made
                 .
                 And
                 though
                 in
                 cases
                 of
                 violence
                 ,
                 the
                 quantities
                 and
                 prices
                 are
                 ordinarly
                 probable
                 by
                 the
                 pursuers
                 oath
                 ,
                 
                   juramento
                   in
                   litem
                
                 ,
                 because
                 he
                 ought
                 to
                 have
                 ,
                 not
                 the
                 ordinary
                 price
                 ,
                 but
                 
                   praetium
                   affectionis
                
                 ,
                 as
                 that
                 which
                 themselves
                 accounted
                 to
                 be
                 their
                 loss
                 ;
                 yet
                 here
                 probation
                 must
                 be
                 used
                 ;
                 But
                 if
                 it
                 be
                 not
                 full
                 ,
                 the
                 pursuers
                 oath
                 may
                 be
                 taken
                 .
                 Violent
                 profites
                 are
                 also
                 sustained
                 against
                 all
                 Defenders
                 
                   in
                   solidum
                
                 ,
                 as
                 in
                 Spuilzie
                 ;
                 but
                 when
                 diverse
                 compeared
                 and
                 proponed
                 partial
                 objections
                 against
                 removings
                 and
                 succumbed
                 ,
                 they
                 were
                 found
                 lyable
                 for
                 the
                 violent
                 profites
                 of
                 the
                 Lands
                 ,
                 in
                 the
                 exceptions
                 severally
                 ,
                 Hope
                 Mails
                 and
                 Duties
                 ,
                 
                   William
                   Wallace
                   contra
                   Alexander
                   Blair
                
                 .
                 Otherways
                 partial
                 exceptions
                 are
                 not
                 here
                 competent
                 ,
                 Hope
                 exceptions
                 ,
                 Laird
                 of
                 
                   Balnagoun
                   contra
                   Hector
                   Monro
                
                 .
                 Neither
                 will
                 any
                 exception
                 be
                 admitted
                 ,
                 which
                 was
                 competent
                 and
                 proper
                 in
                 the
                 Decreet
                 of
                 removing
                 ,
                 relative
                 to
                 Right
                 or
                 Possession
                 .
                 But
                 Suspension
                 or
                 Reduction
                 ought
                 to
                 be
                 intented
                 thereupon
                 .
                 The
                 like
                 as
                 to
                 violent
                 profites
                 against
                 successors
                 in
                 the
                 Vice
                 ,
                 March
                 22.
                 1623.
                 
                 Laird
                 of
                 Hunthil
                 contra
                 Rutherfoord
                 .
              
               
               
               
               
                 55.
                 
                 Succeeding
                 in
                 the
                 vice
                 is
                 a
                 kind
                 of
                 intrusion
                 ,
                 whereby
                 after
                 warning
                 any
                 person
                 comes
                 in
                 possession
                 ,
                 by
                 consent
                 of
                 the
                 parties
                 warned
                 :
                 Or
                 otherways
                 ,
                 against
                 such
                 there
                 needs
                 no
                 warning
                 but
                 a
                 summar
                 Process
                 ,
                 as
                 in
                 other
                 intrusions
                 ,
                 having
                 the
                 same
                 probation
                 ,
                 for
                 in
                 both
                 ,
                 the
                 possession
                 must
                 be
                 proven
                 ,
                 which
                 with
                 the
                 warning
                 is
                 sufficient
                 ,
                 but
                 can
                 have
                 no
                 effect
                 till
                 Decreet
                 of
                 removing
                 be
                 obtained
                 against
                 the
                 Tennent
                 warned
                 .
              
               
                 Though
                 Violent
                 profites
                 be
                 the
                 ordinary
                 effect
                 ,
                 both
                 in
                 removing
                 and
                 succeeding
                 in
                 the
                 Vice
                 ;
                 These
                 will
                 proceed
                 as
                 to
                 attaining
                 possession
                 ,
                 and
                 no
                 violent
                 profites
                 be
                 obtained
                 ,
                 when
                 there
                 is
                 any
                 colourable
                 Title
                 which
                 might
                 have
                 made
                 the
                 warned
                 partie
                 ,
                 reasonably
                 doubt
                 of
                 the
                 pursuers
                 interest
                 ,
                 or
                 of
                 his
                 own
                 Right
                 ,
                 Hope
                 removing
                 ,
                 
                   Walter
                   Ord
                   contra
                
                 Tennents
                 .
                 But
                 this
                 useth
                 ordinarly
                 to
                 be
                 so
                 provided
                 in
                 the
                 Decreet
                 of
                 removing
                 ,
                 and
                 will
                 be
                 hardlie
                 sustained
                 thereafter
                 ,
                 by
                 recanvassing
                 the
                 defences
                 competent
                 in
                 the
                 removing
                 ;
                 that
                 it
                 may
                 appear
                 whether
                 there
                 were
                 a
                 probable
                 ground
                 in
                 them
                 or
                 not
                 ,
                 at
                 least
                 the
                 defender
                 would
                 protest
                 for
                 the
                 reservation
                 ,
                 as
                 to
                 the
                 violent
                 profites
                 ;
                 for
                 if
                 this
                 were
                 again
                 sustained
                 ,
                 it
                 would
                 bring
                 over-head
                 all
                 the
                 many
                 intricat
                 defences
                 competent
                 in
                 removings
                 ;
                 of
                 which
                 formerly
                 .
                 And
                 therefore
                 in
                 the
                 removing
                 pursued
                 by
                 the
                 Earl
                 of
                 
                   Argile
                   contra
                   Mcnaughtoun
                
                 ;
                 the
                 Lords
                 repelled
                 the
                 defences
                 ,
                 but
                 declared
                 that
                 they
                 would
                 have
                 consideration
                 thereof
                 ,
                 as
                 having
                 probable
                 ground
                 to
                 debate
                 ,
                 and
                 would
                 modifie
                 the
                 excrescence
                 of
                 the
                 violent
                 profites
                 over
                 and
                 above
                 the
                 ordinary
                 profites
                 .
              
            
             
               
               
                 TITLE
                 XX.
                 WODSETS
                 ,
                 Where
                 ,
                 of
                 Reversion
                 ,
                 Regress
                 and
                 Redemption
                 .
              
               
                 
                   1.
                   
                   Infeftments
                   for
                   satisfaction
                   of
                   sums
                   Principal
                   and
                   Annual
                   ,
                   or
                   for
                   relief
                   ,
                   are
                   proper
                   Feudal
                   Impignorations
                   ,
                   consisting
                   with
                   the
                   Disponers
                   property
                   .
                
                 
                   2.
                   
                   The
                   Nature
                   of
                   Wodsetts
                   .
                
                 
                   3.
                   
                   The
                   Nature
                   of
                   Reversions
                   .
                
                 
                   4.
                   
                   Kinds
                   of
                   Reversions
                   .
                
                 
                   5.
                   
                   Solemnities
                   requisite
                   in
                   Reversions
                   .
                
                 
                   6.
                   
                   The
                   effect
                   of
                   Clauses
                   irritant
                   in
                   reversions
                   .
                
                 
                   7.
                   
                   Reversions
                   are
                   
                     stricti
                     juris
                  
                   .
                
                 
                   8.
                   
                   Kinds
                   of
                   Wodsetts
                   .
                
                 
                   9.
                   
                   Proper
                   Wodsetts
                   .
                
                 
                   10.
                   
                   The
                   effect
                   of
                   Tacks
                   after
                   redemption
                   ,
                   containedin
                   reversions
                   .
                
                 
                   11.
                   
                   Improper
                   Wodsetts
                   .
                
                 
                   12.
                   
                   Regress
                   .
                
                 
                   13.
                   
                   Discharges
                   of
                   Reversions
                   .
                
                 
                   14.
                   
                   Wodsets
                   become
                   legally
                   extinct
                   by
                   declarator
                   of
                   expiring
                   thereof
                   ,
                   or
                   by
                   the
                   order
                   and
                   declarator
                   of
                   redemption
                   .
                
                 
                   15.
                   
                   The
                   order
                   of
                   redemption
                   of
                   Apprizings
                   or
                   Adjudications
                   .
                
                 
                   16.
                   
                   The
                   order
                   of
                   redemption
                   by
                   conventional
                   reversions
                   .
                
                 
                   17.
                   
                   Premonition
                   .
                
                 
                   18.
                   
                   Consignation
                   .
                
                 
                   19.
                   
                   Declarators
                   of
                   redemption
                   .
                
                 
                   20.
                   
                   The
                   effect
                   of
                   declarators
                   of
                   redemption
                   .
                
                 
                   
                   21.
                   
                   Defences
                   against
                   declarators
                   of
                   redemption
                   .
                
                 
                   22.
                   
                   Requisition
                   .
                
                 
                   23.
                   
                   How
                   far
                   other
                   rights
                   may
                   be
                   reserved
                   in
                   redemptions
                   ,
                   or
                   renounciations
                   .
                
              
               
                 AWODEST
                 ,
                 as
                 the
                 word
                 insinuats
                 ,
                 being
                 the
                 giving
                 of
                 a
                 Wedd
                 or
                 Pledge
                 in
                 security
                 ;
                 it
                 falleth
                 in
                 consideration
                 here
                 as
                 the
                 last
                 of
                 Feudal
                 Rights
                 :
                 For
                 Pledges
                 are
                 the
                 last
                 of
                 real
                 Rights
                 ,
                 as
                 before
                 in
                 the
                 Title
                 
                   real
                   Rights
                
                 is
                 shown
                 ;
                 where
                 it
                 was
                 also
                 cleared
                 ,
                 what
                 was
                 the
                 ancient
                 custom
                 of
                 Impignoration
                 of
                 Moveables
                 ,
                 which
                 shall
                 not
                 be
                 here
                 repeated
                 ,
                 but
                 only
                 what
                 is
                 proper
                 to
                 the
                 impignoration
                 of
                 Immoveables
                 and
                 Heretable
                 Rights
                 ,
                 by
                 the
                 Feudal
                 Customes
                 ,
                 and
                 our
                 own
                 .
              
               
                 1.
                 
                 That
                 which
                 doth
                 most
                 properly
                 agree
                 to
                 the
                 nature
                 of
                 a
                 Pledge
                 or
                 Wodset
                 with
                 us
                 ,
                 is
                 where
                 any
                 Inseftment
                 or
                 security
                 is
                 granted
                 .
                 in
                 security
                 of
                 a
                 sum
                 of
                 Money
                 ,
                 or
                 for
                 relief
                 of
                 Cautionry
                 ,
                 or
                 any
                 other
                 sum
                 ,
                 which
                 bears
                 expresly
                 ,
                 
                   that
                   the
                   Land
                   or
                   Right
                   is
                   disponed
                   for
                   security
                   or
                   relief
                
                 ;
                 and
                 therefore
                 needs
                 express
                 no
                 Reversion
                 ;
                 for
                 it
                 is
                 necessarly
                 implyed
                 ,
                 that
                 so
                 soon
                 as
                 relief
                 or
                 satisfaction
                 is
                 obtained
                 ,
                 the
                 Infeftment
                 granted
                 in
                 security
                 ceasseth
                 ;
                 so
                 that
                 if
                 the
                 granter
                 of
                 the
                 Infeftment
                 ,
                 or
                 any
                 other
                 bound
                 in
                 the
                 principal
                 Obligation
                 ,
                 either
                 make
                 payment
                 ,
                 or
                 the
                 receiver
                 thereof
                 by
                 his
                 intromission
                 ,
                 be
                 satisfied
                 ,
                 
                   ipso
                   facto
                
                 ,
                 the
                 Infeftment
                 is
                 extinct
                 :
                 Yea
                 ,
                 if
                 the
                 debitor
                 granter
                 of
                 the
                 Infeftment
                 and
                 Security
                 should
                 instruct
                 compensation
                 ,
                 as
                 it
                 would
                 extinguish
                 the
                 principal
                 Bond
                 ,
                 so
                 would
                 it
                 in
                 consequence
                 the
                 Infeftment
                 for
                 security
                 thereof
                 .
                 This
                 Infeftment
                 being
                 really
                 a
                 Pledge
                 ,
                 it
                 is
                 consistent
                 with
                 the
                 Infeftment
                 of
                 Property
                 in
                 the
                 debitor
                 ,
                 as
                 two
                 distinct
                 kinds
                 of
                 Rights
                 ,
                 and
                 thereby
                 the
                 debitor
                 is
                 not
                 denuded
                 ,
                 even
                 although
                 the
                 Infeftment
                 for
                 Security
                 were
                 publick
                 by
                 Resignation
                 ;
                 because
                 it
                 is
                 not
                 a
                 Resignation
                 simply
                 ,
                 
                   in
                   favorem
                
                 ,
                 but
                 
                   ad
                   effecsum
                   ,
                   viz.
                
                 for
                 Security
                 ;
                 and
                 therefore
                 ,
                 when
                 the
                 debt
                 is
                 satisfied
                 ,
                 the
                 debitor
                 needs
                 not
                 be
                 re-invested
                 ,
                 but
                 his
                 former
                 Infeftment
                 of
                 property
                 stands
                 valide
                 .
              
               
                 Like
                 unto
                 these
                 in
                 all
                 points
                 are
                 Infeftments
                 upon
                 Appryzing
                 ,
                 which
                 are
                 truly
                 
                   pignora
                   praetoria
                
                 ,
                 whreby
                 the
                 debitor
                 is
                 not
                 denuded
                 ,
                 but
                 his
                 Infeftment
                 stands
                 ;
                 and
                 if
                 the
                 Apprising
                 be
                 satisfied
                 within
                 the
                 Legal
                 ,
                 it
                 is
                 extinguished
                 ,
                 and
                 the
                 debitor
                 needs
                 not
                 be
                 re-invested
                 ;
                 and
                 therefore
                 ,
                 he
                 may
                 receive
                 Vassals
                 during
                 the
                 Legal
                 ;
                 and
                 if
                 he
                 die
                 ,
                 the
                 appearand
                 Heir
                 intrometting
                 with
                 the
                 Mails
                 and
                 Duties
                 ,
                 during
                 the
                 Legal
                 ,
                 doth
                 thereby
                 behave
                 himself
                 as
                 Heir
                 ,
                 as
                 was
                 found
                 ,
                 February
                 21.
                 1663.
                 
                 
                   Henry
                   Hamiltoun
                   contra
                   William
                   Hamiltoun
                
                 .
                 Which
                 holds
                 olso
                 in
                 Adjudications
                 ,
                 by
                 the
                 late
                 Act
                 of
                 Parliament
                 ,
                 come
                 in
                 place
                 of
                 Appryzings
                 .
              
               
               
                 But
                 Securities
                 for
                 sums
                 have
                 Been
                 of
                 a
                 long
                 time
                 ,
                 taken
                 frequently
                 in
                 another
                 way
                 ,
                 viz.
                 by
                 simple
                 alienation
                 ,
                 
                   titulo
                   venditionis
                
                 ,
                 with
                 a
                 reversion
                 ,
                 which
                 is
                 but
                 
                   〈◊〉
                   de
                   retro
                   vendendo
                
                 ,
                 ordinarly
                 taken
                 a
                 part
                 ;
                 that
                 if
                 the
                 Creditor
                 were
                 not
                 satisfied
                 ,
                 he
                 might
                 force
                 the
                 debitor
                 to
                 pass
                 from
                 his
                 Reversion
                 ;
                 and
                 so
                 his
                 Reversion
                 stood
                 absolutely
                 ,
                 which
                 gave
                 the
                 occasion
                 to
                 these
                 Kinds
                 of
                 Securities
                 ;
                 and
                 also
                 because
                 during
                 Popery
                 ,
                 all
                 Annualrents
                 for
                 the
                 use
                 of
                 sums
                 were
                 discharged
                 as
                 Usury
                 ;
                 and
                 therefore
                 ,
                 Creditors
                 bought
                 Annualrents
                 ,
                 and
                 gave
                 Reversions
                 to
                 the
                 debitors
                 ,
                 which
                 was
                 the
                 same
                 thing
                 in
                 another
                 convoy
                 .
                 As
                 to
                 these
                 Wodsets
                 in
                 this
                 place
                 ;
                 and
                 that
                 first
                 ,
                 as
                 to
                 the
                 Constitution
                 of
                 Wodsets
                 :
                 And
                 next
                 as
                 to
                 the
                 destitution
                 thereof
                 .
              
               
                 2.
                 
                 As
                 to
                 the
                 Constitution
                 of
                 a
                 Wodset
                 ,
                 it
                 must
                 be
                 according
                 to
                 the
                 thing
                 or
                 Right
                 impignorat
                 for
                 a
                 Tack
                 or
                 Liferent
                 :
                 An
                 Assignation
                 to
                 these
                 or
                 any
                 other
                 cessible
                 right
                 may
                 be
                 given
                 in
                 Wodset
                 for
                 security
                 ,
                 and
                 under
                 Reversion
                 :
                 But
                 the
                 ordinary
                 Wodset
                 is
                 by
                 Infeftment
                 of
                 Property
                 ,
                 or
                 of
                 Annualrent
                 ;
                 the
                 conception
                 whereof
                 is
                 not
                 under
                 the
                 name
                 of
                 Impledging
                 ,
                 Impignoration
                 ,
                 Hypothecation
                 or
                 the
                 like
                 ,
                 but
                 in
                 the
                 terms
                 of
                 Disposition
                 ,
                 or
                 Infeftment
                 ,
                 whereby
                 the
                 property
                 of
                 the
                 thing
                 Wodset
                 passeth
                 ,
                 and
                 is
                 established
                 in
                 the
                 Wodsetter
                 :
                 But
                 under
                 Reversion
                 to
                 the
                 Constituent
                 ,
                 whereby
                 it
                 hath
                 two
                 parts
                 ,
                 the
                 Infeftment
                 and
                 the
                 Reversion
                 .
                 The
                 Infeftment
                 in
                 Wodsets
                 ,
                 is
                 in
                 all
                 points
                 like
                 to
                 other
                 Infeftments
                 ,
                 whether
                 they
                 be
                 Infeftments
                 of
                 Property
                 or
                 of
                 Annualrent
                 ;
                 or
                 whether
                 they
                 be
                 publick
                 ,
                 holden
                 of
                 the
                 Constituents
                 Superior
                 ,
                 or
                 base
                 holden
                 of
                 himself
                 ;
                 so
                 that
                 all
                 the
                 specialities
                 of
                 Wodsets
                 resolve
                 in
                 Reversion
                 .
              
               
                 3.
                 
                 A
                 Reversion
                 is
                 a
                 paction
                 and
                 condition
                 ,
                 or
                 provision
                 for
                 redemption
                 of
                 any
                 thing
                 alienat
                 upon
                 such
                 Terms
                 as
                 are
                 agreed
                 upon
                 ,
                 which
                 of
                 it self
                 is
                 no
                 more
                 then
                 a
                 personal
                 obligation
                 ,
                 whereby
                 the
                 Wodsetter
                 is
                 oblieged
                 ,
                 until
                 by
                 that
                 excellent
                 Statute
                 ,
                 Par.
                 1469.
                 cap.
                 27.
                 
                 It
                 is
                 declared
                 ,
                 that
                 the
                 Reversion
                 shall
                 be
                 effectual
                 ,
                 not
                 only
                 against
                 the
                 first
                 Wodsetter
                 himself
                 ,
                 but
                 all
                 his
                 Successors
                 in
                 the
                 Wodset
                 Lands
                 ,
                 whereby
                 reversions
                 are
                 accounted
                 as
                 Heretable
                 and
                 real
                 Rights
                 ,
                 affecting
                 singular
                 Successors
                 ,
                 in
                 the
                 same
                 way
                 that
                 Tacks
                 are
                 made
                 real
                 Rights
                 ,
                 by
                 the
                 Statute
                 thereanent
                 .
              
               
                 The
                 English
                 by
                 reversion
                 ,
                 do
                 not
                 understand
                 a
                 Right
                 of
                 Redemption
                 ,
                 but
                 a
                 Right
                 of
                 Survivancy
                 or
                 Succession
                 ;
                 as
                 the
                 reversion
                 of
                 an
                 Office
                 is
                 a
                 Title
                 to
                 that
                 Office
                 ,
                 after
                 the
                 removal
                 of
                 the
                 present
                 Incumbent
                 .
                 And
                 that
                 which
                 we
                 call
                 a
                 Wodset
                 ,
                 they
                 call
                 a
                 Morgage
                 ;
                 for
                 a
                 Gage
                 is
                 a
                 Pledge
                 which
                 is
                 really
                 ingaged
                 :
                 And
                 Morgage
                 is
                 a
                 Pledge
                 ,
                 the
                 Redemption
                 whereof
                 dieth
                 ,
                 or
                 is
                 extinct
                 ,
                 if
                 it
                 be
                 not
                 used
                 at
                 the
                 time
                 ,
                 and
                 in
                 the
                 manner
                 agreed
                 upon
                 by
                 the
                 parties
                 ,
                 of
                 that
                 with
                 them
                 in
                 their
                 Morgages
                 ,
                 not
                 only
                 Clauses
                 irritant
                 ,
                 or
                 
                   〈◊〉
                   legis
                   Commissoriae
                
                 ,
                 are
                 valide
                 :
                 But
                 if
                 the
                 provision
                 for
                 Redemption
                 ,
                 be
                 for
                 a
                 definite
                 time
                 ,
                 that
                 being
                 elapsed
                 the
                 Morgage
                 becomes
                 irredeemable
                 by
                 their
                 common
                 Law
                 ,
                 what
                 remeid
                 may
                 be
                 had
                 in
                 the
                 Chanclery
                 upon
                 equity
                 ,
                 I
                 know
                 not
                 .
              
               
                 4.
                 
                 Before
                 we
                 come
                 to
                 the
                 Solemnities
                 requisite
                 for
                 Constituting
                 Reversions
                 ,
                 it
                 is
                 necessary
                 to
                 distinguish
                 the
                 several
                 kinds
                 thereof
                 :
                 Reversions
                 are
                 either
                 Legal
                 ,
                 arising
                 from
                 Law
                 and
                 Statute
                 ,
                 and
                 not
                 from
                 consent
                 of
                 parties
                 ,
                 as
                 are
                 the
                 Legal
                 Reversions
                 of
                 Appryzings
                 and
                 Adjudications
                 ;
                 or
                 they
                 are
                 Conventional
                 ,
                 by
                 the
                 consent
                 of
                 parties
                 ,
                 which
                 are
                 either
                 Incorporate
                 in
                 the
                 body
                 of
                 the
                 Wodset-right
                 or
                 a
                 part
                 ,
                 they
                 are
                 also
                 either
                 principal
                 
                 Reversions
                 or
                 eiks
                 to
                 Reversions
                 ;
                 and
                 they
                 are
                 either
                 solemn
                 and
                 perfected
                 ,
                 or
                 only
                 inchoat
                 ,
                 such
                 as
                 Promises
                 ,
                 Bonds
                 and
                 Conditions
                 for
                 granting
                 Reversions
                 .
              
               
                 5.
                 
                 Legal
                 Reversions
                 require
                 no
                 other
                 solemnity
                 ,
                 then
                 what
                 is
                 requisite
                 to
                 the
                 legal
                 constitution
                 of
                 the
                 right
                 whereupon
                 they
                 follow
                 .
                 The
                 common
                 solemnities
                 requisite
                 for
                 Reversions
                 and
                 other
                 Writes
                 of
                 old
                 ,
                 was
                 only
                 the
                 Seal
                 of
                 the
                 granter
                 ,
                 without
                 necessity
                 of
                 his
                 Subscription
                 .
                 But
                 by
                 the
                 Act
                 of
                 Par.
                 1555.
                 cap.
                 29.
                 
                 It
                 is
                 required
                 ,
                 that
                 all
                 Reversions
                 ,
                 Bonds
                 and
                 Obligations
                 for
                 making
                 of
                 Reversions
                 ,
                 be
                 not
                 only
                 sealed
                 ,
                 but
                 subscribed
                 by
                 the
                 granters
                 own
                 hand
                 ;
                 and
                 if
                 he
                 cannot
                 write
                 ,
                 by
                 his
                 hand
                 led
                 at
                 the
                 pen
                 by
                 a
                 Nottar
                 ;
                 or
                 otherwayes
                 ,
                 they
                 make
                 no
                 faith
                 ,
                 unless
                 the
                 same
                 by
                 consent
                 of
                 parties
                 be
                 registrat
                 in
                 the
                 Books
                 of
                 a
                 Judge
                 Ordinar
                 ,
                 or
                 that
                 it
                 be
                 a
                 Reversion
                 within
                 Burgh
                 ,
                 contained
                 in
                 the
                 Instrument
                 of
                 Resignation
                 and
                 Seasine
                 of
                 Lands
                 by
                 the
                 Bailie
                 and
                 Town-clerk
                 .
                 And
                 by
                 the
                 Act
                 of
                 Par.
                 1579.
                 cap.
                 80.
                 
                 Reversions
                 ,
                 Assignations
                 and
                 Discharges
                 thereof
                 ,
                 and
                 eiks
                 thereto
                 ,
                 or
                 other
                 Writes
                 of
                 great
                 importance
                 ,
                 are
                 ordained
                 to
                 be
                 subscribed
                 and
                 sealed
                 by
                 the
                 principal
                 parties
                 ;
                 or
                 if
                 they
                 cannot
                 write
                 ,
                 by
                 two
                 Nottars
                 before
                 four
                 designed
                 witnesses
                 ,
                 else
                 to
                 be
                 null
                 and
                 of
                 no
                 faith
                 .
                 But
                 the
                 matter
                 of
                 Reversion
                 is
                 perfected
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 1617.
                 cap.
                 16.
                 ordaining
                 all
                 Reversions
                 ,
                 Regresses
                 ,
                 Bonds
                 or
                 Writers
                 for
                 making
                 Reversions
                 ,
                 Assignations
                 and
                 Discharges
                 of
                 the
                 same
                 ,
                 to
                 be
                 registrat
                 in
                 the
                 Register
                 of
                 Seasines
                 and
                 Reversions
                 within
                 sixty
                 dayes
                 of
                 their
                 dates
                 ,
                 otherwayes
                 to
                 have
                 no
                 effect
                 ,
                 save
                 only
                 against
                 the
                 granters
                 thereof
                 ,
                 but
                 not
                 against
                 their
                 singular
                 successors
                 acquiring
                 perfect
                 and
                 lawful
                 Rights
                 :
                 But
                 this
                 is
                 not
                 requisite
                 in
                 Infeftments
                 of
                 Burgage-lands
                 within
                 Royal
                 Burghs
                 ,
                 nor
                 in
                 Reversions
                 incorporat
                 in
                 the
                 rights
                 of
                 Wodset
                 .
                 Upon
                 consideration
                 of
                 the
                 inconvenience
                 &
                 insecurity
                 of
                 Burgage-lands
                 ,
                 the
                 Lords
                 by
                 Act
                 of
                 Sederunt
                 ,
                 ordained
                 the
                 Burghs
                 to
                 take
                 sufficient
                 Caution
                 of
                 their
                 Town-clerks
                 present
                 and
                 to
                 come
                 ,
                 to
                 insert
                 in
                 their
                 Books
                 all
                 Seasines
                 given
                 by
                 them
                 of
                 Tenements
                 within
                 Burgh
                 ,
                 and
                 all
                 Reversions
                 or
                 Bonds
                 for
                 granting
                 Reversions
                 ,
                 Assignations
                 thereto
                 ,
                 and
                 Discharges
                 thereof
                 ,
                 Renunciations
                 and
                 grants
                 of
                 Redemption
                 ,
                 and
                 that
                 within
                 sixty
                 dayes
                 after
                 the
                 giving
                 of
                 Seasine
                 ,
                 or
                 presenting
                 to
                 them
                 of
                 the
                 Reversions
                 or
                 others
                 foresaids
                 ,
                 under
                 the
                 pain
                 of
                 the
                 damnage
                 of
                 parties
                 ,
                 acquiring
                 
                   bona
                   fide
                
                 for
                 onerous
                 causes
                 ,
                 that
                 they
                 may
                 incur
                 by
                 such
                 latent
                 rights
                 ;
                 declaring
                 ,
                 that
                 such
                 Seasines
                 and
                 Reversions
                 ,
                 not
                 insert
                 in
                 manner
                 foresaid
                 ,
                 to
                 be
                 esteemed
                 as
                 latent
                 and
                 fraudulent
                 ,
                 keeped
                 up
                 of
                 purpose
                 to
                 insnare
                 lawful
                 purchasers
                 ;
                 which
                 Act
                 of
                 Sederunt
                 is
                 dated
                 ,
                 February
                 22.
                 1681.
                 
                 So
                 that
                 ,
                 as
                 by
                 the
                 first
                 Act
                 Reversions
                 are
                 made
                 effectual
                 ,
                 by
                 this
                 last
                 they
                 are
                 made
                 evident
                 ,
                 that
                 acquirers
                 may
                 be
                 secured
                 against
                 latent
                 Reversions
                 ,
                 and
                 by
                 the
                 registration
                 ,
                 or
                 being
                 in
                 the
                 body
                 of
                 the
                 Wodset
                 ,
                 the
                 necessity
                 of
                 sealling
                 is
                 taken
                 off
                 ,
                 and
                 for
                 the
                 most
                 part
                 in
                 desuetude
                 .
                 It
                 is
                 also
                 consequent
                 from
                 this
                 last
                 Act
                 ,
                 that
                 not
                 only
                 formal
                 and
                 solemn
                 Reversions
                 in
                 the
                 body
                 of
                 the
                 Wodset
                 or
                 registrat
                 ,
                 are
                 effectual
                 against
                 singular
                 successors
                 ,
                 but
                 also
                 Bonds
                 and
                 Writes
                 for
                 making
                 of
                 Reversions
                 ,
                 otherwayes
                 there
                 needs
                 no
                 ordinance
                 to
                 registrate
                 these
                 for
                 the
                 purchasers
                 security
                 ,
                 if
                 of
                 themselves
                 they
                 could
                 affect
                 purchasers
                 :
                 But
                 promises
                 of
                 Reversion
                 are
                 no
                 wayes
                 effectual
                 against
                 singular
                 successors
                 ,
                 unless
                 they
                 have
                 been
                 brought
                 into
                 write
                 ,
                 at
                 least
                 by
                 Decreet
                 before
                 these
                 successors
                 right
                 ,
                 because
                 being
                 only
                 probable
                 by
                 oath
                 of
                 party
                 ,
                 the
                 oath
                 of
                 the
                 author
                 will
                 not
                 prove
                 against
                 his
                 singular
                 successor
                 .
                 Neither
                 will
                 Declarations
                 ,
                 Back-bands
                 or
                 conditions
                 of
                 Trust
                 ,
                 be
                 comprehended
                 under
                 Reversions
                 ;
                 but
                 they
                 remain
                 obliegements
                 personal
                 upon
                 the
                 person
                 intrusted
                 ,
                 unless
                 they
                 contain
                 express
                 obliegement
                 to
                 re-dispone
                 ,
                 which
                 is
                 a
                 reversion
                 ,
                 albeit
                 it
                 be
                 not
                 formal
                 ;
                 or
                 if
                 it
                 bear
                 ,
                 to
                 denude
                 himself
                 
                 in
                 favours
                 of
                 the
                 disponer
                 or
                 any
                 other
                 ;
                 but
                 if
                 it
                 be
                 but
                 in
                 trust
                 to
                 his
                 behove
                 ,
                 though
                 thereupon
                 ,
                 
                   via
                   actionis
                
                 ,
                 he
                 might
                 be
                 compelled
                 to
                 denude
                 ,
                 yet
                 is
                 no
                 reversion
                 ,
                 and
                 however
                 hath
                 no
                 effect
                 against
                 singular
                 successors
                 ,
                 unless
                 they
                 be
                 registrate
                 as
                 aforesaid
                 ;
                 except
                 in
                 so
                 far
                 as
                 they
                 may
                 be
                 grounds
                 of
                 reduction
                 against
                 the
                 parties
                 intrusted
                 ,
                 or
                 their
                 singular
                 successors
                 partakers
                 of
                 the
                 fraud
                 .
              
               
                 6.
                 
                 It
                 is
                 also
                 frequently
                 provided
                 in
                 Reversions
                 ,
                 That
                 if
                 the
                 condition
                 of
                 the
                 Reversion
                 be
                 not
                 performed
                 betwixt
                 and
                 such
                 a
                 time
                 ,
                 the
                 reversion
                 shall
                 expire
                 ;
                 and
                 sometimes
                 it
                 is
                 provided
                 so
                 to
                 be
                 ,
                 
                   ipso
                   facto
                
                 ,
                 without
                 Declarator
                 .
                 This
                 is
                 a
                 clause
                 irritant
                 ,
                 irritating
                 or
                 annulling
                 the
                 Reversion
                 ,
                 which
                 in
                 the
                 Civil
                 Law
                 is
                 called
                 ,
                 
                   Pactum
                   Legis
                   Commissoriae
                   in
                   pignoribus
                
                 ,
                 and
                 is
                 thereby
                 rejected
                 and
                 void
                 as
                 an
                 usurary
                 paction
                 ,
                 whereby
                 the
                 Wodsetter
                 getteth
                 more
                 then
                 his
                 just
                 interest
                 as
                 a
                 penalty
                 :
                 which
                 therefore
                 ,
                 as
                 in
                 other
                 cases
                 ,
                 ought
                 to
                 be
                 modified
                 to
                 the
                 just
                 interest
                 ;
                 especially
                 seing
                 indigent
                 Debitors
                 ,
                 through
                 necessity
                 of
                 borrowing
                 money
                 ,
                 will
                 be
                 easily
                 induced
                 to
                 such
                 Clauses
                 .
                 And
                 therefore
                 ,
                 a
                 Back-band
                 for
                 redemption
                 of
                 a
                 Tenement
                 ,
                 bearing
                 such
                 a
                 Clause
                 irritant
                 ,
                 was
                 found
                 null
                 two
                 years
                 after
                 the
                 terme
                 ,
                 and
                 after
                 a
                 Decreet
                 of
                 removing
                 all
                 meliorations
                 being
                 satisfied
                 ,
                 July
                 8.
                 1636.
                 
                 Cleghorn
                 contra
                 Ferguson
                 .
                 The
                 like
                 was
                 found
                 in
                 an
                 Assignation
                 to
                 a
                 Bond
                 under
                 reversion
                 of
                 a
                 smaller
                 sum
                 ,
                 which
                 was
                 found
                 penal
                 and
                 modified
                 to
                 the
                 just
                 interest
                 ,
                 June
                 25.
                 1623.
                 
                 Mitchel
                 contra
                 Robson
                 .
                 Yet
                 such
                 clauses
                 irritant
                 are
                 effectual
                 upon
                 the
                 failie
                 committed
                 ,
                 unless
                 they
                 be
                 purged
                 by
                 performance
                 ,
                 which
                 is
                 ordinarly
                 received
                 when
                 offered
                 at
                 the
                 bar
                 ,
                 in
                 the
                 Declarator
                 of
                 the
                 expirie
                 of
                 the
                 reversion
                 :
                 So
                 was
                 it
                 found
                 purgeable
                 at
                 the
                 instance
                 of
                 the
                 Reversers
                 Creditors
                 ,
                 19.
                 of
                 March
                 ,
                 1631.
                 
                 Doctor
                 Scot
                 contra
                 Dickson
                 of
                 Headrig
                 .
                 Yea
                 ,
                 though
                 the
                 payment
                 be
                 not
                 present
                 ,
                 a
                 time
                 will
                 be
                 granted
                 before
                 the
                 Extract
                 of
                 the
                 Decreet
                 of
                 Declarator
                 of
                 the
                 expirie
                 of
                 the
                 reversion
                 ,
                 that
                 in
                 the
                 mean
                 time
                 ,
                 the
                 failie
                 may
                 be
                 purged
                 ,
                 Feb.
                 7.
                 1628.
                 
                 Pringle
                 contra
                 Ker
                 ;
                 but
                 no
                 such
                 time
                 was
                 granted
                 ,
                 where
                 the
                 requisition
                 was
                 upon
                 ninescore
                 dayes
                 ;
                 but
                 Decreet
                 was
                 given
                 ,
                 unless
                 present
                 payment
                 were
                 made
                 ,
                 July
                 19.
                 1625.
                 
                 Nairn
                 contra
                 Napier
                 .
                 But
                 Clauses
                 irritant
                 in
                 Reversions
                 ,
                 are
                 only
                 thus
                 qualified
                 in
                 real
                 Impignorations
                 :
                 but
                 when
                 the
                 reversion
                 is
                 of
                 a
                 true
                 sale
                 ,
                 not
                 in
                 security
                 ,
                 but
                 for
                 an
                 equivalent
                 price
                 ,
                 or
                 where
                 it
                 is
                 granted
                 after
                 the
                 right
                 related
                 to
                 ,
                 and
                 not
                 for
                 implement
                 of
                 a
                 promise
                 or
                 condition
                 made
                 at
                 that
                 time
                 ,
                 it
                 is
                 valid
                 ;
                 for
                 only
                 
                   pactum
                   legis
                   Commissoriae
                   in
                   pignoribus
                
                 ,
                 is
                 rejected
                 in
                 Law.
                 
              
               
                 And
                 therefore
                 ,
                 the
                 Irritancie
                 was
                 not
                 found
                 purgeable
                 before
                 the
                 Declarator
                 ,
                 where
                 the
                 Reversion
                 was
                 of
                 Lands
                 disponed
                 for
                 a
                 competent
                 price
                 by
                 a
                 true
                 sale
                 ,
                 January
                 17.
                 1679.
                 
                 
                   James
                   Beatsone
                
                 contra
                 Harrower
                 .
              
               
                 A
                 Bond
                 bearing
                 ,
                 that
                 failing
                 Heirs-male
                 of
                 the
                 granter
                 and
                 of
                 his
                 Brothers
                 bodie
                 ,
                 that
                 the
                 Heirs-female
                 should
                 denude
                 in
                 favours
                 of
                 a
                 Sisters
                 son
                 ,
                 upon
                 payment
                 of
                 a
                 certain
                 sum
                 ,
                 being
                 registrat
                 in
                 the
                 Register
                 of
                 Reversions
                 ,
                 was
                 found
                 valid
                 against
                 a
                 singular
                 Successor
                 ,
                 as
                 a
                 conditional
                 reversion
                 ,
                 and
                 not
                 as
                 a
                 substitution
                 ,
                 albeit
                 the
                 Bond
                 was
                 granted
                 by
                 an
                 Heretor
                 ,
                 and
                 that
                 the
                 Land
                 was
                 never
                 wodset
                 ,
                 but
                 became
                 redeemable
                 by
                 this
                 Bond
                 ,
                 and
                 was
                 not
                 prejudged
                 by
                 a
                 posterior
                 Liferent
                 granted
                 by
                 that
                 Heretor
                 in
                 favours
                 of
                 his
                 Wife
                 ,
                 which
                 would
                 have
                 been
                 effectual
                 ,
                 if
                 it
                 had
                 been
                 a
                 substitution
                 ;
                 But
                 the
                 sum
                 upon
                 which
                 the
                 Heir-female
                 was
                 oblieged
                 to
                 denude
                 ,
                 was
                 ordained
                 to
                 be
                 re-imployed
                 for
                 the
                 Wife
                 in
                 Liferent
                 ,
                 January
                 16.
                 1679.
                 
                 Laird
                 of
                 Lambertoun
                 contra
                 Lady
                 Blanergesk
                 .
              
               
               
                 7.
                 
                 As
                 to
                 the
                 nature
                 of
                 Reversions
                 ,
                 they
                 are
                 
                   stricti
                   juris
                
                 ,
                 and
                 not
                 to
                 be
                 extended
                 beyond
                 what
                 is
                 exprest
                 ,
                 and
                 so
                 not
                 to
                 be
                 extended
                 to
                 the
                 sAssigneys
                 of
                 the
                 reverser
                 when
                 not
                 exprest
                 ,
                 yea
                 not
                 to
                 his
                 Heirs
                 ,
                 unless
                 it
                 be
                 so
                 exprest
                 ;
                 but
                 where
                 Heirs
                 of
                 the
                 Reverser
                 were
                 not
                 exprest
                 ,
                 without
                 adjecting
                 the
                 ordinary
                 clause
                 of
                 paying
                 the
                 debt
                 to
                 the
                 Wodsetter
                 by
                 the
                 Reverser
                 ,
                 any
                 time
                 during
                 his
                 life
                 ;
                 and
                 so
                 Heirs
                 were
                 not
                 found
                 omitted
                 
                   dedita
                   opera
                
                 ,
                 but
                 by
                 negligence
                 they
                 were
                 not
                 excluded
                 ,
                 January
                 9.
                 1662.
                 
                 Earl
                 of
                 Murray
                 contra
                 Laird
                 of
                 Graunt
                 .
                 And
                 a
                 Reversion
                 taken
                 by
                 a
                 father
                 disponing
                 to
                 his
                 son
                 ,
                 found
                 to
                 be
                 extended
                 against
                 the
                 Heirs
                 of
                 the
                 son
                 ,
                 though
                 Heirs
                 were
                 not
                 mentioned
                 ,
                 Feb.
                 6.
                 1630.
                 
                 Muir
                 contra
                 Muir
                 .
                 The
                 like
                 Spots
                 .
                 redemption
                 ,
                 
                   William
                   Hamilton
                
                 contra
                 Hamiltons
                 .
                 And
                 therefore
                 ,
                 the
                 day
                 of
                 consignation
                 being
                 appointed
                 eight
                 dayes
                 after
                 the
                 terme
                 ,
                 the
                 Consignation
                 was
                 not
                 sustained
                 at
                 the
                 terme
                 it self
                 ,
                 though
                 these
                 dayes
                 were
                 introduced
                 in
                 the
                 Reversers
                 favours
                 ,
                 July
                 12.
                 1634.
                 
                 Lord
                 Balmerino
                 contra
                 Eliot
                 of
                 Stobs
                 :
                 Yet
                 ,
                 where
                 the
                 Reversion
                 bore
                 ,
                 the
                 premonition
                 to
                 be
                 at
                 the
                 Paroch-Church
                 ,
                 it
                 was
                 sustained
                 ,
                 being
                 used
                 only
                 personally
                 ,
                 Decemb.
                 11.
                 1638.
                 
                 Finlason
                 contra
                 Weyms
                 .
                 And
                 where
                 the
                 Reversion
                 did
                 bear
                 consignation
                 at
                 the
                 Creditors
                 house
                 in
                 London
                 ,
                 it
                 was
                 sustained
                 ,
                 being
                 at
                 his
                 successors
                 house
                 at
                 
                   Edinburgh
                   ,
                   Feb.
                
                 1.
                 1667.
                 
                 Creditors
                 of
                 Sir
                 
                   James
                   Murray
                
                 contra
                 Sir
                 
                   James
                   Murray
                
                 .
              
               
                 8.
                 
                 The
                 constitution
                 or
                 nature
                 of
                 Wodsets
                 being
                 thus
                 cleared
                 ,
                 as
                 to
                 the
                 kindes
                 thereof
                 ,
                 Wodsets
                 are
                 either
                 proper
                 ,
                 or
                 improper
                 ;
                 and
                 they
                 are
                 either
                 publick
                 or
                 base
                 .
              
               
                 9.
                 
                 A
                 proper
                 Wodset
                 is
                 ,
                 where
                 the
                 fruits
                 of
                 the
                 thing
                 Wodset
                 are
                 only
                 given
                 for
                 the
                 annual-rent
                 of
                 the
                 sum
                 ,
                 and
                 the
                 hazard
                 or
                 benefit
                 thereof
                 ,
                 whether
                 it
                 rise
                 or
                 fall
                 ,
                 is
                 the
                 Wodsetters
                 ;
                 and
                 there
                 hath
                 never
                 been
                 any
                 case
                 decided
                 finding
                 such
                 proper
                 Wodsets
                 usurary
                 upon
                 exorbitancy
                 of
                 profite
                 :
                 But
                 by
                 the
                 Act
                 of
                 Par.
                 1661.
                 
                   betwixt
                   Debitor
                   and
                   Creditor
                
                 ,
                 all
                 Wodsets
                 before
                 that
                 Act
                 ,
                 though
                 proper
                 ,
                 are
                 so
                 altered
                 ,
                 that
                 if
                 the
                 person
                 having
                 right
                 to
                 the
                 Reversion
                 ,
                 offer
                 surety
                 and
                 demand
                 possession
                 ,
                 the
                 Wodsetter
                 must
                 quite
                 possession
                 ,
                 or
                 else
                 restrict
                 himself
                 to
                 his
                 annualrent
                 ,
                 and
                 count
                 for
                 the
                 superplus
                 ,
                 and
                 that
                 not
                 from
                 the
                 Act
                 of
                 Parliament
                 or
                 Citation
                 ,
                 but
                 from
                 the
                 offer
                 of
                 security
                 ;
                 which
                 was
                 not
                 sustained
                 at
                 the
                 instance
                 of
                 a
                 singular
                 successor
                 in
                 the
                 right
                 of
                 Neversion
                 ,
                 not
                 having
                 produced
                 his
                 right
                 to
                 the
                 Neversion
                 at
                 the
                 requisition
                 :
                 and
                 though
                 it
                 was
                 produced
                 in
                 the
                 Process
                 ,
                 the
                 Wodsetter
                 was
                 not
                 found
                 oblieged
                 to
                 restrict
                 or
                 cede
                 the
                 possession
                 ,
                 because
                 he
                 was
                 in
                 natural
                 possession
                 by
                 labourage
                 ,
                 till
                 he
                 were
                 warned
                 before
                 Whitsonday
                 ,
                 Feb.
                 20.
                 1679.
                 
                 Bruce
                 contra
                 
                   Robert
                   Bogie
                
                 ;
                 though
                 there
                 was
                 a
                 Clause
                 in
                 the
                 Wodset
                 renuncing
                 the
                 Usurpers
                 Act
                 ,
                 and
                 all
                 such
                 Acts
                 made
                 or
                 to
                 be
                 made
                 ;
                 for
                 that
                 Exception
                 in
                 the
                 Act
                 of
                 Parliament
                 ,
                 relateth
                 only
                 to
                 preceeding
                 Clauses
                 thereof
                 ,
                 and
                 not
                 to
                 the
                 Clause
                 anent
                 Wodsets
                 which
                 is
                 posterior
                 ,
                 January
                 29.
                 1662.
                 
                 Laird
                 of
                 Lamingtoun
                 contra
                 Sir
                 
                   John
                   Cheislie
                   ;
                   Feb.
                
                 21.
                 1666.
                 
                 Lord
                 Borthwick
                 contra
                 his
                 Wodsetters
                 ;
                 Feb.
                 21.
                 1666.
                 
                 Ogilvie
                 contra
              
               
                 10.
                 
                 But
                 where
                 in
                 Wodsets
                 ,
                 there
                 is
                 a
                 condition
                 of
                 the
                 Neversion
                 ,
                 that
                 a
                 Tack
                 should
                 be
                 granted
                 for
                 years
                 after
                 redemption
                 ,
                 that
                 Tack
                 was
                 not
                 found
                 taken
                 away
                 by
                 the
                 Act
                 Debitor
                 and
                 Creditor
                 ;
                 but
                 that
                 if
                 it
                 were
                 in
                 the
                 terms
                 of
                 the
                 old
                 Act
                 Par.
                 1449.
                 cap.
                 19.
                 far
                 within
                 the
                 true
                 avail
                 ,
                 it
                 were
                 usurary
                 and
                 null
                 ,
                 February
                 15.
                 1666.
                 
                 Lord
                 Lie
                 contra
                 
                   Porteous
                   ;
                   February
                
                 17.
                 1672.
                 
                 Douglass
                 of
                 Mortoun
                 contra
                 and
                 Verner
                 :
                 In
                 which
                 case
                 ,
                 the
                 Tack
                 was
                 sustained
                 ,
                 if
                 it
                 were
                 not
                 much
                 within
                 the
                 worth
                 of
                 the
                 Land
                 ,
                 as
                 it
                 was
                 the
                 time
                 of
                 granting
                 the
                 Wodset
                 ,
                 albeit
                 it
                 were
                 much
                 within
                 the
                 worth
                 
                 the
                 time
                 of
                 the
                 redemption
                 ,
                 because
                 there
                 is
                 a
                 just
                 design
                 in
                 such
                 Tacks
                 to
                 incourage
                 the
                 Wodsetter
                 to
                 meliorat
                 the
                 Wodset
                 Lands
                 ,
                 and
                 be
                 at
                 expences
                 therefore
                 ,
                 seing
                 he
                 will
                 retain
                 the
                 same
                 after
                 the
                 Redemption
                 ,
                 for
                 the
                 old
                 rent
                 they
                 were
                 worth
                 when
                 wodset
                 ,
                 and
                 the
                 rent
                 exprest
                 in
                 the
                 Tack
                 will
                 be
                 presumed
                 to
                 be
                 the
                 true
                 rent
                 ,
                 unless
                 the
                 contrary
                 be
                 proven
                 .
                 But
                 such
                 a
                 Wodset
                 granted
                 to
                 a
                 Brother
                 for
                 his
                 Portion
                 ,
                 wherein
                 the
                 Wodsetter
                 was
                 excluded
                 from
                 possession
                 during
                 a
                 Liferenters
                 life
                 ,
                 the
                 Tack
                 was
                 sustained
                 ,
                 Jan.
                 21.
                 1662.
                 
                 Laird
                 of
                 Polwart
                 contra
                 Home
                 .
              
               
                 11.
                 
                 But
                 if
                 there
                 be
                 a
                 Back-tack
                 of
                 the
                 Land
                 ,
                 granted
                 by
                 the
                 Wodsetter
                 to
                 the
                 Reverser
                 ,
                 or
                 for
                 his
                 behove
                 ,
                 or
                 a
                 Provision
                 to
                 count
                 for
                 the
                 profites
                 of
                 the
                 Land
                 ,
                 or
                 to
                 hold
                 the
                 Land
                 at
                 such
                 a
                 Rent
                 ,
                 it
                 is
                 an
                 improper
                 Wodset
                 .
              
               
                 12.
                 
                 A
                 publick
                 Wodset
                 ,
                 which
                 is
                 holden
                 of
                 the
                 constituents
                 Superior
                 ,
                 requireth
                 ,
                 beside
                 the
                 reversion
                 ,
                 a
                 regress
                 ,
                 which
                 is
                 an
                 obliegement
                 upon
                 the
                 Superior
                 to
                 receive
                 and
                 enter
                 the
                 reverser
                 his
                 vassal
                 again
                 upon
                 the
                 redemption
                 :
                 The
                 necessity
                 whereof
                 is
                 ,
                 because
                 by
                 the
                 Infeftment
                 ,
                 though
                 of
                 Wodset
                 ,
                 the
                 constituent
                 is
                 denuded
                 ,
                 and
                 the
                 Superior
                 hath
                 a
                 new
                 Vassal
                 ,
                 in
                 whose
                 place
                 he
                 is
                 not
                 oblieged
                 to
                 accept
                 any
                 other
                 but
                 by
                 his
                 own
                 consent
                 .
                 
                   Craig
                   ,
                   lib.
                
                 2.
                 dieges
                 .
                 6.
                 moveth
                 this
                 question
                 ,
                 Whether
                 a
                 publick
                 Wodset
                 ,
                 being
                 redeemed
                 ,
                 and
                 the
                 Reverser
                 re-seased
                 therein
                 ,
                 it
                 would
                 be
                 accounted
                 Heretage
                 or
                 Conquest
                 .
                 And
                 though
                 it
                 seem
                 Conquest
                 ,
                 because
                 it
                 is
                 a
                 new
                 Infeftment
                 ,
                 and
                 not
                 the
                 old
                 ,
                 yet
                 he
                 well
                 resolveth
                 ,
                 that
                 if
                 it
                 return
                 to
                 the
                 person
                 or
                 heirs
                 of
                 him
                 who
                 was
                 first
                 infeft
                 ,
                 if
                 it
                 was
                 Heretage
                 before
                 ,
                 it
                 remaineth
                 so
                 ;
                 but
                 if
                 an
                 Assigney
                 to
                 the
                 Reversion
                 and
                 Regress
                 be
                 insest
                 ,
                 it
                 is
                 truly
                 Conquest
                 .
              
               
                 13.
                 
                 It
                 remaineth
                 now
                 ,
                 to
                 consider
                 the
                 destitution
                 of
                 Wodsets
                 ,
                 and
                 how
                 they
                 cease
                 ,
                 and
                 this
                 is
                 either
                 by
                 consent
                 or
                 by
                 Law
                 ;
                 by
                 consent
                 ,
                 either
                 when
                 the
                 Reversion
                 is
                 discharged
                 ,
                 whereby
                 the
                 Infeftment
                 becomes
                 irredeemable
                 ,
                 and
                 ceaseth
                 to
                 be
                 a
                 Wodset
                 ;
                 which
                 Discharge
                 of
                 the
                 reversion
                 is
                 not
                 effectual
                 against
                 singular
                 successors
                 ,
                 unless
                 registrat
                 conform
                 to
                 the
                 said
                 Act
                 of
                 Parl.
                 1617.
                 cap.
                 16.
                 
              
               
                 Or
                 otherwayes
                 by
                 voluntary
                 redemption
                 of
                 the
                 Wodset
                 ,
                 which
                 must
                 be
                 registrat
                 by
                 the
                 said
                 Act
                 ,
                 or
                 else
                 it
                 prejudgeth
                 no
                 singular
                 successor
                 :
                 yet
                 it
                 is
                 not
                 effectual
                 to
                 denude
                 the
                 Wodsetter
                 ,
                 unless
                 if
                 the
                 Wodset
                 were
                 base
                 ,
                 there
                 be
                 a
                 resignation
                 
                   ad
                   remanentiam
                
                 in
                 the
                 reversers
                 hands
                 as
                 Superiour
                 ;
                 or
                 if
                 it
                 be
                 publick
                 ,
                 that
                 the
                 granter
                 of
                 the
                 Wodset
                 be
                 re-seased
                 ,
                 and
                 a
                 renunciation
                 without
                 a
                 new
                 Infeftment
                 is
                 not
                 sufficient
                 ,
                 Hope
                 ,
                 Alienations
                 ,
                 Kinross
                 contra
                 
                   Durie
                   ,
                   November
                
                 23.
                 1627.
                 
                 Dumbar
                 contra
                 Wilson
                 .
                 But
                 if
                 the
                 reverser
                 or
                 his
                 predecessor
                 was
                 infeft
                 ,
                 a
                 renunciation
                 may
                 exclude
                 the
                 renucers
                 Right
                 ,
                 but
                 will
                 not
                 establish
                 it
                 in
                 the
                 person
                 of
                 the
                 Reverser
                 ,
                 but
                 he
                 must
                 brook
                 by
                 his
                 own
                 right
                 ,
                 Hope
                 ,
                 Alienation
                 ,
                 Hamiltoun
                 contra
                 Mcaddam
                 ;
                 where
                 Wodsets
                 are
                 taken
                 holden
                 of
                 the
                 Superior
                 ,
                 Regresses
                 are
                 also
                 taken
                 from
                 the
                 Superior
                 ,
                 and
                 new
                 Infeftment
                 thereupon
                 to
                 the
                 granter
                 of
                 the
                 Wodset
                 .
                 But
                 when
                 Neversions
                 are
                 carried
                 by
                 Assignations
                 ,
                 Apprisings
                 or
                 Adjudications
                 to
                 these
                 who
                 were
                 never
                 infeft
                 ,
                 they
                 must
                 not
                 only
                 have
                 a
                 renunciation
                 from
                 the
                 Wodseter
                 ,
                 but
                 a
                 Procuratory
                 of
                 Resignation
                 ,
                 that
                 thereby
                 they
                 may
                 be
                 infeft
                 ;
                 in
                 which
                 case
                 ,
                 the
                 Wodset-right
                 is
                 not
                 extinct
                 ,
                 but
                 conveyed
                 ,
                 and
                 the
                 Wodsetter
                 is
                 their
                 Author
                 ,
                 and
                 may
                 not
                 resuse
                 Procuratories
                 of
                 Resignation
                 ,
                 or
                 Charters
                 for
                 Confirmation
                 ,
                 upon
                 the
                 redemption
                 .
                 And
                 if
                 the
                 wodset-lands
                 be
                 not
                 ward
                 ,
                 he
                 must
                 grnt
                 Precept
                 of
                 Seasine
                 for
                 infefting
                 the
                 reverser
                 holden
                 of
                 the
                 Wodsetter
                 ,
                 and
                 if
                 Infeftments
                 follow
                 thereupon
                 ,
                 and
                 the
                 Seasine
                 be
                 registrate
                 ,
                 
                 there
                 is
                 no
                 necessity
                 to
                 registrate
                 the
                 renunciation
                 or
                 grant
                 of
                 redemption
                 ;
                 so
                 that
                 a
                 renunciation
                 or
                 grant
                 of
                 redemption
                 being
                 registrate
                 ,
                 excluding
                 posterior
                 Deeds
                 of
                 the
                 Wodsetters
                 who
                 yet
                 continues
                 in
                 the
                 Fee
                 ,
                 and
                 the
                 Casuality
                 will
                 fall
                 by
                 his
                 Death
                 or
                 Deeds
                 .
              
               
                 Voluntar
                 Redemptions
                 are
                 not
                 so
                 safe
                 ,
                 being
                 used
                 against
                 Pupils
                 and
                 Minors
                 ,
                 whose
                 Tutors
                 and
                 Curators
                 ought
                 to
                 proceed
                 Legally
                 in
                 Infeftments
                 :
                 So
                 likewise
                 in
                 a
                 Wodset
                 to
                 a
                 man
                 and
                 his
                 wife
                 ,
                 and
                 their
                 heirs
                 :
                 A
                 voluntar
                 Redemption
                 by
                 the
                 husband
                 was
                 not
                 found
                 sufficient
                 to
                 to
                 prejudge
                 the
                 wife
                 ,
                 who
                 consented
                 not
                 ,
                 July
                 14.
                 and
                 17.
                 1610.
                 
                 Lord
                 
                   Cathcart
                   contra
                   〈◊〉
                
                 .
              
               
                 14.
                 
                 Wodsets
                 are
                 taken
                 off
                 Legally
                 ,
                 when
                 the
                 Reversion
                 is
                 Legally
                 annulled
                 ,
                 as
                 by
                 declarator
                 of
                 expyring
                 thereof
                 ;
                 for
                 thereby
                 the
                 Infeftment
                 becomes
                 irredeemable
                 ;
                 but
                 is
                 chiefly
                 by
                 a
                 Legal
                 Redemption
                 ,
                 which
                 doth
                 require
                 an
                 Order
                 of
                 Redemption
                 ,
                 and
                 a
                 declarator
                 thereupon
                 ,
                 which
                 must
                 be
                 diversly
                 used
                 in
                 Legal-reversions
                 ,
                 and
                 in
                 Conventional-reversions
                 .
              
               
                 15.
                 
                 The
                 Order
                 of
                 Redemption
                 of
                 Apprizings
                 and
                 Adjudications
                 ,
                 by
                 vertue
                 of
                 the
                 Legal
                 Reversion
                 ,
                 is
                 valide
                 by
                 Premonition
                 and
                 Consignation
                 ,
                 and
                 Instruments
                 taken
                 thereupon
                 ,
                 wherein
                 there
                 is
                 not
                 appointed
                 a
                 determinat
                 time
                 upon
                 which
                 the
                 Premonition
                 must
                 be
                 made
                 ,
                 or
                 a
                 determinate
                 place
                 where
                 the
                 Consignation
                 must
                 be
                 made
                 ,
                 nor
                 the
                 person
                 of
                 the
                 Consignator
                 ;
                 but
                 the
                 premonition
                 may
                 be
                 upon
                 any
                 number
                 of
                 dayes
                 ,
                 sufficient
                 for
                 the
                 Consignation
                 :
                 Yea
                 ,
                 though
                 it
                 were
                 the
                 same
                 day
                 of
                 the
                 Premonition
                 ,
                 as
                 Craig
                 observes
                 :
                 But
                 if
                 the
                 Creditor
                 be
                 personally
                 apprehended
                 ,
                 the
                 Consignation
                 must
                 be
                 in
                 the
                 way
                 most
                 to
                 his
                 advantage
                 ,
                 which
                 therefore
                 he
                 may
                 prescrive
                 ,
                 being
                 either
                 near
                 the
                 place
                 of
                 Premonition
                 ;
                 or
                 the
                 Lands
                 Wodset
                 ,
                 or
                 the
                 Paroch
                 Kirk
                 where
                 they
                 lie
                 ,
                 which
                 Craig
                 accounteth
                 competent
                 places
                 ;
                 or
                 if
                 he
                 choose
                 any
                 other
                 more
                 advantages
                 to
                 the
                 Consigner
                 ,
                 it
                 will
                 be
                 sufficient
                 :
                 But
                 if
                 he
                 choose
                 none
                 ,
                 the
                 Premonisher
                 must
                 either
                 Consign
                 that
                 day
                 where
                 he
                 finds
                 the
                 Creditor
                 ,
                 or
                 if
                 not
                 that
                 day
                 :
                 Or
                 if
                 he
                 used
                 Premonition
                 at
                 his
                 dwelling-house
                 ,
                 he
                 must
                 Consign
                 ,
                 either
                 at
                 the
                 Appryzers
                 dwelling-house
                 ,
                 or
                 Paroch
                 Kirk
                 where
                 the
                 Lands
                 lye
                 ,
                 as
                 said
                 is
                 ;
                 if
                 the
                 Creditor
                 be
                 out
                 of
                 the
                 Countrey
                 ,
                 or
                 have
                 no
                 certain
                 abode
                 ,
                 Letters
                 of
                 Premonition
                 will
                 be
                 obtained
                 from
                 the
                 Lords
                 ,
                 
                   periculo
                   petentis
                
                 ;
                 for
                 Premonition
                 upon
                 sixty
                 days
                 at
                 the
                 Cross
                 of
                 Edinburgh
                 ,
                 and
                 for
                 Consignation
                 to
                 be
                 made
                 in
                 Edinburgh
                 :
                 Yea
                 ,
                 the
                 Order
                 was
                 sustained
                 for
                 redemption
                 of
                 an
                 Appryzing
                 near
                 expyring
                 ,
                 albeit
                 the
                 Consignation
                 was
                 only
                 at
                 Edinburgh
                 ,
                 and
                 not
                 at
                 the
                 Paroch
                 Kirk
                 where
                 the
                 Lands
                 lay
                 ,
                 or
                 at
                 the
                 debitors
                 dwelling-house
                 ,
                 he
                 being
                 out
                 of
                 the
                 Countrey
                 ,
                 Feb.
                 22.
                 1631.
                 
                 
                   Murray
                   contra
                
                 Lord
                 Yester
                 :
                 But
                 where
                 the
                 party
                 was
                 in
                 the
                 Countrey
                 ,
                 this
                 Order
                 by
                 summonds
                 of
                 Premonition
                 and
                 Citation
                 ,
                 personally
                 taken
                 thereupon
                 ;
                 not
                 being
                 by
                 Instrument
                 of
                 Premonition
                 ,
                 was
                 found
                 void
                 ,
                 July
                 22.
                 1622.
                 
                 Lord
                 
                   Deshmond
                   contra
                   Hay
                   .
                   July
                
                 11.
                 1623.
                 
                 Captain
                 
                   Crawfoord
                   contra
                
                 Laird
                 of
                 Covingtoun
                 ,
                 Where
                 an
                 Instrument
                 of
                 Premonition
                 was
                 found
                 necessary
                 ,
                 though
                 no
                 determinate
                 time
                 be
                 requisite
                 ;
                 in
                 these
                 cases
                 ,
                 the
                 Legal
                 hath
                 not
                 been
                 near
                 expyred
                 ;
                 but
                 that
                 a
                 new
                 formal
                 Order
                 might
                 have
                 been
                 used
                 ,
                 yet
                 the
                 exorbitancy
                 of
                 Appryzings
                 hath
                 made
                 the
                 slenderest
                 Orders
                 of
                 Redemption
                 to
                 be
                 sustained
                 ,
                 as
                 if
                 the
                 Appryzer
                 had
                 been
                 in
                 Possession
                 ,
                 whereby
                 a
                 previous
                 count
                 was
                 necessary
                 ,
                 to
                 know
                 what
                 sums
                 were
                 to
                 be
                 offered
                 or
                 Consigned
                 ,
                 a
                 Summonds
                 for
                 count
                 and
                 reckoning
                 ,
                 and
                 for
                 accepting
                 what
                 was
                 resting
                 ,
                 being
                 used
                 within
                 the
                 Legal
                 ,
                 hath
                 always
                 ,
                 
                 been
                 sustained
                 ,
                 as
                 was
                 found
                 ,
                 July
                 2.
                 1625.
                 
                 Doctor
                 
                   Kincaid
                   contra
                   Halybruntoun
                
                 .
                 And
                 a
                 Consignation
                 of
                 a
                 sum
                 for
                 redeeming
                 of
                 several
                 Appryzings
                 made
                 by
                 a
                 singular
                 Successor
                 against
                 a
                 singular
                 Successor
                 ,
                 was
                 sustained
                 ,
                 because
                 the
                 Instrument
                 bore
                 
                   an
                   offer
                   to
                   Consign
                   the
                   sums
                   in
                   all
                   the
                   Apprizings
                   ,
                   whereto
                   that
                   party
                   had
                   then
                   right
                   ,
                
                 being
                 performed
                 in
                 the
                 Process
                 ,
                 February
                 12.
                 1631.
                 
                 
                   Murray
                   contra
                
                 Lord
                 Yester
                 .
              
               
                 16.
                 
                 The
                 redemption
                 of
                 Wodsets
                 upon
                 Conventional
                 Reversions
                 ,
                 is
                 by
                 an
                 order
                 of
                 redemption
                 ,
                 consisting
                 of
                 Premonition
                 ,
                 or
                 Requisition
                 and
                 Consignation
                 ,
                 whih
                 is
                 made
                 effectual
                 by
                 an
                 Action
                 of
                 declarator
                 of
                 redemption
                 thereupon
                 .
              
               
                 17.
                 
                 Premonition
                 is
                 an
                 act
                 or
                 deed
                 ,
                 whereby
                 the
                 Reverser
                 or
                 his
                 Procurator
                 premonisheth
                 the
                 Wodsetter
                 ,
                 conform
                 to
                 the
                 Tenor
                 of
                 the
                 Reversion
                 ,
                 to
                 appear
                 at
                 the
                 place
                 of
                 Consignation
                 ,
                 and
                 receive
                 satisfaction
                 according
                 to
                 the
                 Reversion
                 ;
                 and
                 if
                 it
                 require
                 the
                 Wodsetter
                 to
                 come
                 to
                 the
                 place
                 of
                 Consignation
                 and
                 receive
                 his
                 Money
                 ,
                 it
                 is
                 called
                 a
                 Requisition
                 :
                 And
                 in
                 either
                 case
                 ,
                 it
                 must
                 necessarly
                 be
                 done
                 by
                 way
                 of
                 Instrument
                 :
                 This
                 Instrument
                 useth
                 to
                 bear
                 ,
                 
                   Production
                   of
                   the
                   Reversion
                
                 :
                 Yet
                 a
                 Premonition
                 was
                 sustained
                 without
                 that
                 ,
                 seing
                 the
                 Reversion
                 was
                 contained
                 in
                 the
                 Wodsetters
                 own
                 Seasine
                 .
                 And
                 a
                 Premonition
                 was
                 not
                 found
                 null
                 ,
                 though
                 the
                 Procuratory
                 was
                 was
                 not
                 produced
                 ,
                 where
                 the
                 Procuratory
                 was
                 not
                 called
                 for
                 ,
                 January
                 18.
                 1662.
                 
                 Mr.
                 
                   John
                   Veatch
                   contra
                   Leyel
                
                 of
                 Bassandin
                 .
                 But
                 a
                 Requisition
                 was
                 found
                 null
                 ,
                 because
                 it
                 bore
                 not
                 
                   a
                   Procuratory
                   produced
                   the
                   time
                   of
                   the
                   Requisition
                   ,
                
                 albeit
                 another
                 Instrument
                 of
                 the
                 same
                 Nottar
                 did
                 bear
                 
                   a
                   Procuratory
                   produced
                
                 ,
                 and
                 that
                 in
                 respect
                 the
                 question
                 was
                 not
                 by
                 a
                 Wodsetter
                 and
                 Reverser
                 ,
                 neither
                 party
                 having
                 damage
                 ,
                 but
                 betwixt
                 a
                 Donatar
                 of
                 the
                 single
                 Escheat
                 ,
                 and
                 the
                 Creditors
                 of
                 the
                 Wodsetter
                 ;
                 so
                 that
                 if
                 the
                 Lords
                 supplied
                 the
                 not
                 production
                 of
                 the
                 Procuratory
                 ,
                 the
                 sum
                 Consigned
                 would
                 become
                 Moveable
                 ,
                 and
                 fall
                 to
                 the
                 Fisk
                 ;
                 therefore
                 the
                 Lords
                 refused
                 to
                 supply
                 the
                 Procuratory
                 ,
                 and
                 found
                 the
                 Requisition
                 null
                 ,
                 and
                 the
                 Wodset
                 unredeemed
                 ,
                 January
                 12.
                 1677.
                 
                 Creditors
                 of
                 
                   Wamphray
                   contra
                
                 Laird
                 of
                 Calderhal
                 .
                 Which
                 for
                 the
                 same
                 cause
                 would
                 hold
                 ,
                 if
                 the
                 question
                 had
                 been
                 betwixt
                 the
                 heir
                 and
                 Executor
                 of
                 the
                 Wodsetter
                 ;
                 for
                 in
                 either
                 of
                 these
                 cases
                 ,
                 the
                 formality
                 of
                 the
                 Requisition
                 have
                 the
                 importance
                 of
                 the
                 whole
                 Right
                 :
                 And
                 where
                 the
                 Reversion
                 was
                 in
                 the
                 Wodsetters
                 own
                 hand
                 ,
                 and
                 craved
                 to
                 be
                 exhibite
                 the
                 time
                 of
                 the
                 Consignation
                 ,
                 the
                 Premonition
                 was
                 found
                 good
                 without
                 it
                 ,
                 Hope
                 Wodsets
                 ,
                 Lord
                 
                   Yester
                   contra
                   Scot.
                
                 The
                 like
                 in
                 a
                 Redemption
                 at
                 an
                 Appryzers
                 instance
                 ,
                 who
                 Appryzed
                 the
                 Reversion
                 ,
                 February
                 19.
                 1662.
                 
                 Children
                 of
                 
                   Wolmet
                   contra
                
                 Mr.
                 
                   Mark
                   Ker.
                
                 The
                 like
                 in
                 a
                 singular
                 Successor
                 to
                 a
                 Reversion
                 redeeming
                 ,
                 February
                 17.
                 1663.
                 
                 Collonel
                 
                   James
                   Montgomerie
                   contra
                
                 heirs
                 of
                 Halybruntoun
                 .
                 Here
                 the
                 Reversion
                 was
                 in
                 the
                 Wodset
                 Right
                 ,
                 which
                 was
                 in
                 the
                 defenders
                 own
                 hand
                 .
              
               
                 Premonition
                 may
                 be
                 done
                 ,
                 either
                 personally
                 ,
                 or
                 at
                 the
                 Wodsetters
                 dwelling
                 house
                 .
                 But
                 it
                 was
                 found
                 null
                 ,
                 when
                 the
                 dwelling
                 house
                 was
                 not
                 designed
                 ,
                 December
                 13.
                 1626.
                 
                 Earl
                 of
                 
                   Balcleugh
                   contra
                   Young.
                
                 
              
               
                 Premonition
                 must
                 be
                 used
                 against
                 the
                 Tutors
                 and
                 Curators
                 of
                 Minors
                 ,
                 either
                 generally
                 at
                 the
                 Mercat
                 Cross
                 ;
                 or
                 otherways
                 to
                 the
                 Tutors
                 and
                 Curators
                 
                 personally
                 ,
                 December
                 17.
                 1629.
                 
                 
                   Carnousie
                   contra
                   〈◊〉
                
                 .
                 And
                 a
                 Requisition
                 was
                 found
                 null
                 ,
                 because
                 not
                 made
                 to
                 Tutors
                 and
                 Curators
                 ,
                 by
                 Letters
                 from
                 the
                 Lords
                 ;
                 but
                 only
                 by
                 an
                 Instrument
                 taken
                 at
                 the
                 Mercat
                 Cross
                 ,
                 June
                 15.
                 1680.
                 
                 
                   Gordoun
                   contra
                
                 Earl
                 of
                 Queensberry
                 .
                 But
                 where
                 Requisition
                 was
                 made
                 specially
                 to
                 one
                 who
                 was
                 repute
                 Tutor
                 ,
                 it
                 was
                 sustained
                 ,
                 Hope
                 Confirmation
                 ,
                 
                   Carnousie
                   contra
                   Frazer
                
                 .
              
               
                 A
                 Premonition
                 was
                 sustained
                 ,
                 though
                 the
                 Reversion
                 bore
                 ,
                 
                   that
                   it
                   should
                   be
                   done
                   at
                   the
                   Paroch
                   Kirk
                   ,
                
                 and
                 it
                 was
                 done
                 personally
                 ,
                 which
                 was
                 accounted
                 more
                 ,
                 December
                 11.
                 1638.
                 
                 
                   Findlason
                   contra
                   Weims
                
                 .
              
               
                 18.
                 
                 Consignation
                 must
                 also
                 be
                 done
                 by
                 way
                 of
                 Instrument
                 ,
                 bearing
                 the
                 Tenor
                 of
                 the
                 Premonition
                 ,
                 and
                 the
                 production
                 of
                 the
                 Reversion
                 and
                 Procuratory
                 in
                 the
                 same
                 way
                 ,
                 as
                 it
                 is
                 before
                 said
                 of
                 he
                 Premonition
                 ,
                 and
                 the
                 coming
                 to
                 the
                 place
                 and
                 day
                 ,
                 according
                 to
                 the
                 Reversion
                 and
                 Premonition
                 ,
                 which
                 may
                 be
                 any
                 time
                 of
                 the
                 day
                 ;
                 and
                 therefore
                 ,
                 the
                 Wodsetter
                 must
                 attend
                 that
                 day
                 from
                 Sun
                 to
                 Sun
                 ;
                 because
                 the
                 Reverser
                 may
                 come
                 any
                 time
                 of
                 the
                 day
                 :
                 And
                 upon
                 the
                 Wodsetters
                 not
                 appearing
                 ,
                 or
                 not
                 renuncing
                 the
                 particulars
                 contained
                 in
                 the
                 Reversion
                 ,
                 are
                 to
                 be
                 Consigned
                 according
                 thereto
                 ,
                 upon
                 publick
                 intimation
                 ,
                 by
                 calling
                 the
                 Wodsetter
                 ,
                 if
                 absent
                 ,
                 at
                 the
                 most
                 patent
                 door
                 ,
                 which
                 must
                 be
                 done
                 according
                 to
                 the
                 Reversion
                 ,
                 
                   in
                   forma
                   specifica
                
                 ,
                 and
                 not
                 
                   per
                   aequipollens
                   ,
                   Hope
                
                 Wodsets
                 ,
                 Lord
                 
                   Frazer
                   contra
                   James
                   Crightoun
                
                 .
                 It
                 was
                 sustained
                 upon
                 the
                 Consignation
                 of
                 a
                 Discharge
                 of
                 the
                 like
                 sum
                 due
                 by
                 the
                 Wodsetter
                 ,
                 in
                 respect
                 it
                 was
                 due
                 by
                 an
                 Article
                 in
                 the
                 Contract
                 of
                 Wodset
                 ,
                 in
                 stead
                 of
                 Money
                 ,
                 January
                 2.
                 1667.
                 
                 
                   Hog
                   contra
                   Hog
                
                 .
              
               
                 Consignations
                 use
                 to
                 bear
                 ,
                 
                   the
                   numeration
                   if
                   the
                   Money
                
                 .
                 Yet
                 it
                 was
                 sustained
                 ,
                 bearing
                 
                   the
                   production
                   of
                   all
                   and
                   hail
                   the
                   sum
                   contained
                   in
                   the
                   Reversion
                   ,
                   March
                
                 10.
                 1630.
                 
                 
                   Grierson
                   contra
                   Gordoun
                
                 of
                 Troquhan
                 .
                 Here
                 the
                 Wodsetter
                 did
                 not
                 appear
                 ,
                 or
                 at
                 least
                 did
                 not
                 require
                 Numeration
                 .
                 It
                 must
                 also
                 contain
                 an
                 offer
                 of
                 what
                 is
                 generally
                 in
                 the
                 Reversion
                 ,
                 and
                 of
                 what
                 the
                 defender
                 can
                 further
                 condescend
                 and
                 clear
                 ,
                 whereof
                 the
                 Reverser
                 was
                 probably
                 ignorant
                 ,
                 as
                 the
                 dues
                 competent
                 in
                 Appryzings
                 ;
                 and
                 therefore
                 a
                 Redemption
                 of
                 Teinds
                 upon
                 Consignation
                 of
                 the
                 principal
                 sum
                 ,
                 and
                 offer
                 of
                 what
                 should
                 be
                 cleared
                 ,
                 to
                 be
                 resting
                 of
                 Teind
                 Bolls
                 ,
                 as
                 the
                 prices
                 should
                 be
                 modified
                 by
                 the
                 Lords
                 ,
                 was
                 sustained
                 ,
                 being
                 made
                 good
                 at
                 the
                 Bar
                 ,
                 February
                 21.
                 1623.
                 
                 
                   Cunningham
                   contra
                   Walter
                   Foster
                
                 .
                 Yea
                 ,
                 the
                 order
                 of
                 Redemption
                 of
                 an
                 Appryzing
                 ,
                 was
                 sustained
                 ,
                 though
                 the
                 bygone
                 Annualrent
                 and
                 Penalty
                 were
                 not
                 offered
                 or
                 Consigned
                 ,
                 the
                 same
                 being
                 offered
                 at
                 the
                 Bar
                 ,
                 as
                 they
                 were
                 found
                 due
                 and
                 modified
                 ,
                 Hope
                 Wodsets
                 .
                 A
                 Consignation
                 was
                 also
                 sustained
                 ,
                 as
                 made
                 thorow
                 the
                 Wodsetters
                 default
                 ,
                 who
                 offered
                 not
                 a
                 sufficient
                 Renunciation
                 ,
                 though
                 the
                 Consigner
                 did
                 not
                 offer
                 the
                 draught
                 of
                 a
                 sufficient
                 Renunciation
                 to
                 the
                 Wodsetter
                 to
                 subscrive
                 ,
                 albeit
                 the
                 Wodsetter
                 appeared
                 ,
                 and
                 was
                 willing
                 to
                 receive
                 the
                 Money
                 and
                 offered
                 a
                 Renunciation
                 ,
                 which
                 the
                 Lords
                 at
                 discussing
                 of
                 the
                 Cause
                 ,
                 found
                 not
                 sufficient
                 ,
                 and
                 found
                 the
                 Consigner
                 was
                 not
                 oblieged
                 ,
                 even
                 in
                 that
                 case
                 ,
                 to
                 offer
                 the
                 draught
                 os
                 such
                 a
                 Renunciation
                 as
                 he
                 required
                 ,
                 July
                 12.
                 1634.
                 
                 Lord
                 
                   Balmerino
                   contra
                   Gilbert
                   Elliot
                
                 .
              
               
                 19.
                 
                 The
                 Order
                 of
                 Redemption
                 being
                 lawfully
                 used
                 ,
                 the
                 action
                 thereupon
                 is
                 a
                 declarator
                 of
                 Redemption
                 ,
                 because
                 it
                 is
                 the
                 order
                 that
                 Constitutes
                 the
                 Redemption
                 
                 and
                 the
                 Declarator
                 ,
                 but
                 finds
                 and
                 declares
                 it
                 to
                 be
                 orderly
                 proceeded
                 ,
                 and
                 decern-the
                 Wodsetter
                 to
                 denuds
                 himself
                 conform
                 thereto
                 ;
                 and
                 therefore
                 ,
                 though
                 the
                 Reversion
                 be
                 personal
                 ,
                 excluding
                 Assigneys
                 ,
                 if
                 that
                 person
                 once
                 use
                 the
                 Order
                 he
                 may
                 Assign
                 it
                 ,
                 and
                 Dispone
                 the
                 Lands
                 as
                 Redeemed
                 ;
                 and
                 the
                 Assigney
                 at
                 any
                 time
                 ,
                 even
                 after
                 his
                 death
                 ,
                 will
                 have
                 interest
                 to
                 declare
                 ,
                 July
                 29.
                 1623.
                 
                 Earl
                 
                   Marischal
                   contra
                
                 his
                 Brother
                 .
                 March
                 3.
                 1630.
                 
                 
                   Murray
                   contra
                   Myls
                   .
                   July
                
                 30.
                 1650.
                 
                 
                   Campbel
                   contra
                   Dick.
                
                 Declarator
                 of
                 Redemption
                 was
                 sustained
                 upon
                 an
                 Order
                 used
                 against
                 a
                 defunct
                 ,
                 and
                 the
                 Declarator
                 pursued
                 against
                 his
                 appearand
                 Heir
                 ,
                 without
                 a
                 Charge
                 to
                 enter
                 Heir
                 ,
                 or
                 a
                 new
                 Order
                 ,
                 December
                 11.
                 1638
                 ,
                 
                   Findlayson
                   contra
                   Weims
                
                 .
                 But
                 in
                 the
                 Decreet
                 of
                 Declarator
                 of
                 Redemption
                 against
                 the
                 appearand
                 Heirs
                 ,
                 they
                 cannot
                 be
                 decerned
                 to
                 denude
                 ,
                 unless
                 they
                 were
                 Charged
                 to
                 enter
                 heir
                 ;
                 yet
                 the
                 Declarator
                 it self
                 would
                 be
                 sufficient
                 to
                 extinguish
                 the
                 Wodset
                 against
                 singular
                 Successors
                 :
                 But
                 it
                 would
                 not
                 convey
                 the
                 right
                 of
                 Wodset
                 to
                 the
                 Redeemer
                 ;
                 and
                 therefore
                 ,
                 if
                 he
                 were
                 not
                 Infeft
                 ,
                 or
                 heir
                 to
                 a
                 person
                 Infeft
                 in
                 the
                 Wodset
                 Lands
                 ,
                 it
                 would
                 be
                 necessary
                 to
                 charge
                 the
                 appearand
                 heir
                 to
                 enter
                 ,
                 to
                 the
                 effect
                 he
                 might
                 denude
                 and
                 dispone
                 ;
                 and
                 therefore
                 ,
                 a
                 declarator
                 of
                 Redemption
                 against
                 an
                 appearand
                 heir
                 ,
                 did
                 bear
                 ,
                 
                   that
                   the
                   sums
                   should
                   not
                   be
                   given
                   up
                   till
                   the
                   appearand
                   heir
                   were
                   Infeft
                   and
                   Resigned
                   ,
                   January
                
                 10.
                 1665.
                 
                 
                   Campbel
                   contra
                   Brison
                
                 It
                 was
                 also
                 sustained
                 at
                 the
                 instance
                 of
                 an
                 Appryzer
                 of
                 the
                 Reversion
                 ,
                 without
                 calling
                 him
                 from
                 whom
                 it
                 was
                 Appryzed
                 ,
                 but
                 only
                 the
                 Wodsetter
                 ,
                 December
                 17.
                 1629.
                 
                 
                   Carnousie
                   contra
                   Lesmore
                
                 .
                 In
                 respect
                 that
                 the
                 Appryzing
                 was
                 a
                 Legal
                 Assignation
                 of
                 the
                 right
                 of
                 Reversion
                 granted
                 by
                 the
                 Wodsetters
                 author
                 :
                 And
                 there
                 have
                 been
                 no
                 interveening
                 singular
                 Successors
                 ,
                 but
                 in
                 Redemptions
                 against
                 singular
                 Successors
                 in
                 Wodsetts
                 ,
                 whose
                 rights
                 do
                 not
                 instruct
                 that
                 they
                 are
                 derived
                 from
                 the
                 granter
                 of
                 the
                 Reversion
                 ,
                 the
                 pursuer
                 must
                 instruct
                 that
                 the
                 granter
                 of
                 the
                 Reversion
                 stood
                 Infeft
                 in
                 Fee
                 :
                 Otherways
                 that
                 singular
                 Successor
                 will
                 not
                 be
                 oblieged
                 to
                 acknowledge
                 the
                 Reversion
                 ;
                 and
                 because
                 the
                 Successors
                 of
                 the
                 first
                 Wodsetter
                 would
                 have
                 warrandice
                 against
                 the
                 first
                 Wodsetter
                 or
                 his
                 heirs
                 ,
                 if
                 they
                 had
                 disponed
                 the
                 Lands
                 without
                 reserving
                 the
                 Reversion
                 ;
                 therefore
                 in
                 that
                 case
                 ,
                 only
                 the
                 first
                 Wodsetter
                 or
                 his
                 heir
                 ,
                 if
                 he
                 can
                 be
                 condescended
                 upon
                 ,
                 having
                 any
                 visible
                 Estate
                 ,
                 have
                 been
                 of
                 old
                 accustomed
                 to
                 be
                 called
                 ;
                 which
                 is
                 not
                 necessary
                 in
                 other
                 cases
                 ,
                 and
                 hath
                 been
                 the
                 ground
                 of
                 that
                 Decision
                 ,
                 July
                 9.
                 1630.
                 
                 
                   Fisher
                   contra
                   Brown.
                
                 Where
                 it
                 was
                 found
                 necessary
                 to
                 call
                 the
                 heirs
                 of
                 the
                 granter
                 of
                 Reversion
                 ,
                 if
                 the
                 defender
                 could
                 condescend
                 upon
                 them
                 ;
                 for
                 the
                 ancient
                 custom
                 hath
                 been
                 to
                 have
                 more
                 respect
                 to
                 the
                 heir
                 of
                 the
                 granter
                 of
                 the
                 Reversion
                 ,
                 then
                 to
                 the
                 singular
                 Successor
                 ,
                 present
                 Possessor
                 of
                 the
                 Wodset
                 ,
                 as
                 Craig
                 observes
                 ,
                 l.
                 2.
                 
                 Dieges
                 .
                 6.
                 that
                 sometimes
                 Redemption
                 hath
                 been
                 sustained
                 upon
                 Premonition
                 and
                 Citation
                 ,
                 only
                 of
                 him
                 who
                 granted
                 the
                 Reversion
                 or
                 his
                 heir
                 .
                 But
                 ever
                 since
                 the
                 present
                 Heretable
                 Possessor
                 of
                 the
                 Wodset
                 ,
                 must
                 necessarly
                 be
                 Premonished
                 and
                 Cited
                 ,
                 and
                 but
                 seldom
                 the
                 granter
                 of
                 the
                 Reversion
                 or
                 his
                 heir
                 ,
                 as
                 where
                 the
                 granter
                 of
                 the
                 Reversion
                 was
                 immediat
                 Author
                 to
                 the
                 singular
                 Successor
                 ,
                 against
                 whom
                 the
                 Order
                 was
                 used
                 ,
                 as
                 in
                 the
                 former
                 case
                 ,
                 his
                 own
                 Rights
                 behoved
                 to
                 acknowledge
                 the
                 right
                 of
                 the
                 granter
                 of
                 the
                 Reversion
                 ,
                 who
                 was
                 common
                 Author
                 and
                 might
                 intimate
                 the
                 plea
                 to
                 him
                 ,
                 but
                 could
                 not
                 be
                 oblieged
                 so
                 to
                 do
                 ,
                 where
                 his
                 own
                 right
                 shew
                 no
                 right
                 from
                 the
                 granter
                 of
                 the
                 Reversion
                 .
              
               
                 A
                 Redemption
                 being
                 voluntary
                 without
                 Process
                 ,
                 was
                 sustained
                 against
                 a
                 Sub-wodsetters
                 right
                 ,
                 being
                 a
                 Liserent
                 by
                 the
                 Wodsetter
                 to
                 his
                 Wife
                 ,
                 albeit
                 it
                 was
                 〈◊〉
                 ;
                 yet
                 the
                 Redeemer
                 was
                 not
                 found
                 oblieged
                 to
                 know
                 it
                 ;
                 but
                 it
                 was
                 
                 found
                 taken
                 away
                 without
                 any
                 Order
                 against
                 her
                 ,
                 or
                 Citation
                 of
                 her
                 ,
                 Iuly
                 27.
                 1665.
                 
                 
                   Lillias
                   Hamiltoun
                   contra
                
                 her
                 Tennents
                 .
                 Redemption
                 upon
                 a
                 Rose-noble
                 used
                 upon
                 the
                 Sabbath-day
                 ,
                 albeit
                 the
                 Instrument
                 of
                 Consignation
                 ,
                 did
                 not
                 bear
                 ,
                 
                   the
                   Reversion
                   was
                   shown
                   ,
                   nor
                   read
                   ,
                
                 was
                 sustained
                 ,
                 Spots
                 .
                 Redemption
                 ,
                 Laird
                 of
                 
                   Newwark
                   contra
                
                 his
                 Son
                 ;
                 but
                 this
                 would
                 not
                 be
                 drawn
                 in
                 example
                 amongst
                 strangers
                 ,
                 where
                 the
                 Wodset
                 is
                 redeemable
                 upon
                 considerable
                 sums
                 .
                 For
                 though
                 Consignation
                 upon
                 the
                 Sabbath-day
                 by
                 a
                 Father
                 against
                 his
                 Son
                 ,
                 be
                 sustained
                 ,
                 
                   〈◊〉
                   non
                   debet
                   ,
                   sed
                   factum
                   valet
                   :
                
                 Yet
                 the
                 Wodsetter
                 cannot
                 be
                 oblieged
                 to
                 attend
                 and
                 perform
                 the
                 requisites
                 of
                 Consignation
                 ,
                 by
                 numeration
                 of
                 Money
                 ,
                 perusal
                 of
                 Writes
                 ,
                 and
                 subscribing
                 a
                 Renunciation
                 upon
                 the
                 Sabbath-day
                 .
                 Redemption
                 was
                 sustainedwithout
                 necessity
                 to
                 the
                 pursuer
                 ,
                 to
                 uplift
                 the
                 sums
                 Consigned
                 from
                 the
                 Consignatar
                 ,
                 and
                 re-produce
                 them
                 at
                 the
                 Bar
                 ,
                 unless
                 it
                 be
                 instructed
                 he
                 had
                 taken
                 them
                 up
                 ,
                 December
                 7.
                 1631.
                 
                 
                   Grierson
                   contra
                   Gordoun
                
                 .
                 Where
                 the
                 Extract
                 was
                 superceeded
                 till
                 the
                 Consignatar
                 was
                 Charged
                 summarly
                 upon
                 Letters
                 granted
                 upon
                 the
                 Instrument
                 of
                 Consignation
                 to
                 exhibite
                 the
                 Consigned
                 Money
                 ,
                 but
                 no
                 Annualrent
                 was
                 found
                 due
                 after
                 Consignation
                 .
              
               
                 A
                 Redemption
                 was
                 sustained
                 without
                 production
                 of
                 the
                 Reversion
                 ,
                 the
                 pursuer
                 being
                 an
                 Appryzer
                 ,
                 and
                 proving
                 that
                 the
                 Reversion
                 was
                 in
                 the
                 Defenders
                 own
                 hand
                 ,
                 February
                 19.
                 1662
                 ,
                 Children
                 of
                 
                   Wolmet
                   contra
                
                 Mr.
                 
                   Mark
                   ker
                
                 .
                 The
                 like
                 where
                 the
                 pursuer
                 was
                 a
                 singular
                 Successor
                 ,
                 February
                 17.
                 1663.
                 
                 Collonel
                 
                   James
                   Montgomery
                   contra
                   Robert
                   Halybruntoun
                
                 .
                 Yea
                 ,
                 an
                 order
                 used
                 by
                 an
                 Assigney
                 sustained
                 ,
                 though
                 he
                 shew
                 not
                 his
                 Assignation
                 till
                 the
                 Process
                 of
                 Declarator
                 ,
                 yet
                 so
                 as
                 the
                 Wodsetter
                 was
                 not
                 countable
                 for
                 the
                 Rents
                 ,
                 but
                 from
                 the
                 production
                 of
                 the
                 Assignation
                 ,
                 February
                 19.
                 1674.
                 
                 Lord
                 
                   Borthwick
                   contra
                   Pringles
                
                 .
                 Yet
                 Redemption
                 was
                 not
                 sustained
                 at
                 the
                 instance
                 of
                 an
                 heir
                 ,
                 not
                 being
                 entered
                 at
                 the
                 time
                 of
                 the
                 Order
                 ,
                 though
                 entered
                 before
                 Declarator
                 ,
                 Ianuary
                 19.
                 1672.
                 
                 Lord
                 Lovat
                 and
                 
                   Kintail
                   contra
                
                 Lord
                 Mcdonald
                 .
                 But
                 if
                 the
                 Redeemer
                 uplifted
                 the
                 Consigned
                 Money
                 ,
                 he
                 must
                 produce
                 the
                 same
                 with
                 the
                 Annualrent
                 ,
                 and
                 will
                 have
                 right
                 to
                 the
                 Rent
                 during
                 that
                 time
                 ,
                 Hope
                 Confirmation
                 ,
                 
                   Baikie
                   contra
                   ,
                   December
                
                 8.
                 1671.
                 
                 
                   Forrest
                   contra
                   Brounlie
                   .
                   November
                
                 29.
                 1672.
                 
                 Duke
                 of
                 
                   Buckleugh
                   contra
                   Scot
                
                 of
                 Thirlestain
                 .
              
               
                 Redemption
                 was
                 not
                 eleided
                 ,
                 because
                 the
                 sums
                 were
                 Consigned
                 in
                 the
                 hands
                 of
                 the
                 redeemers
                 own
                 servant
                 ,
                 and
                 taken
                 up
                 from
                 him
                 ,
                 seing
                 it
                 was
                 offered
                 at
                 the
                 Bar
                 ,
                 and
                 no
                 special
                 provision
                 in
                 the
                 Reversion
                 ,
                 anent
                 the
                 Consignatar
                 ,
                 Hope
                 Confirmation
                 ,
                 Laird
                 of
                 
                   Drum
                   contra
                   Wishart
                
                 .
                 The
                 like
                 though
                 there
                 was
                 an
                 Instrument
                 of
                 another
                 Nottar
                 contrary
                 the
                 Order
                 of
                 Redemption
                 ,
                 July
                 18.
                 1610.
                 
                 Earl
                 of
                 
                   Kinghorn
                   contra
                   Kincaid
                
                 .
              
               
                 20.
                 
                 The
                 effect
                 of
                 Declarator
                 of
                 redemption
                 is
                 ,
                 that
                 it
                 makes
                 the
                 redeemed
                 Lands
                 belong
                 to
                 the
                 Redeemer
                 ,
                 and
                 makes
                 the
                 sum
                 Consigned
                 moveable
                 and
                 to
                 belong
                 to
                 the
                 Wodsetters
                 Executors
                 ,
                 if
                 he
                 have
                 accepted
                 the
                 Consignation
                 or
                 Declarator
                 ,
                 do
                 follow
                 in
                 his
                 Lifetime
                 ;
                 but
                 if
                 Declarator
                 do
                 follow
                 after
                 the
                 Wodsetters
                 death
                 ,
                 the
                 Consigned
                 sums
                 will
                 not
                 belong
                 to
                 his
                 Executors
                 but
                 to
                 his
                 heir
                 ,
                 who
                 remains
                 Propietar
                 of
                 the
                 Wodset
                 :
                 But
                 if
                 Declarator
                 past
                 in
                 the
                 Wodsetters
                 Life
                 ,
                 it
                 did
                 take
                 away
                 the
                 real
                 right
                 of
                 Wodset
                 ,
                 so
                 the
                 Money
                 came
                 to
                 be
                 in
                 the
                 Property
                 of
                 the
                 Wodsetter
                 ,
                 as
                 moveable
                 ,
                 and
                 fell
                 to
                 his
                 Executor
                 ,
                 which
                 till
                 a
                 Declarator
                 was
                 not
                 so
                 ,
                 seing
                 the
                 Order
                 might
                 be
                 passed
                 from
                 ,
                 December
                 19.
                 1629.
                 
                 
                   〈◊〉
                   contra
                   Miller
                
                 ;
                 where
                 it
                 was
                 found
                 ,
                 that
                 the
                 Consignatar
                 was
                 oblieged
                 to
                 re-deliver
                 the
                 Consigned
                 Money
                 to
                 the
                 Consigner
                 ,
                 his
                 Heirs
                 or
                 Assigneys
                 ,
                 passing
                 from
                 the
                 Order
                 ,
                 though
                 the
                 Wodsetter
                 ,
                 
                 to
                 whose
                 use
                 it
                 was
                 Consigned
                 ,
                 was
                 not
                 called
                 .
                 The
                 like
                 was
                 found
                 ,
                 that
                 till
                 Declarator
                 the
                 congned
                 sums
                 remain
                 in
                 the
                 Property
                 of
                 the
                 Consigner
                 ,
                 and
                 belong
                 not
                 to
                 the
                 Executor
                 of
                 the
                 Wodsetter
                 ,
                 but
                 to
                 his
                 heir
                 :
                 or
                 where
                 Declarator
                 of
                 Redemption
                 was
                 after
                 the
                 Wodsetters
                 death
                 ,
                 January
                 21.
                 1673.
                 
                 
                   Thomas
                   Nicol
                   contra
                   Lourie
                   .
                   Iune
                
                 18.
                 1675.
                 
                 Laird
                 of
                 
                   Lie
                   contra
                   Forbes
                   of
                   Blacktoun
                
                 .
              
               
                 Upon
                 Declarator
                 of
                 redemption
                 ,
                 Letters
                 will
                 be
                 obtained
                 summarly
                 against
                 the
                 Consignatar
                 ,
                 to
                 re-produce
                 the
                 Consigned
                 Money
                 ,
                 December
                 7
                 1631.
                 1631.
                 
                 
                   Grierson
                   contra
                   Gordoun
                
                 .
                 But
                 though
                 the
                 Instrument
                 of
                 Consignation
                 will
                 instruct
                 the
                 Consignation
                 against
                 the
                 Wodsetter
                 ;
                 yet
                 it
                 will
                 not
                 prove
                 against
                 the
                 Consignatar
                 ,
                 without
                 his
                 oath
                 ,
                 or
                 write
                 subscribed
                 by
                 his
                 own
                 hand
                 ,
                 Ianuary
                 14.
                 1630.
                 
                 
                   Lausree
                   contra
                   Miller
                
                 .
              
               
                 21.
                 
                 Redemption
                 was
                 not
                 elided
                 by
                 a
                 singular
                 Successor
                 ,
                 obtaining
                 Infeftment
                 of
                 the
                 Wodset
                 Landsafter
                 the
                 Order
                 ,
                 or
                 at
                 least
                 the
                 Infeftment
                 being
                 base
                 ,
                 not
                 cled
                 with
                 Possession
                 till
                 after
                 the
                 Order
                 ,
                 though
                 it
                 was
                 cled
                 with
                 seven
                 years
                 Possession
                 before
                 Declarator
                 ,
                 Hope
                 Confirmation
                 ,
                 Earl
                 of
                 
                   Errol
                   contra
                
                 Tennents
                 and
                 Lady
                 Seaforth
                 .
              
               
                 22.
                 
                 Wodsets
                 are
                 also
                 taken
                 off
                 by
                 Premonition
                 or
                 requisition
                 ,
                 requiring
                 the
                 sums
                 upon
                 which
                 the
                 Wodset
                 is
                 granted
                 ,
                 which
                 makes
                 the
                 sums
                 moveable
                 and
                 the
                 Infeftment
                 of
                 Wodset
                 void
                 ,
                 yet
                 so
                 that
                 the
                 requirer
                 may
                 pass
                 from
                 his
                 requisition
                 ,
                 and
                 the
                 Infeftment
                 revives
                 ,
                 January
                 29.
                 1635.
                 
                 
                   James
                   Hamiltoun
                   contra
                
                 Tennents
                 of
                 Calder
                 .
              
               
                 The
                 Requisition
                 may
                 be
                 also
                 past
                 from
                 indireclty
                 ,
                 by
                 uplifting
                 the
                 Duties
                 of
                 the
                 Wodset
                 Lands
                 ,
                 for
                 Terms
                 after
                 the
                 requisition
                 ,
                 Hope
                 Usury
                 ,
                 
                   Thomas
                   Waliace
                   contra
                
                 Laird
                 of
                 Edzel
                 ;
                 or
                 taking
                 posterior
                 Terms
                 of
                 Annualrent
                 from
                 Principal
                 or
                 Cautioner
                 .
              
               
                 Requisition
                 requires
                 also
                 the
                 same
                 solemnities
                 that
                 Premonition
                 requires
                 ;
                 and
                 therefore
                 it
                 was
                 not
                 sustained
                 ,
                 where
                 the
                 Procurator
                 designed
                 no
                 time
                 nor
                 place
                 to
                 pay
                 the
                 Money
                 required
                 ,
                 and
                 the
                 Instrument
                 was
                 mended
                 at
                 the
                 Bar
                 ,
                 as
                 to
                 the
                 reading
                 of
                 the
                 Procuratory
                 ,
                 and
                 the
                 truth
                 of
                 it
                 referred
                 to
                 the
                 defenders
                 oath
                 ,
                 which
                 the
                 Lords
                 admitted
                 not
                 ,
                 the
                 Instrument
                 being
                 otherways
                 produced
                 in
                 Judgement
                 ;
                 this
                 was
                 in
                 expyring
                 of
                 a
                 Reversion
                 ,
                 for
                 not
                 payment
                 upon
                 requisition
                 .
                 The
                 like
                 when
                 the
                 requisition
                 bore
                 that
                 ,
                 February
                 7.
                 1628.
                 
                 
                   Maxwel
                   contra
                
                 Laird
                 of
                 Innerweek
                 .
                 The
                 like
                 where
                 the
                 requisition
                 mentioned
                 not
                 the
                 production
                 or
                 the
                 Procuratory
                 ,
                 though
                 it
                 bore
                 not
                 it
                 
                   to
                   be
                   called
                   ,
                   November
                
                 13.
                 1622.
                 
                 Laird
                 of
                 
                   Bass
                   contra
                   Wauchop
                
                 .
                 This
                 was
                 in
                 a
                 requisition
                 only
                 to
                 validat
                 a
                 Charge
                 ;
                 the
                 contrary
                 was
                 found
                 ,
                 where
                 it
                 bore
                 ,
                 
                   that
                   the
                   Procurators
                   power
                   was
                   known
                   to
                   him
                   and
                   the
                   witness
                   .
                   Ianuary
                
                 18.
                 1665.
                 
                 
                   Stuart
                   contra
                   Stuart
                
                 :
                 Here
                 there
                 was
                 an
                 Apprising
                 deduced
                 upon
                 the
                 requisition
                 .
                 The
                 like
                 where
                 the
                 Procuratory
                 was
                 not
                 called
                 for
                 ,
                 and
                 was
                 in
                 the
                 Procurators
                 hand
                 ,
                 June
                 28.
                 1671.
                 
                 
                   Hellen
                   Home
                   contra
                
                 Lord
                 Justice
                 Clerk.
                 
              
               
                 23.
                 
                 Declarators
                 of
                 redemption
                 ,
                 or
                 renunciations
                 ,
                 or
                 grants
                 of
                 redemption
                 ,
                 do
                 ordinarly
                 bear
                 ,
                 
                   that
                   the
                   Wodsetter
                   renunceth
                   all
                   right
                   to
                   the
                   Wodset
                   Lands
                
                 ;
                 and
                 albeit
                 he
                 have
                 a
                 distinct
                 right
                 ;
                 it
                 will
                 not
                 stop
                 the
                 Declarator
                 ,
                 nor
                 obliege
                 the
                 redeemer
                 to
                 debate
                 thereanent
                 in
                 that
                 Proces
                 :
                 Nor
                 will
                 it
                 stop
                 the
                 entering
                 the
                 redeemer
                 in
                 the
                 Possession
                 ,
                 in
                 which
                 he
                 entered
                 by
                 the
                 
                 Wodset
                 ;
                 but
                 that
                 right
                 will
                 only
                 be
                 reserved
                 ,
                 November
                 22.
                 1677.
                 
                 Sir
                 
                   Archibald
                   Stuart
                
                 of
                 
                   Castlemilk
                   contra
                
                 Duke
                 of
                 Hamiltoun
                 :
                 And
                 if
                 the
                 Wodsetter
                 condescend
                 upon
                 ,
                 and
                 give
                 evidence
                 of
                 any
                 other
                 right
                 beside
                 the
                 Wodset
                 ,
                 it
                 will
                 be
                 particularly
                 reserved
                 ,
                 or
                 the
                 renunciation
                 will
                 only
                 bear
                 ,
                 
                   all
                   right
                   by
                   vertue
                   of
                   the
                   Wodset
                   ,
                   Hope
                
                 Confirmation
                 ,
                 
                   Baikie
                   contra
                   Iuly
                
                 2.
                 1623.
                 
                 Earl
                 of
                 
                   Errol
                   contra
                   Bukie
                
                 .
              
               
                 And
                 in
                 the
                 case
                 of
                 redemption
                 of
                 an
                 Appryzing
                 ,
                 the
                 renunciation
                 was
                 restricted
                 to
                 the
                 right
                 in
                 question
                 ,
                 February
                 22.
                 1631.
                 
                 
                   Murray
                   contra
                
                 Lord
                 Yester
                 .
                 Declarators
                 of
                 redemption
                 do
                 descern
                 the
                 Wodsetter
                 to
                 renunce
                 ,
                 and
                 resign
                 all
                 right
                 to
                 the
                 Wodset
                 Lands
                 ,
                 unless
                 a
                 right
                 distinct
                 from
                 the
                 Wodset
                 could
                 be
                 instructed
                 ,
                 which
                 will
                 be
                 excepted
                 ,
                 or
                 an
                 evidence
                 given
                 of
                 such
                 a
                 right
                 ,
                 which
                 thereupon
                 will
                 be
                 reserved
                 :
                 But
                 a
                 general
                 reservation
                 of
                 other
                 rights
                 was
                 not
                 sustained
                 ,
                 but
                 a
                 Declarator
                 of
                 redemption
                 was
                 found
                 a
                 species
                 of
                 Declarator
                 of
                 right
                 ;
                 after
                 which
                 ,
                 no
                 right
                 competent
                 and
                 omitted
                 ,
                 will
                 be
                 sustained
                 ,
                 which
                 was
                 then
                 known
                 ,
                 February
                 2.
                 1676.
                 
                 Duke
                 of
                 
                   Lauderdail
                   contra
                
                 Lord
                 and
                 Lady
                 Yester
                 .
              
            
             
               
               
                 TITLE
                 XXI
                 .
                 Extinction
                 of
                 Infeftments
                 ,
                 Where
                 ,
                 of
                 Resignation
                 ad
                 remanentiam
                 ,
                 Recognition
                 ,
                 Disclamation
                 ,
                 Purpresture
                 ,
                 and
                 other
                 Feudal
                 Delinquences
                 .
              
               
                 
                   1.
                   
                   The
                   form
                   of
                   Resignations
                   ,
                   
                     ad
                     remanentiam
                  
                   .
                
                 
                   2.
                   
                   They
                   may
                   be
                   by
                   Procurators
                   ,
                   or
                   
                     propriis
                     manibus
                  
                   .
                
                 
                   3.
                   
                   Instruments
                   of
                   Resignation
                   prove
                   not
                   without
                   a
                   warrand
                   in
                   write
                   .
                
                 
                   4.
                   
                   Resignations
                   
                     ad
                     remanentiam
                  
                   ,
                   were
                   valide
                   without
                   Registration
                   ,
                   till
                   the
                   year
                   ,
                   1669.
                   
                
                 
                   5.
                   
                   Resignations
                   imply
                   all
                   burdens
                   by
                   the
                   Vassal
                   affecting
                   the
                   fee.
                   
                
                 
                   6.
                   
                   Resignation
                   by
                   him
                   who
                   hath
                   no
                   right
                   ,
                   with
                   consent
                   of
                   him
                   who
                   hath
                   right
                   ,
                   how
                   far
                   effectual
                   .
                
                 
                   7.
                   
                   How
                   far
                   Superiours
                   may
                   not
                   reject
                   resignations
                   ,
                   
                     ad
                     remanentiam
                  
                   .
                
                 
                   8.
                   
                   How
                   Infeftments
                   become
                   extinct
                   by
                   Succession
                   ,
                   as
                   heir
                   ,
                   or
                   
                     Singulari
                     titulo
                  
                   .
                
                 
                   9.
                   
                   The
                   original
                   of
                   extinction
                   of
                   fees
                   ,
                   not
                   by
                   the
                   Vassalls
                   consent
                   ,
                   but
                   by
                   his
                   deed
                   .
                
                 
                   
                   10.
                   
                   Recognition
                   by
                   alienation
                   of
                   the
                   ward
                   fee.
                   
                
                 
                   11.
                   
                   Recognition
                   by
                   Infeftments
                   ,
                   
                     a
                     se.
                  
                   
                
                 
                   12.
                   
                   Whether
                   recognition
                   can
                   be
                   incurred
                   by
                   deeds
                   in
                   minority
                   ,
                   or
                   on
                   death-bed
                   .
                
                 
                   13.
                   
                   Whether
                   recognition
                   can
                   be
                   incurred
                   by
                   Sub-feudation
                   .
                
                 
                   14.
                   
                   How
                   far
                   feues
                   exceeding
                   the
                   half
                   of
                   the
                   full
                   rent
                   ,
                   may
                   subsist
                   without
                   recognition
                   .
                
                 
                   15.
                   
                   In
                   what
                   cases
                   other
                   feues
                   of
                   ward-lands
                   ,
                   infer
                   not
                   recognition
                   .
                
                 
                   16.
                   
                   Recognition
                   by
                   alienation
                   ,
                   is
                   only
                   of
                   Lands
                   clearly
                   ward
                   ,
                   simple
                   ,
                   or
                   taxed
                   .
                
                 
                   17.
                   
                   Recognition
                   is
                   not
                   incurred
                   ,
                   unless
                   the
                   major
                   part
                   be
                   alienate
                   .
                
                 
                   18.
                   
                   Recognition
                   is
                   not
                   incurred
                   by
                   alienations
                   to
                   the
                   Vassals
                   appearand
                   heir
                   .
                
                 
                   19.
                   
                   Whether
                   recognition
                   be
                   incurred
                   by
                   alienations
                   ,
                   on
                   condition
                   that
                   the
                   Superiour
                   consent
                   .
                
                 
                   20.
                   
                   Inhibition
                   excludes
                   not
                   recognition
                   .
                
                 
                   21.
                   
                   Recognition
                   is
                   not
                   excluded
                   by
                   the
                   Vassals
                   drunkeness
                   ,
                   when
                   he
                   alienat
                   .
                
                 
                   22.
                   
                   How
                   the
                   Superiours
                   consent
                   may
                   be
                   adhibite
                   to
                   alienations
                   ,
                   to
                   shun
                   recognition
                   .
                
                 
                   23.
                   
                   How
                   far
                   the
                   Kings
                   Confirmation
                   without
                   a
                   novodamus
                   ,
                   takes
                   off
                   recognition
                   .
                
                 
                   24.
                   
                   How
                   recognition
                   is
                   taken
                   off
                   by
                   homologation
                   .
                
                 
                   25.
                   
                   Recognition
                   excludes
                   all
                   Infeftments
                   ,
                   Tacks
                   ,
                   or
                   Servitudes
                   by
                   the
                   Vassals
                   deed
                   ,
                   without
                   the
                   Superiours
                   consent
                   ,
                   or
                   authority
                   of
                   Law.
                   
                
                 
                   26.
                   
                   Servitudes
                   by
                   prescription
                   are
                   not
                   excluded
                   by
                   recognition
                   .
                
                 
                   27.
                   
                   In
                   recognitions
                   who
                   must
                   be
                   cited
                   and
                   who
                   may
                   compear
                   .
                
                 
                   28.
                   
                   The
                   Title
                   and
                   Order
                   in
                   declarator
                   of
                   recognition
                   .
                
                 
                   29.
                   
                   Disclamation
                   ,
                   how
                   incurred
                   .
                
                 
                   30.
                   
                   Purpresture
                   ,
                   how
                   incurred
                   .
                
                 
                   31.
                   
                   Feudal
                   Delinquences
                   adduced
                   by
                   the
                   Feudists
                   for
                   resolving
                   fees
                   .
                
                 
                   32.
                   
                   Attrocious
                   deeds
                   against
                   Vassals
                   fidelity
                   to
                   their
                   Superiours
                   ,
                   resolving
                   their
                   fees
                   .
                
                 
                   33.
                   
                   How
                   far
                   the
                   ignorance
                   or
                   weakness
                   of
                   the
                   Vassal
                   ,
                   excuses
                   ,
                   with
                   other
                   exception
                   for
                   the
                   Vassal
                   .
                
                 
                   34.
                   
                   Whether
                   the
                   delinquence
                   of
                   the
                   Sub-vassal
                   infers
                   recognition
                   .
                
              
               
               
                 WE
                 are
                 not
                 here
                 to
                 speak
                 of
                 the
                 common
                 wayes
                 of
                 extinction
                 of
                 Infeftments
                 ,
                 and
                 other
                 rights
                 ,
                 as
                 the
                 extinction
                 of
                 the
                 Subject
                 matter
                 ,
                 Prescription
                 ,
                 Forefaulture
                 ,
                 Homologation
                 ,
                 or
                 acceptance
                 of
                 incompatible
                 Rights
                 ,
                 neither
                 to
                 these
                 ways
                 by
                 which
                 an
                 infeftment
                 is
                 extinct
                 as
                 to
                 one
                 ,
                 but
                 is
                 conveyed
                 to
                 another
                 ,
                 which
                 falleth
                 in
                 consideration
                 amongst
                 conveyances
                 of
                 Rights
                 :
                 But
                 of
                 these
                 ways
                 proper
                 to
                 extinguish
                 Infeftments
                 ,
                 and
                 make
                 the
                 right
                 toceass
                 ,
                 and
                 to
                 return
                 to
                 the
                 Superiours
                 ,
                 and
                 these
                 are
                 two
                 .
                 either
                 by
                 consent
                 of
                 the
                 Vassal
                 ,
                 or
                 by
                 Law.
                 
              
               
                 1.
                 
                 Infeftments
                 are
                 extinct
                 by
                 consent
                 ,
                 by
                 resignation
                 made
                 by
                 the
                 Vassal
                 ,
                 who
                 stands
                 Infeft
                 in
                 the
                 Lands
                 to
                 his
                 Superiour
                 ,
                 
                   ad
                   perpetuam
                   remanentiam
                
                 ,
                 to
                 which
                 there
                 is
                 necessarly
                 required
                 ,
                 as
                 a
                 solemnity
                 thereof
                 ,
                 an
                 Instrument
                 of
                 resignation
                 in
                 the
                 hands
                 of
                 a
                 Nottar
                 ,
                 in
                 the
                 same
                 way
                 that
                 their
                 constitution
                 was
                 perfected
                 by
                 an
                 Instrument
                 of
                 Seasine
                 ,
                 their
                 distitution
                 is
                 consumate
                 by
                 an
                 Instrument
                 of
                 resignation
                 ,
                 which
                 no
                 other
                 write
                 nor
                 acknowledgement
                 of
                 the
                 Vassal
                 ,
                 of
                 the
                 being
                 thereof
                 will
                 supply
                 ,
                 much
                 less
                 will
                 the
                 deeds
                 done
                 otherways
                 prove
                 ;
                 and
                 as
                 in
                 Seasines
                 there
                 must
                 be
                 a
                 tradition
                 or
                 delivery
                 of
                 Possession
                 by
                 some
                 Token
                 or
                 Symbol
                 ,
                 as
                 by
                 Earth
                 and
                 Stone
                 ,
                 &c.
                 
                 So
                 in
                 the
                 Instrument
                 of
                 Refignation
                 there
                 must
                 be
                 a
                 re-delivery
                 of
                 the
                 Possession
                 by
                 an
                 accustomed
                 Symbol
                 ,
                 which
                 ordinarly
                 is
                 by
                 delivery
                 of
                 Staff
                 and
                 Bastoun
                 ;
                 yet
                 in
                 this
                 they
                 differ
                 ,
                 that
                 the
                 delivery
                 of
                 the
                 Seasine
                 must
                 be
                 upon
                 the
                 ground
                 of
                 the
                 〈◊〉
                 ,
                 naturally
                 or
                 by
                 union
                 ;
                 but
                 the
                 Resignation
                 may
                 be
                 any
                 where
                 :
                 And
                 as
                 Seasine
                 may
                 be
                 given
                 ,
                 either
                 to
                 the
                 Vassal
                 or
                 his
                 Procurator
                 ;
                 so
                 may
                 the
                 Resignation
                 be
                 either
                 to
                 the
                 Superiour
                 himself
                 or
                 to
                 his
                 Commissioners
                 ,
                 authorized
                 to
                 that
                 effect
                 .
              
               
                 2.
                 
                 And
                 though
                 Instruments
                 of
                 Resignation
                 use
                 to
                 be
                 by
                 Procurators
                 ,
                 warranted
                 by
                 a
                 Procuratory
                 of
                 Resignation
                 :
                 Yet
                 as
                 there
                 may
                 be
                 Seasines
                 given
                 by
                 the
                 Superiour
                 ,
                 
                   propriis
                   manibus
                
                 ,
                 so
                 may
                 there
                 be
                 Resignations
                 by
                 the
                 Vassal
                 .
              
               
                 3.
                 
                 But
                 in
                 both
                 the
                 Instrument
                 of
                 Resignation
                 alone
                 is
                 not
                 sufficient
                 ,
                 as
                 being
                 but
                 the
                 assertion
                 of
                 a
                 Nottar
                 ;
                 but
                 they
                 must
                 have
                 for
                 their
                 warrand
                 a
                 Disposition
                 ,
                 or
                 other
                 Adminicle
                 ;
                 and
                 therefore
                 ,
                 it
                 is
                 Statute
                 ,
                 Par.
                 1563.
                 cap.
                 81.
                 
                 That
                 where
                 such
                 Resignations
                 are
                 by
                 Procurators
                 ,
                 the
                 Procuratories
                 be
                 subscribed
                 by
                 the
                 party
                 or
                 Nottars
                 ;
                 and
                 if
                 the
                 Resignation
                 be
                 
                   propriis
                   manibus
                
                 ,
                 that
                 the
                 Instrument
                 be
                 so
                 subscribed
                 ,
                 otherways
                 to
                 be
                 null
                 ,
                 because
                 the
                 subscription
                 of
                 the
                 Instrument
                 is
                 in
                 that
                 case
                 the
                 only
                 probation
                 of
                 the
                 Warrand
                 thereof
                 :
                 But
                 if
                 there
                 be
                 a
                 Disposition
                 or
                 Obliegement
                 to
                 Infeft
                 the
                 Instrument
                 of
                 Resignation
                 ,
                 though
                 not
                 subscribed
                 by
                 the
                 resigner
                 ,
                 will
                 be
                 sufficient
                 as
                 warranted
                 by
                 the
                 Disposition
                 or
                 Obliegement
                 .
                 But
                 Seasines
                 and
                 Resignations
                 did
                 formerly
                 differ
                 in
                 this
                 ,
                 that
                 Seasines
                 must
                 be
                 registrate
                 within
                 sixty
                 dayes
                 after
                 dates
                 ,
                 Par.
                 1617.
                 cap.
                 16.
                 
              
               
               
                 4.
                 
                 But
                 so
                 needed
                 not
                 Instruments
                 of
                 Resignation
                 
                   ad
                   Remanentiam
                
                 ;
                 for
                 though
                 by
                 that
                 Statute
                 ,
                 Renunciations
                 of
                 Wodsets
                 are
                 to
                 be
                 registrat
                 ,
                 it
                 was
                 not
                 extended
                 to
                 Renunciations
                 of
                 irredeemable
                 Rights
                 
                   ad
                   remanentiam
                
                 ,
                 these
                 being
                 either
                 omitted
                 by
                 inadvertency
                 or
                 of
                 purpose
                 ,
                 in
                 the
                 favours
                 of
                 Superiours
                 ,
                 that
                 Rights
                 may
                 be
                 taken
                 with
                 their
                 consent
                 :
                 Yet
                 in
                 so
                 far
                 ,
                 that
                 excellent
                 Statute
                 was
                 defective
                 ,
                 till
                 the
                 late
                 Act
                 of
                 Par.
                 1669.
                 cap.
                 3.
                 whereby
                 Instruments
                 of
                 Resignation
                 are
                 null
                 ,
                 if
                 not
                 registrat
                 within
                 sixty
                 dayes
                 .
                 By
                 which
                 ,
                 and
                 others
                 to
                 that
                 purpose
                 ,
                 purchasers
                 in
                 Scotland
                 ,
                 may
                 better
                 know
                 the
                 condition
                 of
                 these
                 with
                 whom
                 they
                 contract
                 about
                 Infeftments
                 ,
                 and
                 be
                 more
                 secure
                 of
                 lurking
                 rights
                 then
                 any
                 where
                 (
                 so
                 far
                 as
                 I
                 can
                 learn
                 )
                 in
                 the
                 World.
                 
              
               
                 5.
                 
                 By
                 this
                 Resignation
                 so
                 made
                 ,
                 the
                 property
                 is
                 consolidate
                 ,
                 as
                 it
                 was
                 the
                 time
                 of
                 the
                 Resignation
                 ,
                 and
                 is
                 affected
                 with
                 all
                 real
                 burdens
                 ,
                 or
                 
                   debita
                   fundi
                
                 ,
                 that
                 validly
                 affected
                 it
                 before
                 ,
                 as
                 Feues
                 ,
                 Tacks
                 ,
                 Annualrents
                 ,
                 Servitudes
                 .
                 For
                 ,
                 though
                 all
                 such
                 burdens
                 as
                 are
                 not
                 warranted
                 by
                 the
                 Superiours
                 consent
                 ,
                 or
                 by
                 Law
                 ,
                 cease
                 when
                 the
                 Fee
                 returns
                 to
                 the
                 Superiour
                 ,
                 either
                 for
                 a
                 time
                 by
                 Ward
                 ,
                 Non-entry
                 ,
                 &c.
                 or
                 for
                 ever
                 by
                 Recognition
                 ;
                 yet
                 when
                 it
                 returns
                 thus
                 by
                 consent
                 ,
                 it
                 comes
                 
                   cum
                   suo
                   onere
                
                 ,
                 which
                 is
                 very
                 just
                 and
                 fit
                 ,
                 seing
                 else
                 such
                 securities
                 might
                 easily
                 be
                 evacuat
                 ,
                 by
                 voluntar
                 Resignations
                 in
                 the
                 Superiours
                 hand
                 .
                 There
                 is
                 another
                 Resignation
                 ,
                 which
                 is
                 called
                 
                   in
                   favorem
                
                 ,
                 being
                 for
                 new
                 Infeftment
                 to
                 the
                 resigner
                 or
                 some
                 other
                 ,
                 but
                 thereby
                 the
                 Fee
                 is
                 not
                 extinct
                 ,
                 but
                 either
                 renewed
                 or
                 transferred
                 ;
                 and
                 therefore
                 ,
                 it
                 shall
                 be
                 considered
                 hereafter
                 .
              
               
                 6.
                 
                 Craig
                 upon
                 this
                 head
                 ,
                 very
                 fitly
                 moveth
                 and
                 solveth
                 this
                 question
                 ,
                 Whether
                 the
                 Vassal
                 may
                 renunce
                 and
                 resign
                 his
                 Fee
                 to
                 the
                 Superior
                 ,
                 though
                 he
                 be
                 unwilling
                 ;
                 and
                 instances
                 in
                 two
                 cases
                 ;
                 First
                 ,
                 in
                 a
                 Vassals
                 holding
                 a
                 very
                 inconsiderable
                 parcel
                 of
                 Land
                 Ward
                 ,
                 and
                 did
                 thereby
                 become
                 obnoxious
                 to
                 his
                 Superiour
                 for
                 the
                 value
                 ,
                 his
                 Tocher
                 having
                 relation
                 to
                 the
                 whole
                 Estate
                 ,
                 which
                 Tocher
                 did
                 much
                 exceed
                 the
                 worth
                 of
                 the
                 Tenement
                 :
                 And
                 yet
                 a
                 resignation
                 thereof
                 being
                 judicially
                 offered
                 ,
                 the
                 Superior
                 was
                 suffered
                 to
                 refuse
                 it
                 ,
                 unless
                 the
                 value
                 of
                 the
                 Marriage
                 were
                 first
                 payed
                 .
                 The
                 other
                 of
                 a
                 Burgess
                 ,
                 offering
                 to
                 renunce
                 his
                 Burgesship
                 for
                 shunning
                 a
                 great
                 Taxation
                 put
                 upon
                 him
                 :
                 and
                 therefore
                 ,
                 solveth
                 the
                 case
                 upon
                 the
                 common
                 Axiom
                 ,
                 
                   Cuique
                   licet
                   renunciare
                   favori
                   pro
                   se
                   introducto
                   .
                
                 And
                 therefore
                 ,
                 the
                 Fee
                 of
                 its
                 nature
                 being
                 gratuitous
                 in
                 favours
                 of
                 the
                 Vassal
                 ,
                 may
                 be
                 renunced
                 ,
                 but
                 that
                 will
                 not
                 prejudge
                 the
                 Superiour
                 of
                 any
                 casuality
                 befalling
                 to
                 him
                 before
                 the
                 renunciation
                 ,
                 but
                 will
                 have
                 only
                 effect
                 
                   ad
                   futura
                
                 :
                 and
                 therefore
                 ,
                 a
                 Vassal
                 judicially
                 disclaiming
                 his
                 Superior
                 ,
                 was
                 not
                 admitted
                 so
                 to
                 do
                 ,
                 to
                 exclude
                 the
                 Life-rent
                 already
                 fallen
                 ,
                 March
                 26.
                 1628.
                 
                 
                   John
                   Stewart
                
                 contra
                 Laird
                 of
                 Wedderburne
                 .
              
               
                 No
                 Contract
                 ,
                 Obligation
                 or
                 personal
                 Right
                 ,
                 nor
                 any
                 less
                 then
                 an
                 Instrument
                 of
                 Refignation
                 ,
                 will
                 take
                 away
                 Infeftment
                 ;
                 for
                 though
                 these
                 may
                 be
                 sufficient
                 against
                 the
                 granters
                 thereof
                 ,
                 by
                 a
                 personal
                 objection
                 ,
                 whereby
                 they
                 cannot
                 come
                 against
                 their
                 own
                 deed
                 :
                 Yet
                 truly
                 ,
                 the
                 real
                 right
                 stands
                 in
                 them
                 ,
                 and
                 they
                 are
                 not
                 denuded
                 thereby
                 ;
                 and
                 so
                 a
                 Renunciation
                 ,
                 without
                 the
                 solemnity
                 of
                 an
                 Instrument
                 of
                 Resignation
                 ,
                 will
                 not
                 suffice
                 to
                 obliterat
                 an
                 irredeemable
                 Fee
                 ,
                 though
                 it
                 may
                 be
                 sufficient
                 to
                 evacuat
                 any
                 personal
                 right
                 ,
                 as
                 Servitude
                 not
                 requiring
                 Infeftment
                 ;
                 yea
                 ,
                 or
                 a
                 Liferent
                 ,
                 though
                 constitute
                 by
                 Infeftment
                 ,
                 because
                 it
                 is
                 communicable
                 to
                 no
                 other
                 persons
                 by
                 Infeftment
                 ,
                 and
                 therefore
                 ,
                 passeth
                 by
                 Assignation
                 or
                 Resignation
                 .
                 The
                 reason
                 hereof
                 is
                 ,
                 because
                 by
                 the
                 common
                 custom
                 of
                 Nations
                 ,
                 real
                 Rights
                 cannot
                 pass
                 by
                 sole
                 consent
                 ,
                 without
                 
                 artaining
                 possession
                 in
                 the
                 way
                 prescribed
                 by
                 Law
                 :
                 and
                 therefore
                 ,
                 this
                 symbolical
                 possession
                 ,
                 which
                 alone
                 the
                 Law
                 alloweth
                 as
                 sufficient
                 ,
                 either
                 in
                 the
                 constitution
                 or
                 destitution
                 of
                 Fees
                 ,
                 must
                 be
                 adhibite
                 ,
                 and
                 the
                 real
                 possession
                 of
                 the
                 Tenement
                 it self
                 will
                 not
                 suffice
                 in
                 either
                 case
                 ,
                 as
                 is
                 before
                 instanced
                 in
                 Seasines
                 by
                 several
                 decisions
                 .
                 So
                 a
                 Renunciation
                 without
                 a
                 formal
                 Resignation
                 ,
                 was
                 not
                 found
                 relevant
                 to
                 take
                 away
                 the
                 Infeftment
                 renunced
                 against
                 a
                 singular
                 successor
                 ,
                 November
                 23.
                 1627.
                 
                 Dumbar
                 contra
                 Wilson
                 .
                 Resignation
                 cannot
                 be
                 effectual
                 ,
                 if
                 the
                 resigner
                 be
                 not
                 infeft
                 ;
                 for
                 he
                 who
                 is
                 not
                 invested
                 ,
                 cannot
                 be
                 divested
                 ,
                 or
                 if
                 by
                 his
                 Infeftment
                 ,
                 he
                 hath
                 no
                 valid
                 right
                 .
              
               
                 7.
                 
                 Craig
                 discusseth
                 this
                 question
                 also
                 in
                 that
                 place
                 ,
                 Whether
                 consent
                 of
                 one
                 who
                 is
                 infeft
                 ,
                 and
                 thereby
                 hath
                 right
                 ,
                 will
                 validat
                 the
                 Resignation
                 of
                 another
                 who
                 is
                 not
                 infeft
                 and
                 hath
                 no
                 right
                 :
                 Which
                 he
                 determineth
                 in
                 the
                 affirmative
                 ,
                 with
                 good
                 reason
                 ;
                 for
                 though
                 the
                 consent
                 alone
                 would
                 not
                 be
                 sufficient
                 ,
                 yet
                 seing
                 the
                 form
                 of
                 the
                 resignation
                 is
                 done
                 ,
                 though
                 in
                 the
                 name
                 of
                 him
                 who
                 hath
                 no
                 right
                 ,
                 yet
                 by
                 consent
                 of
                 him
                 who
                 hath
                 right
                 ,
                 here
                 is
                 both
                 the
                 substance
                 and
                 solemnity
                 of
                 the
                 act
                 ;
                 and
                 it
                 is
                 alike
                 ,
                 as
                 if
                 the
                 Resignation
                 had
                 been
                 by
                 the
                 consenter
                 ,
                 which
                 I
                 doubt
                 not
                 will
                 hold
                 ,
                 though
                 the
                 consent
                 be
                 but
                 adhibit
                 in
                 the
                 beginning
                 of
                 the
                 Disposition
                 or
                 Contract
                 .
                 And
                 though
                 the
                 consenter
                 ,
                 for
                 all
                 right
                 he
                 hath
                 ,
                 doth
                 not
                 dispone
                 ,
                 as
                 is
                 ordinary
                 ,
                 for
                 further
                 security
                 ;
                 yea
                 if
                 the
                 consent
                 be
                 not
                 repeated
                 in
                 the
                 Procuratory
                 of
                 resignation
                 ,
                 or
                 mentioned
                 in
                 the
                 Instrument
                 of
                 Resignation
                 ;
                 for
                 being
                 exprest
                 generally
                 in
                 the
                 entry
                 of
                 the
                 Disposition
                 or
                 Contract
                 ,
                 it
                 reacheth
                 to
                 every
                 Article
                 thereof
                 ,
                 and
                 all
                 done
                 conform
                 thereto
                 .
                 Consent
                 hath
                 the
                 same
                 effect
                 in
                 the
                 constitution
                 of
                 Fees
                 ;
                 and
                 so
                 the
                 consent
                 to
                 an
                 Annualrent
                 ,
                 by
                 a
                 party
                 having
                 right
                 and
                 infeft
                 ,
                 was
                 found
                 to
                 validate
                 the
                 Annualrent
                 ,
                 though
                 the
                 Disponer
                 was
                 not
                 infeft
                 ;
                 and
                 so
                 did
                 exclude
                 a
                 Tack
                 set
                 by
                 that
                 consenter
                 afterward
                 ,
                 December
                 15.
                 1630.
                 
                 
                   Jean
                   Stirling
                
                 contra
              
               
                 Yet
                 ,
                 if
                 more
                 persons
                 should
                 dispone
                 for
                 their
                 several
                 rights
                 ,
                 without
                 consenting
                 one
                 to
                 another
                 ,
                 if
                 any
                 of
                 them
                 be
                 omitted
                 out
                 of
                 the
                 Procuratory
                 or
                 Instrument
                 of
                 Resignation
                 ,
                 in
                 whom
                 truly
                 the
                 right
                 standeth
                 ;
                 Nonthing
                 will
                 be
                 validly
                 done
                 ,
                 though
                 that
                 party
                 be
                 also
                 in
                 the
                 Disposition
                 :
                 And
                 this
                 is
                 the
                 reason
                 ,
                 why
                 when
                 many
                 persons
                 dispone
                 or
                 resign
                 ,
                 they
                 do
                 it
                 all
                 with
                 one
                 mutual
                 consent
                 ;
                 for
                 thereby
                 each
                 of
                 their
                 rights
                 doth
                 contribute
                 to
                 the
                 deed
                 of
                 the
                 rest
                 ,
                 though
                 some
                 of
                 them
                 were
                 omitted
                 to
                 be
                 repeated
                 in
                 the
                 Procuratory
                 ,
                 Instrument
                 of
                 Resgination
                 ,
                 or
                 Infeftment
                 following
                 thereupon
                 ,
                 the
                 deed
                 would
                 be
                 valid
                 :
                 But
                 it
                 is
                 safest
                 to
                 repeat
                 their
                 consent
                 in
                 the
                 Resignation
                 and
                 Infeftment
                 .
              
               
                 8.
                 
                 Infeftments
                 are
                 also
                 extinct
                 ,
                 when
                 the
                 Superior
                 adjudgeth
                 or
                 appriseth
                 from
                 his
                 Vassal
                 ;
                 for
                 thereby
                 it
                 was
                 found
                 ,
                 that
                 the
                 Property
                 was
                 consolidat
                 with
                 the
                 Superiority
                 ,
                 Spots
                 .
                 Apprising
                 ,
                 Stevinson
                 contra
                 Laird
                 of
                 Craigmillar
                 .
                 Or
                 ,
                 if
                 the
                 Superiour
                 succeed
                 as
                 heir
                 to
                 the
                 Vassal
                 ;
                 in
                 which
                 case
                 ,
                 though
                 the
                 Superiour
                 upon
                 supplication
                 obtained
                 Precepts
                 out
                 of
                 the
                 Chancelary
                 ,
                 to
                 infeft
                 him
                 in
                 the
                 Fee
                 ,
                 it
                 was
                 thought
                 ,
                 as
                 Superior
                 ,
                 he
                 might
                 have
                 infeft
                 himself
                 as
                 Vassal
                 :
                 But
                 he
                 would
                 not
                 have
                 been
                 so
                 secure
                 by
                 a
                 Declarator
                 of
                 Consolidation
                 ,
                 upon
                 the
                 Superiours
                 special
                 Retour
                 ,
                 as
                 Heir
                 to
                 his
                 Vassal
                 in
                 the
                 Lands
                 ;
                 because
                 ,
                 that
                 way
                 would
                 make
                 a
                 defect
                 in
                 the
                 security
                 of
                 Land-rights
                 by
                 the
                 Negisters
                 ,
                 in
                 which
                 ,
                 Decreets
                 of
                 Consolidation
                 are
                 not
                 required
                 to
                 be
                 recorded
                 ;
                 whereas
                 the
                 Superiors
                 Seasine
                 ,
                 either
                 on
                 the
                 Kings
                 Precept
                 or
                 his
                 own
                 ,
                 behoved
                 to
                 be
                 registrat
                 ;
                 and
                 if
                 the
                 Superiour
                 acquire
                 the
                 property
                 by
                 Apprifing
                 or
                 Adjudication
                 ,
                 the
                 allowance
                 thereof
                 must
                 also
                 be
                 registrate
                 .
                 The
                 
                 
                 
                 The
                 like
                 effect
                 will
                 follow
                 ,
                 if
                 the
                 Vassal
                 become
                 Heir
                 ,
                 or
                 singular
                 Successor
                 to
                 the
                 Superiour
                 ,
                 whereby
                 being
                 infeft
                 in
                 the
                 Superiority
                 ,
                 he
                 may
                 as
                 Vassal
                 resign
                 to
                 himself
                 as
                 Superiour
                 
                   ad
                   remanentiam
                
                 .
              
               
                 9.
                 
                 It
                 is
                 more
                 disputable
                 ,
                 how
                 and
                 under
                 what
                 consideration
                 Fees
                 are
                 extinct
                 ,
                 otherwayes
                 then
                 by
                 consent
                 :
                 Some
                 hold
                 that
                 they
                 are
                 extinct
                 by
                 the
                 attrocious
                 delinquency
                 of
                 the
                 Vassal
                 against
                 the
                 Superior
                 ,
                 as
                 the
                 penalty
                 or
                 punishment
                 thereof
                 ;
                 and
                 others
                 conceive
                 ,
                 that
                 acknowledgement
                 and
                 fidelity
                 being
                 necessarly
                 involved
                 in
                 all
                 Fees
                 (
                 as
                 is
                 shown
                 before
                 )
                 though
                 it
                 be
                 not
                 exprest
                 ;
                 So
                 this
                 is
                 implyed
                 as
                 a
                 legal
                 resolutive
                 or
                 irritant
                 Clause
                 ,
                 that
                 if
                 the
                 Vassal
                 failie
                 in
                 his
                 duty
                 ,
                 his
                 Fee
                 becomes
                 void
                 .
                 And
                 others
                 hold
                 ,
                 that
                 Fees
                 being
                 of
                 their
                 own
                 nature
                 gratuitous
                 ,
                 even
                 though
                 there
                 be
                 a
                 cause
                 onerous
                 ,
                 yet
                 they
                 retain
                 the
                 nature
                 of
                 a
                 Donation
                 :
                 and
                 therefore
                 ,
                 as
                 all
                 Donations
                 are
                 revocable
                 
                   propter
                   ingratitudinem
                
                 ;
                 So
                 are
                 these
                 ,
                 which
                 soever
                 of
                 these
                 be
                 the
                 ground
                 ,
                 the
                 consequences
                 and
                 effects
                 are
                 much
                 to
                 the
                 same
                 purpose
                 .
                 But
                 I
                 incline
                 to
                 the
                 middle
                 opinion
                 ;
                 for
                 unless
                 it
                 were
                 evident
                 by
                 Law
                 ,
                 that
                 the
                 penalty
                 of
                 that
                 delinquence
                 were
                 such
                 and
                 so
                 applyed
                 ,
                 it
                 would
                 hardly
                 be
                 consistent
                 upon
                 that
                 ground
                 ,
                 seing
                 otherwayes
                 ,
                 as
                 we
                 have
                 shown
                 before
                 of
                 delinquences
                 ,
                 the
                 punishment
                 is
                 publick
                 ,
                 and
                 would
                 belong
                 to
                 the
                 Magistrate
                 :
                 And
                 therefore
                 ,
                 for
                 several
                 delinquencies
                 ,
                 forfaulture
                 of
                 Fee
                 is
                 introduced
                 ,
                 without
                 benefite
                 to
                 the
                 Superiour
                 ,
                 who
                 as
                 a
                 private
                 party
                 ,
                 can
                 have
                 no
                 more
                 but
                 a
                 reparation
                 equivalent
                 to
                 the
                 damnage
                 sustained
                 by
                 him
                 ;
                 and
                 so
                 the
                 alienation
                 of
                 the
                 Fee
                 ,
                 without
                 his
                 consent
                 or
                 incroaching
                 upon
                 the
                 border
                 of
                 his
                 property
                 ,
                 would
                 not
                 infer
                 ,
                 for
                 its
                 reparation
                 ,
                 the
                 return
                 of
                 the
                 Fee
                 ,
                 how
                 great
                 soever
                 .
                 And
                 for
                 the
                 last
                 ,
                 though
                 Fees
                 of
                 their
                 nature
                 be
                 gratuitous
                 ,
                 yet
                 they
                 are
                 oft-times
                 for
                 an
                 equivalent
                 price
                 ,
                 and
                 so
                 the
                 less
                 ingratitude
                 can
                 be
                 alledged
                 ;
                 yea
                 ,
                 though
                 it
                 be
                 true
                 ,
                 
                   Si
                   ingratum
                   dixeris
                   ,
                   omnia
                   dixeris
                   ,
                
                 yet
                 fidelity
                 and
                 trust
                 is
                 a
                 much
                 stronger
                 bond
                 then
                 gratitude
                 :
                 and
                 the
                 breach
                 thereof
                 hath
                 the
                 most
                 powerful
                 consequence
                 ,
                 betraying
                 of
                 trust
                 being
                 most
                 hurtful
                 and
                 hateful
                 to
                 mankinde
                 ;
                 and
                 therefore
                 ,
                 seing
                 fidelity
                 is
                 necessarly
                 and
                 properly
                 in
                 all
                 Fees
                 ,
                 and
                 is
                 essential
                 thereto
                 and
                 inseparable
                 therefrom
                 ,
                 it
                 looketh
                 likest
                 the
                 surest
                 ground
                 from
                 whence
                 the
                 eviction
                 hereof
                 may
                 flow
                 ,
                 And
                 if
                 it
                 be
                 truly
                 gratuitous
                 ,
                 it
                 is
                 an
                 aggravating
                 circumstance
                 ,
                 making
                 the
                 deed
                 more
                 odious
                 .
                 But
                 whatsoever
                 it
                 be
                 ,
                 it
                 is
                 agreed
                 by
                 all
                 ,
                 that
                 the
                 deed
                 must
                 be
                 of
                 knowledge
                 ,
                 moment
                 and
                 attrocity
                 ,
                 though
                 there
                 be
                 many
                 such
                 heaped
                 up
                 by
                 the
                 Feudists
                 ,
                 yet
                 many
                 of
                 them
                 have
                 no
                 place
                 with
                 us
                 ,
                 where
                 both
                 such
                 deeds
                 are
                 rare
                 ,
                 and
                 therefore
                 the
                 decisions
                 thereupon
                 are
                 few
                 ;
                 and
                 certainly
                 our
                 Fees
                 being
                 ordinarly
                 onerous
                 ,
                 are
                 not
                 evacuated
                 but
                 by
                 such
                 as
                 are
                 either
                 named
                 and
                 known
                 in
                 Law
                 ,
                 or
                 which
                 are
                 very
                 attrocious
                 .
                 There
                 be
                 three
                 such
                 wayes
                 of
                 extinction
                 ,
                 which
                 have
                 peculiar
                 names
                 in
                 Law
                 ,
                 
                   Recognition
                   ,
                   Disclamation
                
                 ,
                 and
                 Purpresture
                 .
                 Of
                 which
                 therefore
                 in
                 the
                 next
                 place
                 .
              
               
                 Recognition
                 is
                 the
                 Superiours
                 returning
                 to
                 own
                 the
                 Fee
                 ;
                 and
                 therefore
                 may
                 be
                 extended
                 to
                 all
                 the
                 wayes
                 by
                 which
                 it
                 returneth
                 through
                 the
                 Vassals
                 infidelity
                 ,
                 as
                 is
                 hereafter
                 exprest
                 .
                 But
                 the
                 least
                 culpable
                 ,
                 and
                 yet
                 most
                 ordinary
                 way
                 of
                 incurring
                 Recognition
                 ,
                 is
                 by
                 the
                 Vassals
                 disponing
                 irredeemably
                 or
                 under
                 reversion
                 ,
                 his
                 Fees
                 holden
                 Ward
                 :
                 for
                 by
                 this
                 he
                 renders
                 himself
                 incapable
                 to
                 serve
                 his
                 Superiour
                 ,
                 and
                 in
                 a
                 manner
                 renunces
                 and
                 disclaims
                 him
                 .
                 This
                 kind
                 of
                 Alienation
                 makes
                 recognition
                 of
                 Ward-lands
                 ,
                 but
                 Fees
                 feu
                 or
                 blensh
                 do
                 not
                 recognosce
                 by
                 such
                 Alienations
                 ,
                 but
                 by
                 the
                 attrocious
                 infidelity
                 of
                 the
                 Vassal
                 .
              
               
               
                 10.
                 
                 The
                 nearest
                 cause
                 of
                 Recognition
                 ,
                 is
                 the
                 Vassals
                 alienation
                 of
                 the
                 Fee
                 without
                 consent
                 of
                 the
                 Superiour
                 ,
                 which
                 is
                 a
                 legal
                 clause
                 irritant
                 implyed
                 in
                 the
                 nature
                 of
                 proper
                 Fees
                 or
                 Ward-holdings
                 ,
                 though
                 it
                 be
                 not
                 exprest
                 ,
                 that
                 though
                 the
                 Vassal
                 alienat
                 the
                 Fee
                 ,
                 it
                 shall
                 return
                 to
                 the
                 Superiour
                 ,
                 whether
                 the
                 rise
                 hereof
                 be
                 from
                 the
                 personal
                 obligation
                 of
                 fidelity
                 ,
                 which
                 the
                 Vassal
                 oweth
                 to
                 the
                 Superiour
                 only
                 ,
                 or
                 from
                 the
                 obliegement
                 of
                 gratitude
                 and
                 service
                 ,
                 or
                 from
                 that
                 peculiar
                 choice
                 of
                 the
                 person
                 and
                 race
                 of
                 the
                 Vassal
                 which
                 the
                 Superiour
                 hath
                 made
                 ,
                 contrair
                 to
                 which
                 ,
                 a
                 stranger
                 cannot
                 be
                 obtruded
                 upon
                 him
                 ;
                 neither
                 can
                 the
                 Vassal
                 withdraw
                 himself
                 from
                 the
                 fidelity
                 ,
                 or
                 render
                 himself
                 unfit
                 for
                 his
                 service
                 ,
                 or
                 from
                 all
                 these
                 ;
                 yet
                 in
                 this
                 do
                 most
                 agree
                 ,
                 that
                 the
                 nearest
                 cause
                 of
                 Recognition
                 is
                 the
                 alienation
                 of
                 the
                 Fee.
                 So
                 then
                 ,
                 the
                 main
                 difficulty
                 is
                 ,
                 what
                 is
                 meaned
                 by
                 that
                 Alienation
                 by
                 which
                 Recognition
                 is
                 incurred
                 ,
                 
                   Craig
                   ,
                   lib.
                
                 3.
                 dieges
                 .
                 5.
                 declareth
                 ,
                 that
                 this
                 Alienation
                 cannot
                 be
                 by
                 naked
                 Contract
                 or
                 Disposition
                 ,
                 till
                 Seasine
                 follow
                 ;
                 for
                 ,
                 these
                 being
                 but
                 personal
                 and
                 incompleat
                 Rights
                 ,
                 do
                 not
                 alienat
                 the
                 Fee
                 from
                 the
                 Vassal
                 ,
                 but
                 only
                 constitute
                 upon
                 him
                 a
                 personal
                 obliegement
                 so
                 to
                 do
                 .
                 It
                 is
                 also
                 clear
                 ,
                 that
                 by
                 Infeftment
                 granted
                 by
                 the
                 Superiour
                 upon
                 resignation
                 ,
                 there
                 can
                 be
                 no
                 recognition
                 ,
                 because
                 the
                 Superiours
                 accepting
                 of
                 the
                 resignation
                 ,
                 importeth
                 his
                 consent
                 ;
                 So
                 that
                 ,
                 the
                 question
                 will
                 only
                 remain
                 ,
                 when
                 the
                 Vassal
                 granteth
                 Disposition
                 or
                 Charter
                 
                   a
                   se
                
                 to
                 be
                 holden
                 of
                 his
                 Superiour
                 ,
                 and
                 before
                 the
                 Superiours
                 Confirmation
                 obtained
                 giveth
                 Seasine
                 :
                 For
                 ,
                 the
                 Confirmation
                 being
                 the
                 express
                 consent
                 of
                 the
                 Superiour
                 ,
                 if
                 the
                 Seasine
                 be
                 after
                 it
                 ,
                 there
                 can
                 be
                 no
                 hazard
                 of
                 Recognition
                 ,
                 or
                 otherwayes
                 ,
                 while
                 the
                 Vassal
                 granteth
                 a
                 subaltern
                 Infeftment
                 to
                 be
                 holden
                 of
                 himself
                 .
              
               
                 11.
                 
                 As
                 to
                 the
                 first
                 case
                 ,
                 it
                 seems
                 there
                 can
                 be
                 no
                 recognition
                 incurred
                 by
                 Infeftments
                 granted
                 by
                 the
                 Vassal
                 to
                 be
                 holden
                 of
                 his
                 Superiour
                 ,
                 because
                 ,
                 if
                 these
                 be
                 confirmed
                 ,
                 the
                 Right
                 is
                 null
                 ,
                 and
                 there
                 is
                 no
                 alienation
                 nor
                 transmission
                 of
                 property
                 ,
                 but
                 the
                 Vassal
                 granter
                 of
                 the
                 Infeftment
                 remains
                 still
                 Proprietar
                 .
                 And
                 therefore
                 ,
                 such
                 an
                 Infeftment
                 is
                 equivalent
                 ,
                 as
                 if
                 the
                 Vassal
                 did
                 alienat
                 upon
                 condition
                 ,
                 that
                 the
                 Superiour
                 should
                 consent
                 ;
                 and
                 if
                 he
                 did
                 not
                 consent
                 ,
                 the
                 Infeftment
                 to
                 be
                 null
                 .
                 In
                 which
                 case
                 ,
                 most
                 Feudists
                 do
                 agree
                 ,
                 that
                 by
                 such
                 Infeftments
                 there
                 is
                 no
                 recognition
                 ;
                 and
                 this
                 reason
                 is
                 the
                 more
                 fortified
                 ,
                 that
                 Craig
                 in
                 the
                 fore-cited
                 place
                 relateth
                 ,
                 that
                 an
                 Infeftment
                 null
                 for
                 want
                 of
                 Registration
                 ,
                 was
                 not
                 found
                 to
                 infer
                 Recognition
                 ,
                 in
                 the
                 case
                 of
                 the
                 Kings
                 Advocat
                 against
                 
                   Kenneth
                   Mackenzie
                   and
                   Bain
                
                 .
              
               
                 For
                 solution
                 of
                 this
                 difficulty
                 ,
                 it
                 is
                 not
                 to
                 be
                 denyed
                 ,
                 that
                 if
                 a
                 Seasine
                 be
                 null
                 by
                 defect
                 of
                 any
                 substantial
                 ,
                 or
                 essential
                 ,
                 necessarly
                 requisite
                 to
                 Seasine
                 or
                 symbolical
                 delivery
                 of
                 possession
                 ,
                 there
                 would
                 follow
                 no
                 Recognition
                 ,
                 as
                 if
                 there
                 were
                 no
                 tradition
                 of
                 earth
                 and
                 stone
                 ,
                 or
                 symbol
                 requisite
                 or
                 not
                 ,
                 by
                 the
                 Superiour
                 or
                 his
                 Bailie
                 or
                 not
                 ,
                 to
                 the
                 Vassal
                 or
                 his
                 Procurator
                 or
                 not
                 ,
                 upon
                 the
                 ground
                 of
                 the
                 Land
                 naturally
                 ,
                 or
                 by
                 union
                 .
                 But
                 though
                 Seasine
                 may
                 be
                 null
                 ,
                 by
                 defect
                 of
                 some
                 accidental
                 solemnity
                 introduced
                 by
                 Statute
                 or
                 Custom
                 ,
                 and
                 not
                 necessarly
                 involved
                 in
                 the
                 nature
                 of
                 tradition
                 ,
                 as
                 the
                 indiction
                 or
                 year
                 of
                 the
                 Princes
                 Reign
                 ,
                 though
                 Law
                 should
                 declare
                 the
                 Seasine
                 null
                 for
                 want
                 of
                 these
                 ;
                 yet
                 ,
                 the
                 Vassal
                 performing
                 such
                 essential
                 requisites
                 ,
                 the
                 Feu
                 falleth
                 in
                 Recognition
                 :
                 and
                 therefore
                 ,
                 there
                 seemeth
                 no
                 ground
                 to
                 follow
                 that
                 Decision
                 adduced
                 by
                 Craig
                 ,
                 excluding
                 Recognition
                 upon
                 the
                 nullity
                 of
                 the
                 Seasine
                 for
                 want
                 of
                 Registration
                 .
                 But
                 as
                 to
                 the
                 case
                 proposed
                 ,
                 the
                 Superiours
                 Confirmation
                 is
                 not
                 essential
                 to
                 the
                 Vassals
                 Seasine
                 ;
                 neither
                 is
                 it
                 so
                 required
                 by
                 the
                 common
                 Feudal
                 Customs
                 ,
                 as
                 with
                 us
                 :
                 for
                 thereby
                 ,
                 if
                 the
                 Superiour
                 did
                 acquiesce
                 ,
                 approve
                 or
                 homologate
                 ,
                 the
                 Seasine
                 granted
                 by
                 a
                 
                 Vassal
                 to
                 a
                 stranger
                 ,
                 the
                 same
                 would
                 be
                 valid
                 without
                 a
                 formal
                 Confirmation
                 in
                 write
                 ;
                 albeit
                 by
                 our
                 Custom
                 ,
                 such
                 Infeftments
                 till
                 Confirmed
                 are
                 null
                 ,
                 not
                 only
                 as
                 to
                 the
                 Superiour
                 ,
                 but
                 as
                 to
                 all
                 other
                 third
                 parties
                 ,
                 and
                 so
                 is
                 become
                 as
                 a
                 substantial
                 of
                 the
                 Infeftment
                 ,
                 not
                 being
                 truly
                 essential
                 by
                 the
                 common
                 Fedual
                 Customes
                 ,
                 it
                 doth
                 not
                 exclude
                 Recognition
                 ;
                 and
                 as
                 Craig
                 in
                 the
                 forecited
                 place
                 rendereth
                 the
                 reason
                 ,
                 that
                 Infeftments
                 by
                 the
                 Vassal
                 ,
                 
                   a
                   se
                
                 ,
                 not
                 Confirmed
                 ,
                 infer
                 Recognition
                 ,
                 is
                 because
                 he
                 hath
                 done
                 all
                 that
                 in
                 him
                 is
                 to
                 alienate
                 the
                 Fee
                 ,
                 there
                 being
                 no
                 Act
                 remaining
                 to
                 be
                 performed
                 by
                 him
                 or
                 his
                 Procurator
                 ;
                 and
                 therefore
                 ,
                 in
                 the
                 Declarator
                 of
                 Recognition
                 ,
                 pursued
                 at
                 the
                 instance
                 of
                 Lady
                 
                   Anna
                   Hamiltoun
                
                 Lady
                 
                   Carnagy
                   contra
                
                 Lord
                 Cranburn
                 ,
                 upon
                 the
                 Earl
                 of
                 Dirletouns
                 Disponing
                 of
                 the
                 Lands
                 of
                 Innerweek
                 holden
                 of
                 the
                 King
                 Ward
                 to
                 Cranburn
                 ,
                 and
                 Infefting
                 him
                 therein
                 to
                 be
                 holden
                 of
                 the
                 King
                 ;
                 this
                 Defence
                 was
                 not
                 found
                 relevant
                 ,
                 that
                 the
                 Seasine
                 was
                 not
                 Confirmed
                 ,
                 and
                 so
                 null
                 ,
                 though
                 done
                 upon
                 Death-bed
                 ,
                 accepted
                 for
                 a
                 Minor
                 absent
                 and
                 inscient
                 ,
                 and
                 recalling
                 and
                 reducing
                 .
              
               
                 12.
                 
                 For
                 in
                 such
                 cases
                 as
                 in
                 rebellion
                 or
                 escheat
                 ,
                 there
                 is
                 no
                 priviledge
                 of
                 minority
                 nor
                 of
                 deeds
                 upon
                 death-bed
                 against
                 the
                 Superiour
                 ,
                 though
                 done
                 by
                 a
                 minor
                 ,
                 except
                 the
                 deeds
                 upon
                 death-bed
                 ,
                 be
                 in
                 prejudice
                 of
                 the
                 Heir
                 and
                 be
                 reduced
                 by
                 the
                 Heir
                 ,
                 
                   ex
                   capite
                   lecti
                
                 .
                 But
                 in
                 this
                 case
                 Dirletouns
                 Heir
                 did
                 not
                 quarrel
                 the
                 Disposition
                 made
                 by
                 him
                 ,
                 as
                 done
                 upon
                 death-bed
                 ,
                 but
                 did
                 take
                 a
                 gift
                 of
                 recognition
                 from
                 the
                 King.
                 But
                 where
                 the
                 gift
                 of
                 recognition
                 was
                 not
                 granted
                 to
                 the
                 Heir-male
                 ,
                 who
                 was
                 heir
                 in
                 the
                 investiture
                 ;
                 but
                 to
                 an
                 heir
                 Female
                 ,
                 the
                 Heir-male
                 proponing
                 ,
                 that
                 the
                 alienation
                 was
                 upon
                 death-bed
                 ,
                 and
                 so
                 null
                 as
                 to
                 him
                 :
                 The
                 Lords
                 found
                 ,
                 that
                 if
                 the
                 Disposition
                 was
                 upon
                 death-bed
                 ,
                 the
                 Defence
                 was
                 relevant
                 and
                 competent
                 by
                 way
                 of
                 exception
                 ,
                 the
                 Declarator
                 of
                 recognition
                 not
                 being
                 a
                 possessory
                 Judgement
                 :
                 But
                 where
                 the
                 Disposition
                 was
                 in
                 
                   leige
                   poustie
                
                 ,
                 and
                 was
                 delivered
                 with
                 a
                 Precept
                 of
                 Seasine
                 simply
                 ,
                 without
                 〈◊〉
                 ,
                 not
                 to
                 take
                 Seasine
                 base
                 upon
                 the
                 Precept
                 ,
                 which
                 imported
                 a
                 Warrand
                 to
                 take
                 Seasine
                 thereupon
                 ;
                 It
                 was
                 found
                 ,
                 the
                 taking
                 Seasine
                 when
                 the
                 Disponer
                 was
                 upon
                 death-bed
                 ,
                 upon
                 that
                 precept
                 subscribed
                 and
                 delivered
                 in
                 
                   〈◊〉
                   poustie
                
                 ,
                 did
                 infer
                 recognition
                 ,
                 July
                 20.
                 1669.
                 
                 
                   Barcley
                   contra
                   Barcley
                
                 .
              
               
                 13.
                 
                 It
                 is
                 much
                 debated
                 amongst
                 the
                 Feudists
                 ,
                 whether
                 by
                 Sub-feudation
                 ,
                 Recognition
                 be
                 incurred
                 ,
                 or
                 whether
                 it
                 be
                 comprehended
                 under
                 alienation
                 ;
                 because
                 
                   in
                   libro
                   Jeudorum
                
                 ,
                 albeit
                 alienation
                 of
                 Fees
                 be
                 expresly
                 prohibite
                 ,
                 yet
                 in
                 the
                 same
                 place
                 ,
                 as
                 Craig
                 observeth
                 ,
                 Sub-feudation
                 is
                 allowed
                 ;
                 because
                 by
                 sub-feudation
                 ,
                 neither
                 the
                 personal
                 right
                 betwixt
                 Superiour
                 and
                 Vassal
                 is
                 altered
                 ,
                 seing
                 the
                 Vassal
                 continues
                 Vassal
                 ,
                 and
                 lyable
                 to
                 all
                 these
                 :
                 Neither
                 is
                 the
                 real
                 right
                 and
                 interest
                 of
                 the
                 Superiour
                 in
                 the
                 Fee
                 it self
                 diminished
                 ,
                 but
                 he
                 hath
                 the
                 same
                 access
                 thereto
                 ,
                 as
                 if
                 there
                 had
                 been
                 no
                 sub-feudation
                 ;
                 yet
                 Sub-feudation
                 in
                 all
                 cases
                 is
                 accounted
                 alienation
                 :
                 And
                 where
                 alienation
                 is
                 prohibite
                 ,
                 Sub-feudation
                 is
                 understood
                 ;
                 and
                 so
                 Emphitiosis
                 ,
                 or
                 Feu-ferm
                 ,
                 which
                 is
                 at
                 least
                 a
                 perpetual
                 Location
                 .
                 For
                 solving
                 this
                 difficulty
                 ,
                 it
                 must
                 be
                 remembered
                 ,
                 that
                 feudalia
                 are
                 localia
                 ,
                 regulable
                 according
                 to
                 the
                 custom
                 of
                 the
                 several
                 places
                 ,
                 and
                 according
                 to
                 the
                 Nature
                 of
                 Feudal-rights
                 ,
                 and
                 common
                 Feudal-customs
                 ,
                 where
                 special
                 customs
                 are
                 not
                 ;
                 and
                 therefore
                 ,
                 there
                 is
                 no
                 question
                 of
                 this
                 point
                 in
                 France
                 ,
                 or
                 most
                 places
                 in
                 Germany
                 ,
                 where
                 alienation
                 of
                 Fees
                 many
                 ways
                 is
                 allowed
                 :
                 But
                 in
                 Italy
                 and
                 other
                 Countreys
                 ,
                 where
                 the
                 common
                 Feudal
                 Customs
                 rule
                 ordinarly
                 according
                 to
                 the
                 Feudal-books
                 .
                 The
                 doubt
                 remaineth
                 ,
                 which
                 may
                 be
                 cleared
                 thus
                 :
                 First
                 ,
                 Though
                 in
                 some
                 cases
                 alienation
                 be
                 extended
                 to
                 Location
                 ,
                 yet
                 it
                 is
                 not
                 so
                 by
                 the
                 common
                 feudal
                 Customs
                 .
                 
                 Secondly
                 ,
                 If
                 the
                 Subfeu-dation
                 be
                 a
                 real
                 Feu-ferm
                 ,
                 whereby
                 the
                 Feu-duty
                 is
                 considerable
                 and
                 competent
                 to
                 intertain
                 the
                 Vassal
                 ;
                 such
                 Sub-feudation
                 is
                 thereby
                 accounted
                 only
                 Lacation
                 ;
                 Nor
                 doth
                 it
                 infer
                 recognition
                 ,
                 being
                 in
                 effect
                 no
                 more
                 then
                 a
                 perpetual
                 Location
                 ,
                 whereby
                 the
                 Antinomy
                 in
                 the
                 Feudal
                 Law
                 is
                 sufficiently
                 reconciled
                 ,
                 that
                 such
                 Sub-feudations
                 are
                 not
                 alienations
                 :
                 But
                 if
                 the
                 Sub-feudation
                 be
                 Ward
                 ,
                 Blensh
                 ,
                 or
                 in
                 Mortification
                 ,
                 or
                 though
                 it
                 be
                 under
                 the
                 name
                 of
                 Emphyteosis
                 ;
                 yet
                 for
                 an
                 elusory
                 ,
                 or
                 an
                 inconsiderable
                 and
                 unproportionable
                 Feu-duty
                 ,
                 which
                 by
                 no
                 estimation
                 can
                 be
                 correspodent
                 to
                 the
                 profite
                 of
                 the
                 Fee
                 ,
                 but
                 within
                 the
                 half
                 of
                 the
                 true
                 worth
                 ;
                 in
                 these
                 cases
                 the
                 Sub-feudation
                 is
                 alienation
                 inferreth
                 recognition
                 .
              
               
                 14.
                 
                 As
                 to
                 our
                 own
                 Customs
                 in
                 this
                 point
                 ,
                 they
                 do
                 agree
                 to
                 the
                 common
                 Feudal
                 Customs
                 ,
                 as
                 to
                 Subaltern
                 Infeftments
                 ,
                 Blensh
                 ,
                 Ward
                 ,
                 or
                 in
                 mortification
                 ,
                 or
                 Elusory
                 ,
                 or
                 unprofitable
                 Feus
                 .
                 But
                 as
                 to
                 Feues
                 by
                 which
                 the
                 major
                 part
                 of
                 the
                 profite
                 of
                 the
                 Ward
                 or
                 Fee
                 is
                 not
                 taken
                 away
                 ,
                 though
                 such
                 cases
                 have
                 not
                 occurred
                 to
                 be
                 contraverted
                 ,
                 they
                 seem
                 not
                 to
                 infer
                 recognition
                 ;
                 for
                 if
                 the
                 major
                 part
                 be
                 not
                 alienate
                 ,
                 Subaltern
                 Infeudations
                 ,
                 though
                 Blensh
                 or
                 in
                 Mortification
                 ,
                 infer
                 not
                 recognition
                 ,
                 when
                 these
                 rights
                 are
                 disjunctim
                 of
                 parts
                 of
                 the
                 Fee
                 ;
                 There
                 appears
                 no
                 reason
                 ,
                 that
                 the
                 Subfeudation
                 of
                 the
                 whole
                 ,
                 with
                 a
                 Feu-duty
                 equivalent
                 to
                 the
                 half
                 of
                 the
                 true
                 Rent
                 ,
                 whereby
                 in
                 effect
                 the
                 half
                 is
                 not
                 alienate
                 ,
                 seing
                 the
                 
                   dominium
                   directum
                
                 ,
                 of
                 the
                 whole
                 ,
                 and
                 the
                 profite
                 of
                 the
                 half
                 is
                 retained
                 ,
                 should
                 infer
                 recognition
                 ,
                 especially
                 now
                 when
                 generally
                 Fees
                 are
                 granted
                 for
                 Causes
                 Onerous
                 .
              
               
                 15.
                 
                 And
                 by
                 the
                 Statute
                 allowing
                 Feues
                 ,
                 Par.
                 1457.
                 cap.
                 72.
                 
                 It
                 is
                 provided
                 that
                 the
                 Feu
                 be
                 set
                 to
                 a
                 competent
                 avail
                 ,
                 which
                 by
                 the
                 said
                 Statute
                 is
                 cleared
                 to
                 be
                 without
                 diminution
                 of
                 the
                 Rental
                 ;
                 and
                 which
                 is
                 commonly
                 interpret
                 the
                 retoure
                 duty
                 ,
                 because
                 it
                 was
                 the
                 publick
                 valuation
                 and
                 rate
                 at
                 that
                 time
                 .
                 And
                 by
                 the
                 said
                 statute
                 ,
                 such
                 Feues
                 are
                 confirmed
                 and
                 declared
                 not
                 to
                 be
                 prejudged
                 by
                 the
                 Ward
                 ,
                 without
                 mention
                 of
                 the
                 hazard
                 of
                 recognition
                 ,
                 as
                 not
                 being
                 consequent
                 upon
                 such
                 Feues
                 .
                 But
                 this
                 Statute
                 being
                 abrogate
                 as
                 to
                 the
                 Leiges
                 ,
                 Par.
                 18.
                 
                 Ja.
                 6.
                 cap.
                 12.
                 
                 All
                 Sub-feues
                 of
                 Ward-lands
                 ,
                 holden
                 of
                 Subjects
                 without
                 the
                 Superiours
                 consent
                 ,
                 are
                 declared
                 null
                 and
                 void
                 :
                 But
                 there
                 is
                 no
                 mention
                 of
                 recognition
                 to
                 be
                 incurred
                 thereby
                 .
                 And
                 Feues
                 are
                 only
                 prohibited
                 as
                 being
                 in
                 prejudice
                 of
                 the
                 Over-lords
                 ,
                 who
                 are
                 not
                 prejudged
                 if
                 the
                 major
                 part
                 be
                 not
                 alienate
                 ,
                 seing
                 all
                 Subaltern
                 Infeftments
                 ,
                 not
                 exceeding
                 the
                 half
                 ,
                 are
                 allowed
                 by
                 Law
                 ;
                 And
                 albeit
                 the
                 Narrative
                 of
                 the
                 Act
                 respect
                 Feues
                 preceeding
                 it
                 ,
                 yet
                 the
                 Statutory
                 part
                 is
                 only
                 as
                 to
                 Feues
                 granted
                 thereafter
                 .
              
               
                 And
                 the
                 like
                 prohibition
                 is
                 appointed
                 for
                 the
                 King
                 and
                 Princes
                 Vassals
                 ,
                 Par.
                 1633.
                 cap.
                 16.
                 
                 The
                 effect
                 of
                 this
                 Act
                 ,
                 as
                 to
                 the
                 Vassals
                 of
                 the
                 King
                 and
                 Prince
                 ,
                 was
                 suspended
                 till
                 the
                 next
                 meeting
                 of
                 Parliament
                 ,
                 and
                 the
                 Vassals
                 exempted
                 therefrom
                 in
                 the
                 
                   interim
                   ,
                   Par.
                
                 1640.
                 cap.
                 36.
                 
                 And
                 the
                 said
                 Act
                 was
                 wholly
                 repealed
                 ,
                 Par.
                 1641.
                 cap.
                 58.
                 
                 And
                 so
                 remained
                 until
                 all
                 these
                 Parliaments
                 were
                 Rescinded
                 ,
                 seing
                 the
                 private
                 rights
                 of
                 parties
                 acquired
                 thereby
                 ,
                 by
                 the
                 general
                 Act
                 Rescissory
                 ,
                 Par.
                 1661.
                 cap.
                 15.
                 
                 But
                 it
                 hath
                 been
                 found
                 ,
                 that
                 alienations
                 during
                 these
                 Acts
                 now
                 rescinded
                 ,
                 and
                 during
                 the
                 usurpation
                 ,
                 when
                 Wards
                 were
                 discharged
                 ,
                 did
                 infer
                 recognition
                 ,
                 seing
                 the
                 Vassal
                 did
                 not
                 seek
                 Confirmation
                 after
                 the
                 Kings
                 return
                 ,
                 December
                 15.
                 1669.
                 
                 Maitland
                 of
                 
                   Pittrichy
                   contra
                   Gordoun
                
                 of
                 Gight
                 .
                 The
                 like
                 was
                 found
                 in
                 the
                 recognition
                 at
                 the
                 instance
                 of
                 Sir
                 
                   George
                   Kinard
                   contra
                
                 the
                 Vassals
                 of
                 the
                 Lord
                 Gray
                 .
                 The
                 like
                 though
                 the
                 base
                 Infeftment
                 inferring
                 recognitien
                 ,
                 was
                 in
                 Anno
                 1643.
                 when
                 there
                 was
                 a
                 Statute
                 then
                 standing
                 ,
                 allowing
                 such
                 Infeftments
                 ,
                 seing
                 after
                 rescinding
                 
                 that
                 Statute
                 ,
                 no
                 application
                 was
                 made
                 to
                 the
                 King
                 for
                 Confirmation
                 ,
                 January
                 7.
                 1676.
                 
                 Cockburn
                 of
                 
                   Riselaw
                   conira
                   Cockburn
                
                 of
                 Chouslie
                 .
                 But
                 recognition
                 was
                 excluded
                 where
                 the
                 Vassal
                 required
                 the
                 Superiour
                 to
                 confirm
                 the
                 subaltern
                 right
                 ,
                 
                   debito
                   tempore
                
                 ,
                 or
                 did
                 purge
                 the
                 same
                 by
                 procuring
                 resignations
                 ,
                 
                   ad
                   remanentiam
                
                 ,
                 to
                 himself
                 from
                 the
                 Sub-vassals
                 ,
                 February
                 12.
                 1674.
                 
                 Viscount
                 of
                 
                   Kilsyth
                   contra
                   Hamiltoun
                
                 of
                 Bardowie
                 .
                 But
                 recognition
                 was
                 not
                 found
                 against
                 a
                 Pupil
                 upon
                 his
                 Tutors
                 taking
                 Infeftment
                 for
                 him
                 ,
                 during
                 the
                 Usurpation
                 ,
                 July
                 15.
                 1669.
                 
                 
                   Jack
                   contra
                   Jack
                
                 .
                 Whereby
                 it
                 is
                 clear
                 ,
                 that
                 Feues
                 have
                 no
                 effect
                 against
                 the
                 Superiour
                 ,
                 as
                 to
                 the
                 Ward
                 ,
                 Non-entry
                 more
                 then
                 Tacks
                 .
              
               
                 16.
                 
                 Whether
                 the
                 alienation
                 be
                 by
                 Infeftment
                 ,
                 holden
                 from
                 ,
                 or
                 of
                 the
                 Vassal
                 ;
                 there
                 is
                 no
                 recognition
                 with
                 us
                 ,
                 except
                 in
                 Ward-holdings
                 ;
                 yea
                 ,
                 if
                 the
                 holding
                 be
                 dubious
                 ,
                 and
                 soa
                 probable
                 ground
                 of
                 error
                 of
                 the
                 Vassal
                 ,
                 as
                 being
                 a
                 payment
                 of
                 Money
                 in
                 the
                 Reddendo
                 ,
                 with
                 Service
                 
                   used
                   and
                   wont
                
                 ;
                 which
                 though
                 truly
                 Ward
                 ,
                 yet
                 because
                 the
                 payment
                 of
                 Money
                 may
                 render
                 it
                 dubious
                 ,
                 Craig
                 holdeth
                 in
                 the
                 said
                 
                   Dieg.
                   l.
                
                 3.
                 that
                 it
                 would
                 not
                 infer
                 recognition
                 ;
                 yet
                 this
                 will
                 not
                 give
                 ground
                 to
                 think
                 that
                 alienation
                 of
                 Lands
                 ,
                 Taxt-ward
                 ,
                 would
                 excuse
                 from
                 recognition
                 ,
                 because
                 Ward
                 is
                 more
                 clear
                 ,
                 and
                 expressed
                 nominatim
                 ,
                 in
                 that
                 case
                 in
                 it self
                 ,
                 for
                 the
                 Casualities
                 thereof
                 ,
                 being
                 Taxed
                 ;
                 as
                 the
                 Marriage
                 and
                 Ward-duties
                 :
                 Which
                 〈◊〉
                 is
                 but
                 a
                 Liquidation
                 ,
                 or
                 Location
                 of
                 these
                 casualities
                 when
                 they
                 occur
                 ,
                 and
                 no
                 alteration
                 of
                 the
                 nature
                 of
                 the
                 Fee
                 ;
                 and
                 therefore
                 in
                 the
                 said
                 pursuit
                 ,
                 at
                 the
                 instance
                 of
                 the
                 Lady
                 
                   Carnagie
                   contra
                
                 the
                 Lord
                 Cranburn
                 ,
                 it
                 was
                 not
                 found
                 relevant
                 to
                 exclude
                 the
                 recognition
                 ,
                 that
                 the
                 Ward
                 was
                 Taxed
                 .
              
               
                 17.
                 
                 It
                 is
                 also
                 clear
                 ,
                 that
                 alienation
                 ,
                 whether
                 by
                 Infeftment
                 holden
                 of
                 ,
                 or
                 from
                 the
                 Vassal
                 ,
                 not
                 exceeding
                 the
                 half
                 of
                 the
                 Fee
                 ,
                 inferreth
                 not
                 recognition
                 ,
                 so
                 much
                 being
                 indulged
                 to
                 the
                 vassals
                 for
                 his
                 conveniency
                 or
                 necessity
                 ;
                 but
                 if
                 together
                 or
                 by
                 parcels
                 ,
                 or
                 by
                 Annualrent
                 ,
                 the
                 major
                 part
                 be
                 alienat
                 ,
                 not
                 only
                 that
                 which
                 then
                 was
                 in
                 the
                 vassals
                 person
                 falls
                 under
                 recognition
                 ;
                 But
                 as
                 Craig
                 holdeth
                 in
                 the
                 forecited
                 place
                 ,
                 Dieg.
                 3.
                 l.
                 3.
                 even
                 the
                 whole
                 Fee
                 ;
                 So
                 that
                 parcels
                 alienat
                 validly
                 ,
                 but
                 without
                 the
                 Superiours
                 consent
                 before
                 ,
                 become
                 void
                 and
                 return
                 .
                 But
                 though
                 the
                 vassal
                 grant
                 Infeftments
                 exceeding
                 the
                 half
                 of
                 the
                 fee
                 ;
                 yet
                 if
                 some
                 of
                 them
                 were
                 extinct
                 before
                 others
                 were
                 granted
                 ,
                 so
                 that
                 there
                 was
                 at
                 no
                 time
                 rights
                 standing
                 together
                 exceeding
                 the
                 half
                 of
                 the
                 see
                 ,
                 recognition
                 is
                 not
                 incurred
                 ,
                 February
                 23.
                 1681.
                 
                 
                   Iohn
                   Hay
                   contra
                
                 Creditors
                 of
                 Muirie
                 .
                 But
                 Deeds
                 done
                 by
                 Predecessors
                 and
                 their
                 Heirs
                 or
                 Authors
                 ,
                 and
                 their
                 Successors
                 were
                 in
                 that
                 case
                 conjoyned
                 .
                 Upon
                 the
                 same
                 ground
                 an
                 Infeftment
                 of
                 the
                 see
                 in
                 Liferent
                 ,
                 would
                 not
                 infer
                 recognition
                 ,
                 because
                 it
                 exceeds
                 not
                 the
                 half
                 of
                 the
                 value
                 .
                 Yea
                 ,
                 recognition
                 was
                 found
                 not
                 incurred
                 by
                 granting
                 an
                 Infeftment
                 in
                 Warrandice
                 ;
                 for
                 Warrandice
                 is
                 but
                 a
                 hazard
                 in
                 case
                 of
                 Eviction
                 ,
                 not
                 equivalent
                 to
                 the
                 half
                 of
                 the
                 worth
                 of
                 the
                 Lands
                 granted
                 in
                 warrandice
                 ,
                 unless
                 the
                 right
                 of
                 the
                 principal
                 Lands
                 were
                 manifeftly
                 defective
                 ,
                 Feb.
                 21.
                 1623.
                 
                 
                   Cathcart
                   contra
                   Campbel
                
                 .
              
               
                 18.
                 
                 Recognition
                 is
                 not
                 inferred
                 by
                 an
                 alienation
                 to
                 the
                 Vassals
                 appearand
                 heir
                 ;
                 by
                 the
                 ordinary
                 course
                 of
                 Law
                 ,
                 as
                 by
                 a
                 father
                 to
                 his
                 eldest
                 son
                 ,
                 because
                 the
                 fee
                 will
                 befall
                 to
                 the
                 son
                 after
                 the
                 fathers
                 Deceass
                 .
                 Neither
                 was
                 it
                 inferred
                 by
                 an
                 alienation
                 granted
                 by
                 a
                 Grand-father
                 ,
                 with
                 consent
                 of
                 his
                 son
                 to
                 his
                 oye
                 ,
                 who
                 was
                 
                   alioqui
                   successurus
                
                 ,
                 by
                 the
                 course
                 of
                 Law
                 ,
                 Hope
                 recognition
                 ,
                 
                   Adam
                   Rae
                   contra
                
                 Laird
                 of
                 Kellie
                 .
                 Yet
                 recognition
                 was
                 found
                 incurred
                 by
                 a
                 Vassals
                 Infeftment
                 to
                 his
                 eldest
                 son
                 ,
                 his
                 heirs
                 and
                 assigneys
                 ,
                 the
                 son
                 having
                 
                 Disponed
                 the
                 major
                 part
                 to
                 strangers
                 ,
                 seing
                 the
                 father
                 who
                 was
                 Vassal
                 ,
                 did
                 not
                 bind
                 up
                 his
                 son
                 from
                 Disponing
                 ,
                 by
                 a
                 Clause
                 irritant
                 ,
                 neither
                 did
                 the
                 son
                 purge
                 the
                 alienations
                 made
                 by
                 him
                 ,
                 during
                 his
                 fathers
                 life
                 ,
                 July
                 15.
                 1674.
                 
                 Sir
                 
                   Charles
                   Erskin
                   contra
                   Forbes
                
                 of
                 Achintoul
                 .
                 And
                 recognition
                 was
                 found
                 incurred
                 by
                 the
                 Infeftments
                 of
                 Ward-lands
                 ,
                 by
                 a
                 Husband
                 to
                 his
                 Wife
                 in
                 Fee
                 ,
                 failing
                 heirs
                 ofhis
                 Body
                 ,
                 albeit
                 the
                 Wife
                 did
                 not
                 acept
                 or
                 make
                 use
                 of
                 the
                 same
                 ,
                 but
                 brooked
                 by
                 a
                 prior
                 conjunct
                 Infeftment
                 ,
                 February
                 14.
                 1678.
                 
                 
                   Knock
                   contra
                
                 Lady
                 Knock.
                 And
                 recognition
                 was
                 found
                 to
                 be
                 incurred
                 by
                 an
                 alienation
                 by
                 the
                 Vassal
                 to
                 his
                 Brother
                 ,
                 who
                 for
                 the
                 time
                 was
                 his
                 appearand
                 heir
                 ,
                 but
                 not
                 necessarly
                 by
                 the
                 ordinary
                 course
                 of
                 Law
                 ,
                 seing
                 the
                 Vassal
                 might
                 have
                 had
                 Children
                 of
                 his
                 own
                 ,
                 and
                 so
                 his
                 Brother
                 could
                 not
                 be
                 called
                 
                   alioqui
                   successurus
                
                 ,
                 unless
                 it
                 were
                 by
                 accident
                 ,
                 Spots
                 .
                 recognition
                 ,
                 Kings
                 Advocat
                 and
                 his
                 Son
                 contra
                 Earl
                 of
                 Cassils
                 and
                 Collane
                 .
                 The
                 like
                 ,
                 July
                 29.
                 1672.
                 
                 Lord
                 
                   Hattoun
                   contra
                
                 Earl
                 of
                 Northesk
                 .
              
               
                 19.
                 
                 It
                 is
                 more
                 questionable
                 ,
                 whether
                 recognition
                 is
                 incurred
                 by
                 a
                 conditional
                 alienation
                 ,
                 bearing
                 ,
                 
                   if
                   the
                   Superiour
                   consent
                   ,
                   or
                   saving
                   the
                   Superiours
                   right
                   ,
                   Craig
                
                 following
                 Baldus
                 in
                 the
                 said
                 three
                 
                   Dieges
                   .
                   l
                
                 .
                 3.
                 declareth
                 ,
                 
                   that
                   if
                   such
                   Clauses
                   be
                   insert
                
                 bona
                 fide
                 ,
                 
                   they
                   infer
                   not
                   Recognition
                
                 ;
                 But
                 contrariwys
                 ,
                 if
                 they
                 be
                 done
                 fraudulently
                 ,
                 as
                 when
                 the
                 Vassal
                 Seaseth
                 and
                 Possesseth
                 a
                 powerful
                 Person
                 ,
                 whom
                 the
                 Superiour
                 cannot
                 easily
                 Dispossess
                 ,
                 or
                 his
                 Enemy
                 concerning
                 whom
                 there
                 can
                 be
                 no
                 doubt
                 of
                 the
                 Superiours
                 will
                 ,
                 or
                 if
                 the
                 Superiour
                 have
                 declared
                 his
                 will
                 upon
                 the
                 contrary
                 .
              
               
                 But
                 for
                 clearing
                 further
                 of
                 the
                 Point
                 ,
                 distinction
                 would
                 be
                 made
                 of
                 the
                 Nature
                 and
                 Tenor
                 of
                 the
                 Clause
                 ,
                 which
                 may
                 either
                 be
                 suspensive
                 or
                 resolutive
                 of
                 the
                 Property
                 or
                 Fee
                 in
                 the
                 former
                 case
                 :
                 Tradition
                 is
                 only
                 made
                 of
                 the
                 Possession
                 ,
                 but
                 the
                 Property
                 is
                 suspended
                 till
                 the
                 Superiours
                 will
                 be
                 known
                 ,
                 as
                 if
                 the
                 Vassal
                 Dispone
                 and
                 possess
                 another
                 without
                 Seasine
                 ,
                 there
                 could
                 be
                 no
                 recognition
                 ;
                 or
                 though
                 he
                 Possess
                 him
                 by
                 an
                 Instrument
                 ofPossession
                 ,
                 bearing
                 expresly
                 ,
                 
                   that
                   he
                   should
                   have
                   no
                   right
                   to
                   the
                   Property
                   till
                   the
                   Superiours
                   consent
                   were
                   obtained
                
                 ;
                 this
                 were
                 a
                 suspensive
                 Clause
                 ,
                 like
                 to
                 the
                 
                   addictio
                   in
                   diem
                
                 ;
                 in
                 the
                 Civil
                 Law
                 ,
                 by
                 which
                 only
                 Possession
                 and
                 not
                 the
                 Property
                 was
                 transmitted
                 for
                 that
                 time
                 ;
                 and
                 so
                 till
                 the
                 purification
                 of
                 the
                 condition
                 ,
                 it
                 could
                 be
                 no
                 alienation
                 :
                 But
                 when
                 the
                 Clause
                 is
                 only
                 resolutive
                 ,
                 not
                 hindering
                 the
                 transmission
                 of
                 the
                 Property
                 ,
                 but
                 resolving
                 or
                 annulling
                 the
                 same
                 ,
                 though
                 transmitted
                 ;
                 in
                 such
                 an
                 case
                 ,
                 such
                 Clauses
                 do
                 not
                 exclude
                 recognition
                 ,
                 because
                 there
                 is
                 truely
                 there
                 an
                 alienation
                 ,
                 without
                 the
                 Superiour
                 consent
                 ,
                 which
                 is
                 only
                 to
                 be
                 disannulled
                 by
                 his
                 disassent
                 ;
                 much
                 less
                 can
                 such
                 general
                 Clauses
                 as
                 
                   Salvo
                   jure
                   cujuslibet
                
                 ,
                 or
                 
                   Salvo
                   jure
                   Superioris
                
                 ,
                 avoid
                 recognition
                 .
              
               
                 20.
                 
                 Recognition
                 was
                 found
                 not
                 excluded
                 or
                 burdened
                 by
                 Inhibition
                 against
                 the
                 Ward-vassal
                 ,
                 before
                 the
                 gift
                 and
                 Declarator
                 of
                 the
                 Deed
                 ,
                 inferring
                 recognition
                 ,
                 seing
                 the
                 Creditors
                 inhibiting
                 did
                 not
                 pursue
                 reduction
                 before
                 Declaratorof
                 recognition
                 ;
                 December
                 16.
                 1680.
                 
                 
                   John
                   Hay
                   contra
                   Bethark
                
                 and
                 Laird
                 of
                 Balagarno
                 .
              
               
                 21.
                 
                 Neither
                 was
                 recognition
                 excluded
                 ,
                 because
                 the
                 Deeds
                 inferring
                 recognition
                 was
                 done
                 when
                 the
                 Disponer
                 was
                 drunk
                 ,
                 not
                 being
                 to
                 stupidity
                 ,
                 impeding
                 reason
                 ,
                 July
                 29.
                 1672.
                 
                 Lord
                 
                   Hattoun
                   contra
                
                 Earl
                 of
                 Northesk
                 .
              
               
               
                 22.
                 
                 To
                 come
                 now
                 to
                 the
                 Superiours
                 consent
                 ,
                 it
                 may
                 be
                 either
                 antecedent
                 ,
                 concomitant
                 ,
                 or
                 consequent
                 to
                 the
                 alienation
                 ;
                 and
                 it
                 may
                 be
                 either
                 express
                 or
                 tacite
                 ,
                 all
                 which
                 will
                 be
                 sufficient
                 to
                 avoid
                 recognition
                 ,
                 albeit
                 many
                 of
                 them
                 will
                 not
                 be
                 sufficient
                 to
                 make
                 a
                 valide
                 Infeftment
                 ,
                 if
                 the
                 same
                 be
                 granted
                 by
                 the
                 Vassal
                 ,
                 to
                 be
                 holden
                 from
                 him
                 of
                 the
                 Superiour
                 ,
                 which
                 by
                 our
                 custom
                 is
                 null
                 till
                 it
                 be
                 confirmed
                 ,
                 whereunto
                 an
                 anterior
                 consent
                 or
                 Homologation
                 in
                 any
                 ways
                 will
                 not
                 suffice
                 ,
                 Craig
                 in
                 the
                 forementioned
                 Dieg.
                 3.
                 relates
                 the
                 opinion
                 of
                 the
                 Feudists
                 ,
                 whereunto
                 he
                 agrees
                 ,
                 that
                 if
                 the
                 Vassals
                 Fee
                 be
                 granted
                 to
                 him
                 ,
                 his
                 Heirs
                 and
                 Assigneys
                 whatsomever
                 ,
                 that
                 thereby
                 ther
                 is
                 granted
                 ,
                 a
                 general
                 antecedent
                 consent
                 ,
                 of
                 the
                 Superiour
                 to
                 his
                 Vassal
                 ,
                 to
                 and
                 Assigneys
                 whatsomever
                 ,
                 that
                 thereby
                 there
                 is
                 granted
                 ,
                 a
                 general
                 antecedent
                 consent
                 ,
                 of
                 the
                 Superiour
                 to
                 his
                 Vassal
                 ,
                 to
                 alienat
                 or
                 assign
                 to
                 whom
                 he
                 pleaseth
                 .
                 But
                 the
                 contrary
                 was
                 found
                 in
                 the
                 case
                 of
                 the
                 Lady
                 
                   Cranagie
                   contra
                
                 Lord
                 
                   Cranburn
                   ,
                   Feb.
                
                 5.
                 1633.
                 
                 And
                 that
                 the
                 Disposition
                 to
                 Assigneys
                 did
                 only
                 importa
                 power
                 to
                 Assign
                 the
                 Disposition
                 ,
                 before
                 Infeftment
                 taken
                 thereupon
                 .
              
               
                 23.
                 
                 There
                 is
                 no
                 question
                 but
                 the
                 Superiour
                 Confirmation
                 is
                 sufficient
                 ,
                 even
                 the
                 Kings
                 Confirmation
                 ,
                 though
                 without
                 a
                 
                   novo
                   damus
                
                 ,
                 albeit
                 it
                 may
                 pass
                 in
                 Exchequer
                 ,
                 without
                 the
                 knowledge
                 &
                 advertency
                 of
                 the
                 recognition
                 incurred
                 ;
                 it
                 was
                 found
                 sufficient
                 being
                 done
                 before
                 the
                 Donatar
                 of
                 recognition
                 was
                 Infeft
                 ,
                 Hope
                 recognition
                 ,
                 
                   Rae
                   contra
                
                 Laird
                 of
                 Kellie
                 .
                 Which
                 Confirmation
                 doth
                 secure
                 against
                 recognition
                 ,
                 falling
                 by
                 thatInfeftments
                 Confirmed
                 ,
                 but
                 doth
                 not
                 secure
                 against
                 recognition
                 upon
                 other
                 subaltern
                 Infeftments
                 not
                 Confirmed
                 ,
                 which
                 are
                 not
                 considered
                 to
                 be
                 known
                 by
                 the
                 King
                 or
                 his
                 Officers
                 ,
                 without
                 a
                 
                   novo
                   damus
                
                 ,
                 and
                 so
                 imports
                 but
                 a
                 passing
                 from
                 recognition
                 by
                 the
                 Infeftment
                 Confirmed
                 ,
                 but
                 not
                 to
                 import
                 an
                 absolute
                 Ratification
                 ,
                 
                   pro
                   omni
                   jure
                   ,
                   February
                
                 6.
                 1673.
                 
                 Lord
                 
                   Hattoun
                   contra
                
                 Earl
                 of
                 Weims
                 .
                 The
                 like
                 was
                 found
                 ,
                 February
                 23.
                 1681.
                 
                 
                   John
                   Hay
                   contra
                
                 Creditors
                 of
                 Murie
                 .
                 And
                 a
                 Donatar
                 of
                 recognition
                 ,
                 having
                 granted
                 Precept
                 of
                 
                   clare
                   constat
                
                 ,
                 acknowledging
                 the
                 Vassals
                 right
                 ,
                 was
                 found
                 thereby
                 excluded
                 ,
                 albeit
                 the
                 Precept
                 did
                 bear
                 ,
                 
                   to
                   be
                   in
                   obedience
                
                 ,
                 of
                 Precepts
                 out
                 of
                 the
                 Chanclery
                 ,
                 June
                 24.
                 1668.
                 
                 
                   Andrew
                   Gray
                   contra
                   Howison
                
                 and
                 Gray
                 .
                 But
                 the
                 Superiours
                 consent
                 is
                 not
                 inferred
                 by
                 granting
                 Charters
                 for
                 obedience
                 upon
                 Appryzing
                 ,
                 though
                 before
                 any
                 Infeftment
                 of
                 the
                 Donatar
                 ,
                 Hope
                 recognition
                 ,
                 Laird
                 of
                 
                   Lugtoun
                   contra
                
                 Laird
                 of
                 Lethendie
                 .
              
               
                 24.
                 
                 The
                 Superiour
                 consent
                 also
                 by
                 Homologation
                 ,
                 is
                 sufficient
                 to
                 avoid
                 recognition
                 ,
                 as
                 if
                 it
                 were
                 express
                 consent
                 ,
                 as
                 if
                 the
                 Superiour
                 require
                 the
                 new
                 Vassal
                 or
                 Sub-vassal
                 ,
                 to
                 perform
                 the
                 Services
                 due
                 out
                 of
                 the
                 Fee
                 ,
                 for
                 thereby
                 he
                 acknowledges
                 him
                 Vassal
                 ,
                 as
                 is
                 observed
                 by
                 Craig
                 ,
                 in
                 the
                 case
                 betwixt
                 the
                 Laird
                 of
                 Calderwood
                 and
                 Maxwel
                 of
                 Calderhead
                 .
                 Or
                 if
                 the
                 Superiour
                 should
                 pursue
                 the
                 new
                 Vassal
                 for
                 the
                 avail
                 of
                 his
                 Marriage
                 ,
                 Liferent-escheat
                 ,
                 or
                 other
                 Casuality
                 of
                 the
                 Superiority
                 .
              
               
                 25.
                 
                 Recognition
                 being
                 incurred
                 ,
                 so
                 openeth
                 and
                 returneth
                 the
                 Fee
                 to
                 the
                 Superiour
                 ,
                 that
                 no
                 Debt
                 or
                 Deed
                 of
                 the
                 Vassal
                 ,
                 doth
                 burden
                 the
                 same
                 ,
                 but
                 these
                 only
                 which
                 before
                 that
                 time
                 were
                 established
                 by
                 consent
                 of
                 the
                 Superiour
                 ,
                 or
                 Authority
                 of
                 Law
                 ,
                 as
                 Appryzings
                 ,
                 Adjudications
                 ,
                 Feu-ferms
                 ,
                 conform
                 to
                 the
                 several
                 Acts
                 of
                 Parliament
                 .
                 But
                 even
                 such
                 being
                 Constitute
                 after
                 the
                 〈◊〉
                 ,
                 whereby
                 recognition
                 is
                 incurred
                 ,
                 albeit
                 
                   bona
                   fide
                
                 ,
                 for
                 onerous
                 Causes
                 ,
                 before
                 any
                 Diligence
                 or
                 Declarator
                 of
                 recognition
                 ;
                 yet
                 they
                 fall
                 in
                 consequence
                 with
                 their
                 Authors
                 right
                 ,
                 February
                 8.
                 1610.
                 
                 Earl
                 of
                 
                   Balcleugh
                   contra
                   Scot.
                
                 Recognition
                 excludeth
                 all
                 Tacks
                 set
                 by
                 the
                 vassal
                 without
                 the
                 Superiour
                 consent
                 ,
                 whither
                 prior
                 or
                 posteriour
                 ,
                 unless
                 such
                 as
                 are
                 set
                 for
                 the
                 utility
                 and
                 profite
                 
                 of
                 all
                 parties
                 interressed
                 ,
                 having
                 no
                 advantage
                 therein
                 ,
                 as
                 before
                 hath
                 been
                 showen
                 in
                 the
                 matter
                 of
                 Ward
                 and
                 Non-entry
                 ,
                 for
                 though
                 Tacks
                 be
                 Established
                 by
                 Acts
                 of
                 Parliament
                 ,
                 against
                 purchasers
                 ,
                 yet
                 not
                 against
                 Superiours
                 .
              
               
                 26.
                 
                 Recognition
                 doth
                 also
                 exclude
                 servitudes
                 upon
                 the
                 Fee
                 ,
                 by
                 the
                 Vassals
                 consent
                 without
                 the
                 Superiours
                 ,
                 as
                 Thirlage
                 ,
                 &c.
                 yet
                 this
                 will
                 not
                 reach
                 Servitudes
                 ,
                 introduced
                 by
                 long
                 custom
                 or
                 possession
                 ,
                 and
                 strengthened
                 by
                 Prescription
                 ,
                 wherein
                 the
                 consent
                 of
                 all
                 parties
                 having
                 interest
                 ,
                 is
                 presumed
                 ,
                 that
                 they
                 can
                 never
                 come
                 in
                 the
                 contrary
                 ;
                 for
                 though
                 it
                 was
                 most
                 proper
                 to
                 the
                 Vassal
                 to
                 look
                 to
                 his
                 Fee
                 ,
                 yet
                 the
                 Superiour
                 doubtless
                 might
                 have
                 interrupted
                 ,
                 which
                 would
                 have
                 been
                 sufficient
                 for
                 his
                 own
                 interest
                 .
                 And
                 Prescription
                 being
                 introduced
                 to
                 secure
                 Property
                 ,
                 and
                 put
                 an
                 end
                 to
                 Pleyes
                 ,
                 will
                 not
                 be
                 infringed
                 but
                 upon
                 evident
                 ground
                 .
              
               
                 27.
                 
                 Seing
                 Recognition
                 is
                 exclusive
                 of
                 all
                 interests
                 depending
                 upon
                 the
                 Vassal
                 ;
                 therefore
                 ,
                 all
                 parties
                 having
                 interest
                 may
                 compear
                 and
                 defend
                 ,
                 
                   Hope
                   ,
                   de
                   actionibus
                   in
                   factum
                   ,
                
                 Laird
                 of
                 
                   Lugtoun
                   contra
                
                 Laird
                 of
                 Lethendie
                 .
                 But
                 there
                 is
                 no
                 necessity
                 to
                 call
                 any
                 save
                 the
                 Vassal
                 ,
                 seing
                 all
                 other
                 Rights
                 fall
                 in
                 consequentiam
                 ,
                 as
                 was
                 found
                 in
                 Subaltern-rights
                 ,
                 in
                 the
                 said
                 case
                 ,
                 Earl
                 of
                 
                   Balcleugh
                   contra
                   Scot.
                
                 
              
               
                 Though
                 Recognition
                 be
                 ordinarly
                 by
                 way
                 of
                 Action
                 declaring
                 the
                 Deed
                 upon
                 which
                 it
                 is
                 incurred
                 ;
                 yet
                 a
                 Donatar
                 of
                 recognition
                 being
                 Infeft
                 thereupon
                 ,
                 was
                 found
                 to
                 have
                 sufficient
                 interest
                 to
                 pursue
                 ,
                 succeeding
                 in
                 the
                 vice
                 ,
                 in
                 respect
                 of
                 a
                 prior
                 Decreet
                 of
                 Removing
                 upon
                 the
                 Donatars
                 Infeftment
                 upon
                 the
                 gift
                 of
                 recognition
                 without
                 any
                 preceeding
                 Declarator
                 ,
                 March
                 22.
                 1623.
                 
                 Laird
                 of
                 
                   Hunthil
                   contra
                   Rutherfoord
                
                 .
              
               
                 28.
                 
                 In
                 Declarators
                 of
                 recognition
                 ,
                 the
                 Superiours
                 gift
                 is
                 sufficient
                 Title
                 without
                 instructing
                 the
                 Superiours
                 Right
                 ,
                 unless
                 he
                 be
                 disclaimed
                 ,
                 or
                 the
                 Vassals
                 be
                 singular
                 Successors
                 :
                 But
                 the
                 Kings
                 gift
                 is
                 absolutely
                 sufficient
                 ,
                 and
                 there
                 will
                 be
                 terms
                 assigned
                 for
                 proving
                 the
                 alienation
                 of
                 the
                 major
                 part
                 ,
                 and
                 incident
                 diligences
                 against
                 all
                 havers
                 for
                 production
                 of
                 their
                 Infeftments
                 ,
                 
                   ad
                   modum
                   probationis
                   ,
                   Feb.
                   17.
                   1671.
                   
                   William
                   Gordoun
                   contra
                
                 Sir
                 
                   Alexander
                   Mcculloch
                
                 .
                 And
                 whereas
                 gifts
                 of
                 recognitions
                 bear
                 ,
                 the
                 particular
                 Deeds
                 inferring
                 the
                 vacancy
                 and
                 return
                 of
                 the
                 Fee
                 in
                 the
                 Kings
                 hands
                 ,
                 because
                 general
                 gifts
                 are
                 not
                 allowable
                 .
                 The
                 extracts
                 of
                 Seasines
                 were
                 sustained
                 ,
                 
                   in
                   initio
                   litis
                
                 ,
                 to
                 instruct
                 these
                 Deeds
                 ,
                 but
                 Warrand
                 was
                 granted
                 to
                 the
                 defenders
                 to
                 improve
                 the
                 Seasines
                 ,
                 or
                 Warrands
                 thereof
                 ,
                 and
                 thereby
                 to
                 call
                 for
                 the
                 Principals
                 ,
                 
                   February
                   26.
                   1681.
                   
                   David
                   Edie
                   contra
                   Thores
                
                 and
                 Dun.
                 And
                 Diligence
                 by
                 Horning
                 was
                 granted
                 to
                 the
                 Defenders
                 of
                 the
                 improbation
                 ,
                 for
                 producing
                 the
                 Seasines
                 and
                 Warrands
                 ,
                 
                   February
                   23.
                   1681.
                   
                   John
                   Hay
                   contra
                
                 Creditors
                 of
                 Murie
                 .
                 And
                 Declarator
                 was
                 sustained
                 upon
                 production
                 of
                 the
                 gift
                 ,
                 though
                 the
                 Donatar
                 was
                 not
                 infeft
                 ;
                 and
                 though
                 the
                 Heir
                 whose
                 right
                 was
                 in
                 question
                 ,
                 was
                 minor
                 ;
                 and
                 though
                 his
                 Authors
                 bound
                 in
                 Warrandice
                 were
                 not
                 called
                 :
                 for
                 the
                 Priviledge
                 of
                 the
                 minority
                 hath
                 no
                 effect
                 as
                 to
                 the
                 Superiour
                 ,
                 and
                 the
                 Defender
                 ought
                 to
                 intimat
                 the
                 plea
                 to
                 his
                 Author
                 ,
                 
                   January
                   28.
                   1681.
                
                 
                 Laird
                 of
                 
                   Dun
                   contra
                   Scot.
                
                 
              
               
                 19.
                 
                 Disclamation
                 is
                 when
                 the
                 vassal
                 denyeth
                 his
                 Superiour
                 to
                 be
                 his
                 Superiour
                 ,
                 which
                 is
                 Diametrically
                 opposite
                 to
                 that
                 acknowledgement
                 ,
                 which
                 is
                 necessarly
                 implyed
                 in
                 the
                 matter
                 of
                 all
                 Fees
                 ,
                 as
                 there
                 is
                 in
                 it
                 the
                 greatest
                 ingratitude
                 ;
                 and
                 therefore
                 ,
                 Disclamation
                 ,
                 as
                 being
                 much
                 more
                 favourable
                 upon
                 
                 the
                 part
                 of
                 the
                 Superiour
                 ,
                 and
                 odious
                 upon
                 the
                 part
                 of
                 the
                 vassal
                 ,
                 then
                 recognition
                 is
                 not
                 restricted
                 to
                 proper
                 Fees
                 by
                 Ward-holdings
                 ,
                 but
                 taketh
                 place
                 in
                 all
                 Fees
                 ,
                 and
                 that
                 not
                 only
                 when
                 the
                 vassal
                 disclaimeth
                 the
                 Superiour
                 as
                 to
                 the
                 whole
                 ,
                 or
                 greater
                 part
                 ;
                 but
                 if
                 he
                 disclaim
                 him
                 to
                 be
                 Superiour
                 in
                 any
                 part
                 of
                 the
                 Fee
                 ,
                 he
                 looseth
                 the
                 whole
                 .
              
               
                 Disclamation
                 taketh
                 no
                 place
                 if
                 it
                 proceed
                 thorow
                 ignorance
                 of
                 the
                 vassal
                 ,
                 upon
                 any
                 probable
                 ground
                 ,
                 which
                 may
                 several
                 ways
                 occur
                 ;
                 First
                 ,
                 as
                 to
                 the
                 whole
                 Fee
                 ,
                 when
                 the
                 case
                 is
                 not
                 betwixt
                 the
                 first
                 Superiour
                 and
                 the
                 first
                 vassal
                 ,
                 but
                 betwixt
                 their
                 Successours
                 ,
                 as
                 if
                 the
                 vassal
                 should
                 deny
                 a
                 person
                 to
                 be
                 his
                 Superiours
                 Heir
                 in
                 that
                 Superiority
                 ,
                 through
                 any
                 doubtfulness
                 of
                 his
                 being
                 lawful
                 Heir
                 ,
                 or
                 of
                 his
                 being
                 that
                 Heir
                 ,
                 to
                 whom
                 the
                 Superiority
                 is
                 provided
                 ,
                 as
                 being
                 to
                 Heirs-mail
                 or
                 of
                 Tailzie
                 :
                 But
                 much
                 more
                 when
                 the
                 Superiour
                 is
                 singular
                 Successor
                 to
                 the
                 first
                 Superiour
                 ;
                 in
                 all
                 which
                 there
                 be
                 frequent
                 and
                 probable
                 grounds
                 of
                 doubt
                 and
                 mistake
                 .
              
               
                 Secondly
                 ,
                 The
                 same
                 ground
                 of
                 doubt
                 may
                 be
                 when
                 the
                 question
                 is
                 about
                 some
                 part
                 of
                 the
                 Fee
                 ,
                 and
                 this
                 much
                 more
                 ,
                 that
                 there
                 may
                 be
                 many
                 grounds
                 of
                 doubt
                 ,
                 whether
                 that
                 which
                 is
                 in
                 question
                 be
                 a
                 part
                 of
                 the
                 Fee
                 or
                 not
                 ,
                 as
                 when
                 the
                 Fiar
                 hath
                 several
                 Conterminous
                 Tenements
                 ,
                 holden
                 of
                 divers
                 Superiours
                 ,
                 if
                 he
                 affirm
                 any
                 parcel
                 not
                 to
                 be
                 a
                 part
                 and
                 pertinent
                 holden
                 of
                 the
                 Superiour
                 acclaiming
                 ,
                 but
                 of
                 the
                 other
                 ;
                 in
                 that
                 case
                 the
                 vassals
                 not
                 acknowledging
                 the
                 Superiour
                 ,
                 will
                 not
                 be
                 accounted
                 Disclamation
                 ;
                 and
                 therefore
                 ,
                 though
                 ordinarly
                 it
                 be
                 held
                 ,
                 that
                 a
                 Superiour
                 pursuing
                 his
                 vassal
                 for
                 any
                 Duty
                 or
                 Casuality
                 needs
                 not
                 instruct
                 that
                 he
                 is
                 Superiour
                 ,
                 or
                 that
                 the
                 Defender
                 is
                 his
                 vassal
                 ,
                 but
                 that
                 it
                 proves
                 it self
                 ,
                 unless
                 he
                 Disclaim
                 ,
                 as
                 was
                 found
                 ,
                 Hope
                 Superiour
                 ,
                 viscount
                 of
                 
                   Stormont
                   contra
                   Andrew
                   Grant
                
                 :
                 Yet
                 that
                 must
                 be
                 understood
                 ,
                 when
                 the
                 case
                 is
                 clear
                 ,
                 and
                 when
                 he
                 is
                 directly
                 Disclaimed
                 ,
                 he
                 may
                 choose
                 either
                 to
                 make
                 use
                 of
                 the
                 Disclamation
                 ,
                 or
                 instruct
                 his
                 Title
                 and
                 so
                 proceed
                 ,
                 
                   March
                   26.
                   1628.
                   
                   John
                   Stuart
                   contra
                
                 Laird
                 of
                 Wedderburn
                 .
              
               
                 The
                 main
                 question
                 is
                 ,
                 whether
                 Disclamation
                 can
                 be
                 otherways
                 then
                 judicially
                 ;
                 〈◊〉
                 answers
                 the
                 case
                 ,
                 as
                 to
                 extrajudicial
                 words
                 ,
                 
                   that
                   these
                   are
                   not
                   ordinarly
                   noticed
                   in
                   most
                   cases
                   ,
                   as
                   extrajudicial
                   Confessions
                   ,
                   and
                   the
                   like
                   ,
                   but
                   as
                   to
                   extrajudicial
                   deeds
                   of
                   the
                   Vassal
                   ,
                
                 as
                 if
                 he
                 should
                 take
                 Infeftment
                 from
                 any
                 other
                 then
                 his
                 Superiour
                 ,
                 it
                 would
                 be
                 as
                 real
                 Disclamation
                 as
                 any
                 verbal
                 one
                 judicially
                 could
                 be
                 ,
                 but
                 under
                 the
                 same
                 Limitation
                 ,
                 if
                 it
                 were
                 done
                 of
                 knowledge
                 and
                 of
                 contempt
                 of
                 the
                 Superiour
                 ;
                 and
                 therefore
                 ,
                 in
                 a
                 dubious
                 and
                 contraverse
                 right
                 ,
                 or
                 in
                 any
                 case
                 ,
                 if
                 the
                 right
                 were
                 taken
                 with
                 provision
                 of
                 double
                 Infeftment
                 ,
                 and
                 thereby
                 the
                 granter
                 not
                 accepted
                 simply
                 ,
                 as
                 Superiour
                 ,
                 but
                 only
                 in
                 the
                 interim
                 it
                 would
                 not
                 infer
                 Disclamation
                 .
              
               
                 30.
                 
                 Purpresture
                 or
                 Purprysion
                 is
                 the
                 vassals
                 going
                 without
                 his
                 bounds
                 ,
                 and
                 incroaching
                 upon
                 the
                 Property
                 of
                 his
                 Superiour
                 ;
                 for
                 purpryses
                 signifie
                 the
                 precincts
                 and
                 Marches
                 ,
                 the
                 ground
                 of
                 it
                 is
                 from
                 the
                 fidelity
                 and
                 gratitude
                 the
                 vassal
                 oweth
                 to
                 the
                 Superiour
                 ;
                 and
                 therefore
                 ,
                 should
                 not
                 invade
                 his
                 Inheritance
                 ;
                 but
                 this
                 is
                 not
                 extended
                 to
                 incroachment
                 upon
                 the
                 Superiours
                 Commonty
                 ,
                 as
                 Craig
                 relateth
                 the
                 opinion
                 of
                 the
                 Lawers
                 in
                 his
                 time
                 ,
                 in
                 a
                 purprysion
                 moved
                 by
                 the
                 Constable
                 of
                 Dundee
                 against
                 the
                 Town
                 of
                 Innerkeithing
                 .
                 But
                 where
                 the
                 Superiour
                 hath
                 the
                 right
                 of
                 Property
                 ,
                 burdened
                 and
                 barred
                 with
                 a
                 right
                 of
                 common
                 Pasturage
                 ,
                 acquired
                 by
                 the
                 vassal
                 by
                 consent
                 or
                 prescription
                 ,
                 which
                 though
                 it
                 marreth
                 the
                 effect
                 of
                 the
                 Superiours
                 Property
                 ,
                 so
                 that
                 he
                 cannot
                 Till
                 or
                 Manure
                 the
                 same
                 in
                 prejudice
                 of
                 the
                 Pasturage
                 ;
                 yet
                 he
                 remains
                 direct
                 
                 Proprietar
                 ;
                 and
                 if
                 Coal
                 were
                 found
                 in
                 that
                 ground
                 ,
                 it
                 would
                 be
                 his
                 alone
                 :
                 In
                 which
                 case
                 ,
                 if
                 the
                 vassal
                 should
                 rive
                 out
                 and
                 labour
                 that
                 ground
                 whereof
                 he
                 got
                 common
                 Pasturage
                 ,
                 it
                 would
                 be
                 purprysion
                 ,
                 as
                 is
                 clear
                 in
                 the
                 case
                 of
                 the
                 common
                 Moores
                 ,
                 disponed
                 to
                 none
                 by
                 the
                 King
                 in
                 Property
                 ;
                 and
                 therefore
                 ,
                 belonging
                 yet
                 to
                 His
                 Majesty
                 in
                 Property
                 ,
                 the
                 riving
                 out
                 ,
                 or
                 appropriating
                 whereof
                 ,
                 is
                 declared
                 purprysion
                 ,
                 Parliament
                 1600.
                 
                 Cap.
                 5.
                 
              
               
                 Purpresture
                 must
                 also
                 be
                 a
                 known
                 and
                 manifest
                 incroachment
                 ,
                 as
                 if
                 a
                 vassal
                 should
                 exclude
                 a
                 Superiour
                 from
                 a
                 whole
                 distinct
                 Tenement
                 ;
                 but
                 when
                 he
                 is
                 about
                 Marches
                 it
                 is
                 not
                 sustained
                 ,
                 unless
                 they
                 be
                 clearly
                 manifest
                 by
                 March
                 Stones
                 ;
                 Or
                 that
                 there
                 hath
                 been
                 an
                 antecedent
                 Cognition
                 of
                 the
                 Marches
                 ;
                 and
                 therefore
                 ,
                 the
                 action
                 is
                 either
                 turned
                 into
                 a
                 Cognition
                 ,
                 or
                 at
                 least
                 before
                 answer
                 ,
                 a
                 Commission
                 is
                 granted
                 to
                 cognosce
                 .
              
               
                 Purpresture
                 is
                 thought
                 to
                 be
                 incurred
                 by
                 incroachment
                 upon
                 the
                 High-ways
                 and
                 publick
                 Rivers
                 ,
                 as
                 belonging
                 to
                 the
                 King
                 ;
                 but
                 it
                 could
                 be
                 inferred
                 against
                 no
                 other
                 then
                 his
                 Vassal
                 ,
                 and
                 it
                 being
                 so
                 ordinary
                 by
                 course
                 of
                 time
                 ,
                 to
                 change
                 the
                 High-ways
                 ,
                 or
                 rather
                 for
                 the
                 High-ways
                 to
                 change
                 ,
                 when
                 there
                 becomes
                 any
                 impossibleness
                 therein
                 :
                 There
                 are
                 other
                 Statutes
                 appointed
                 for
                 securing
                 thereof
                 upon
                 far
                 less
                 certification
                 then
                 Purpresture
                 ,
                 so
                 that
                 I
                 conceive
                 it
                 could
                 hardly
                 be
                 inferred
                 upon
                 that
                 ground
                 .
              
               
                 Purpresture
                 was
                 only
                 competent
                 to
                 be
                 cognosced
                 by
                 Barons
                 ,
                 comprehending
                 Superiour
                 Dignities
                 ,
                 but
                 by
                 none
                 of
                 their
                 Vassals
                 or
                 Sub-vassals
                 ,
                 Par.
                 1477.
                 cap.
                 79.
                 
                 But
                 now
                 it
                 belongs
                 only
                 to
                 the
                 Jurisdiction
                 of
                 the
                 Lords
                 of
                 Session
                 ,
                 as
                 all
                 other
                 Recognitions
                 do
                 .
              
               
                 31.
                 
                 Craig
                 hath
                 largely
                 &
                 learnedly
                 Treated
                 of
                 the
                 feudal
                 Delinquencies
                 :
                 adducing
                 the
                 Feudal
                 Customes
                 of
                 the
                 neighbouring
                 Nations
                 ,
                 and
                 the
                 Opinions
                 of
                 many
                 learned
                 Feudists
                 thereupon
                 ,
                 both
                 generally
                 and
                 particularly
                 ,
                 enumerating
                 the
                 most
                 ordinary
                 Delinquences
                 ,
                 for
                 which
                 they
                 hold
                 Vassals
                 to
                 lose
                 their
                 Fees
                 ;
                 He
                 doth
                 also
                 give
                 his
                 own
                 opinion
                 ,
                 how
                 far
                 these
                 or
                 the
                 like
                 would
                 be
                 sustained
                 with
                 us
                 ,
                 but
                 adduceth
                 little
                 what
                 had
                 been
                 sustained
                 .
                 But
                 this
                 much
                 in
                 general
                 ,
                 that
                 
                   mitiores
                   pena
                   nobis
                   semper
                   placuere
                
                 :
                 And
                 in
                 Conclusion
                 ,
                 l.
                 3.
                 
                 Dieges
                 .
                 6.
                 he
                 makes
                 Superiours
                 lose
                 their
                 Superiority
                 ,
                 and
                 the
                 same
                 to
                 befal
                 to
                 their
                 Vassals
                 ,
                 for
                 the
                 same
                 Delinquencies
                 ,
                 for
                 which
                 the
                 Vassals
                 lose
                 their
                 Fee
                 ,
                 to
                 their
                 Superiours
                 ,
                 except
                 what
                 concerns
                 the
                 honour
                 and
                 reverence
                 due
                 by
                 Vassals
                 to
                 their
                 Superiours
                 ;
                 which
                 therefore
                 will
                 not
                 consist
                 with
                 attributing
                 the
                 Feudal
                 Delinquencies
                 to
                 ingratitude
                 ,
                 which
                 can
                 hardly
                 be
                 understood
                 to
                 give
                 rise
                 to
                 the
                 Superiours
                 losing
                 his
                 Superiority
                 ;
                 and
                 therefore
                 ,
                 it
                 must
                 be
                 from
                 that
                 mutual
                 friendship
                 and
                 fidelity
                 betwixt
                 the
                 Superiour
                 and
                 Vassal
                 ,
                 arising
                 from
                 the
                 Feudal
                 Contract
                 ,
                 since
                 his
                 time
                 there
                 hath
                 scarce
                 any
                 thing
                 been
                 observed
                 in
                 relation
                 to
                 Recognition
                 ,
                 or
                 ammission
                 of
                 Infeftments
                 upon
                 Feudal
                 Delinquencies
                 ,
                 except
                 what
                 concerns
                 alienation
                 of
                 proper
                 Fees
                 ,
                 or
                 Ward-holdings
                 ,
                 without
                 the
                 Superiours
                 consent
                 ,
                 or
                 what
                 may
                 concern
                 Recognition
                 ,
                 as
                 it
                 is
                 implyed
                 in
                 foresaulture
                 ,
                 so
                 that
                 we
                 are
                 yet
                 much
                 left
                 to
                 infer
                 the
                 Feudal
                 Delinquencies
                 ,
                 resolutive
                 of
                 Infeftments
                 from
                 the
                 nature
                 of
                 these
                 Rights
                 .
              
               
                 Though
                 Craig
                 hath
                 not
                 gone
                 near
                 the
                 length
                 of
                 Forraign
                 Feudists
                 ,
                 in
                 assigning
                 the
                 specialities
                 resolving
                 Fees
                 ;
                 yet
                 if
                 we
                 should
                 go
                 his
                 length
                 ,
                 there
                 would
                 be
                 found
                 few
                 unquarrellable
                 Rights
                 of
                 Superiority
                 ,
                 or
                 Property
                 in
                 the
                 
                 Kingdom
                 ,
                 but
                 which
                 might
                 in
                 a
                 considerable
                 time
                 ,
                 give
                 ground
                 enough
                 to
                 extinguish
                 the
                 Right
                 ,
                 either
                 of
                 the
                 Superiour
                 or
                 Vassal
                 :
                 And
                 since
                 no
                 such
                 thing
                 hath
                 been
                 moved
                 upon
                 either
                 part
                 ,
                 the
                 general
                 acquiescence
                 of
                 the
                 Nation
                 must
                 make
                 these
                 Delinquencies
                 resolutive
                 of
                 Infeftments
                 ,
                 much
                 narrower
                 and
                 much
                 more
                 upon
                 the
                 Vassals
                 part
                 then
                 the
                 Superiours
                 ,
                 for
                 our
                 Custom
                 hath
                 never
                 given
                 the
                 Vassalthe
                 right
                 of
                 Superiority
                 upon
                 the
                 Delinquencies
                 of
                 the
                 Superiour
                 .
              
               
                 All
                 Fees
                 ,
                 yea
                 and
                 Liferents
                 by
                 Infeftments
                 ,
                 do
                 necessarly
                 imply
                 an
                 acknowledgement
                 of
                 the
                 Superiour
                 ,
                 and
                 fidelity
                 to
                 him
                 ,
                 and
                 thence
                 only
                 ,
                 and
                 not
                 from
                 gratitude
                 ought
                 the
                 Causes
                 of
                 disolving
                 Fees
                 be
                 deduced
                 ,
                 for
                 though
                 pure
                 Donations
                 are
                 disolved
                 by
                 attrocious
                 ingratitude
                 ,
                 yet
                 the
                 most
                 proper
                 Fees
                 were
                 never
                 pure
                 Donations
                 ,
                 but
                 were
                 from
                 innominate
                 Contracts
                 ,
                 Do
                 
                   ut
                   facias
                
                 ,
                 and
                 the
                 services
                 due
                 thereby
                 ,
                 were
                 not
                 by
                 way
                 of
                 gratitude
                 ,
                 but
                 by
                 way
                 ofspecial
                 Contract
                 :
                 And
                 there
                 is
                 most
                 of
                 pure
                 Donation
                 in
                 the
                 most
                 improper
                 Fees
                 ,
                 such
                 as
                 Blensh
                 and
                 Mortification
                 which
                 are
                 almost
                 allodial
                 ;
                 and
                 yet
                 the
                 fewest
                 resolutive
                 Delinquencies
                 are
                 in
                 these
                 ,
                 and
                 Feu-ferms
                 were
                 at
                 first
                 granted
                 for
                 cultivating
                 Barren
                 Grounds
                 ,
                 and
                 paying
                 a
                 Feu-duty
                 ,
                 or
                 Canon
                 out
                 of
                 them
                 ,
                 and
                 where
                 they
                 have
                 a
                 considerable
                 Rent
                 ,
                 they
                 are
                 far
                 from
                 being
                 purely
                 gratuitous
                 ,
                 and
                 are
                 rather
                 perpetual
                 Locations
                 .
                 And
                 in
                 most
                 Fees
                 of
                 all
                 kinds
                 ,
                 there
                 are
                 not
                 only
                 Casualities
                 and
                 Profites
                 ;
                 but
                 they
                 are
                 ordinarly
                 granted
                 by
                 way
                 of
                 sale
                 for
                 a
                 competent
                 price
                 ;
                 and
                 therefore
                 ,
                 the
                 Delinquencies
                 resolving
                 them
                 ,
                 should
                 neither
                 be
                 extended
                 nor
                 esteemed
                 equal
                 ,
                 but
                 should
                 be
                 much
                 more
                 sustained
                 in
                 proper
                 Fees
                 ,
                 or
                 Ward-holdings
                 ,
                 importing
                 personal
                 or
                 military
                 Service
                 ,
                 then
                 in
                 improper
                 Fees.
                 
              
               
                 Yet
                 all
                 Infeftments
                 being
                 in
                 the
                 Terms
                 and
                 Tenor
                 of
                 Fees
                 ,
                 they
                 must
                 have
                 a
                 reddendo
                 and
                 acknowledgement
                 of
                 the
                 Superior
                 and
                 fidelity
                 too
                 ,
                 not
                 only
                 as
                 obliegements
                 ,
                 but
                 as
                 resolutive
                 conditions
                 implyed
                 therein
                 ;
                 and
                 therefore
                 ,
                 wilful
                 and
                 open
                 disowning
                 the
                 Superiour
                 by
                 Disclamation
                 ,
                 or
                 Infidelity
                 ,
                 in
                 breach
                 of
                 Trust
                 ,
                 should
                 from
                 the
                 nature
                 of
                 the
                 Feudal
                 Contract
                 resolve
                 the
                 same
                 .
              
               
                 32.
                 
                 Though
                 breach
                 of
                 Trust
                 be
                 a
                 general
                 Term
                 ,
                 the
                 extent
                 whereof
                 is
                 not
                 determined
                 ;
                 yet
                 certainly
                 it
                 must
                 import
                 the
                 Vassals
                 being
                 Actor
                 or
                 Accessory
                 in
                 conspyring
                 or
                 taking
                 away
                 the
                 life
                 of
                 the
                 Superiour
                 ,
                 or
                 mutilating
                 or
                 wounding
                 him
                 ,
                 or
                 in
                 taking
                 away
                 his
                 Right
                 of
                 Superiority
                 :
                 Under
                 which
                 accession
                 may
                 be
                 justly
                 comprehended
                 ,
                 the
                 not
                 revealing
                 to
                 him
                 of
                 these
                 hazards
                 ;
                 but
                 this
                 would
                 not
                 reach
                 to
                 the
                 revealing
                 of
                 any
                 loss
                 or
                 detriment
                 the
                 Superiour
                 might
                 have
                 in
                 his
                 other
                 Estate
                 ,
                 or
                 the
                 concurring
                 or
                 acting
                 against
                 him
                 therein
                 .
              
               
                 It
                 may
                 also
                 be
                 extended
                 to
                 Conspyring
                 ,
                 or
                 Acting
                 ,
                 or
                 not
                 Revealing
                 these
                 things
                 which
                 might
                 infer
                 upon
                 the
                 Superiour
                 ,
                 Infamy
                 ,
                 equiparat
                 to
                 death
                 or
                 wounds
                 ,
                 but
                 it
                 seems
                 not
                 to
                 import
                 a
                 duty
                 in
                 the
                 Vassal
                 to
                 give
                 Council
                 to
                 his
                 Superiour
                 ,
                 or
                 not
                 to
                 reveal
                 his
                 secrets
                 ;
                 neither
                 inferring
                 Life
                 ,
                 Limb
                 ,
                 nor
                 Fame
                 ;
                 for
                 though
                 these
                 be
                 Acts
                 of
                 Gratitude
                 and
                 Friendship
                 ,
                 yet
                 they
                 are
                 not
                 implyed
                 in
                 the
                 Fidelity
                 of
                 all
                 Vassals
                 ,
                 but
                 only
                 such
                 as
                 owe
                 Militar
                 and
                 personal
                 service
                 :
                 I
                 shall
                 not
                 determine
                 how
                 far
                 breach
                 of
                 Trust
                 in
                 improper
                 Fees
                 ,
                 could
                 extend
                 to
                 the
                 Wife
                 ,
                 Children
                 ,
                 and
                 Family
                 of
                 the
                 Superiour
                 .
              
               
               
                 But
                 proper
                 and
                 Military
                 Fees
                 by
                 Ward-holding
                 ,
                 do
                 not
                 only
                 import
                 Fidelity
                 ,
                 but
                 Assistance
                 and
                 Council
                 to
                 the
                 Superiour
                 ,
                 by
                 which
                 the
                 Vassal
                 can
                 be
                 accessory
                 to
                 no
                 attrocious
                 Deed
                 against
                 the
                 Life
                 and
                 Blood
                 of
                 the
                 Superiour
                 ,
                 but
                 against
                 any
                 Infamy
                 may
                 befal
                 him
                 ,
                 or
                 any
                 great
                 detriment
                 in
                 his
                 Estate
                 ,
                 and
                 so
                 will
                 reach
                 to
                 Deeds
                 of
                 hurt
                 or
                 disgrace
                 to
                 his
                 Wife
                 or
                 Children
                 by
                 Adultery
                 ,
                 Fornication
                 ,
                 or
                 attrocious
                 Violence
                 upon
                 their
                 persons
                 ,
                 or
                 attempts
                 thereunto
                 ;
                 and
                 may
                 also
                 extend
                 to
                 the
                 revealing
                 of
                 the
                 Superiours
                 secrets
                 ,
                 or
                 not
                 Defending
                 him
                 against
                 his
                 Enemies
                 or
                 such
                 as
                 attack
                 him
                 ,
                 or
                 deserting
                 of
                 him
                 in
                 that
                 case
                 ;
                 and
                 in
                 case
                 of
                 a
                 necessary
                 flight
                 ,
                 by
                 overpouring
                 ,
                 in
                 not
                 crying
                 for
                 help
                 and
                 relief
                 ;
                 and
                 in
                 lawful
                 War
                 ,
                 in
                 not
                 concurring
                 with
                 him
                 ,
                 or
                 deserting
                 him
                 ,
                 while
                 with
                 any
                 probability
                 of
                 prevailing
                 ,
                 he
                 stood
                 in
                 fight
                 ,
                 if
                 the
                 Vassal
                 were
                 then
                 near
                 him
                 ,
                 but
                 it
                 will
                 not
                 import
                 his
                 concourse
                 ,
                 active
                 in
                 private
                 quarrels
                 by
                 force
                 of
                 Arms
                 ,
                 which
                 are
                 not
                 warrantable
                 .
              
               
                 33.
                 
                 In
                 all
                 cases
                 the
                 ignorance
                 of
                 the
                 Vassal
                 not
                 being
                 affected
                 ,
                 or
                 his
                 weakness
                 will
                 excuse
                 these
                 Delinquencies
                 ,
                 and
                 whatever
                 he
                 acteth
                 in
                 self-defence
                 ,
                 or
                 upon
                 provocation
                 of
                 the
                 attrocious
                 injury
                 of
                 the
                 Superiour
                 ,
                 or
                 by
                 publick
                 Authority
                 ,
                 or
                 in
                 the
                 service
                 of
                 his
                 Prince
                 ,
                 or
                 anterior
                 Superiour
                 in
                 Ward-holding
                 :
                 Or
                 unless
                 the
                 attrocious
                 Deeds
                 be
                 past
                 from
                 by
                 the
                 Superiour
                 ,
                 by
                 owning
                 his
                 Vassal
                 after
                 the
                 knowledge
                 thereof
                 ,
                 or
                 by
                 a
                 considerable
                 times
                 forbearance
                 to
                 quarrel
                 the
                 same
                 ,
                 especially
                 when
                 in
                 the
                 mean
                 time
                 ,
                 either
                 the
                 Superiour
                 or
                 Vassal
                 dies
                 ;
                 for
                 though
                 death
                 obliterats
                 Crimes
                 as
                 to
                 the
                 punishment
                 ;
                 yet
                 the
                 righ
                 arising
                 to
                 the
                 Superiour
                 in
                 the
                 Fee
                 ,
                 from
                 the
                 Delinquence
                 ,
                 as
                 a
                 resolutive
                 condition
                 is
                 not
                 excluded
                 by
                 the
                 Vassals
                 Death
                 ,
                 if
                 the
                 Superiour
                 were
                 ignorant
                 of
                 the
                 Fact
                 ,
                 or
                 not
                 in
                 capacity
                 to
                 vindicat
                 the
                 same
                 through
                 publick
                 Calamity
                 ,
                 or
                 his
                 Pupilarity
                 or
                 absence
                 ;
                 but
                 by
                 the
                 mutual
                 friendship
                 and
                 strict
                 Union
                 betwixt
                 Superiour
                 and
                 Vassal
                 ;
                 small
                 evidences
                 will
                 import
                 the
                 passing
                 by
                 former
                 Delinquencies
                 ,
                 especially
                 when
                 not
                 questioned
                 ,
                 during
                 the
                 life
                 of
                 both
                 parties
                 .
              
               
                 There
                 are
                 multitudes
                 of
                 specialities
                 proposed
                 by
                 Craig
                 ,
                 as
                 Delinquencies
                 resolving
                 Fees
                 ,
                 not
                 only
                 in
                 relation
                 to
                 the
                 Superiour
                 ,
                 his
                 Person
                 and
                 Family
                 ;
                 but
                 also
                 of
                 invading
                 his
                 House
                 ,
                 befieging
                 the
                 same
                 ,
                 or
                 entering
                 it
                 by
                 force
                 ,
                 or
                 invading
                 his
                 Property
                 ,
                 which
                 is
                 the
                 ground
                 of
                 Purprysion
                 ,
                 acknowledged
                 by
                 our
                 Custom
                 ;
                 or
                 by
                 denying
                 or
                 refusing
                 to
                 show
                 the
                 Superiour
                 the
                 Marches
                 of
                 the
                 Fee
                 ,
                 or
                 denying
                 any
                 part
                 of
                 it
                 to
                 be
                 holden
                 of
                 him
                 ,
                 or
                 not
                 showing
                 him
                 his
                 Holding
                 and
                 Investiture
                 ,
                 being
                 solemnly
                 called
                 to
                 that
                 purpose
                 (
                 which
                 take
                 no
                 place
                 with
                 us
                 ;
                 for
                 our
                 ordinary
                 custom
                 for
                 Superiours
                 as
                 well
                 as
                 others
                 ,
                 is
                 to
                 pursue
                 Improbations
                 of
                 their
                 Vassals
                 Rights
                 wherein
                 the
                 Certifications
                 is
                 not
                 the
                 loss
                 of
                 the
                 Fee
                 ,
                 but
                 the
                 presumptive
                 falsity
                 of
                 the
                 Writes
                 )
                 or
                 the
                 denying
                 to
                 do
                 justice
                 to
                 Superiours
                 ;
                 but
                 also
                 in
                 relation
                 to
                 the
                 Fee
                 ,
                 if
                 he
                 waste
                 or
                 deterioat
                 it
                 :
                 Yea
                 ,
                 in
                 relation
                 to
                 the
                 Vassals
                 own
                 Person
                 ,
                 as
                 if
                 he
                 fall
                 in
                 Incest
                 ,
                 or
                 if
                 he
                 kill
                 his
                 Brother
                 ,
                 or
                 commit
                 any
                 Paracide
                 ,
                 or
                 if
                 he
                 contract
                 friendship
                 with
                 the
                 Enemies
                 of
                 his
                 Superiour
                 :
                 And
                 generally
                 ,
                 whatever
                 may
                 make
                 him
                 unfit
                 or
                 unworthy
                 to
                 attend
                 his
                 Superiou
                 ,
                 or
                 to
                 be
                 in
                 his
                 Court
                 ,
                 but
                 none
                 of
                 these
                 are
                 implyed
                 in
                 the
                 Fidelity
                 of
                 any
                 Vassal
                 .
              
               
                 There
                 be
                 special
                 grounds
                 of
                 resolution
                 or
                 extinction
                 of
                 Fees
                 by
                 the
                 particular
                 Nature
                 or
                 Tenor
                 thereof
                 ,
                 as
                 Feues
                 become
                 extinct
                 ,
                 
                   ob
                   non
                   solutum
                   canonem
                
                 ,
                 and
                 other
                 Fees
                 are
                 extinct
                 by
                 resolutive
                 Clauses
                 ,
                 as
                 to
                 both
                 which
                 we
                 have
                 spoken
                 ,
                 Title
                 13.
                 
                 §
                 .
              
               
               
                 Craig
                 doth
                 hold
                 ,
                 that
                 by
                 the
                 delinquence
                 of
                 Vassals
                 ,
                 Conquest
                 ,
                 or
                 
                   feuda
                   nova
                
                 ,
                 become
                 extinct
                 and
                 return
                 to
                 the
                 Superiour
                 ;
                 but
                 Heretage
                 ,
                 or
                 
                   feuda
                   vetera
                
                 ,
                 do
                 but
                 become
                 extinct
                 as
                 to
                 the
                 delinquent
                 Vassals
                 and
                 his
                 Descendents
                 but
                 is
                 not
                 returned
                 to
                 the
                 Superiour
                 ,
                 but
                 divolved
                 to
                 the
                 next
                 Collateral
                 of
                 the
                 delinquent
                 Vassal
                 descending
                 from
                 the
                 first
                 Vassal
                 ,
                 who
                 would
                 have
                 succeeded
                 if
                 the
                 delinquent
                 Vassals
                 had
                 died
                 without
                 issue
                 ,
                 and
                 who
                 must
                 enter
                 Heir
                 to
                 the
                 delinquent
                 Vassals
                 predecessor
                 ;
                 but
                 in
                 this
                 the
                 interest
                 of
                 the
                 Superiour
                 is
                 too
                 far
                 restricted
                 ;
                 for
                 we
                 have
                 no
                 custom
                 nor
                 tenor
                 to
                 enter
                 any
                 person
                 heir
                 to
                 a
                 Defunct
                 ,
                 while
                 a
                 nearer
                 heir
                 is
                 existent
                 ,
                 whatsoever
                 his
                 delinquence
                 be
                 ,
                 except
                 Paricide
                 .
              
               
                 He
                 doth
                 also
                 move
                 this
                 question
                 ,
                 That
                 if
                 the
                 Vassal
                 have
                 committed
                 a
                 Feudal
                 delict
                 against
                 the
                 Superiour
                 ,
                 and
                 a
                 publick
                 crime
                 inferring
                 forefaulture
                 ,
                 whether
                 the
                 Fee
                 would
                 fall
                 to
                 the
                 King
                 ,
                 or
                 to
                 the
                 Superiour
                 ,
                 or
                 if
                 the
                 first
                 sentence
                 of
                 forefaulture
                 or
                 recognition
                 would
                 prevail
                 :
                 but
                 does
                 not
                 determine
                 it
                 .
                 Yet
                 the
                 first
                 deliquences
                 ,
                 sufficient
                 to
                 extinguish
                 the
                 Fee
                 ,
                 if
                 insisted
                 in
                 ,
                 must
                 give
                 the
                 preference
                 ;
                 for
                 the
                 sentence
                 of
                 forfaulture
                 or
                 recognition
                 is
                 but
                 declaratory
                 ,
                 and
                 hath
                 effect
                 ,
                 not
                 from
                 the
                 sentence
                 ,
                 but
                 from
                 the
                 deed
                 inferring
                 it
                 .
              
               
                 There
                 is
                 no
                 difference
                 ,
                 whether
                 the
                 delinquence
                 inferring
                 recognition
                 ,
                 was
                 before
                 the
                 Vassal
                 was
                 actually
                 entered
                 or
                 after
                 ;
                 but
                 it
                 is
                 more
                 questionable
                 ,
                 whether
                 recognition
                 would
                 be
                 incurred
                 by
                 the
                 deeds
                 of
                 the
                 appearand
                 Heir
                 in
                 his
                 predecessors
                 life
                 ;
                 which
                 could
                 have
                 no
                 effect
                 as
                 to
                 Collaterals
                 ,
                 who
                 are
                 not
                 
                   alioqui
                   successuri
                
                 ,
                 seing
                 they
                 may
                 be
                 excluded
                 by
                 a
                 descendent
                 ,
                 which
                 in
                 men
                 is
                 alwayes
                 in
                 hope
                 :
                 And
                 if
                 the
                 heir
                 apparent
                 die
                 before
                 his
                 predecessor
                 ,
                 it
                 can
                 have
                 no
                 effect
                 to
                 exclude
                 either
                 his
                 Collaterals
                 or
                 Descendents
                 ;
                 and
                 it
                 is
                 more
                 probable
                 ,
                 that
                 though
                 the
                 heir
                 apparent
                 should
                 survive
                 ,
                 he
                 would
                 not
                 be
                 excluded
                 ,
                 seing
                 feudal
                 delinquences
                 are
                 now
                 so
                 little
                 extended
                 .
              
               
                 34.
                 
                 It
                 hath
                 been
                 much
                 and
                 long
                 debated
                 ,
                 and
                 is
                 not
                 yet
                 decided
                 ,
                 whether
                 Recognition
                 can
                 be
                 incurred
                 for
                 ay
                 attrocious
                 deeds
                 dne
                 by
                 sub-vassals
                 ,
                 whereby
                 the
                 Superiour
                 might
                 claim
                 the
                 right
                 of
                 the
                 sub-vassals
                 .
                 Fee
                 to
                 fall
                 to
                 him
                 by
                 Recognition
                 ;
                 Or
                 ,
                 Whether
                 Recognition
                 can
                 only
                 be
                 incurred
                 by
                 the
                 deeds
                 of
                 the
                 immediat
                 Vassal
                 .
                 The
                 case
                 in
                 question
                 was
                 ,
                 where
                 a
                 sub-vassal
                 rose
                 in
                 rebellion
                 against
                 the
                 King
                 ,
                 whereby
                 his
                 Fee
                 ,
                 as
                 all
                 his
                 other
                 Rights
                 ,
                 were
                 confiscate
                 to
                 the
                 King
                 by
                 forefaulture
                 ,
                 which
                 could
                 but
                 confiscate
                 them
                 as
                 they
                 were
                 in
                 his
                 person
                 ,
                 with
                 the
                 burden
                 of
                 all
                 real
                 Rights
                 of
                 Liferent
                 ,
                 Annualrent
                 ,
                 or
                 other
                 subaltern
                 Infeftments
                 of
                 the
                 forefaulted
                 person
                 :
                 But
                 if
                 the
                 forefaulture
                 of
                 the
                 sub-vassal
                 did
                 also
                 comprehend
                 Recognition
                 ,
                 the
                 sub-vassals
                 Fee
                 would
                 fall
                 to
                 the
                 King
                 and
                 belong
                 to
                 his
                 Donatar
                 ,
                 without
                 any
                 real
                 Right
                 or
                 Burden
                 contracted
                 by
                 the
                 forefaulted
                 person
                 ,
                 except
                 such
                 as
                 were
                 confirmed
                 by
                 the
                 King
                 ,
                 either
                 by
                 a
                 special
                 Confirmation
                 ,
                 or
                 by
                 that
                 general
                 consent
                 of
                 the
                 King
                 ,
                 inviting
                 all
                 his
                 Subject
                 to
                 set
                 their
                 Ward-lands
                 feu
                 ,
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 1457.
                 cap.
                 72.
                 which
                 would
                 preserve
                 such
                 Feus
                 ,
                 being
                 constitute
                 before
                 the
                 Act
                 of
                 Par.
                 1633.
                 rescinding
                 that
                 Act
                 as
                 to
                 the
                 Vassals
                 of
                 the
                 King
                 and
                 Prince
                 ,
                 as
                 was
                 found
                 ,
                 Feb.
                 12.
                 1674.
                 
                 Marquess
                 of
                 Huntley
                 contra
                 Gordoun
                 of
                 
                   Cairnburrow
                   ;
                   November
                
                 16.
                 1681.
                 
                 Campbel
                 of
                 Silvercraigs
                 contra
                 Laird
                 of
                 Auchinbreck
                 and
                 the
                 Earl
                 of
                 Argyle
                 .
                 And
                 therefore
                 ,
                 if
                 Recognition
                 were
                 implyed
                 in
                 forefaulture
                 ,
                 in
                 that
                 case
                 it
                 behoved
                 to
                 infer
                 a
                 general
                 rule
                 ,
                 that
                 Recognition
                 might
                 be
                 incurred
                 by
                 all
                 attrocious
                 deeds
                 against
                 gratitude
                 and
                 fidelity
                 ,
                 omitted
                 not
                 only
                 by
                 the
                 immediat
                 Vassal
                 ,
                 but
                 by
                 all
                 subaltern
                 Vassals
                 ,
                 and
                 would
                 not
                 only
                 be
                 competent
                 to
                 the
                 King
                 ,
                 upon
                 deeds
                 of
                 treason
                 committed
                 
                 against
                 him
                 by
                 his
                 sub-vassals
                 ,
                 but
                 by
                 all
                 deeds
                 of
                 attrocity
                 done
                 against
                 another
                 Superiour
                 by
                 his
                 sub-vassals
                 ;
                 as
                 if
                 his
                 sub-vassal
                 should
                 kill
                 ,
                 wound
                 or
                 betray
                 his
                 Superiour
                 .
                 So
                 that
                 the
                 question
                 behoved
                 to
                 return
                 ,
                 whether
                 there
                 were
                 any
                 feudal
                 Contract
                 or
                 Obligation
                 of
                 fidelity
                 betwixt
                 the
                 Superiour
                 and
                 his
                 Sub-vassals
                 ;
                 for
                 if
                 that
                 were
                 ,
                 then
                 Vassals
                 might
                 fall
                 in
                 Recognition
                 by
                 such
                 deeds
                 ,
                 not
                 only
                 against
                 their
                 immediat
                 Superiours
                 ,
                 but
                 against
                 all
                 their
                 mediat
                 Superiours
                 ,
                 though
                 never
                 so
                 many
                 .
                 For
                 ,
                 though
                 the
                 case
                 in
                 question
                 be
                 most
                 odious
                 and
                 unfavourable
                 ,
                 being
                 rebellion
                 ;
                 yet
                 it
                 hath
                 its
                 proper
                 punishment
                 introduced
                 by
                 Law
                 and
                 Statute
                 ,
                 whereby
                 the
                 rebel
                 loseth
                 Life
                 ,
                 Land
                 and
                 Goods
                 to
                 the
                 King
                 ,
                 to
                 whom
                 all
                 his
                 Subjects
                 owes
                 fidelity
                 ,
                 as
                 Subjects
                 ,
                 though
                 all
                 do
                 not
                 owe
                 the
                 feudal
                 Fidelity
                 as
                 Vassals
                 ;
                 yet
                 ,
                 if
                 Recognition
                 take
                 place
                 as
                 to
                 the
                 King
                 ,
                 it
                 must
                 likewise
                 fall
                 to
                 all
                 other
                 Superiours
                 ,
                 whatever
                 way
                 the
                 Land
                 be
                 held
                 ,
                 Ward
                 ,
                 Feu
                 ,
                 Blensh
                 or
                 Mortification
                 ,
                 if
                 they
                 have
                 not
                 a
                 confirmation
                 or
                 consent
                 of
                 the
                 Superiour
                 ,
                 anterior
                 to
                 the
                 deeds
                 inferring
                 Recognition
                 .
                 We
                 shall
                 not
                 therefore
                 anticipat
                 the
                 publick
                 determination
                 of
                 the
                 question
                 ;
                 if
                 custom
                 hath
                 determined
                 it
                 ,
                 what
                 will
                 take
                 place
                 ?
                 for
                 all
                 feudal
                 Rights
                 are
                 local
                 ,
                 but
                 there
                 hath
                 not
                 yet
                 appeared
                 any
                 case
                 ,
                 by
                 which
                 a
                 Donatar
                 by
                 his
                 Gift
                 and
                 Presentation
                 ,
                 being
                 infeft
                 in
                 the
                 Fee
                 of
                 the
                 Kings
                 sub-vassal
                 ,
                 forefault
                 has
                 excluded
                 these
                 who
                 had
                 real
                 Rights
                 from
                 the
                 forefaulted
                 person
                 before
                 the
                 treasonable
                 fact
                 ,
                 though
                 much
                 hath
                 been
                 disputed
                 upon
                 the
                 Act
                 of
                 Par.
                 9.
                 cap.
                 2.
                 concerning
                 the
                 quinquennial
                 possession
                 of
                 forfaulted
                 persons
                 ,
                 especially
                 from
                 the
                 last
                 clause
                 thereof
                 ,
                 bearing
                 ,
                 that
                 no
                 person
                 presented
                 by
                 the
                 King
                 to
                 feu
                 Lands
                 forefaulted
                 ,
                 nor
                 any
                 Vassal
                 of
                 any
                 Feuer
                 forefaulted
                 ,
                 shall
                 be
                 compelled
                 to
                 produce
                 their
                 Acquittances
                 of
                 their
                 Feu-mail
                 ,
                 or
                 Annualrents
                 of
                 their
                 forefaulted
                 Lands
                 of
                 any
                 year
                 preceeding
                 the
                 forefaulture
                 ;
                 which
                 doth
                 clearly
                 acknowledge
                 ,
                 that
                 when
                 the
                 Feuers
                 right
                 is
                 forefaulted
                 ,
                 his
                 Sub-vassals
                 right
                 is
                 not
                 forefauted
                 ,
                 yet
                 it
                 was
                 alledged
                 ,
                 that
                 would
                 not
                 end
                 the
                 controversie
                 by
                 the
                 Act
                 72.
                 
                 Par.
                 1457.
                 because
                 these
                 rights
                 of
                 the
                 Sub-vassals
                 of
                 the
                 forefaulted
                 Feuer
                 ,
                 might
                 have
                 been
                 confirmed
                 by
                 the
                 King
                 ,
                 specially
                 or
                 generally
                 by
                 the
                 foresaid
                 Act
                 ,
                 1457.
                 
                 But
                 the
                 general
                 Confirmation
                 from
                 that
                 Act
                 can
                 have
                 no
                 effect
                 ,
                 because
                 the
                 the
                 sub-vassals
                 whose
                 Rights
                 are
                 preserved
                 by
                 the
                 Act
                 ,
                 are
                 not
                 Feues
                 granted
                 by
                 Ward-holders
                 ,
                 but
                 are
                 subaltern
                 Infeftments
                 granted
                 by
                 forefaulted
                 Feuers
                 .
                 And
                 without
                 question
                 ,
                 the
                 King
                 hath
                 given
                 no
                 consent
                 to
                 any
                 to
                 grant
                 Feues
                 ,
                 but
                 to
                 Ward-holders
                 only
                 ;
                 for
                 ,
                 though
                 the
                 Law
                 hinders
                 them
                 to
                 grant
                 sub-feues
                 or
                 Annualrents
                 ,
                 yet
                 there
                 being
                 no
                 consent
                 or
                 confirmation
                 by
                 the
                 King
                 thereto
                 .
                 Therefore
                 ,
                 if
                 the
                 King
                 his
                 immediat
                 Vassal
                 be
                 forefaulted
                 ,
                 all
                 the
                 ancient
                 Feues
                 granted
                 by
                 him
                 of
                 the
                 Lands
                 holden
                 Ward
                 ,
                 will
                 stand
                 valid
                 ,
                 as
                 being
                 consented
                 to
                 by
                 the
                 King
                 by
                 the
                 foresaid
                 Statute
                 :
                 But
                 the
                 Feues
                 granted
                 by
                 him
                 of
                 Lands
                 holden
                 Blensh
                 or
                 Feu
                 ,
                 will
                 fall
                 in
                 consequence
                 with
                 his
                 own
                 Feu
                 or
                 Blensh
                 ,
                 and
                 cannot
                 defend
                 against
                 forefaulture
                 ,
                 more
                 then
                 Annualrents
                 or
                 lucrative
                 Tacks
                 granted
                 by
                 him
                 ,
                 which
                 Law
                 doth
                 allow
                 ,
                 and
                 yet
                 fall
                 with
                 his
                 right
                 ,
                 unless
                 consented
                 to
                 ,
                 or
                 confirmed
                 by
                 the
                 Superiour
                 .
              
            
             
               
               
                 TITLE
                 XXII
                 .
                 Prescription
                 .
              
               
                 
                   1.
                   
                   Prescription
                   distinguished
                   and
                   described
                   .
                
                 
                   2.
                   
                   Usucapion
                   .
                
                 
                   3.
                   
                   The
                   several
                   times
                   required
                   to
                   Usucapion
                   or
                   Prescription
                   ,
                   by
                   the
                   Roman
                   Law.
                   
                
                 
                   4.
                   
                   Requisites
                   to
                   Prescription
                   .
                
                 
                   5.
                   
                   Bona
                   fides
                   
                     requisite
                     to
                     Prescription
                  
                   .
                
                 
                   6.
                   
                   Whether
                   he
                   who
                   doubteth
                   of
                   his
                   authors
                   Right
                   ,
                   be
                   in
                   bona
                   ,
                   or
                   
                     mala
                     fide
                  
                   .
                
                 
                   7.
                   
                   Evidences
                   of
                   
                     mala
                     fides
                  
                   .
                
                 
                   8.
                   
                   The
                   Title
                   requisite
                   to
                   Prescription
                   .
                
                 
                   9.
                   
                   The
                   motives
                   inductive
                   of
                   Prescription
                   .
                
                 
                   10.
                   
                   Exception
                   ,
                   where
                   Prescription
                   took
                   no
                   place
                   by
                   the
                   Civil
                   Law.
                   
                
                 
                   11.
                   
                   The
                   common
                   rule
                   of
                   Prescription
                   with
                   us
                   .
                
                 
                   12.
                   
                   The
                   beginning
                   of
                   Prescription
                   of
                   personal
                   Rights
                   ,
                   with
                   the
                   extensions
                   thereof
                   .
                
                 
                   13.
                   
                   Prescription
                   of
                   Moveables
                   .
                
                 
                   14.
                   
                   Prescription
                   is
                   reckoned
                   
                     de
                     momento
                     in
                     momentum
                     per
                     tempus
                     continuum
                     .
                  
                
                 
                   15.
                   
                   Prescription
                   of
                   Heretable
                   Rights
                   .
                
                 
                   16.
                   
                   Prescription
                   is
                   not
                   extended
                   against
                   the
                   right
                   of
                   Superiority
                   .
                
                 
                   17.
                   
                   Prescription
                   runs
                   not
                   for
                   Tennents
                   against
                   their
                   Masters
                   .
                
                 
                   18.
                   
                   Prescription
                   runs
                   not
                   against
                   Minors
                   ,
                   but
                   there
                   is
                   no
                   exceptions
                   of
                   Mortifications
                   to
                   pious
                   uses
                   .
                
                 
                   19.
                   
                   In
                   our
                   long
                   Prescription
                   
                     bona
                     Fides
                  
                   is
                   not
                   required
                   .
                
                 
                   20.
                   
                   The
                   Titles
                   requisite
                   in
                   Prescriptions
                   of
                   Heretable
                   Rights
                   .
                
                 
                   21.
                   
                   This
                   long
                   Prescription
                   secures
                   Wodsets
                   ,
                   Infeftments
                   for
                   Security
                   ,
                   Teinds
                   and
                   long
                   Tacks
                   .
                
                 
                   22.
                   
                   How
                   far
                   Teinds
                   can
                   prescribe
                   .
                
                 
                   23.
                   
                   This
                   Prescription
                   extends
                   to
                   Patronage
                   and
                   Offices
                   .
                
                 
                   
                   24.
                   
                   And
                   to
                   Thirleage
                   and
                   all
                   Servitudes
                   .
                
                 
                   25.
                   
                   This
                   Prescription
                   excludes
                   all
                   Action
                   and
                   Ground
                   of
                   Reduction
                   and
                   Declarator
                   if
                   the
                   Essentials
                   of
                   the
                   Title
                   appear
                   .
                
                 
                   26.
                   
                   The
                   several
                   wayes
                   of
                   Interruption
                   of
                   Prescription
                   .
                
                 
                   27.
                   
                   The
                   way
                   of
                   Interruption
                   by
                   King
                   CHARLES
                   the
                   first
                   ,
                   as
                   to
                   special
                   rights
                   of
                   the
                   Crown
                   by
                   Letters
                   of
                   Publication
                   .
                
                 
                   28.
                   
                   The
                   annual
                   prescription
                   of
                   the
                   priviledge
                   of
                   appearand
                   Heirs
                   
                     intra
                     annum
                     deliberandi
                  
                   .
                
                 
                   29.
                   
                   The
                   biennial
                   prescription
                   of
                   the
                   preference
                   of
                   diligences
                   of
                   the
                   Creditors
                   of
                   Defuncts
                   ,
                   to
                   the
                   diligences
                   of
                   the
                   Creditors
                   of
                   the
                   Heir
                   .
                
                 
                   30.
                   
                   Triennial
                   prescription
                   of
                   Spuilzie
                   ,
                   Ejection
                   ,
                   Intrusion
                   and
                   succeeding
                   in
                   the
                   vice
                   ,
                   Merchants-counts
                   ,
                   House-mails
                   and
                   Removings
                   .
                
                 
                   31.
                   
                   Quadrennial
                   prescription
                   of
                   the
                   priviledge
                   to
                   reduce
                   deeds
                   of
                   Minors
                   
                     intra
                     quadrennium
                     utile
                  
                   .
                
                 
                   32.
                   
                   Quinquennial
                   prescription
                   of
                   Arrestments
                   ,
                   Ministers
                   Stipends
                   ,
                   Multures
                   ,
                   Rents
                   of
                   Tennents
                   removed
                   ,
                   and
                   legal
                   reversion
                   of
                   special
                   Adjudications
                   .
                
                 
                   33.
                   
                   Septennial
                   prescription
                   of
                   old
                   Apprisings
                   and
                   Summonds
                   for
                   Interruption
                   .
                
                 
                   34.
                   
                   Decennial
                   prescription
                   of
                   late
                   Apprisings
                   or
                   general
                   Adjudications
                   .
                
                 
                   35.
                   
                   Prescription
                   of
                   twenty
                   years
                   of
                   Holograph
                   Bonds
                   ,
                   Missives
                   ,
                   and
                   Subscriptions
                   in
                   Count-books
                   ,
                   without
                   Witnesses
                   .
                
                 
                   36.
                   
                   No
                   prescription
                   runs
                   in
                   Minority
                   ,
                   except
                   Removings
                   ,
                   House-mails
                   ,
                   and
                   Merchants-counts
                   .
                
              
               
                 1.
                 
                 PRESCRIPTION
                 is
                 the
                 common
                 extinction
                 and
                 abolishing
                 of
                 all
                 Rights
                 ,
                 and
                 therefore
                 is
                 reserved
                 here
                 to
                 the
                 last
                 place
                 ;
                 the
                 name
                 and
                 nature
                 whereof
                 we
                 have
                 from
                 the
                 Civil
                 Law
                 ,
                 wherein
                 Prescription
                 is
                 sometimes
                 largely
                 taken
                 for
                 any
                 exception
                 ,
                 but
                 hath
                 been
                 appropriat
                 to
                 the
                 most
                 common
                 exception
                 in
                 all
                 cases
                 ,
                 whereby
                 all
                 Actions
                 and
                 Causes
                 are
                 excluded
                 by
                 course
                 of
                 time
                 ;
                 and
                 so
                 Prescription
                 had
                 no
                 further
                 effect
                 ,
                 then
                 to
                 maintain
                 the
                 possessor
                 in
                 possession
                 by
                 exception
                 ,
                 but
                 not
                 to
                 recover
                 possession
                 ,
                 being
                 lost
                 ,
                 and
                 could
                 not
                 constitute
                 the
                 right
                 of
                 Property
                 .
              
               
                 2.
                 
                 In
                 this
                 ,
                 Prescription
                 did
                 chiefly
                 differ
                 from
                 Usucapion
                 by
                 the
                 ancient
                 Roman
                 Law
                 ,
                 that
                 Usucapion
                 did
                 constitute
                 Property
                 ,
                 and
                 therefore
                 is
                 defined
                 by
                 
                   Modestinus
                   ,
                   l.
                
                 3.
                 
                   ff
                   .
                   de
                   Usucapione
                   ;
                   Adjectio
                   vel
                   acquisitio
                   dominii
                   per
                   continuationem
                   possessionis
                   temporis
                   lege
                   definiti
                   .
                
                 To
                 which
                 ,
                 description
                 the
                 name
                 doth
                 agree
                 ;
                 for
                 ,
                 
                   usu-capere
                   est
                   capere
                   ex
                   usu
                   aut
                   possessione
                   ,
                
                 to
                 take
                 or
                 acquire
                 by
                 use
                 
                 or
                 possession
                 ;
                 But
                 every
                 possession
                 was
                 not
                 sufficient
                 ,
                 unless
                 it
                 were
                 a
                 possession
                 as
                 Proprietar
                 ,
                 or
                 for
                 the
                 possessors
                 own
                 use
                 only
                 :
                 So
                 detention
                 of
                 any
                 thing
                 in
                 the
                 name
                 ,
                 and
                 for
                 the
                 use
                 of
                 another
                 ,
                 and
                 for
                 the
                 possessor
                 only
                 in
                 security
                 ,
                 as
                 a
                 Pledge
                 or
                 Wodset
                 ,
                 cannot
                 Constitute
                 property
                 .
              
               
                 3.
                 
                 As
                 to
                 the
                 time
                 appointed
                 for
                 Usucapion
                 ,
                 Moveables
                 were
                 acquired
                 by
                 continual
                 possession
                 for
                 one
                 year
                 ,
                 l.
                 10.
                 
                   ff
                   .
                   de
                   usucapion
                   .
                   Inst.
                   eod
                   in
                   principio
                   .
                
                 And
                 Immoveables
                 being
                 in
                 Italy
                 by
                 the
                 space
                 of
                 two
                 years
                 :
                 Other
                 Immoveables
                 by
                 the
                 space
                 of
                 ten
                 years
                 ,
                 against
                 these
                 in
                 the
                 same
                 Province
                 ;
                 and
                 twenty
                 years
                 against
                 these
                 out
                 of
                 the
                 same
                 Province
                 ,
                 
                   auth
                   .
                   mala
                   fidei
                   ,
                   C.
                   de
                   prescript
                   .
                   longi
                   temporis
                   .
                
              
               
                 From
                 which
                 common
                 Rule
                 ,
                 some
                 cases
                 of
                 greatest
                 moment
                 were
                 excepted
                 ;
                 As
                 first
                 ,
                 publick
                 Rights
                 belonging
                 to
                 Emperors
                 and
                 Kings
                 ,
                 which
                 (
                 as
                 all
                 do
                 agree
                 ,
                 )
                 cannot
                 be
                 acquired
                 by
                 Usucapion
                 or
                 Prescription
                 in
                 less
                 then
                 thirty
                 or
                 fourty
                 years
                 ,
                 and
                 many
                 think
                 by
                 no
                 less
                 then
                 an
                 hundred
                 years
                 ,
                 or
                 immemorial
                 possession
                 .
              
               
                 Secondly
                 ,
                 Things
                 belonging
                 to
                 Cities
                 ,
                 which
                 in
                 some
                 cases
                 could
                 not
                 be
                 prescrived
                 without
                 an
                 hundred
                 years
                 possession
                 ,
                 at
                 least
                 without
                 thirty
                 or
                 fourty
                 years
                 .
              
               
                 Thirdly
                 ,
                 Things
                 belonging
                 to
                 the
                 Church
                 ,
                 against
                 which
                 no
                 other
                 can
                 acquire
                 by
                 Prescription
                 in
                 less
                 then
                 fourty
                 years
                 ;
                 and
                 against
                 the
                 Church
                 of
                 Rome
                 by
                 special
                 priviledge
                 ,
                 by
                 the
                 space
                 of
                 an
                 hundred
                 years
                 only
                 .
              
               
                 The
                 recent
                 Roman
                 Law
                 hath
                 taken
                 off
                 all
                 differences
                 betwixt
                 Usucapion
                 and
                 Prescription
                 ,
                 
                   Tit.
                   de
                   usucap
                   .
                   trans
                
                 .
                 whereby
                 in
                 either
                 case
                 Property
                 is
                 acquired
                 :
                 Yet
                 in
                 the
                 ordinary
                 acceptation
                 ,
                 Prescription
                 which
                 is
                 short
                 in
                 Moveables
                 ,
                 is
                 commonly
                 called
                 Usucapion
                 ;
                 but
                 we
                 make
                 only
                 use
                 of
                 the
                 name
                 of
                 Prescription
                 for
                 both
                 .
              
               
                 4.
                 
                 Prescription
                 or
                 Usucapion
                 amongst
                 the
                 Romans
                 ,
                 required
                 three
                 things
                 ,
                 continuation
                 of
                 Possession
                 uninterrupted
                 ,
                 
                   bona
                   fides
                
                 ,
                 and
                 a
                 Title
                 ,
                 besides
                 the
                 kind
                 of
                 Possession
                 ,
                 and
                 time
                 before-mentioned
                 ,
              
               
                 As
                 to
                 the
                 first
                 ,
                 prescription
                 is
                 unquestionably
                 interrupted
                 by
                 real
                 interruption
                 or
                 discontinuation
                 of
                 Possession
                 ;
                 it
                 is
                 also
                 interrupted
                 by
                 civil
                 Possession
                 by
                 Litiscontestation
                 ,
                 Process
                 ,
                 &c.
                 
              
               
                 5.
                 
                 As
                 to
                 the
                 
                   bona
                   fides
                
                 ,
                 or
                 innocent
                 Possession
                 required
                 in
                 Prescription
                 ,
                 it
                 is
                 commonly
                 agreed
                 ,
                 that
                 it
                 is
                 requisite
                 at
                 the
                 beginning
                 of
                 the
                 Possession
                 in
                 shorter
                 prescriptions
                 ,
                 but
                 that
                 it
                 is
                 presumed
                 in
                 the
                 longest
                 prescription
                 .
                 The
                 Civil
                 and
                 Canon
                 Law
                 differ
                 in
                 this
                 ,
                 that
                 the
                 Civil
                 Law
                 requireth
                 only
                 
                   bonam
                   fidem
                
                 at
                 the
                 beginning
                 ,
                 so
                 that
                 if
                 any
                 person
                 acquire
                 any
                 thing
                 from
                 him
                 whom
                 he
                 believeth
                 to
                 be
                 the
                 owner
                 thereof
                 ;
                 and
                 so
                 believing
                 beginneth
                 to
                 possess
                 ,
                 though
                 thereafter
                 he
                 understand
                 that
                 his
                 Author
                 was
                 not
                 the
                 true
                 owner
                 ,
                 yet
                 prescription
                 doth
                 proceed
                 :
                 But
                 by
                 the
                 Canon
                 Law
                 it
                 proceeds
                 not
                 :
                 But
                 if
                 at
                 any
                 time
                 before
                 prescription
                 ended
                 ,
                 he
                 knoweth
                 the
                 thing
                 belonged
                 to
                 another
                 ,
                 prescription
                 is
                 impeded
                 :
                 Yea
                 ,
                 though
                 prescription
                 were
                 ended
                 ,
                 if
                 the
                 right
                 of
                 another
                 appear
                 .
                 Most
                 of
                 the
                 Canonists
                 hold
                 ,
                 that
                 in
                 
                   foro
                   conscientiae
                
                 ,
                 the
                 possessor
                 is
                 oblieged
                 to
                 restore
                 ,
                 unless
                 the
                 knowledge
                 and
                 forbearance
                 of
                 
                 the
                 owner
                 ,
                 do
                 infer
                 or
                 presume
                 a
                 Dereliction
                 of
                 the
                 thing
                 or
                 consent
                 ,
                 which
                 takes
                 no
                 place
                 in
                 the
                 case
                 of
                 ignorance
                 ,
                 or
                 error
                 of
                 the
                 owner
                 .
              
               
                 6.
                 
                 In
                 either
                 case
                 it
                 is
                 contraverted
                 ,
                 whether
                 he
                 who
                 doubteth
                 of
                 his
                 or
                 his
                 Authors
                 right
                 be
                 
                   bonae
                   fidei
                
                 ,
                 or
                 
                   malae
                   fidei
                
                 possessor
                 .
              
               
                 The
                 common
                 ground
                 in
                 which
                 all
                 agree
                 ,
                 is
                 that
                 the
                 possessors
                 Credulity
                 and
                 Belief
                 of
                 his
                 own
                 and
                 his
                 Authors
                 Right
                 makes
                 
                   bonam
                   fidem
                
                 ,
                 and
                 his
                 knowledge
                 of
                 the
                 Right
                 of
                 another
                 malam
                 ,
                 which
                 seemeth
                 to
                 infer
                 ,
                 that
                 he
                 who
                 doubteth
                 ,
                 must
                 be
                 in
                 
                   mala
                   fide
                
                 ,
                 because
                 he
                 believeth
                 not
                 his
                 Authour
                 to
                 have
                 had
                 Right
                 ,
                 doubt
                 and
                 belief
                 being
                 contraries
                 :
                 And
                 upon
                 the
                 other
                 part
                 ,
                 he
                 who
                 only
                 doubteth
                 ,
                 cannot
                 be
                 said
                 to
                 know
                 the
                 right
                 of
                 another
                 .
              
               
                 The
                 most
                 rational
                 Conciliation
                 is
                 by
                 this
                 Distinction
                 ,
                 that
                 doubting
                 being
                 like
                 the
                 dubious
                 Ballance
                 ,
                 when
                 it
                 enclineth
                 more
                 to
                 the
                 belief
                 of
                 the
                 possessors
                 ,
                 and
                 Authors
                 Right
                 ,
                 then
                 of
                 the
                 right
                 of
                 the
                 other
                 .
                 The
                 Denomination
                 and
                 effect
                 is
                 taken
                 from
                 the
                 stronger
                 ,
                 and
                 he
                 is
                 said
                 to
                 believe
                 his
                 own
                 Right
                 ,
                 and
                 can
                 no
                 ways
                 be
                 said
                 to
                 believe
                 the
                 Right
                 of
                 another
                 ,
                 whose
                 doubtful
                 opinion
                 doth
                 rather
                 incline
                 to
                 his
                 own
                 Right
                 then
                 the
                 others
                 ;
                 and
                 contrariwise
                 ,
                 when
                 his
                 opinion
                 enclineth
                 more
                 to
                 believe
                 the
                 Authours
                 Right
                 then
                 his
                 own
                 .
              
               
                 7.
                 
                 These
                 things
                 being
                 hidden
                 Acts
                 of
                 the
                 Minde
                 ,
                 it
                 is
                 very
                 difficult
                 to
                 know
                 who
                 is
                 in
                 
                   bona
                   fide
                
                 or
                 
                   mala
                   fide
                
                 ;
                 but
                 
                   bona
                   fides
                
                 is
                 presumed
                 ,
                 unless
                 a
                 contrary
                 probation
                 ,
                 or
                 vehiment
                 presumption
                 be
                 for
                 
                   mala
                   fides
                
                 ,
                 of
                 which
                 
                   Menochius
                   ,
                   lib.
                
                 2.
                 
                   de
                   arbitrar
                   .
                   Jud.
                   quast
                   .
                   cas
                   .
                
                 225.
                 relateth
                 many
                 ,
                 whereof
                 these
                 are
                 chief
                 ;
                 First
                 ,
                 He
                 who
                 possesseth
                 without
                 a
                 Title
                 is
                 ever
                 presumed
                 
                   malae
                   fidei
                
                 possessessor
                 .
                 Secondly
                 ,
                 Common
                 fame
                 in
                 the
                 Neighbourhood
                 ,
                 that
                 the
                 thing
                 acquired
                 belongs
                 to
                 another
                 .
                 Thirdly
                 ,
                 If
                 it
                 be
                 intimate
                 or
                 declared
                 to
                 the
                 Acquirer
                 ,
                 before
                 he
                 acquired
                 that
                 it
                 was
                 anothers
                 .
                 Fourthly
                 ,
                 The
                 extrajudicial
                 confession
                 of
                 the
                 Acquirer
                 ,
                 or
                 of
                 witnesses
                 that
                 the
                 thing
                 belonged
                 to
                 another
                 .
                 Fifthly
                 ,
                 If
                 the
                 Acquisition
                 be
                 not
                 with
                 observation
                 of
                 the
                 ordinary
                 Solemnities
                 .
                 Sixthly
                 ,
                 If
                 the
                 Acquisition
                 be
                 from
                 a
                 Procurator
                 ,
                 and
                 the
                 Acquirer
                 did
                 not
                 see
                 his
                 Warrand
                 ,
                 albeit
                 he
                 had
                 one
                 .
                 Seventhly
                 ,
                 If
                 the
                 Acquisition
                 be
                 from
                 a
                 prodigal
                 person
                 .
                 Eighthly
                 ,
                 If
                 the
                 Acquirer
                 take
                 unaccustomed
                 wayes
                 of
                 Security
                 .
                 And
                 last
                 ,
                 By
                 whatsoever
                 the
                 Acquirer
                 is
                 oblieged
                 to
                 know
                 by
                 Law
                 ,
                 
                   scire
                   &
                   scire
                   debere
                   aequiparantur
                   in
                   jure
                   .
                
              
               
                 8.
                 
                 As
                 to
                 the
                 Title
                 requisite
                 in
                 prescription
                 ,
                 thereby
                 is
                 not
                 meaned
                 a
                 sufficient
                 valide
                 Title
                 ,
                 which
                 needed
                 not
                 the
                 help
                 of
                 prescription
                 ,
                 but
                 a
                 colourable
                 Title
                 is
                 sufficient
                 ,
                 as
                 that
                 which
                 is
                 acquired
                 by
                 Emption
                 ;
                 the
                 Emption
                 is
                 Title
                 enough
                 for
                 prescription
                 ,
                 though
                 the
                 seller
                 had
                 no
                 Right
                 ,
                 or
                 that
                 which
                 descendeth
                 from
                 any
                 other
                 by
                 Succession
                 ,
                 Legacy
                 ,
                 Donation
                 ,
                 &c.
                 
                 And
                 generally
                 ,
                 whatsoever
                 way
                 Property
                 useth
                 to
                 pass
                 ,
                 is
                 sufficient
                 for
                 prescription
                 ,
                 though
                 it
                 be
                 not
                 sufficient
                 alone
                 to
                 Constitute
                 the
                 Property
                 ,
                 to
                 which
                 there
                 is
                 requisite
                 the
                 Authors
                 Right
                 ,
                 and
                 the
                 transmission
                 thereof
                 ;
                 but
                 to
                 prescription
                 ,
                 the
                 manner
                 of
                 transmission
                 is
                 enough
                 for
                 
                   bona
                   fides
                
                 ,
                 and
                 continuation
                 of
                 possession
                 supplieth
                 the
                 rest
                 .
              
               
                 9.
                 
                 Prescription
                 although
                 it
                 be
                 by
                 positive
                 Law
                 ,
                 founded
                 upon
                 Utility
                 more
                 then
                 upon
                 Equity
                 ,
                 the
                 introduction
                 whereof
                 ,
                 the
                 Romans
                 ascribed
                 to
                 to
                 themselves
                 ,
                 yet
                 hath
                 it
                 been
                 since
                 received
                 by
                 most
                 Nations
                 ;
                 but
                 not
                 so
                 as
                 
                 to
                 be
                 counted
                 amongst
                 the
                 Laws
                 of
                 Nations
                 ,
                 because
                 it
                 is
                 not
                 the
                 same
                 ,
                 but
                 different
                 in
                 diverse
                 Nations
                 ,
                 as
                 to
                 the
                 matter
                 ,
                 manner
                 and
                 time
                 of
                 it
                 ;
                 and
                 therefore
                 ,
                 Nations
                 under
                 no
                 common
                 Authority
                 ,
                 do
                 not
                 prescrive
                 properly
                 against
                 each
                 other
                 ,
                 albeit
                 by
                 long
                 patience
                 and
                 no
                 contradiction
                 ,
                 their
                 consent
                 may
                 be
                 inferred
                 ,
                 even
                 by
                 the
                 Law
                 of
                 Nations
                 .
              
               
                 The
                 grounds
                 and
                 reasons
                 of
                 prescription
                 ,
                 are
                 first
                 ,
                 publick
                 utility
                 ,
                 
                   Ne
                   dominia
                   rerum
                   sint
                   incerta
                   ,
                   neve
                   lites
                   sint
                   perpetuae
                   :
                
                 And
                 also
                 because
                 the
                 Law
                 accounteth
                 it
                 as
                 a
                 Dereliction
                 of
                 the
                 owners
                 Right
                 ,
                 if
                 he
                 own
                 it
                 not
                 ,
                 neither
                 pursue
                 it
                 within
                 such
                 a
                 time
                 .
                 In
                 the
                 Civil
                 Law
                 though
                 prescription
                 reacheth
                 all
                 kinds
                 of
                 things
                 ,
                 Moveable
                 and
                 Immoveable
                 ,
                 yet
                 with
                 these
                 Exceptions
                 .
              
               
                 10.
                 
                 First
                 ,
                 These
                 things
                 that
                 are
                 not
                 in
                 Commerce
                 ,
                 as
                 they
                 are
                 not
                 capable
                 of
                 express
                 alienation
                 ,
                 so
                 neither
                 of
                 preseription
                 .
              
               
                 Secondly
                 ,
                 Things
                 stollen
                 ,
                 whereunto
                 for
                 utilities
                 sake
                 to
                 repress
                 that
                 frequent
                 Vice
                 ,
                 the
                 Law
                 hath
                 stated
                 an
                 inherent
                 and
                 real
                 Vitiosity
                 ,
                 that
                 passeth
                 with
                 the
                 thing
                 Stollen
                 to
                 all
                 singular
                 Successors
                 ;
                 and
                 therefore
                 ,
                 though
                 such
                 things
                 be
                 acquired
                 by
                 a
                 just
                 Title
                 ,
                 though
                 for
                 a
                 Cause
                 onerous
                 ,
                 and
                 an
                 equivalent
                 price
                 ,
                 and
                 by
                 continuation
                 of
                 Possession
                 
                   bona
                   fide
                
                 ;
                 yet
                 prescription
                 taketh
                 no
                 effect
                 because
                 of
                 the
                 inherent
                 Vitiosity
                 .
                 The
                 like
                 is
                 to
                 be
                 understood
                 of
                 Rapine
                 or
                 violent
                 Possession
                 :
                 Yet
                 the
                 Fruits
                 and
                 Profites
                 of
                 such
                 things
                 belong
                 to
                 the
                 
                   bonae
                   fidei
                
                 possessor
                 ,
                 rather
                 by
                 that
                 Right
                 that
                 followeth
                 possession
                 ,
                 
                   bonae
                   fidei
                
                 :
                 (
                 Of
                 which
                 formerly
                 in
                 the
                 Title
                 ,
                 
                   real
                   Rights
                
                 ,
                 )
                 then
                 by
                 prescription
                 .
              
               
                 Thirdly
                 ,
                 It
                 runneth
                 not
                 against
                 Pupils
                 by
                 the
                 Civil
                 Law
                 ,
                 though
                 some
                 think
                 that
                 it
                 is
                 not
                 to
                 be
                 understood
                 of
                 their
                 Moveables
                 ;
                 yet
                 it
                 runneth
                 against
                 other
                 Minors
                 ,
                 but
                 they
                 may
                 be
                 restored
                 if
                 they
                 pursue
                 for
                 Restitution
                 ,
                 in
                 the
                 time
                 and
                 manner
                 prescribed
                 in
                 Law.
                 
              
               
                 11.
                 
                 To
                 come
                 now
                 closs
                 to
                 our
                 Law
                 concerning
                 Prescription
                 ,
                 our
                 common
                 Rule
                 of
                 Prescription
                 is
                 by
                 the
                 course
                 of
                 fourty
                 years
                 ,
                 both
                 in
                 Moveables
                 and
                 Immoveables
                 ,
                 Obligations
                 ,
                 actions
                 ,
                 Acts
                 ,
                 Decreets
                 ,
                 and
                 generally
                 all
                 Rights
                 as
                 well
                 against
                 these
                 absent
                 as
                 present
                 ,
                 we
                 have
                 not
                 these
                 differences
                 ,
                 which
                 we
                 have
                 shown
                 were
                 in
                 the
                 Civil
                 Law
                 ;
                 and
                 because
                 our
                 Prescription
                 is
                 so
                 long
                 ,
                 there
                 is
                 little
                 question
                 with
                 us
                 ,
                 
                   de
                   bona
                   fide
                
                 .
                 But
                 there
                 must
                 be
                 continual
                 possession
                 free
                 from
                 interruption
                 ,
                 and
                 in
                 Lands
                 and
                 other
                 Fees
                 a
                 Title
                 ,
                 of
                 which
                 hereafter
                 .
              
               
                 12.
                 
                 By
                 our
                 ancient
                 Custom
                 ,
                 there
                 was
                 no
                 place
                 for
                 Prescription
                 in
                 any
                 case
                 which
                 hath
                 been
                 Corrected
                 by
                 our
                 Statutes
                 ,
                 both
                 as
                 to
                 long
                 and
                 short
                 Prescription
                 .
                 First
                 ,
                 as
                 to
                 personal
                 Rights
                 ,
                 in
                 Par.
                 1469.
                 cap.
                 28.
                 &
                 par
                 .
                 1474.
                 c.
                 54.
                 it
                 is
                 Statute
                 ,
                 that
                 as
                 to
                 all
                 obligations
                 that
                 should
                 be
                 pursued
                 thereafter
                 ,
                 and
                 that
                 were
                 not
                 then
                 depending
                 in
                 Law
                 ,
                 before
                 the
                 making
                 of
                 that
                 Act
                 ;
                 that
                 if
                 the
                 Creditor
                 did
                 not
                 follow
                 or
                 pursue
                 the
                 Obligation
                 within
                 the
                 space
                 of
                 fourty
                 years
                 ,
                 and
                 take
                 document
                 thereupon
                 ,
                 the
                 same
                 shall
                 be
                 prescrived
                 and
                 of
                 no
                 avail
                 :
                 Which
                 Statute
                 ,
                 though
                 it
                 mention
                 only
                 Obligations
                 ,
                 (
                 that
                 is
                 to
                 say
                 ,
                 simple
                 Obligations
                 )
                 was
                 also
                 extended
                 to
                 others
                 ,
                 as
                 Contracts
                 of
                 Marriage
                 ,
                 whereupon
                 no
                 Marriage
                 followed
                 ,
                 as
                 may
                 be
                 inferred
                 ,
                 
                   argumenta
                   a
                   contrario
                
                 ,
                 from
                 the
                 Decision
                 ,
                 February
                 26.
                 1622.
                 
                 Sir
                 
                   George
                   Hamiltoun
                   contra
                
                 Lord
                 Sinclar
                 :
                 And
                 afterward
                 it
                 hath
                 been
                 ordinarly
                 extended
                 even
                 to
                 Contracts
                 of
                 Marriage
                 ,
                 wherepon
                 Marriage
                 followed
                 ,
                 November
                 27.
                 1630.
                 
                 
                   Lauder
                   contra
                   Colmiln
                   .
                   December
                
                 23.
                 1630.
                 
                 
                   Ogilbie
                   contra
                
                 Lord
                 Ogilbie
                 .
                 It
                 was
                 also
                 extended
                 to
                 Testaments
                 ,
                 June
                 19.
                 1627.
                 
                 
                   Lundie
                   contra
                
                 
                 Laird
                 of
                 Balgoum
                 .
                 And
                 was
                 also
                 extended
                 to
                 pursuites
                 ,
                 for
                 Tutor
                 Counts
                 ,
                 Hope
                 ,
                 Prescription
                 ,
              
               
                 It
                 was
                 also
                 extended
                 to
                 all
                 Decreets
                 ,
                 though
                 
                   in
                   foro
                   contradictorio
                
                 ,
                 and
                 this
                 ordained
                 to
                 stand
                 as
                 a
                 constant
                 Practick
                 ,
                 July
                 26.
                 1637.
                 
                 Laird
                 of
                 
                   Lawers
                   contra
                   Dumbar
                
                 .
              
               
                 13.
                 
                 Prescription
                 of
                 fourty
                 yeays
                 was
                 found
                 sufficient
                 to
                 Constitute
                 the
                 Right
                 to
                 a
                 Bell
                 in
                 a
                 Kirk-steeple
                 against
                 another
                 Kirk
                 ,
                 pursuing
                 therefore
                 ,
                 without
                 instructing
                 a
                 Title
                 whereby
                 they
                 had
                 the
                 Bell
                 ,
                 which
                 is
                 not
                 necessary
                 to
                 be
                 instructed
                 ,
                 but
                 is
                 presumed
                 from
                 Possession
                 in
                 Moveables
                 ,
                 December
                 7.
                 1633.
                 
                 Minister
                 and
                 Session
                 of
                 
                   Aberchirdo
                   contra
                
                 Parochioners
                 and
                 Kirk
                 of
                 Chanrie
                 .
              
               
                 14.
                 
                 Prescription
                 being
                 odious
                 ,
                 the
                 fourty
                 years
                 are
                 accounted
                 ,
                 
                   de
                   momento
                   in
                   momentum
                
                 :
                 So
                 that
                 it
                 is
                 not
                 the
                 running
                 ,
                 but
                 the
                 compleating
                 of
                 the
                 fourty
                 years
                 that
                 makes
                 Prescription
                 ;
                 and
                 therefore
                 ,
                 a
                 Write
                 blank
                 in
                 the
                 Moneth
                 and
                 Day
                 ,
                 expressing
                 the
                 year
                 was
                 reckoned
                 from
                 the
                 last
                 of
                 December
                 that
                 year
                 ;
                 and
                 because
                 there
                 was
                 three
                 quarters
                 wanting
                 of
                 fourty
                 years
                 before
                 insisting
                 upon
                 the
                 pursuite
                 ,
                 thereupon
                 it
                 was
                 sustained
                 ,
                 as
                 not
                 prescribed
                 ,
                 Sep.
                 23.
                 1630.
                 
                 
                   Ogilbie
                   contra
                
                 Lord
                 Ogilbie
                 .
                 But
                 in
                 regard
                 of
                 the
                 length
                 of
                 this
                 Prescription
                 ,
                 it
                 is
                 accounted
                 
                   ex
                   tempore
                   continuo
                   ,
                   &
                   non
                   utili
                   ,
                
                 and
                 so
                 no
                 abatement
                 for
                 the
                 time
                 of
                 troubles
                 ,
                 or
                 surcease
                 of
                 Justice
                 ,
                 even
                 in
                 the
                 case
                 of
                 Mortification
                 to
                 Bead-men
                 ,
                 June
                 30.
                 1671.
                 
                 Bead-men
                 of
                 
                   Magdalen
                   Chapel
                   contra
                   Gavin
                   Drysdale
                
                 .
              
               
                 After
                 this
                 Statute
                 there
                 was
                 no
                 Prescription
                 of
                 Heretable
                 and
                 real
                 Rights
                 ;
                 and
                 therefore
                 ,
                 not
                 of
                 a
                 Decreet
                 of
                 Poinding
                 the
                 ground
                 ,
                 Hope
                 Prescription
                 ,
                 Sir
                 
                   George
                   Currier
                   contra
                
                 Laird
                 of
                 Louristoun
                 .
                 Only
                 it
                 was
                 declared
                 that
                 no
                 person
                 shold
                 be
                 compelled
                 to
                 produce
                 Procuratories
                 or
                 Instruments
                 of
                 Resignation
                 ,
                 Precepts
                 of
                 
                   clare
                   constat
                
                 ,
                 or
                 other
                 precepts
                 of
                 Seasine
                 of
                 Lands
                 or
                 Annualrents
                 ,
                 whereof
                 the
                 Heretors
                 and
                 their
                 Authors
                 ,
                 or
                 Liferenters
                 ,
                 having
                 Liferents
                 reserved
                 in
                 their
                 Infeftments
                 ,
                 were
                 in
                 Possession
                 fourty
                 years
                 together
                 ,
                 their
                 Charters
                 making
                 mention
                 of
                 the
                 Precepts
                 ,
                 the
                 wanting
                 whereof
                 shall
                 make
                 no
                 Reduction
                 ,
                 the
                 Charters
                 and
                 Seasine
                 being
                 extant
                 ,
                 Par.
                 1594.
                 cap.
                 214.
                 
              
               
                 15.
                 
                 But
                 Prescription
                 of
                 fourty
                 years
                 is
                 introduced
                 of
                 all
                 Heretable
                 and
                 other
                 Rights
                 ,
                 Par.
                 1617.
                 cap.
                 12.
                 where
                 the
                 Heretors
                 their
                 Predecessors
                 and
                 Authors
                 ,
                 possessed
                 Lands
                 ,
                 Annualrent
                 or
                 other
                 Heritage
                 by
                 themselves
                 ,
                 their
                 Tennents
                 or
                 others
                 having
                 their
                 Rights
                 (
                 as
                 by
                 Liferenters
                 )
                 for
                 the
                 space
                 of
                 fourty
                 years
                 together
                 ,
                 following
                 the
                 dates
                 of
                 their
                 Infeftments
                 without
                 lawful
                 Interruption
                 ,
                 that
                 such
                 shall
                 not
                 be
                 troubled
                 ,
                 pursued
                 ,
                 or
                 unquieted
                 by
                 HisMajesty
                 and
                 other
                 Superiours
                 &
                 Authors
                 ,
                 their
                 Heirs
                 and
                 Successors
                 ,
                 uponany
                 ground
                 whatsomever
                 except
                 upon
                 falshood
                 ,
                 providing
                 such
                 Heretors
                 shew
                 a
                 Charter
                 to
                 them
                 or
                 their
                 Authors
                 ,
                 preceeding
                 the
                 saids
                 fourty
                 years
                 possession
                 ,
                 with
                 the
                 Instrument
                 of
                 Seasine
                 following
                 thereupon
                 :
                 Or
                 otherways
                 ,
                 Instruments
                 of
                 Seasine
                 one
                 or
                 moe
                 ,
                 continued
                 and
                 standing
                 together
                 for
                 the
                 said
                 space
                 of
                 fourty
                 years
                 ,
                 either
                 proceeding
                 upon
                 retours
                 ,
                 or
                 precepts
                 of
                 
                   clare
                   constat
                
                 ;
                 where
                 ,
                 by
                 standing
                 together
                 ,
                 it
                 is
                 not
                 meaned
                 unreduced
                 ,
                 but
                 that
                 either
                 the
                 Vassal
                 lived
                 and
                 brooked
                 by
                 one
                 Seasine
                 fourty
                 years
                 :
                 Or
                 if
                 he
                 died
                 ,
                 that
                 the
                 Seasine
                 was
                 renewed
                 to
                 his
                 Heirs
                 ;
                 and
                 so
                 continued
                 not
                 only
                 the
                 Possession
                 ,
                 but
                 the
                 Seasine
                 fourty
                 years
                 :
                 In
                 which
                 the
                 continuation
                 of
                 Seasines
                 cannot
                 be
                 reckoned
                 ,
                 
                   de
                   
                   
                   
                   diein
                   diem
                
                 ;
                 because
                 there
                 must
                 necessarly
                 be
                 an
                 Interval
                 betwixt
                 the
                 death
                 of
                 the
                 person
                 first
                 ceased
                 ,
                 and
                 the
                 service
                 of
                 the
                 Heir
                 to
                 whom
                 the
                 Law
                 gives
                 
                   annum
                   deliberandi
                
                 ,
                 to
                 consider
                 whether
                 the
                 Heretage
                 will
                 be
                 beneficial
                 or
                 hurtful
                 ,
                 and
                 accordingly
                 whether
                 he
                 will
                 enter
                 or
                 not
                 ,
                 February
                 15.
                 1671.
                 
                 Earl
                 of
                 
                   Argile
                   contra
                
                 Lord
                 of
                 Mcnaughtoun
                 .
                 And
                 also
                 all
                 actions
                 upon
                 Heretable
                 Bonds
                 ,
                 Reversions
                 ,
                 Contracts
                 ,
                 or
                 others
                 whatsomever
                 ,
                 Except
                 Reversions
                 incorporat
                 within
                 the
                 body
                 of
                 Infeftments
                 ,
                 used
                 by
                 the
                 Heretors
                 for
                 their
                 Title
                 ,
                 or
                 Registrat
                 in
                 the
                 Register
                 of
                 Reversions
                 :
                 Which
                 general
                 Clause
                 was
                 found
                 to
                 extend
                 to
                 Actions
                 of
                 Reduction
                 of
                 Retours
                 ,
                 though
                 if
                 no
                 other
                 Heir
                 had
                 been
                 retoured
                 ,
                 the
                 right
                 of
                 Blood
                 prescrives
                 not
                 ,
                 but
                 any
                 person
                 may
                 enter
                 Heir
                 to
                 his
                 Predecessor
                 who
                 died
                 hundreds
                 of
                 years
                 before
                 ;
                 yet
                 if
                 any
                 other
                 were
                 entered
                 ,
                 he
                 cannot
                 after
                 fourty
                 years
                 quarrel
                 or
                 reduce
                 the
                 same
                 by
                 the
                 general
                 Act
                 of
                 Prescription
                 ,
                 though
                 the
                 retour
                 was
                 anterior
                 to
                 the
                 special
                 Act
                 of
                 Prescription
                 of
                 Retours
                 ,
                 Par.
                 1617.
                 cap.
                 13.
                 whereby
                 Retours
                 thereafter
                 are
                 irreducible
                 if
                 not
                 quarrelled
                 within
                 twenty
                 years
                 ,
                 November
                 28.
                 1665.
                 younger
                 
                   contra
                   Johnstouns
                
                 .
                 In
                 the
                 former
                 Statute
                 it
                 is
                 declared
                 ,
                 that
                 Actions
                 of
                 Warrandice
                 shall
                 not
                 prescrive
                 from
                 the
                 date
                 of
                 the
                 Bond
                 ,
                 or
                 Infeftment
                 whereupon
                 Warrandice
                 is
                 sought
                 ,
                 but
                 only
                 from
                 the
                 date
                 of
                 the
                 distress
                 .
              
               
                 16.
                 
                 But
                 this
                 Prescription
                 is
                 not
                 to
                 be
                 extended
                 against
                 Superiours
                 ,
                 upon
                 their
                 Vassals
                 Possession
                 fourty
                 years
                 ,
                 though
                 no
                 Feu
                 ,
                 Blensh
                 ,
                 or
                 other
                 Duty
                 or
                 Casuality
                 be
                 demanded
                 by
                 the
                 Superiour
                 ,
                 because
                 the
                 Vassals
                 Right
                 acknowledgeth
                 the
                 Superiours
                 Right
                 ,
                 and
                 his
                 possession
                 is
                 also
                 the
                 Superiours
                 possession
                 :
                 Yet
                 all
                 Duties
                 and
                 Casualities
                 thereupon
                 ,
                 not
                 pursued
                 within
                 fourty
                 years
                 ,
                 prescrive
                 without
                 prejudice
                 to
                 these
                 due
                 within
                 fourty
                 years
                 of
                 the
                 pursuit
                 ,
                 December
                 15.
                 1638.
                 
                 Sir
                 
                   William
                   Stuart
                
                 of
                 
                   Gairntullie
                   contra
                
                 Commissar
                 of
                 St.
                 Andrews
                 .
              
               
                 17.
                 
                 Which
                 holdeth
                 in
                 Tack-duties
                 ,
                 which
                 prescrive
                 as
                 to
                 the
                 years
                 preceeding
                 fourty
                 ,
                 before
                 the
                 pursute
                 ,
                 but
                 no
                 other
                 ,
                 March
                 10.
                 1627.
                 betwixt
                 two
                 Glasgow
                 Men
                 ,
                 Spots
                 :
                 Prescription
                 ,
                 
                   Stuart
                   contra
                   Fleeming
                
                 .
                 Yet
                 Prescription
                 by
                 possessing
                 fourty
                 years
                 ,
                 as
                 part
                 and
                 pertinent
                 by
                 an
                 Infeftment
                 was
                 not
                 Elided
                 ;
                 because
                 ,
                 before
                 these
                 fourty
                 years
                 the
                 Possessors
                 Author
                 had
                 a
                 Tack
                 of
                 the
                 Lands
                 in
                 question
                 February
                 ,
                 20.
                 1675.
                 
                 Countess
                 of
                 
                   Murray
                   contra
                
                 Mr.
                 
                   Robert
                   Weyms
                
                 ,
                 though
                 in
                 this
                 case
                 the
                 Land
                 in
                 question
                 was
                 
                   separatum
                   Tenementum
                
                 ,
                 by
                 a
                 distinct
                 infeftment
                 ,
                 but
                 became
                 part
                 and
                 pertinent
                 by
                 being
                 so
                 brooked
                 fourty
                 years
                 .
              
               
                 By
                 this
                 Statute
                 ,
                 Prescription
                 of
                 Heretable
                 Rights
                 ,
                 doth
                 not
                 only
                 exclude
                 other
                 Infeftments
                 in
                 Property
                 ,
                 but
                 also
                 Annualrents
                 ,
                 Pensions
                 ,
                 and
                 all
                 other
                 Rights
                 ;
                 and
                 so
                 an
                 Heretor
                 possessing
                 fourty
                 years
                 ,
                 was
                 found
                 free
                 thereof
                 ,
                 July
                 22.
                 1634.
                 
                 
                   Margaret
                   Forrester
                   contra
                
                 Possessors
                 of
                 Bothkennel
                 ,
                 where
                 the
                 Office
                 of
                 Forrester
                 and
                 Fees
                 thereof
                 were
                 found
                 prescrived
                 .
              
               
                 18.
                 
                 From
                 this
                 Prescription
                 there
                 are
                 excepted
                 the
                 Rights
                 of
                 Pupils
                 and
                 Minors
                 ,
                 against
                 whom
                 the
                 Prescription
                 runs
                 ,
                 not
                 during
                 their
                 Minority
                 ,
                 so
                 that
                 they
                 need
                 not
                 seek
                 Restitution
                 ,
                 
                   in
                   integrum
                
                 ,
                 as
                 in
                 the
                 Civil
                 Law
                 ;
                 which
                 exception
                 is
                 particularly
                 exprest
                 in
                 the
                 foresaid
                 Statute
                 ,
                 and
                 is
                 extended
                 to
                 all
                 other
                 Prescriptions
                 of
                 personal
                 Rights
                 or
                 others
                 ,
                 Spots
                 .
                 Prescription
                 ,
                 Duke
                 of
                 
                   Lennox
                   contra
                
                 the
                 Executors
                 of
                 
                   Alexander
                   Beatoun
                
                 .
                 But
                 there
                 is
                 no
                 exception
                 of
                 Rights
                 mortified
                 to
                 pioususes
                 ,
                 as
                 Bead-men
                 ,
                 June
                 30.
                 1671.
                 
                 Bead-men
                 of
                 
                   Magdillan-Chapel
                   contra
                   Gavin
                   Drysdale
                
                 .
              
               
               
                 19.
                 
                 In
                 neither
                 of
                 the
                 Statutes
                 ,
                 introducing
                 long
                 prescription
                 by
                 fourty
                 years
                 ,
                 is
                 there
                 any
                 mention
                 or
                 provision
                 ,
                 concerning
                 the
                 manner
                 of
                 the
                 entry
                 in
                 possession
                 ,
                 whether
                 it
                 was
                 
                   bona
                   fide
                
                 peaceable
                 or
                 lawful
                 ,
                 but
                 only
                 that
                 it
                 have
                 a
                 Title
                 ,
                 and
                 be
                 continued
                 without
                 interruption
                 .
              
               
                 20.
                 
                 The
                 Title
                 in
                 heretable
                 Rights
                 ,
                 being
                 ground-rights
                 of
                 Lands
                 or
                 Annualrents
                 ,
                 is
                 very
                 well
                 distinguished
                 ,
                 by
                 the
                 last
                 Statute
                 ,
                 betwixt
                 Conquest
                 and
                 Heretage
                 ;
                 for
                 ,
                 Heretage
                 which
                 hath
                 descended
                 by
                 succession
                 ,
                 from
                 a
                 predecessor
                 ,
                 is
                 content
                 with
                 a
                 more
                 slender
                 Title
                 ,
                 viz.
                 Seasines
                 without
                 the
                 Warrands
                 or
                 Adminicles
                 ,
                 but
                 only
                 bearing
                 ,
                 that
                 they
                 proceed
                 upon
                 Retoures
                 or
                 Precepts
                 of
                 
                   Clare
                   constat
                
                 ,
                 providing
                 that
                 the
                 possession
                 hath
                 been
                 by
                 vertue
                 of
                 these
                 Seasines
                 :
                 So
                 that
                 not
                 only
                 there
                 must
                 be
                 possession
                 for
                 fourty
                 years
                 together
                 ,
                 but
                 Seasines
                 consecutive
                 ,
                 proper
                 to
                 the
                 several
                 possessors
                 during
                 that
                 time
                 :
                 But
                 purchasers
                 must
                 not
                 only
                 have
                 for
                 their
                 Title
                 ,
                 a
                 Seasine
                 preceeding
                 the
                 fourty
                 years
                 prescription
                 ,
                 but
                 if
                 they
                 found
                 upon
                 their
                 proper
                 right
                 ,
                 they
                 must
                 also
                 produce
                 a
                 Charter
                 preceeding
                 the
                 fourty
                 years
                 .
                 And
                 therefore
                 ,
                 though
                 a
                 purchaser
                 should
                 possess
                 fourty
                 years
                 ,
                 and
                 show
                 his
                 Seasine
                 anterior
                 thereto
                 ;
                 yet
                 would
                 it
                 not
                 be
                 a
                 Title
                 for
                 prescription
                 ,
                 unless
                 he
                 produce
                 a
                 Charter
                 before
                 that
                 time
                 ,
                 where
                 ,
                 by
                 Charter
                 ,
                 must
                 not
                 be
                 understood
                 a
                 solemn
                 Charter
                 as
                 it
                 is
                 distinguished
                 from
                 a
                 Disposition
                 or
                 Precept
                 ,
                 but
                 as
                 it
                 comprehends
                 these
                 ;
                 for
                 many
                 valid
                 Infeftments
                 have
                 no
                 Charter
                 ,
                 but
                 Seasine
                 proceeds
                 upon
                 the
                 Precept
                 of
                 Seasine
                 contained
                 in
                 the
                 Disposition
                 .
                 And
                 though
                 a
                 Precept
                 of
                 Seasine
                 were
                 only
                 shown
                 as
                 the
                 warrand
                 of
                 the
                 Seasine
                 ,
                 the
                 same
                 with
                 fourty
                 years
                 possession
                 by
                 vertue
                 thereof
                 ,
                 would
                 perfect
                 Prescription
                 :
                 for
                 the
                 Seasines
                 of
                 themselves
                 ,
                 without
                 Warrand
                 or
                 Adminicle
                 ,
                 are
                 but
                 the
                 assertions
                 of
                 Nottars
                 ,
                 and
                 not
                 probative
                 ;
                 yet
                 they
                 are
                 sufficiently
                 probative
                 ,
                 not
                 only
                 by
                 the
                 immediat
                 Warrand
                 or
                 Precept
                 whereupon
                 they
                 proceed
                 ,
                 but
                 upon
                 the
                 mediat
                 Warrand
                 ;
                 as
                 if
                 a
                 Seasine
                 be
                 produced
                 with
                 a
                 Bond
                 or
                 Obliegement
                 ,
                 to
                 grant
                 an
                 Infeftment
                 conform
                 to
                 that
                 Seasine
                 ,
                 
                   vide
                   Tit.
                
                 3.
                 
                 §
                 19.
                 
                 But
                 purchasers
                 may
                 well
                 conjoin
                 their
                 own
                 Title
                 and
                 their
                 Authors
                 ;
                 So
                 that
                 if
                 he
                 can
                 show
                 in
                 his
                 Authors
                 persons
                 ,
                 consecutive
                 Seasines
                 for
                 fourty
                 years
                 ,
                 upon
                 Retoures
                 or
                 Precepts
                 of
                 
                   Clare
                   constat
                
                 ,
                 and
                 possession
                 conform
                 ,
                 it
                 will
                 be
                 sufficient
                 :
                 or
                 if
                 they
                 cannot
                 show
                 such
                 Seasines
                 and
                 Possession
                 in
                 their
                 Authors
                 for
                 the
                 whole
                 fourty
                 years
                 ;
                 yet
                 ,
                 if
                 they
                 show
                 the
                 accomplishment
                 of
                 fourty
                 years
                 by
                 their
                 own
                 Seasines
                 and
                 Warrands
                 thereof
                 ,
                 and
                 possession
                 conform
                 ,
                 these
                 may
                 compleat
                 the
                 Prescription
                 .
              
               
                 21.
                 
                 This
                 Statute
                 doth
                 not
                 only
                 secure
                 Rights
                 ,
                 and
                 Lands
                 ,
                 and
                 Annualrents
                 ,
                 by
                 fourty
                 years
                 peaceable
                 possession
                 
                   cum
                   titulo
                
                 ,
                 but
                 also
                 other
                 heretable
                 Rights
                 ,
                 such
                 as
                 Wodsets
                 ;
                 for
                 ,
                 Registrat
                 or
                 incorporat
                 Reversions
                 being
                 exprest
                 as
                 exceptions
                 ,
                 Wodsets
                 must
                 be
                 comprehended
                 in
                 the
                 Rule
                 ,
                 and
                 all
                 Infeftments
                 for
                 Security
                 or
                 Relief
                 ,
                 which
                 do
                 imply
                 a
                 Reversion
                 incorporat
                 .
                 It
                 will
                 also
                 extend
                 to
                 Infeftments
                 of
                 Teinds
                 ;
                 for
                 ,
                 though
                 Teinds
                 be
                 
                   separatum
                   Tenementum
                
                 from
                 the
                 Stock
                 ,
                 yet
                 both
                 are
                 ground-rights
                 or
                 Infeftments
                 of
                 the
                 Land
                 ;
                 yea
                 ,
                 Infeftments
                 of
                 Life-rent
                 ,
                 if
                 possessed
                 and
                 unquarrelled
                 for
                 fourty
                 years
                 ,
                 showing
                 their
                 Seasine
                 and
                 the
                 Warrand
                 or
                 Adminicle
                 thereof
                 ,
                 the
                 same
                 would
                 make
                 the
                 Liferent-right
                 irreducible
                 ,
                 or
                 might
                 perfect
                 Prescription
                 ,
                 being
                 joined
                 to
                 their
                 Authors
                 Rights
                 ;
                 yea
                 ,
                 this
                 Statute
                 hath
                 been
                 extended
                 to
                 long
                 Tacks
                 of
                 Lands
                 ,
                 Teinds
                 or
                 others
                 .
              
               
                 22.
                 
                 A
                 right
                 to
                 Teinds
                 may
                 be
                 prescribed
                 ,
                 as
                 well
                 as
                 other
                 Rights
                 ,
                 by
                 fourty
                 years
                 possession
                 ;
                 but
                 a
                 right
                 to
                 by-gone
                 Teinds
                 ,
                 being
                 founded
                 in
                 publick
                 Law
                 ,
                 prescribes
                 not
                 ,
                 except
                 as
                 to
                 the
                 by-gones
                 before
                 fourty
                 years
                 ;
                 and
                 the
                 possessor
                 cannot
                 prescribe
                 an
                 absolute
                 immunity
                 and
                 freedom
                 from
                 payment
                 
                 within
                 the
                 fourty
                 years
                 ,
                 and
                 in
                 time
                 coming
                 ,
                 seing
                 all
                 Lands
                 in
                 Scotland
                 by
                 Law
                 are
                 lyable
                 in
                 Teind
                 ,
                 but
                 such
                 as
                 never
                 payed
                 any
                 being
                 
                   cum
                   decimis
                   inclusis
                
                 ,
                 or
                 belonging
                 to
                 the
                 Cystertian
                 Order
                 ,
                 Templers
                 and
                 Hospitallers
                 ,
                 or
                 Gleibs
                 ,
                 February
                 7.
                 1666.
                 
                 Earl
                 of
                 Panmure
                 contra
                 Parochioners
                 of
              
               
                 23.
                 
                 This
                 Statute
                 is
                 also
                 extended
                 unto
                 rights
                 of
                 Patronage
                 ,
                 or
                 Offices
                 which
                 are
                 heretable
                 rights
                 ,
                 though
                 they
                 be
                 not
                 alwayes
                 constitute
                 or
                 continued
                 by
                 Infeftment
                 ;
                 yet
                 fourty
                 years
                 possession
                 by
                 the
                 original
                 right
                 in
                 the
                 first
                 acquirer
                 ,
                 or
                 by
                 the
                 continuation
                 in
                 their
                 successors
                 ,
                 does
                 establish
                 their
                 rights
                 against
                 all
                 quarrelling
                 by
                 Reduction
                 or
                 Declarator
                 .
                 Yea
                 ,
                 this
                 Statue
                 is
                 extended
                 to
                 long
                 Tacks
                 ,
                 which
                 (
                 if
                 cled
                 with
                 fourty
                 years
                 peaceable
                 possession
                 ,
                 either
                 in
                 the
                 Tacksman
                 or
                 his
                 Assigneys
                 ,
                 or
                 their
                 Heirs
                 who
                 need
                 no
                 service
                 )
                 cannot
                 be
                 quarrelled
                 ,
                 but
                 stand
                 valid
                 ,
                 not
                 only
                 for
                 these
                 fourty
                 years
                 ,
                 but
                 for
                 all
                 subsequent
                 years
                 unexpired
                 :
                 As
                 was
                 found
                 in
                 a
                 Tack
                 of
                 Teinds
                 ,
                 though
                 set
                 without
                 consent
                 of
                 the
                 Patron
                 ,
                 and
                 the
                 Bolls
                 liquidate
                 to
                 ten
                 shilling
                 ,
                 July
                 7.
                 1677.
                 the
                 Parson
                 of
                 Prestounhaugh
                 contra
                 his
                 Parochioners
                 .
              
               
                 24.
                 
                 It
                 is
                 also
                 extended
                 to
                 Thirlage
                 and
                 Multures
                 ,
                 with
                 any
                 antecedent
                 adminicle
                 ;
                 as
                 by
                 inrollment
                 of
                 Court
                 ,
                 and
                 generally
                 to
                 all
                 servitudes
                 ,
                 though
                 there
                 be
                 no
                 more
                 antecedent
                 Title
                 ,
                 but
                 part
                 and
                 pertinent
                 of
                 the
                 dominant
                 Tenement
                 ,
                 either
                 exprest
                 or
                 implyed
                 ;
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 a
                 pasturage
                 and
                 sheilling
                 ,
                 albeit
                 there
                 was
                 produced
                 an
                 old
                 Tack
                 ,
                 bearing
                 ,
                 to
                 be
                 granted
                 to
                 the
                 possessor
                 or
                 his
                 predecessor
                 ,
                 November
                 27.
                 1677.
                 
                 Graunt
                 of
                 Ballindalloch
                 ,
                 contra
                 Graunt
                 of
                 Balvey
                 .
                 Whereupon
                 it
                 was
                 alledged
                 ,
                 that
                 a
                 Tennent
                 possessing
                 by
                 Tack
                 from
                 his
                 Master
                 ,
                 could
                 not
                 prescrive
                 against
                 him
                 ,
                 which
                 was
                 not
                 respected
                 in
                 this
                 case
                 ,
                 nor
                 in
                 that
                 of
                 the
                 Countess
                 of
                 Murray
                 ,
                 contra
                 Mr.
                 
                   Robert
                   Weyms
                   ,
                   Feb.
                
                 20.
                 1675.
                 
                 The
                 like
                 June
                 4.
                 1675.
                 
                 Colledge
                 of
                 Aberdeen
                 contra
                 Earl
                 of
                 Northesk
                 .
                 But
                 all
                 annual
                 prestations
                 preceeding
                 fourty
                 years
                 prescrive
                 ,
                 though
                 constantly
                 payed
                 for
                 thirty
                 nine
                 years
                 ,
                 every
                 year
                 being
                 a
                 several
                 obliegement
                 ,
                 though
                 in
                 one
                 write
                 ,
                 and
                 prescrives
                 severally
                 ,
                 January
                 19.
                 1669.
                 
                 Earl
                 of
                 Athol
                 contra
                 Laird
                 of
                 Strowan
                 .
                 It
                 holds
                 also
                 in
                 Annualrents
                 ,
                 July
                 22.
                 1671.
                 and
                 Feb.
                 7.
                 1672.
                 
                 
                   Blair
                   of
                   Balleid
                
                 contra
                 Blair
                 of
                 Denhead
                 .
                 But
                 it
                 cannot
                 be
                 extended
                 to
                 prescrive
                 against
                 a
                 Superiour
                 ,
                 for
                 not
                 payment
                 of
                 the
                 reddendo
                 ,
                 because
                 a
                 right
                 of
                 Property
                 cannot
                 consist
                 without
                 Superiority
                 ,
                 unless
                 there
                 be
                 a
                 Right
                 taken
                 from
                 another
                 Superiour
                 .
              
               
                 25.
                 
                 Prescription
                 doth
                 not
                 only
                 exclude
                 the
                 preference
                 of
                 other
                 better
                 Rights
                 ,
                 which
                 if
                 insisted
                 upon
                 within
                 prescription
                 ,
                 would
                 have
                 been
                 preferred
                 as
                 anterior
                 ,
                 and
                 thereby
                 the
                 posterior
                 right
                 
                   a
                   non
                   habente
                   potestatem
                
                 .
                 But
                 all
                 ground
                 of
                 Reduction
                 by
                 the
                 King
                 ,
                 or
                 other
                 Superiours
                 or
                 Authors
                 ,
                 is
                 excluded
                 ;
                 So
                 that
                 the
                 neglect
                 of
                 the
                 Kings
                 Officers
                 cannot
                 be
                 obtruded
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 declaring
                 that
                 their
                 neglects
                 shall
                 not
                 prejudge
                 the
                 King
                 ,
                 neither
                 any
                 nullity
                 in
                 the
                 titles
                 of
                 prescription
                 ,
                 except
                 it
                 be
                 in
                 the
                 essentials
                 thereof
                 :
                 So
                 ,
                 prescription
                 cannot
                 sustain
                 a
                 perpetual
                 Tack
                 without
                 Ish
                 ,
                 which
                 is
                 essential
                 thereto
                 ;
                 nor
                 a
                 Seasine
                 without
                 a
                 Symbol
                 ,
                 generally
                 or
                 particularly
                 ,
                 or
                 not
                 given
                 upon
                 the
                 ground
                 of
                 the
                 Land.
                 But
                 all
                 requisites
                 in
                 Rights
                 introduced
                 by
                 Custom
                 or
                 Statute
                 ,
                 and
                 not
                 essential
                 thereto
                 ,
                 are
                 cut
                 off
                 by
                 Prescription
                 .
              
               
                 26.
                 
                 The
                 main
                 Exception
                 or
                 Reply
                 against
                 Prescription
                 ,
                 is
                 Interruption
                 ,
                 not
                 only
                 by
                 the
                 discontinuing
                 the
                 possession
                 of
                 the
                 whole
                 ,
                 but
                 also
                 of
                 a
                 part
                 ,
                 which
                 was
                 found
                 sufficient
                 to
                 interrupt
                 the
                 Prescription
                 as
                 to
                 the
                 whole
                 ;
                 as
                 an
                 Infeftment
                 of
                 Thirlage
                 and
                 possssion
                 of
                 Corns
                 growing
                 upon
                 the
                 Lands
                 ,
                 
                 was
                 found
                 sufficient
                 to
                 exclude
                 the
                 prescription
                 of
                 the
                 Multures
                 of
                 
                   invecta
                   &
                   illata
                   ,
                   June
                
                 29.
                 1635.
                 
                 Laird
                 of
                 〈◊〉
                 contra
                 Home
                 of
                 Foord
                 .
                 So
                 likewayes
                 ,
                 payment
                 of
                 Annualrents
                 within
                 fourty
                 years
                 ,
                 interrupts
                 prescription
                 of
                 Bonds
                 ,
                 and
                 that
                 not
                 only
                 as
                 to
                 the
                 party
                 paying
                 ,
                 but
                 payment
                 made
                 by
                 the
                 principal
                 Debitor
                 was
                 found
                 to
                 interrupt
                 prescription
                 as
                 to
                 the
                 Cautioner
                 ,
                 who
                 never
                 payed
                 ,
                 nor
                 was
                 pursued
                 during
                 the
                 space
                 of
                 fourty
                 years
                 ,
                 December
                 18.
                 1667.
                 
                 Sir
                 
                   Thomas
                   Nicolson
                
                 of
                 Carnock
                 contra
                 Laird
                 of
                 
                   Philorth
                   ;
                   December
                
                 18.
                 1667.
                 
                 Gairns
                 contra
                 Arthur
                 .
                 And
                 an
                 Annualrent
                 constitute
                 out
                 of
                 two
                 Tenements
                 ,
                 was
                 found
                 unprescrived
                 as
                 to
                 both
                 ,
                 by
                 uplifting
                 the
                 Annualrent
                 out
                 of
                 either
                 ,
                 though
                 that
                 the
                 one
                 was
                 now
                 fourty
                 years
                 in
                 the
                 hands
                 of
                 a
                 fingular
                 Successor
                 ,
                 June
                 22.
                 1671.
                 
                 Lord
                 Balmirrano
                 contra
                 Hamiltoun
                 of
                 Little-prestoun
                 .
              
               
                 Prescription
                 is
                 ordinarly
                 interrupted
                 and
                 excluded
                 ,
                 by
                 the
                 dependence
                 of
                 any
                 action
                 ,
                 whereupon
                 the
                 right
                 might
                 have
                 been
                 taken
                 away
                 or
                 impeded
                 ,
                 Hope
                 ,
                 Patronage
                 Laird
                 of
                 Glenurchie
                 contra
                 
                   Alexander
                   Campbel
                   ;
                   Idem
                
                 ,
                 Tacks
                 and
                 Tennents
                 ,
                 Carnousie
                 contra
                 Keith
                 ,
                 even
                 though
                 there
                 was
                 only
                 the
                 first
                 Summons
                 without
                 continuation
                 ,
                 or
                 second
                 Summons
                 ,
                 February
                 13.
                 1665.
                 
                 
                   James
                   Butter
                
                 contra
                 Gray
                 ;
                 yea
                 ,
                 though
                 the
                 pursuer
                 past
                 from
                 the
                 Summons
                 
                   pro
                   loco
                   &
                   tempore
                   ,
                   Hope
                   ,
                
                 Removing
                 ,
                 Sir
                 
                   Robert
                   Douglas
                
                 contra
                 Lord
                 Herreis
                 ;
                 or
                 by
                 a
                 Transferrence
                 ,
                 though
                 reducible
                 ,
                 because
                 not
                 proceeding
                 upon
                 the
                 right
                 Title
                 ,
                 seing
                 the
                 right
                 Title
                 was
                 also
                 in
                 the
                 pursuers
                 person
                 ,
                 July
                 26.
                 1637.
                 
                 Laird
                 of
                 Lawers
                 contra
                 Dumbar
                 .
                 The
                 like
                 though
                 the
                 pursute
                 might
                 have
                 been
                 excluded
                 for
                 want
                 of
                 solemnity
                 
                   in
                   re
                   antiqua
                
                 ,
                 where
                 the
                 custom
                 was
                 not
                 clear
                 ,
                 November
                 25.
                 1665.
                 
                 White
                 contra
                 Horn.
                 Yea
                 ,
                 an
                 Annualrent
                 was
                 found
                 interrupted
                 by
                 a
                 poinding
                 of
                 the
                 ground
                 ,
                 though
                 therein
                 the
                 Heretor
                 was
                 not
                 called
                 ,
                 June
                 15.
                 1666.
                 
                 Sir
                 
                   Robert
                   Sinclair
                
                 contra
                 Laird
                 of
                 Howstoun
                 .
              
               
                 Prescription
                 was
                 also
                 found
                 validly
                 interrupted
                 ,
                 by
                 a
                 Charge
                 of
                 Horning
                 upon
                 the
                 Bond
                 in
                 question
                 ,
                 albeit
                 proceeding
                 only
                 upon
                 summar
                 Registration
                 by
                 the
                 Clause
                 in
                 the
                 Bond
                 ,
                 and
                 by
                 no
                 Citation
                 ,
                 July
                 21.
                 1629.
                 
                 
                   David
                   Moris
                
                 contra
                 Johnstoun
                 .
                 But
                 Warning
                 ,
                 whereupon
                 nothing
                 followed
                 ,
                 was
                 not
                 found
                 a
                 sufficient
                 interruption
                 of
                 an
                 old
                 Tack-duty
                 ,
                 Hope
                 ,
                 possession
                 ,
                 Mr.
                 
                   Robert
                   Bruce
                
                 contra
                 Captain
                 
                   Andrew
                   Bruce
                   ;
                   Idem
                   ,
                   March
                
                 contra
                 Keir
                 .
                 Neither
                 was
                 it
                 found
                 sufficient
                 ,
                 to
                 interrupt
                 prescription
                 in
                 the
                 first
                 part
                 of
                 a
                 mutual
                 Contract
                 ,
                 that
                 action
                 was
                 used
                 upon
                 the
                 second
                 ,
                 which
                 saved
                 the
                 second
                 from
                 prescription
                 ,
                 seing
                 the
                 party
                 concerned
                 in
                 the
                 first
                 ,
                 neither
                 used
                 action
                 or
                 charge
                 thereupon
                 ,
                 nor
                 founded
                 exception
                 upon
                 it
                 ,
                 when
                 pursued
                 by
                 the
                 oaher
                 party
                 ,
                 November
                 27.
                 1630.
                 
                 Lauder
                 contra
                 Colmill
                 .
                 Interruption
                 was
                 also
                 sustained
                 upon
                 a
                 Citation
                 ,
                 at
                 the
                 instance
                 of
                 a
                 party
                 not
                 then
                 entered
                 Heir
                 ,
                 being
                 entered
                 thereafter
                 within
                 the
                 years
                 of
                 Prescription
                 .
                 The
                 like
                 upon
                 a
                 Summons
                 of
                 Reduction
                 upon
                 Minority
                 ,
                 though
                 it
                 was
                 not
                 filled
                 up
                 within
                 the
                 fourty
                 years
                 ,
                 being
                 insinuat
                 in
                 the
                 Title
                 of
                 the
                 Summons
                 ,
                 that
                 Minors
                 have
                 interest
                 to
                 reduce
                 deeds
                 to
                 their
                 lesion
                 ,
                 July
                 14.
                 1669.
                 
                 Earl
                 Marishal
                 contra
                 Leith
                 of
                 Whitehaugh
                 .
                 But
                 Interruption
                 was
                 not
                 sustained
                 from
                 the
                 Citation
                 in
                 a
                 Summons
                 of
                 Reduction
                 
                   ex
                   capite
                   Inhibitionis
                
                 ,
                 but
                 from
                 filling
                 up
                 of
                 the
                 reason
                 ,
                 February
                 11.
                 1681.
                 
                 Kennuay
                 contra
                 Crawford
                 .
                 And
                 it
                 was
                 sustained
                 upon
                 Citation
                 upon
                 the
                 second
                 Summons
                 ,
                 being
                 only
                 a
                 day
                 before
                 the
                 year
                 was
                 compleat
                 ,
                 albeit
                 the
                 first
                 Summons
                 should
                 be
                 found
                 null
                 ,
                 and
                 though
                 the
                 Citation
                 was
                 at
                 the
                 Mercat-cross
                 upon
                 a
                 priviledged
                 Warrand
                 ,
                 purchased
                 upon
                 pretence
                 that
                 
                   non
                   fuit
                   tutus
                   accessus
                
                 ,
                 past
                 of
                 course
                 among
                 the
                 common
                 Bills
                 ,
                 and
                 the
                 reason
                 of
                 the
                 priviledge
                 was
                 neither
                 true
                 nor
                 instructed
                 ,
                 and
                 though
                 the
                 execution
                 bore
                 not
                 a
                 Copy
                 left
                 at
                 the
                 Cross
                 ,
                 the
                 party
                 adding
                 that
                 ,
                 and
                 abiding
                 thereby
                 ,
                 as
                 truly
                 done
                 ,
                 be
                 the
                 executor
                 of
                 the
                 Summons
                 ,
                 July
                 6
                 1671.
                 
                 
                   John
                   Mackbra
                
                 contra
                 Lord
                 
                 Mcdonald
                 .
                 Interruption
                 was
                 also
                 sustained
                 upon
                 a
                 Citation
                 in
                 a
                 Reduction
                 in
                 Anno
                 1630.
                 〈◊〉
                 the
                 Execution
                 bore
                 not
                 
                   the
                   name
                   of
                   the
                   pursuer
                   or
                   defender
                   ,
                   but
                   the
                   parties
                   within
                   mentioned
                   :
                
                 And
                 were
                 not
                 written
                 upon
                 the
                 back
                 of
                 the
                 Summonds
                 ,
                 but
                 upon
                 a
                 louse
                 Shedul
                 ;
                 and
                 the
                 Citation
                 was
                 in
                 the
                 last
                 of
                 the
                 thirteen
                 years
                 excepted
                 from
                 prescription
                 ,
                 against
                 a
                 party
                 of
                 great
                 quality
                 ,
                 against
                 whom
                 ,
                 many
                 interruptions
                 were
                 like
                 then
                 to
                 have
                 been
                 used
                 :
                 The
                 user
                 of
                 the
                 Interruption
                 Deponing
                 that
                 he
                 received
                 the
                 same
                 from
                 his
                 Father
                 ,
                 or
                 amongst
                 his
                 Evidents
                 ,
                 and
                 knew
                 not
                 that
                 they
                 were
                 the
                 Executions
                 of
                 other
                 Summonds
                 ,
                 Feb.
                 11.
                 1677.
                 
                 Laird
                 of
                 
                   Rewallan
                   contra
                   Lawson
                
                 ,
                 of
                 Cairnmuire
                 .
                 But
                 Interruption
                 was
                 not
                 sustained
                 upon
                 summar
                 Registration
                 ,
                 without
                 Citation
                 or
                 Charge
                 ,
                 January
                 12.
                 1672.
                 
                 
                   James
                   Johnstoun
                   contra
                
                 Lord
                 Balheaven
                 .
                 And
                 Interruption
                 by
                 warning
                 and
                 Citation
                 thereupon
                 ,
                 was
                 not
                 found
                 effectual
                 in
                 a
                 Competition
                 betwixt
                 two
                 parties
                 ,
                 both
                 being
                 then
                 
                   in
                   acquirenda
                   possessione
                
                 ,
                 by
                 prescription
                 ,
                 and
                 neither
                 having
                 a
                 sufficient
                 Right
                 Constitute
                 before
                 ,
                 unless
                 the
                 party
                 warned
                 and
                 cited
                 ,
                 had
                 discontinued
                 his
                 pessession
                 for
                 a
                 year
                 at
                 least
                 ,
                 January
                 1680.
                 
                 Brown
                 of
                 
                   Hunthil
                   contra
                
                 Town
                 of
                 Kilcudbright
                 .
                 Prescription
                 as
                 to
                 the
                 King
                 ,
                 was
                 found
                 sufficiently
                 interrupted
                 by
                 the
                 Kings
                 Letters
                 ,
                 published
                 at
                 the
                 Cross
                 of
                 the
                 head
                 Burgh
                 of
                 the
                 Shire
                 ,
                 where
                 the
                 Lands
                 in
                 question
                 lye
                 ,
                 without
                 Citation
                 or
                 Charge
                 ,
                 March
                 30.
                 1630.
                 
                 Earl
                 of
                 
                   Monteith
                   contra
                
              
               
                 27.
                 
                 There
                 was
                 an
                 Act
                 of
                 Sederunt
                 ,
                 of
                 the
                 penult
                 of
                 March
                 1630.
                 upon
                 a
                 Letter
                 from
                 the
                 King
                 to
                 the
                 Lords
                 of
                 Session
                 ,
                 bearing
                 ,
                 
                   that
                   in
                   respect
                   by
                   the
                   Act
                   of
                   Prescription
                   ,
                
                 1617.
                 
                 
                   All
                   Heretable
                   Rights
                   cled
                   with
                   fourty
                   years
                   Possession
                   ,
                   are
                   declared
                   irreducible
                   ,
                   unless
                   they
                   had
                   been
                   quarrelled
                   within
                   the
                   space
                   of
                   fourty
                   years
                   〈◊〉
                   that
                   Act
                   ;
                   and
                   libertie
                   granted
                   to
                   intent
                   Actions
                   within
                   he
                   space
                   of
                   thirteen
                   years
                   after
                   the
                   date
                   of
                   the
                   said
                   Act
                   ,
                   to
                   interrupt
                   Prescriptions
                   ,
                   albeit
                   there
                   had
                   been
                   no
                   interruption
                   sor
                   fourtie
                   years
                   before
                   the
                   said
                   Act
                   ;
                   And
                   His
                   Majestie
                   resolving
                   to
                   use
                   Interruption
                   within
                   the
                   space
                   of
                   thirteen
                   years
                   ,
                   of
                   Deeds
                   done
                   to
                   the
                   prejudice
                   of
                   the
                   Crown
                   ,
                   for
                   preservation
                   of
                   His
                   Majesties
                   Right
                   ,
                   and
                   Actions
                   competent
                   to
                   Him
                   and
                   His
                   Successors
                   ,
                   for
                   that
                   effect
                   ,
                   seing
                   a
                   multitude
                   that
                   may
                   be
                   concerned
                   therein
                   ,
                   cannot
                   commodiouslie
                   be
                   summoned
                   personallie
                   .
                   or
                   at
                   their
                   dwelling-places
                   ,
                   within
                   the
                   saids
                   thirteen
                   years
                   ,
                   which
                   were
                   to
                   expire
                   in
                
                 June
                 1630.
                 
                 And
                 it
                 being
                 necessar
                 that
                 some
                 solemn
                 Act
                 should
                 be
                 done
                 ,
                 to
                 testifie
                 ;
                 the
                 Kings
                 will
                 and
                 resolution
                 ,
                 to
                 prosecute
                 Actions
                 ,
                 in
                 His
                 own
                 time
                 ,
                 which
                 could
                 not
                 be
                 more
                 properly
                 and
                 conveniently
                 done
                 ,
                 nor
                 by
                 inserting
                 and
                 publishing
                 as
                 follows
                 ,
                 Therefore
                 His
                 Majesty
                 appointed
                 His
                 Declaration
                 for
                 prosecuting
                 His
                 Rights
                 ,
                 to
                 be
                 insert
                 in
                 the
                 Books
                 of
                 Sederunt
                 ,
                 and
                 Letters
                 of
                 publication
                 thereupon
                 directed
                 ,
                 to
                 be
                 published
                 at
                 the
                 Mercat
                 Cross
                 of
                 Edinburgh
                 ,
                 and
                 other
                 places
                 needful
                 :
                 And
                 desired
                 the
                 Lords
                 to
                 declare
                 the
                 〈◊〉
                 ,
                 to
                 have
                 the
                 force
                 of
                 a
                 Legal
                 and
                 lawful
                 Interruption
                 ,
                 which
                 the
                 Lords
                 enacted
                 to
                 be
                 done
                 accordingly
                 ,
                 as
                 to
                 the
                 particulars
                 therein-contained
                 ;
                 and
                 〈◊〉
                 Letters
                 of
                 publication
                 at
                 the
                 Mercat
                 Cross
                 of
                 Edinburgh
                 .
                 and
                 other
                 mercat
                 Crosses
                 of
                 the
                 Kingdom
                 ,
                 where
                 the
                 Lands
                 and
                 Baronies
                 lye
                 ,
                 or
                 where
                 the
                 persons
                 interressed
                 therein
                 reside
                 ,
                 and
                 at
                 the
                 said
                 Mercat
                 Cross
                 of
                 Edinburgh
                 and
                 Peer
                 of
                 Leith
                 ,
                 for
                 these
                 without
                 the
                 Kingdom
                 :
                 Which
                 Act
                 of
                 Sederunt
                 was
                 ratified
                 ,
                 Par.
                 1633.
                 cap.
                 12.
                 
                 Which
                 Letter
                 and
                 Acts.
                 extend
                 to
                 His
                 Majesties
                 Annexed
                 and
                 Non-annexed
                 Property
                 ,
                 whereof
                 the
                 Ferms
                 ,
                 Duties
                 ,
                 and
                 Feu-ferms
                 were
                 counted
                 for
                 in
                 Exchequer
                 ,
                 since
                 the
                 Moneth
                 of
                 August
                 ,
                 1455.
                 and
                 to
                 the
                 Principality
                 and
                 to
                 the
                 Erection
                 of
                 Benefice
                 ,
                 Spirituality
                 or
                 Temporality
                 ,
                 Patronage
                 of
                 Kirks
                 pertaining
                 to
                 His
                 Majesty
                 and
                 His
                 Predecessours
                 ;
                 Regalities
                 and
                 Heretable
                 Offices
                 ,
                 any
                 of
                 the
                 saids
                 particulars
                 being
                 unlawfully
                 Disponed
                 against
                 the
                 Laws
                 and
                 Acts
                 of
                 Parliament
                 ;
                 and
                 likewise
                 against
                 changing
                 of
                 Ward
                 in
                 Blensh
                 or
                 Taxt-ward
                 ,
                 granted
                 by
                 the
                 King
                 or
                 His
                 Predecessors
                 in
                 their
                 Minority
                 ,
                 and
                 not
                 ratified
                 by
                 any
                 
                 King
                 or
                 Prince
                 in
                 their
                 Minority
                 ;
                 and
                 but
                 prejudice
                 to
                 any
                 person
                 of
                 their
                 lawful
                 Defences
                 in
                 Actions
                 to
                 be
                 intented
                 by
                 His
                 Majesty
                 thereupon
                 .
              
               
                 In
                 prescription
                 this
                 is
                 a
                 general
                 exception
                 ,
                 
                   contra
                   non
                   valentem
                   agere
                   non
                   currit
                   praescriptio
                
                 ;
                 and
                 therefore
                 ,
                 Bonds
                 prescrive
                 not
                 from
                 their
                 dates
                 ,
                 but
                 from
                 the
                 Term
                 of
                 payment
                 ,
                 February
                 17.
                 1655.
                 
                 
                   James
                   Butter
                   contra
                   Gray
                   .
                   June
                
                 23.
                 1675.
                 
                 
                   David
                   Bruce
                   contra
                   James
                   Bruce
                
                 .
                 And
                 Inhibition
                 prescrives
                 from
                 the
                 Date
                 of
                 the
                 last
                 execution
                 ,
                 and
                 not
                 from
                 the
                 Registration
                 ,
                 February
                 19.
                 1680.
                 
                 
                   Lutefoot
                   contra
                   Prestoun
                
                 .
                 So
                 an
                 obliegement
                 by
                 a
                 Cautioner
                 in
                 a
                 Contract
                 of
                 Marriage
                 ,
                 oblieging
                 to
                 impoly
                 a
                 sum
                 for
                 the
                 wifes
                 use
                 ,
                 found
                 only
                 to
                 run
                 from
                 her
                 Husbands
                 death
                 ,
                 July
                 5.
                 1665.
                 
                 
                   Mckie
                   contra
                   Stuart
                
                 .
                 And
                 likewise
                 prescription
                 was
                 not
                 found
                 to
                 run
                 against
                 a
                 party
                 to
                 take
                 away
                 his
                 Infeftment
                 ,
                 seing
                 he
                 had
                 given
                 a
                 Liferent-right
                 ,
                 which
                 would
                 have
                 excluded
                 him
                 from
                 any
                 Action
                 that
                 could
                 have
                 attained
                 possession
                 ,
                 and
                 that
                 he
                 was
                 not
                 oblieged
                 to
                 use
                 Declarator
                 or
                 Reduction
                 in
                 this
                 case
                 more
                 then
                 in
                 the
                 prescription
                 of
                 Bonds
                 from
                 their
                 dates
                 ,
                 February
                 1668.
                 
                 Earl
                 of
                 
                   Lauderdail
                   contra
                
                 Viscount
                 of
                 Oxinfoord
                 .
                 The
                 like
                 ,
                 January
                 17.
                 1672.
                 
                 
                   Young
                   contra
                   Thomson
                   .
                   February
                   15.
                   1680.
                   
                   Brown
                   of
                   Colstoun
                   contra
                   Hepburn
                
                 of
                 Bear-foord
                 .
                 Yea
                 ,
                 prescription
                 was
                 found
                 not
                 to
                 run
                 against
                 a
                 party
                 forefault
                 ,
                 and
                 sequestrat
                 by
                 the
                 Usurpers
                 ,
                 who
                 possest
                 his
                 Right
                 in
                 question
                 for
                 eight
                 years
                 ,
                 which
                 years
                 therefore
                 were
                 deduced
                 ,
                 January
                 15.
                 1678.
                 
                 Duke
                 of
                 
                   Lauderdail
                   contra
                
                 Earl
                 of
                 Tweedale
                 .
                 But
                 where
                 a
                 party
                 was
                 not
                 forefault
                 ,
                 but
                 durst
                 not
                 appear
                 during
                 the
                 Usurpation
                 ,
                 he
                 was
                 not
                 found
                 ,
                 
                   non
                   valens
                   agere
                
                 ,
                 seing
                 he
                 might
                 pursue
                 by
                 a
                 procurator
                 or
                 assigney
                 ,
                 July
                 24.
                 1678.
                 
                 Collonel
                 
                   Whitefoord
                   contra
                
                 Earl
                 of
                 Kilmarnock
                 .
                 Yea.
                 prescription
                 was
                 not
                 extended
                 to
                 the
                 Liferent
                 of
                 a
                 Wife
                 ,
                 in
                 a
                 sum
                 payable
                 to
                 her
                 and
                 her
                 Husband
                 ,
                 the
                 longest
                 liver
                 ,
                 though
                 the
                 Stock
                 was
                 prescrived
                 against
                 the
                 Husband
                 ,
                 who
                 neither
                 insisted
                 nor
                 got
                 annual
                 for
                 fourty
                 years
                 ,
                 but
                 not
                 against
                 the
                 Wifes
                 interest
                 in
                 the
                 annualrent
                 ,
                 though
                 the
                 sum
                 bore
                 no
                 annualrent
                 ,
                 yet
                 the
                 Wife
                 was
                 found
                 to
                 have
                 Right
                 to
                 uplist
                 the
                 sum
                 ,
                 and
                 to
                 re-imploy
                 it
                 for
                 her
                 Liferent
                 use
                 ,
                 July
                 22.
                 1675.
                 
                 
                   Janet
                   Gaw
                   contra
                
                 Earl
                 of
                 Weims
                 .
              
               
                 Our
                 Statutes
                 have
                 introduced
                 several
                 short
                 prescriptions
                 ,
                 as
                 the
                 Rights
                 to
                 which
                 they
                 relate
                 do
                 require
                 ,
                 which
                 we
                 shall
                 shortly
                 represent
                 ,
                 not
                 according
                 to
                 the
                 time
                 they
                 were
                 introduced
                 ,
                 but
                 according
                 to
                 the
                 time
                 of
                 their
                 endurance
                 ,
                 most
                 of
                 them
                 occurring
                 to
                 be
                 considered
                 in
                 their
                 proper
                 places
                 ,
                 with
                 the
                 rights
                 whereto
                 they
                 relate
                 .
              
               
                 28.
                 
                 And
                 first
                 ,
                 Our
                 Law
                 hath
                 introduced
                 the
                 
                   annus
                   deliberandi
                
                 ,
                 in
                 favours
                 of
                 Heirs
                 ,
                 because
                 if
                 once
                 they
                 enter
                 or
                 immix
                 themselves
                 in
                 their
                 predecessors
                 Heretage
                 ,
                 they
                 become
                 lyable
                 for
                 their
                 whole
                 Debts
                 ,
                 though
                 far
                 exceeding
                 the
                 worth
                 of
                 their
                 Heretage
                 ;
                 and
                 therefore
                 ,
                 the
                 Heir
                 appearand
                 hath
                 a
                 year
                 to
                 deliberate
                 whether
                 the
                 Heretage
                 will
                 be
                 profitable
                 ,
                 during
                 which
                 ,
                 he
                 may
                 not
                 only
                 enquire
                 ,
                 but
                 may
                 pursue
                 Actions
                 of
                 Exhibition
                 ,
                 
                   ad
                   deliberandum
                
                 ,
                 And
                 if
                 they
                 forbear
                 they
                 are
                 free
                 of
                 all
                 Actions
                 against
                 them
                 or
                 the
                 Heretage
                 during
                 that
                 year
                 ;
                 and
                 therefore
                 ,
                 that
                 priviledge
                 prescrives
                 in
                 a
                 year
                 and
                 day
                 ,
                 after
                 the
                 Defuncts
                 death
                 .
              
               
                 29.
                 
                 Secondly
                 ,
                 by
                 the
                 Act
                 of
                 Par.
                 1661.
                 cap.
                 24.
                 
                 There
                 is
                 a
                 preference
                 granted
                 to
                 the
                 Creditors
                 of
                 Defuncts
                 preferring
                 them
                 to
                 the
                 Creditors
                 of
                 the
                 heir
                 or
                 appearand
                 heir
                 ;
                 so
                 that
                 all
                 diligences
                 by
                 the
                 Creditors
                 of
                 Defuncts
                 ,
                 against
                 the
                 Defuncts
                 Estate
                 ,
                 shall
                 be
                 preferred
                 to
                 the
                 diligences
                 ,
                 for
                 Debts
                 contracted
                 by
                 appearand
                 heirs
                 ,
                 providing
                 the
                 saids
                 diligences
                 of
                 the
                 Defuncts
                 Creditors
                 ,
                 be
                 compleat
                 within
                 three
                 years
                 ,
                 after
                 the
                 Defuncts
                 death
                 ;
                 albeit
                 the
                 being
                 compleat
                 be
                 not
                 exprest
                 in
                 the
                 Statute
                 :
                 Yet
                 by
                 the
                 design
                 thereof
                 ,
                 it
                 must
                 be
                 so
                 understood
                 ;
                 for
                 if
                 Diligences
                 inchoat
                 in
                 these
                 three
                 years
                 ,
                 though
                 
                 prefected
                 thereafter
                 would
                 be
                 sufficient
                 ,
                 the
                 preference
                 would
                 not
                 be
                 for
                 three
                 years
                 ,
                 but
                 might
                 come
                 to
                 be
                 for
                 thirty
                 years
                 .
              
               
                 Compleat
                 Diligences
                 are
                 Appryzings
                 ,
                 or
                 Adjudicrtions
                 with
                 Infeftment
                 ,
                 or
                 a
                 Charge
                 against
                 the
                 Superiour
                 to
                 Infeft
                 ,
                 Poinding
                 ,
                 and
                 Decreets
                 for
                 making
                 Arrested
                 sums
                 or
                 goods
                 forth-coming
                 :
                 And
                 by
                 the
                 said
                 Statute
                 ,
                 Dispositions
                 by
                 heirs
                 or
                 appearand
                 heris
                 of
                 the
                 Defuncts
                 Eltates
                 ,
                 are
                 declared
                 not
                 to
                 be
                 valid
                 against
                 the
                 predecessours
                 Creditors
                 ,
                 unless
                 made
                 a
                 full
                 year
                 after
                 the
                 Defuncts
                 death
                 ,
                 so
                 that
                 after
                 that
                 year
                 the
                 heirs
                 Dispositions
                 are
                 not
                 limited
                 ,
                 though
                 they
                 should
                 prefer
                 their
                 own
                 Creditors
                 to
                 the
                 Defuncts
                 ;
                 and
                 therefore
                 ,
                 the
                 Defuncts
                 Creditors
                 had
                 need
                 to
                 use
                 Inhibition
                 ,
                 or
                 Inchoat
                 their
                 diligence
                 by
                 charge
                 to
                 enter
                 heir
                 ,
                 which
                 may
                 be
                 within
                 the
                 year
                 of
                 deliberation
                 ,
                 they
                 may
                 also
                 then
                 Arrest
                 ,
                 though
                 they
                 cannot
                 Insist
                 in
                 pursuits
                 upon
                 any
                 of
                 these
                 or
                 other
                 grounds
                 ,
                 till
                 the
                 year
                 pass
                 :
                 For
                 this
                 Act
                 doth
                 not
                 prefer
                 the
                 diligences
                 of
                 the
                 Creditors
                 of
                 the
                 Defunct
                 to
                 the
                 voluntary
                 Dispositions
                 granted
                 by
                 the
                 heir
                 to
                 their
                 own
                 Creditors
                 ,
                 but
                 only
                 to
                 the
                 legal
                 diligence
                 of
                 their
                 own
                 Creditors
                 ;
                 therefore
                 ,
                 this
                 preference
                 of
                 the
                 Defuncts
                 Creditors
                 prescrives
                 in
                 three
                 years
                 ,
                 or
                 rather
                 in
                 two
                 years
                 ,
                 because
                 within
                 the
                 year
                 of
                 deliberation
                 they
                 cannot
                 pursue
                 ,
                 unless
                 the
                 heir
                 enter
                 or
                 immix
                 ;
                 and
                 therefore
                 ,
                 this
                 priviledge
                 prescrives
                 in
                 two
                 years
                 after
                 the
                 year
                 of
                 deliberation
                 .
              
               
                 30.
                 
                 Thirdly
                 ,
                 There
                 is
                 a
                 Triennial
                 prescription
                 of
                 Spuilzies
                 ,
                 Ejections
                 ,
                 Intrusions
                 ,
                 which
                 comprehends
                 succeeding
                 in
                 the
                 Vice
                 of
                 parties
                 removed
                 ,
                 par
                 .
                 1579.
                 cap.
                 81.
                 
                 This
                 prescription
                 by
                 the
                 Statute
                 ,
                 runs
                 not
                 against
                 Minors
                 .
              
               
                 This
                 prescription
                 doth
                 not
                 take
                 away
                 the
                 Right
                 ,
                 but
                 only
                 the
                 priviledges
                 thereof
                 ,
                 as
                 proceeding
                 upon
                 a
                 short
                 Citation
                 ,
                 and
                 the
                 oath
                 
                   in
                   litem
                
                 ,
                 allowed
                 to
                 the
                 party
                 injured
                 ,
                 to
                 declare
                 his
                 loss
                 ,
                 and
                 the
                 violent
                 profites
                 ;
                 but
                 hinders
                 not
                 the
                 Restitution
                 ,
                 or
                 Recovery
                 of
                 the
                 thing
                 ,
                 with
                 the
                 ordinary
                 profites
                 .
              
               
                 There
                 is
                 also
                 a
                 Triennial
                 prescription
                 of
                 Merchant
                 Counts
                 ,
                 House
                 Mails
                 ,
                 and
                 the
                 like
                 ,
                 which
                 is
                 only
                 as
                 to
                 the
                 manner
                 of
                 probation
                 ,
                 that
                 if
                 these
                 be
                 not
                 pursued
                 within
                 three
                 years
                 from
                 the
                 time
                 they
                 are
                 due
                 ,
                 witnesles
                 shall
                 not
                 be
                 admitted
                 to
                 prove
                 the
                 same
                 ,
                 but
                 only
                 write
                 or
                 oath
                 of
                 party
                 :
                 But
                 in
                 this
                 prescription
                 ,
                 Minority
                 is
                 not
                 excepted
                 ,
                 par
                 .
                 1519.
                 cap.
                 83.
                 which
                 is
                 not
                 extended
                 to
                 Rents
                 of
                 Lands
                 in
                 the
                 Countrey
                 ,
                 January
                 20.
                 1627.
                 
                 
                   Gavin
                   Ross
                   contra
                   Fleming
                
                 .
                 In
                 both
                 these
                 Prescriptions
                 (
                 if
                 Actions
                 be
                 intented
                 within
                 the
                 prescription
                 of
                 three
                 years
                 )
                 Custom
                 hath
                 not
                 limited
                 these
                 Actions
                 to
                 three
                 years
                 ,
                 but
                 they
                 continue
                 for
                 fourty
                 years
                 ,
                 which
                 might
                 have
                 much
                 more
                 conveniently
                 been
                 cut
                 of
                 by
                 three
                 years
                 ,
                 for
                 thereby
                 the
                 Action
                 which
                 is
                 accessory
                 was
                 more
                 priviledged
                 then
                 the
                 principal
                 Right
                 to
                 which
                 it
                 is
                 accessory
                 ,
                 which
                 is
                 amended
                 in
                 part
                 by
                 posterior
                 Statutes
                 .
              
               
                 There
                 is
                 another
                 Triennial
                 prescription
                 in
                 removings
                 ,
                 that
                 if
                 they
                 be
                 not
                 pursued
                 within
                 three
                 years
                 ,
                 there
                 can
                 never
                 be
                 purfuite
                 thereafter
                 upon
                 the
                 same
                 Warning
                 ,
                 where
                 in
                 Minority
                 is
                 not
                 excepted
                 ,
                 par
                 .
                 1579.
                 cap.
                 82.
                 
                 This
                 prescription
                 was
                 not
                 reckoned
                 from
                 the
                 date
                 of
                 the
                 warning
                 ,
                 as
                 being
                 uncertain
                 ,
                 but
                 from
                 the
                 Term
                 to
                 which
                 the
                 Warning
                 was
                 made
                 ,
                 February
                 6.
                 1629.
                 
                 Lady
                 
                   Borthwick
                   contra
                   Scot.
                
                 
              
               
                 31.
                 
                 There
                 is
                 a
                 Quadriennial
                 prescription
                 in
                 favours
                 of
                 Minors
                 ,
                 to
                 reduce
                 deeds
                 done
                 by
                 them
                 in
                 their
                 Minority
                 to
                 their
                 enorm
                 Lesion
                 ,
                 from
                 their
                 age
                 of
                 twenty
                 one
                 compleat
                 ,
                 to
                 their
                 age
                 of
                 twenty
                 five
                 conpleat
                 ;
                 but
                 these
                 Actions
                 being
                 intented
                 within
                 that
                 
                   Quadriennium
                   utile
                
                 did
                 last
                 for
                 fourty
                 years
                 ,
                 till
                 the
                 late
                 Act
                 of
                 Parliament
                 anent
                 prescription
                 and
                 interruption
                 .
              
               
                 32.
                 
                 There
                 are
                 several
                 Quinquennial
                 prescriptions
                 ;
                 As
                 first
                 ,
                 all
                 Arrestments
                 upon
                 Decreets
                 ,
                 prescrive
                 five
                 years
                 after
                 the
                 dates
                 thereof
                 ;
                 and
                 Arrestments
                 
                 upon
                 Dependences
                 ,
                 prescrive
                 in
                 five
                 years
                 after
                 Sentence
                 ,
                 upon
                 the
                 dependence
                 ,
                 if
                 the
                 saids
                 Arrestments
                 ,
                 be
                 not
                 pursued
                 or
                 insisted
                 upon
                 ,
                 during
                 that
                 time
                 .
              
               
                 By
                 this
                 Statute
                 Ministers
                 Stipends
                 and
                 Multures
                 not
                 pursued
                 for
                 within
                 five
                 years
                 after
                 they
                 are
                 due
                 ;
                 and
                 likeways
                 ,
                 Mails
                 and
                 Duties
                 of
                 Tennents
                 ,
                 not
                 being
                 pursued
                 within
                 five
                 years
                 after
                 the
                 Tennents
                 removal
                 prescrive
                 ,
                 unless
                 the
                 said
                 Stipend
                 ,
                 Multures
                 ,
                 Mails
                 and
                 duties
                 ,
                 be
                 proven
                 resting
                 by
                 oath
                 ,
                 or
                 special
                 write
                 ,
                 acknowledging
                 what
                 is
                 resting
                 ;
                 and
                 that
                 all
                 Bargains
                 concerning
                 moveables
                 or
                 sums
                 of
                 Money
                 ,
                 probable
                 by
                 witnesses
                 ,
                 shall
                 only
                 be
                 probable
                 by
                 write
                 or
                 oath
                 of
                 party
                 ,
                 if
                 the
                 samine
                 be
                 not
                 pursued
                 within
                 five
                 years
                 after
                 the
                 making
                 of
                 the
                 bargain
                 .
              
               
                 There
                 is
                 also
                 a
                 quinquennial
                 prescription
                 of
                 the
                 Legal
                 Reversions
                 of
                 special
                 Adjudications
                 whereby
                 Lands
                 are
                 adjudged
                 only
                 equivalent
                 to
                 the
                 sums
                 ,
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 September
                 6.
                 1672
                 :
                 cap.
                 19.
                 
              
               
                 33.
                 
                 There
                 was
                 a
                 seven
                 years
                 prescription
                 of
                 the
                 legal
                 Reversions
                 of
                 Apprizings
                 ;
                 And
                 there
                 is
                 Septennial
                 prescription
                 of
                 interruptions
                 ,
                 which
                 if
                 they
                 be
                 not
                 renewed
                 every
                 seven
                 years
                 ,
                 prescrive
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 December
                 8.
                 1669.
                 cap.
                 10.
                 
              
               
                 34.
                 
                 There
                 is
                 likewise
                 a
                 Decennial
                 prescription
                 by
                 the
                 said
                 Act
                 of
                 Parliament
                 ,
                 1669.
                 cap.
                 9.
                 of
                 all
                 Actions
                 upon
                 warnings
                 ,
                 Spuilzies
                 ,
                 Ejections
                 ,
                 Arrestments
                 ,
                 or
                 for
                 Ministers
                 Stipend
                 ,
                 Multures
                 ,
                 Rents
                 of
                 removed
                 Tennents
                 ,
                 which
                 Actions
                 prescrive
                 in
                 ten
                 years
                 ,
                 if
                 they
                 be
                 not
                 renued
                 every
                 five
                 years
                 ,
                 but
                 prejudice
                 of
                 any
                 shorter
                 prescription
                 of
                 the
                 saids
                 Acts
                 by
                 former
                 Acts
                 of
                 Parliament
                 ,
                 which
                 gives
                 ground
                 to
                 alter
                 the
                 former
                 Custom
                 anent
                 the
                 Triennial
                 prescription
                 ,
                 that
                 the
                 Actions
                 intented
                 thereupon
                 may
                 prescrive
                 in
                 three
                 years
                 .
              
               
                 35.
                 
                 And
                 by
                 the
                 same
                 Statute
                 ,
                 there
                 is
                 introduced
                 a
                 prescription
                 of
                 twenty
                 years
                 of
                 Holograph
                 Bonds
                 ,
                 and
                 Holograph
                 Missives
                 ;
                 and
                 subscriptions
                 in
                 Compt
                 Books
                 without
                 witnesses
                 ,
                 unless
                 the
                 verity
                 of
                 the
                 said
                 subscriptions
                 be
                 proven
                 by
                 the
                 defenders
                 oath
                 ;
                 by
                 which
                 manner
                 of
                 probation
                 there
                 is
                 action
                 competent
                 ,
                 till
                 the
                 long
                 prescription
                 of
                 fourty
                 years
                 .
              
               
                 36.
                 
                 All
                 these
                 short
                 prescriptions
                 are
                 declared
                 not
                 to
                 run
                 against
                 Minors
                 ,
                 except
                 only
                 the
                 prescriptions
                 of
                 Removings
                 ,
                 and
                 Merchants
                 Compts
                 ,
                 &c.
                 which
                 except
                 not
                 Minority
                 ,
                 though
                 they
                 do
                 immediately
                 follow
                 prescription
                 of
                 Spuilzie
                 ,
                 Ejections
                 ,
                 &c.
                 which
                 do
                 except
                 the
                 same
                 ,
                 and
                 so
                 appear
                 to
                 be
                 of
                 design
                 omitted
                 in
                 the
                 former
                 Triennial
                 prescriptions
                 ;
                 and
                 therefore
                 ,
                 it
                 is
                 not
                 like
                 the
                 Lords
                 will
                 extend
                 the
                 exception
                 of
                 minority
                 thereto
                 ,
                 as
                 they
                 would
                 not
                 appoint
                 a
                 years
                 Rent
                 to
                 Superiours
                 ,
                 in
                 Adjudications
                 as
                 in
                 Appryzings
                 ,
                 because
                 it
                 was
                 omitted
                 in
                 the
                 Act
                 anent
                 Adjudications
                 ,
                 next
                 unto
                 the
                 Act
                 anent
                 Appryzings
                 ,
                 in
                 which
                 it
                 was
                 exprest
                 ,
                 until
                 the
                 late
                 Act
                 of
                 Parliament
                 ,
                 extended
                 the
                 years
                 Rent
                 to
                 Adjudications
                 .
              
            
          
        
      
       
         
           
             
             
               THE
               INSTITUTIONS
               OF
               THE
               LAW
               OF
               SCOTLAND
               ,
               Deduced
               from
               its
               Originals
               ,
               and
               Collated
               vvith
               the
               Civil
               ,
               Canon
               ,
               and
               Feudal-Lavvs
               ;
               and
               vvith
               the
               Customs
               of
               Neighbouring
               Nations
               .
            
             
               The
               second
               PART
               .
            
             
               By
               Sir
               
                 JAMES
                 DALRYMPLE
              
               of
               STAIR
               ,
               PRESIDENT
               of
               the
               SESSION
               .
            
             
               EDINBURGH
               ,
               Printed
               by
               the
               Heir
               of
               
                 Andrew
                 Anderson
              
               ,
               Printer
               to
               His
               most
               Sacred
               Majesty
               ,
               Anno
               DOM.
               1681.
               
            
          
        
         
           
             
               
               
               
                 TITLE
                 XXIII
                 .
                 Assignations
                 ,
                 Where
                 ,
                 of
                 Arrestments
                 ,
                 and
                 Actions
                 for
                 making
                 Forth-coming
                 .
              
               
                 
                   1.
                   
                   The
                   several
                   Conveyances
                   of
                   Rights
                   .
                
                 
                   2.
                   
                   What
                   Rights
                   are
                   not
                   Transmissible
                   .
                
                 
                   3.
                   
                   The
                   rise
                   of
                   Assignations
                   .
                
                 
                   4.
                   
                   The
                   Tenor
                   of
                   Assignations
                   .
                
                 
                   5.
                   
                   The
                   conveyance
                   of
                   blank
                   Bonds
                   ,
                   &c.
                   
                
                 
                   6.
                   
                   The
                   rise
                   and
                   effect
                   of
                   Intimations
                   .
                
                 
                   7.
                   
                   The
                   several
                   ways
                   of
                   Intimation
                   .
                
                 
                   8.
                   
                   What
                   Assignations
                   are
                   perfected
                   by
                   possession
                   ,
                   without
                   other
                   Intimation
                   .
                
                 
                   9.
                   
                   Other
                   supplies
                   of
                   Intimation
                   .
                
                 
                   10.
                   
                   Intimations
                   to
                   more
                   ,
                   
                     correi
                     debendi
                  
                   .
                
                 
                   11.
                   
                   Intimation
                   is
                   not
                   necessary
                   to
                   Rights
                   Registrate
                   ,
                   for
                   publication
                   ,
                   as
                   Reversions
                   ,
                   &c.
                   
                
                 
                   12.
                   
                   Nor
                   to
                   orders
                   of
                   Merchants
                   .
                
                 
                   13.
                   
                   Nor
                   to
                   Judicial
                   Assignation
                   ,
                   by
                   Appryzing
                   ,
                   &c.
                   
                
                 
                   14.
                   
                   Nor
                   to
                   the
                   Legal
                   Assignation
                   ,
                   
                     Jure
                     Marid
                  
                   ,
                   by
                   Marriage
                   .
                
                 
                   15.
                   
                   Nor
                   against
                   the
                   Cedent
                   ,
                   his
                   Heirs
                   or
                   Executors
                   ,
                   even
                   though
                   Creditors
                   .
                
                 
                   16.
                   
                   To
                   what
                   Rights
                   Assignations
                   〈◊〉
                
                 
                   17.
                   
                   Assignations
                   carry
                   Inhibitions
                   following
                   on
                   the
                   rights
                   Assigned
                   ,
                   albeit
                   not
                   exprest
                   in
                   the
                   assignation
                   .
                
                 
                   18.
                   
                   In
                   what
                   cases
                   the
                   Cedents
                   oath
                   proves
                   against
                   his
                   Assigney
                   .
                
                 
                   
                   19.
                   
                   Assignations
                   intimat
                   before
                   the
                   Cedents
                   death
                   ,
                   gives
                   summar
                   execution
                   without
                   Consirmation
                   .
                
                 
                   20.
                   
                   All
                   exceptions
                   against
                   Cedents
                   before
                   Intimation
                   ,
                   are
                   Relevant
                   against
                   assigneys
                   ,
                   to
                   personal
                   Rights
                   or
                   Tacks
                   .
                
                 
                   21.
                   
                   The
                   effect
                   of
                   Back-bonds
                   ,
                   Discharges
                   ,
                   or
                   Assignations
                   of
                   Dispositions
                   ,
                   before
                   Infeftment
                   or
                   Apprysings
                   ,
                   during
                   the
                   Legal
                   .
                
                 
                   22.
                   
                   Assigneys
                   by
                   Tutors
                   have
                   no
                   execution
                   till
                   the
                   tutor
                   Counts
                   be
                   made
                   .
                
                 
                   23.
                   
                   How
                   far
                   Assigneys
                   to
                   mutual
                   Contracts
                   may
                   be
                   debarred
                   till
                   performance
                   of
                   their
                   Cedents
                   part
                   .
                
                 
                   24.
                   
                   Arrestment
                   may
                   be
                   granted
                   by
                   all
                   Judges
                   Superior
                   or
                   Inferior
                   ,
                   and
                   how
                   far
                   they
                   are
                   effectual
                   before
                   other
                   Courts
                   .
                
                 
                   25.
                   
                   The
                   effect
                   of
                   Arrestments
                   made
                   in
                   the
                   debitors
                   own
                   hand
                   .
                
                 
                   26.
                   
                   Arrestment
                   is
                   personal
                   and
                   doth
                   not
                   burden
                   the
                   Successors
                   of
                   him
                   in
                   whose
                   hands
                   it
                   is
                   made
                   ,
                   but
                   is
                   valide
                   against
                   the
                   Successors
                   of
                   the
                   Debitor
                   .
                
                 
                   27.
                   
                   Arrestment
                   is
                   not
                   effectual
                   for
                   ,
                   or
                   against
                   Heritable
                   sums
                   by
                   Infeftment
                   ,
                   but
                   against
                   the
                   same
                   ,
                   when
                   made
                   moveable
                   ,
                   or
                   any
                   other
                   moveable
                   sums
                   .
                
                 
                   28.
                   
                   Rents
                   or
                   Annualrents
                   are
                   alwayes
                   arrestable
                   .
                
                 
                   29.
                   
                   The
                   effect
                   of
                   arrestment
                   of
                   Rents
                   ,
                   Annualrents
                   ,
                   or
                   other
                   sums
                   laid
                   on
                   before
                   the
                   Term
                   of
                   payment
                   .
                
                 
                   30.
                   
                   The
                   effect
                   of
                   Arrestment
                   laid
                   on
                   in
                   the
                   hands
                   of
                   Factors
                   .
                
                 
                   31.
                   
                   Arrestment
                   extends
                   only
                   to
                   the
                   debts
                   due
                   by
                   him
                   ,
                   in
                   whose
                   hands
                   it
                   was
                   laid
                   on
                   .
                
                 
                   32.
                   
                   Arrestment
                   makes
                   the
                   Subject
                   〈◊〉
                
                 
                   33.
                   
                   The
                   Order
                   and
                   Tenor
                   of
                   lousing
                   arrestments
                   .
                
                 
                   34.
                   
                   In
                   what
                   cases
                   Arrestments
                   laid
                   on
                   for
                   sums
                   due
                   by
                   Decreets
                   ,
                   are
                   lousable
                   or
                   not
                   .
                
                 
                   35.
                   
                   The
                   effect
                   of
                   lousing
                   Arrestment
                   .
                
                 
                   36.
                   
                   The
                   order
                   of
                   Actions
                   for
                   making
                   forthcoming
                   .
                
                 
                   37.
                   
                   Exceptions
                   in
                   the
                   Actions
                   for
                   making
                   forthcoming
                   .
                
                 
                   38.
                   
                   The
                   effect
                   of
                   Arrestments
                   for
                   making
                   Moveable
                   Goods
                   forthcoming
                   .
                
                 
                   39.
                   
                   The
                   effect
                   of
                   Arrestments
                   of
                   sums
                   .
                
                 
                   40.
                   
                   He
                   to
                   whom
                   payment
                   is
                   made
                   after
                   Arrestment
                   ,
                   is
                   lyable
                   to
                   Restore
                   .
                
                 
                   41.
                   
                   The
                   oath
                   of
                   parties
                   in
                   whose
                   hand
                   Arrestment
                   is
                   made
                   ,
                   must
                   depone
                   specially
                   what
                   he
                   then
                   owed
                   ,
                   and
                   when
                   he
                   payed
                   .
                
                 
                   42.
                   
                   The
                   Decreet
                   for
                   making
                   forthcoming
                   ,
                   doth
                   only
                   transfer
                   the
                   Right
                   to
                   the
                   Arrester
                   of
                   the
                   Goods
                   ,
                   or
                   sums
                   Arrested
                   .
                
                 
                   43.
                   
                   But
                   Assignations
                   do
                   transfer
                   the
                   Right
                   ,
                   when
                   Intimat
                   ,
                   without
                   farther
                   diligence
                   ,
                   and
                   so
                   is
                   preferable
                   to
                   all
                   posterior
                   Arrestments
                   ,
                   and
                   respect
                   is
                   had
                   to
                   priority
                   of
                   hours
                   ,
                   if
                   exprest
                   in
                   the
                   Intimation
                   .
                
                 
                   
                   44.
                   
                   If
                   the
                   Arrestment
                   be
                   prior
                   to
                   the
                   Intimation
                   ,
                   it
                   is
                   preferable
                   ,
                   not
                   failing
                   diligence
                   .
                
                 
                   45.
                   
                   How
                   Assignations
                   are
                   compleated
                   by
                   Intimation
                   ,
                   Citatien
                   ,
                   Charge
                   ,
                   Possession
                   or
                   Corroboratien
                   .
                
                 
                   46.
                   
                   The
                   preference
                   of
                   Arrestments
                   in
                   Competiticu
                   .
                
              
               
                 HAVING
                 now
                 gone
                 thorow
                 all
                 the
                 several
                 kinds
                 of
                 privat
                 Rights
                 ,
                 both
                 as
                 to
                 their
                 Nature
                 and
                 Constitution
                 ,
                 and
                 as
                 to
                 their
                 Extinction
                 and
                 Distitution
                 ;
                 We
                 are
                 come
                 to
                 the
                 second
                 part
                 of
                 our
                 Design
                 proposed
                 ,
                 the
                 Conveyance
                 and
                 Transmission
                 of
                 these
                 Rights
                 ,
                 which
                 stand
                 in
                 force
                 and
                 are
                 not
                 exstinct
                 ;
                 for
                 the
                 extinction
                 of
                 a
                 right
                 is
                 no
                 conveyance
                 of
                 it
                 seing
                 thereby
                 it
                 ceasseth
                 to
                 exist
                 .
              
               
                 1.
                 
                 Rights
                 are
                 Conveyed
                 ,
                 or
                 Derived
                 ,
                 either
                 amongst
                 the
                 living
                 ,
                 or
                 from
                 the
                 dead
                 ;
                 and
                 in
                 both
                 ,
                 the
                 Conveyance
                 is
                 different
                 ,
                 in
                 personal
                 and
                 real
                 Rights
                 :
                 And
                 in
                 Immoveable
                 and
                 Heritable
                 Rights
                 ,
                 the
                 Conveyance
                 amongst
                 the
                 living
                 ,
                 of
                 personal
                 Rights
                 ,
                 is
                 by
                 Assignation
                 ;
                 of
                 real
                 Rights
                 by
                 Dispofition
                 ,
                 and
                 promiscuously
                 of
                 both
                 by
                 Confiscation
                 :
                 Conveyance
                 of
                 Right
                 from
                 the
                 dead
                 ,
                 is
                 by
                 Succession
                 ,
                 in
                 Moveables
                 by
                 Executry
                 ;
                 in
                 Heritable
                 Rights
                 ,
                 by
                 the
                 succession
                 of
                 Heirs
                 ,
                 and
                 other
                 like
                 successors
                 ;
                 of
                 which
                 in
                 order
                 .
              
               
                 2.
                 
                 Personal
                 Rights
                 or
                 Obligations
                 ,
                 are
                 sometimes
                 incommunicable
                 ,
                 and
                 not
                 assignable
                 ,
                 or
                 transmissible
                 ,
                 either
                 by
                 reason
                 of
                 the
                 matter
                 ,
                 such
                 as
                 most
                 conjugal
                 and
                 parental
                 Obligations
                 are
                 ,
                 or
                 where
                 there
                 is
                 a
                 singular
                 consideration
                 of
                 the
                 person
                 ,
                 as
                 in
                 Commissions
                 ,
                 Trusts
                 ,
                 &c.
                 
                 Most
                 of
                 these
                 are
                 Intransmissible
                 ,
                 even
                 by
                 the
                 consent
                 ,
                 both
                 of
                 Debitor
                 and
                 Creditor
                 :
                 Yea
                 ,
                 generally
                 ,
                 all
                 Obligations
                 are
                 Intransmissible
                 ,
                 upon
                 either
                 part
                 directly
                 without
                 the
                 consent
                 of
                 the
                 other
                 party
                 ,
                 which
                 is
                 clear
                 upon
                 the
                 part
                 of
                 the
                 Debitor
                 ,
                 who
                 cannot
                 ,
                 without
                 consent
                 of
                 the
                 Creditor
                 ,
                 liberate
                 himself
                 ,
                 and
                 transmit
                 his
                 Obligation
                 upon
                 another
                 ,
                 though
                 with
                 the
                 Creditors
                 consent
                 he
                 may
                 ,
                 by
                 delegation
                 :
                 Neither
                 can
                 a
                 Creditor
                 force
                 his
                 Debitor
                 to
                 become
                 Debitor
                 to
                 another
                 ,
                 without
                 his
                 own
                 consent
                 ,
                 as
                 when
                 he
                 takes
                 him
                 oblieged
                 to
                 pay
                 to
                 him
                 or
                 his
                 assigneys
                 .
              
               
                 3.
                 
                 Yet
                 ,
                 that
                 Obligations
                 may
                 become
                 the
                 more
                 useful
                 and
                 effectual
                 ,
                 Custome
                 hath
                 introduced
                 an
                 indirect
                 manner
                 of
                 transmission
                 thereof
                 ,
                 without
                 the
                 Debitors
                 consent
                 ,
                 whereby
                 the
                 assigney
                 is
                 constitute
                 Procurator
                 ;
                 and
                 so
                 as
                 Mandatar
                 for
                 the
                 Creditor
                 ,
                 he
                 hath
                 power
                 to
                 exact
                 and
                 discharge
                 ,
                 but
                 it
                 is
                 to
                 his
                 own
                 behove
                 ,
                 and
                 so
                 he
                 is
                 also
                 denominat
                 Donatar
                 ,
                 and
                 this
                 is
                 the
                 ordinary
                 conception
                 of
                 Assignations
                 .
                 The
                 like
                 is
                 done
                 amongst
                 Merchands
                 ,
                 by
                 an
                 order
                 ,
                 whereby
                 the
                 Debitor
                 is
                 ordered
                 to
                 pay
                 such
                 a
                 person
                 ;
                 the
                 debt
                 ,
                 which
                 indeed
                 is
                 a
                 Mandat
                 ,
                 but
                 if
                 it
                 be
                 to
                 his
                 own
                 behove
                 ,
                 it
                 is
                 properly
                 an
                 
                 Assignation
                 ;
                 and
                 in
                 savours
                 of
                 Creditors
                 ,
                 Law
                 hath
                 introduced
                 judicial
                 Assignations
                 upon
                 arrestment
                 ,
                 and
                 by
                 appyzing
                 and
                 adjudication
                 .
              
               
                 Assignations
                 are
                 more
                 frequent
                 with
                 us
                 then
                 any
                 where
                 ,
                 there
                 is
                 scarce
                 mention
                 thereof
                 in
                 the
                 Civil
                 Law
                 :
                 It
                 is
                 also
                 called
                 ,
                 Cessio
                 ,
                 which
                 both
                 there
                 and
                 with
                 us
                 ,
                 is
                 most
                 applyed
                 to
                 
                   Cessio
                   bonorum
                   &
                   actionum
                
                 ;
                 where
                 not
                 only
                 Obligations
                 ,
                 but
                 property
                 of
                 things
                 :
                 and
                 generally
                 ,
                 all
                 Rights
                 are
                 ceded
                 from
                 the
                 Debitor
                 to
                 his
                 Creditor
                 ;
                 from
                 this
                 Term
                 the
                 ,
                 the
                 assigney
                 is
                 also
                 called
                 Cessioner
                 ,
                 as
                 the
                 assigner
                 is
                 also
                 called
                 Cedent
                 .
              
               
                 Under
                 Assignations
                 are
                 comprehended
                 Translations
                 ,
                 being
                 Transmissions
                 from
                 a
                 prior
                 assigney
                 to
                 a
                 posterior
                 ;
                 or
                 Retrocessions
                 ,
                 which
                 are
                 returning
                 back
                 of
                 the
                 Right
                 assigned
                 from
                 the
                 assigney
                 to
                 the
                 Cedent
                 ,
                 which
                 are
                 also
                 called
                 Repositions
                 .
              
               
                 For
                 clearing
                 the
                 matter
                 of
                 Assignations
                 ;
                 First
                 ,
                 consider
                 the
                 requisites
                 to
                 make
                 them
                 perfect
                 and
                 valid
                 Conveyances
                 .
                 Secondly
                 ,
                 what
                 are
                 the
                 effects
                 and
                 extent
                 thereof
                 .
              
               
                 4.
                 
                 For
                 the
                 first
                 ,
                 an
                 assignation
                 doth
                 necessarly
                 require
                 the
                 clear
                 expressing
                 of
                 the
                 Cedent
                 assigney
                 ,
                 and
                 thing
                 assigned
                 ;
                 and
                 though
                 the
                 ordinarly
                 Stile
                 of
                 it
                 be
                 known
                 ,
                 yet
                 any
                 terms
                 that
                 may
                 express
                 the
                 transmission
                 of
                 the
                 right
                 assigned
                 from
                 the
                 Cedent
                 to
                 the
                 assigney
                 ,
                 will
                 be
                 sufficient
                 ,
                 as
                 if
                 the
                 Cedent
                 assign
                 ,
                 transfer
                 and
                 dispone
                 make
                 over
                 ,
                 set
                 over
                 ,
                 gift
                 or
                 grant
                 the
                 thing
                 assigned
                 to
                 the
                 assigney
                 ,
                 or
                 nominat
                 or
                 constitute
                 him
                 his
                 Cessioner
                 ,
                 assigney
                 ,
                 donatar
                 ,
                 or
                 procurator
                 to
                 his
                 own
                 behove
                 ;
                 and
                 therefore
                 ,
                 an
                 assignation
                 to
                 a
                 Bond
                 ,
                 was
                 found
                 valid
                 ,
                 both
                 against
                 principal
                 and
                 Cautioners
                 ,
                 both
                 being
                 in
                 the
                 dispositive
                 Clause
                 ,
                 though
                 the
                 Cautioners
                 were
                 omitted
                 in
                 the
                 Clause
                 (
                 with
                 power
                 ,
                 &c.
                 )
                 which
                 was
                 not
                 ,
                 though
                 a
                 necessary
                 clause
                 ,
                 Decem.
                 12.
                 1622.
                 
                 Johnstoun
                 contra
                 Jack
                 .
              
               
                 5.
                 
                 The
                 conveyance
                 of
                 Bonds
                 or
                 other
                 Writes
                 ,
                 wherein
                 the
                 name
                 of
                 the
                 Creditor
                 or
                 Acquirer
                 is
                 left
                 blank
                 ,
                 have
                 become
                 of
                 late
                 very
                 frequent
                 ,
                 and
                 have
                 occasioned
                 many
                 debates
                 ,
                 as
                 to
                 the
                 Conveyance
                 of
                 such
                 Rights
                 ,
                 and
                 the
                 effects
                 thereof
                 :
                 As
                 first
                 ,
                 Whether
                 the
                 leaving
                 the
                 name
                 of
                 the
                 Creditor
                 or
                 Acquirer
                 blank
                 be
                 warrantable
                 ,
                 or
                 a
                 fraudulent
                 conveyance
                 ,
                 to
                 conceal
                 and
                 keep
                 in
                 the
                 dark
                 ,
                 to
                 whom
                 the
                 right
                 belongeth
                 ,
                 that
                 Creditors
                 may
                 not
                 know
                 to
                 affect
                 it
                 by
                 legal
                 diligence
                 :
                 The
                 reason
                 ordinarly
                 given
                 for
                 taking
                 Writes
                 in
                 that
                 way
                 ,
                 is
                 to
                 shun
                 the
                 trouble
                 of
                 assignations
                 ,
                 translations
                 or
                 intimations
                 thereof
                 ,
                 as
                 they
                 pass
                 from
                 hand
                 to
                 hand
                 ,
                 according
                 to
                 that
                 Tenor
                 of
                 Obligation
                 ,
                 frequent
                 in
                 other
                 places
                 ,
                 whereby
                 the
                 Debitor
                 oblieged
                 him
                 to
                 and
                 perform
                 such
                 things
                 ,
                 
                   latori
                   presentium
                
                 ;
                 by
                 which
                 he
                 is
                 oblieged
                 to
                 pay
                 to
                 none
                 ,
                 but
                 he
                 may
                 get
                 up
                 the
                 Bond
                 ,
                 and
                 safely
                 pay
                 to
                 any
                 that
                 hath
                 it
                 .
              
               
                 There
                 is
                 another
                 reason
                 of
                 taking
                 blank
                 Bonds
                 to
                 shun
                 compensation
                 upon
                 any
                 debt
                 due
                 by
                 the
                 Cedent
                 ;
                 for
                 the
                 Law
                 alloweth
                 compensation
                 against
                 the
                 assigney
                 ,
                 upon
                 any
                 debt
                 due
                 by
                 the
                 Debitor
                 to
                 the
                 Cedent
                 ,
                 before
                 the
                 assignation
                 was
                 intimate
                 :
                 But
                 when
                 the
                 Debitor
                 gives
                 a
                 Bond
                 blank
                 in
                 the
                 Creditors
                 name
                 ,
                 he
                 is
                 thereby
                 understood
                 to
                 pass
                 from
                 compensation
                 ,
                 which
                 hath
                 been
                 sustained
                 ,
                 
                   Vide
                   Title
                
                 11.
                 upon
                 compensation
                 ,
                 for
                 it
                 is
                 a
                 just
                 personal
                 objection
                 against
                 him
                 who
                 granted
                 the
                 blank
                 Bond
                 ,
                 not
                 to
                 stop
                 the
                 effect
                 or
                 exccution
                 thereof
                 ,
                 upon
                 any
                 other
                 debt
                 due
                 by
                 him
                 to
                 that
                 party
                 ,
                 to
                 whom
                 he
                 granted
                 the
                 Bond.
                 And
                 albeit
                 such
                 blank
                 Bonds
                 may
                 pass
                 amongst
                 Merchants
                 ,
                 
                 where
                 intimations
                 are
                 not
                 necessary
                 upon
                 Bills
                 of
                 Exchange
                 ,
                 which
                 are
                 transmitted
                 by
                 the
                 orders
                 of
                 Merchants
                 thereupon
                 without
                 intimation
                 :
                 and
                 though
                 such
                 Bonds
                 may
                 pass
                 amongst
                 persons
                 of
                 intire
                 Credit
                 ,
                 yet
                 such
                 conveyances
                 ,
                 if
                 they
                 should
                 be
                 encouraged
                 ,
                 and
                 pass
                 currently
                 without
                 intimation
                 ,
                 would
                 be
                 of
                 dangerous
                 consequence
                 ,
                 and
                 give
                 occasion
                 to
                 much
                 fraud
                 ;
                 for
                 thereby
                 Creditors
                 should
                 not
                 know
                 in
                 whose
                 person
                 such
                 rights
                 stood
                 and
                 how
                 to
                 affect
                 them
                 for
                 just
                 Debts
                 :
                 And
                 although
                 the
                 granter
                 of
                 such
                 blank
                 Bonds
                 ,
                 or
                 the
                 haver
                 ,
                 who
                 so
                 transmits
                 them
                 ,
                 may
                 be
                 excluded
                 from
                 compensation
                 :
                 Yet
                 others
                 who
                 may
                 have
                 interest
                 to
                 propone
                 compensation
                 in
                 the
                 same
                 way
                 ,
                 as
                 they
                 may
                 found
                 upon
                 a
                 Discharge
                 granted
                 by
                 the
                 receiver
                 of
                 the
                 blank
                 Bond
                 to
                 the
                 Debitor
                 therein
                 ,
                 cannot
                 be
                 excluded
                 from
                 alledging
                 compensation
                 ,
                 there
                 being
                 no
                 personal
                 objection
                 against
                 them
                 .
                 And
                 likewise
                 ,
                 Conveyances
                 without
                 a
                 Cause
                 onerous
                 ,
                 in
                 prejudice
                 of
                 anterior
                 Creditors
                 ,
                 by
                 persons
                 insolvent
                 and
                 fraudulent
                 ;
                 so
                 that
                 if
                 either
                 the
                 first
                 receiver
                 of
                 such
                 blank
                 Securities
                 ,
                 or
                 the
                 posterior
                 receivers
                 thereof
                 be
                 insolvent
                 ,
                 and
                 without
                 an
                 equivalent
                 Cause
                 onerous
                 ,
                 do
                 transmit
                 such
                 blank
                 Securities
                 ,
                 only
                 by
                 delivering
                 the
                 same
                 ,
                 the
                 intermediat
                 havers
                 can
                 hardly
                 ever
                 be
                 known
                 ,
                 whose
                 Creditors
                 might
                 affect
                 the
                 right
                 while
                 in
                 their
                 hands
                 ,
                 &c.
                 
              
               
                 Upon
                 which
                 consideration
                 ,
                 the
                 first
                 occasion
                 that
                 occurred
                 to
                 the
                 Lords
                 ,
                 being
                 a
                 blank
                 Bond
                 ,
                 granted
                 by
                 
                   Marjory
                   Sandilands
                
                 ,
                 and
                 delivered
                 to
                 
                   Samuel
                   Veatch
                
                 ,
                 he
                 did
                 deliver
                 the
                 same
                 to
                 
                   Marion
                   Geddess
                
                 ,
                 who
                 filled
                 up
                 her
                 name
                 in
                 the
                 blank
                 left
                 for
                 the
                 Creditor
                 ,
                 and
                 registrate
                 the
                 Bond
                 against
                 Sandilands
                 the
                 Debitor
                 ;
                 yet
                 Tailziefer
                 who
                 was
                 Veatches
                 Creditor
                 ,
                 having
                 arrested
                 all
                 sums
                 in
                 Sandilands
                 hands
                 ,
                 due
                 to
                 Veatch
                 in
                 the
                 competition
                 ,
                 betwixt
                 Tailziefer
                 the
                 arrester
                 and
                 Geddess
                 ,
                 whose
                 name
                 was
                 filled
                 up
                 in
                 the
                 blank
                 ,
                 and
                 the
                 Bond
                 registrate
                 in
                 her
                 name
                 before
                 the
                 arrestment
                 ,
                 the
                 sum
                 remaining
                 yet
                 unpayed
                 in
                 Sandilands
                 hands
                 ,
                 the
                 arrester
                 was
                 preferred
                 ,
                 in
                 respect
                 that
                 albeit
                 Geddefs
                 name
                 was
                 filled
                 up
                 in
                 the
                 blank
                 Bond
                 ,
                 and
                 it
                 so
                 registrate
                 before
                 the
                 arrestment
                 ;
                 yet
                 the
                 delivery
                 of
                 the
                 blank
                 Bond
                 by
                 Veatch
                 to
                 Geddess
                 ,
                 being
                 in
                 effect
                 an
                 assignation
                 ,
                 was
                 found
                 to
                 require
                 intimation
                 ;
                 and
                 therefore
                 ,
                 Tailziefer
                 the
                 arrester
                 was
                 preferred
                 :
                 In
                 this
                 case
                 Veatch
                 ,
                 who
                 was
                 first
                 Creditor
                 ,
                 was
                 insolvent
                 .
              
               
                 And
                 albe
                 it
                 the
                 Lords
                 in
                 the
                 competition
                 betwixt
                 
                   Thomas
                   Hendrison
                
                 and
                 
                   David
                   George
                
                 ,
                 decided
                 ,
                 Jan.
                 18.
                 1668.
                 preferred
                 Hendrison
                 ,
                 whose
                 name
                 was
                 in
                 the
                 Bond
                 as
                 Creditor
                 ,
                 and
                 who
                 offered
                 his
                 oath
                 for
                 clearing
                 ,
                 whether
                 the
                 bond
                 was
                 blank
                 ,
                 
                   ab
                   initio
                
                 and
                 when
                 filled
                 up
                 ,
                 yet
                 the
                 Lords
                 did
                 not
                 leave
                 it
                 to
                 his
                 oath
                 ,
                 but
                 took
                 witnesses
                 ,
                 
                   ex
                   officio
                
                 ,
                 who
                 proved
                 that
                 they
                 saw
                 the
                 Bond
                 filled
                 up
                 with
                 Henriesons
                 name
                 before
                 the
                 arrestment
                 laid
                 on
                 by
                 
                   Thomas
                   George
                
                 ,
                 in
                 the
                 hands
                 of
                 the
                 Debitor
                 ,
                 as
                 due
                 to
                 Short
                 his
                 Creditor
                 before
                 the
                 arrestment
                 ,
                 yet
                 there
                 was
                 nothing
                 adduced
                 to
                 prove
                 that
                 ever
                 the
                 Bond
                 had
                 been
                 blank
                 ,
                 or
                 delivered
                 to
                 Short.
                 And
                 likewise
                 ,
                 a
                 Bond
                 blank
                 in
                 the
                 Creditors
                 name
                 ,
                 being
                 delivered
                 by
                 the
                 receiver
                 of
                 the
                 Bond
                 to
                 a
                 Creditor
                 of
                 his
                 ,
                 in
                 satisfaction
                 of
                 his
                 debt
                 ,
                 the
                 same
                 was
                 found
                 relevant
                 to
                 be
                 proven
                 that
                 the
                 blank
                 Bond
                 was
                 delivered
                 before
                 the
                 Declarator
                 of
                 Escheat
                 of
                 the
                 party
                 ,
                 to
                 whom
                 it
                 was
                 first
                 delivered
                 in
                 satisfaction
                 of
                 a
                 Debt
                 due
                 by
                 him
                 before
                 he
                 was
                 denunced
                 ,
                 Decemb.
                 19.
                 1676.
                 and
                 Jan
                 17.
                 1677.
                 
                 Lord
                 Bamff
                 contra
                 Grant
                 of
                 Rosasolis
                 .
              
               
                 There
                 hath
                 been
                 nothing
                 done
                 since
                 to
                 take
                 off
                 the
                 necessity
                 of
                 a
                 formal
                 intimation
                 made
                 to
                 the
                 Debitor
                 ,
                 of
                 the
                 filling
                 up
                 of
                 the
                 Creditors
                 name
                 upon
                 production
                 of
                 the
                 Bond
                 ,
                 it self
                 showing
                 that
                 name
                 to
                 be
                 filled
                 up
                 ;
                 and
                 therefore
                 ,
                 
                 any
                 arrestment
                 upon
                 the
                 Debt
                 of
                 the
                 person
                 to
                 whom
                 the
                 Bond
                 was
                 first
                 delivered
                 as
                 Creditor
                 ,
                 or
                 to
                 his
                 own
                 behove
                 ,
                 or
                 for
                 the
                 Debt
                 of
                 any
                 other
                 person
                 ,
                 in
                 whose
                 possession
                 it
                 came
                 for
                 his
                 own
                 behove
                 ,
                 before
                 the
                 said
                 intimation
                 will
                 prefer
                 the
                 arrester
                 .
              
               
                 As
                 to
                 the
                 manner
                 of
                 probation
                 ,
                 that
                 the
                 Bond
                 was
                 blank
                 ,
                 
                   ab
                   initio
                
                 in
                 the
                 Creditors
                 name
                 ,
                 it
                 is
                 a
                 strong
                 evidence
                 that
                 it
                 is
                 written
                 with
                 a
                 hand
                 different
                 from
                 the
                 body
                 of
                 the
                 Bond
                 ;
                 for
                 though
                 blank
                 draughts
                 of
                 Bonds
                 be
                 frequently
                 drawn
                 up
                 by
                 Writers
                 and
                 Nottars
                 ,
                 leaving
                 the
                 sums
                 ,
                 the
                 names
                 of
                 the
                 Debitor
                 and
                 Creditor
                 blank
                 ,
                 which
                 are
                 filled
                 up
                 by
                 any
                 that
                 makes
                 use
                 of
                 the
                 draught
                 ,
                 yet
                 at
                 the
                 subscription
                 ,
                 the
                 filler
                 up
                 of
                 the
                 sum
                 ,
                 the
                 Debitor
                 and
                 Creditors
                 name
                 should
                 be
                 exprest
                 ;
                 for
                 these
                 are
                 more
                 Substantial
                 then
                 all
                 the
                 rest
                 of
                 the
                 Bond
                 ,
                 so
                 that
                 if
                 the
                 Creditors
                 name
                 be
                 not
                 filled
                 up
                 with
                 the
                 hand
                 that
                 wrote
                 the
                 Bond
                 ,
                 or
                 of
                 him
                 who
                 insert
                 the
                 date
                 and
                 witnesses
                 ;
                 it
                 will
                 be
                 presumed
                 to
                 have
                 been
                 blank
                 ;
                 in
                 which
                 case
                 ,
                 the
                 Debitors
                 oath
                 may
                 be
                 taken
                 ,
                 to
                 whom
                 he
                 did
                 deliver
                 it
                 for
                 his
                 own
                 use
                 ,
                 and
                 that
                 persons
                 oath
                 to
                 whom
                 he
                 did
                 deliver
                 the
                 same
                 ,
                 whereby
                 the
                 progress
                 of
                 it
                 ,
                 till
                 it
                 come
                 to
                 him
                 whose
                 name
                 was
                 insert
                 ,
                 will
                 be
                 found
                 out
                 ;
                 and
                 upon
                 this
                 ground
                 a
                 Disposition
                 of
                 Lands
                 bearing
                 to
                 be
                 to
                 two
                 persons
                 for
                 themselves
                 and
                 other
                 Creditors
                 of
                 the
                 Disponers
                 after-specified
                 ,
                 after
                 which
                 ,
                 there
                 were
                 several
                 lines
                 written
                 with
                 another
                 hand
                 ,
                 inserting
                 particular
                 Creditors
                 and
                 sums
                 ,
                 without
                 mentioning
                 of
                 the
                 filling
                 up
                 there
                 ,
                 or
                 at
                 the
                 Date
                 of
                 the
                 Write
                 ;
                 therefore
                 an
                 Inhibition
                 by
                 a
                 Creditor
                 of
                 the
                 Disponers
                 ,
                 was
                 sustained
                 to
                 reduce
                 the
                 right
                 ,
                 of
                 these
                 Creditors
                 filled
                 up
                 in
                 the
                 blank
                 ,
                 as
                 presumed
                 to
                 be
                 filled
                 up
                 after
                 the
                 Inhibition
                 ,
                 although
                 the
                 date
                 of
                 the
                 Disposition
                 was
                 before
                 the
                 Inhibition
                 ,
                 unless
                 it
                 were
                 proven
                 by
                 witnesses
                 insert
                 in
                 the
                 Disposition
                 or
                 others
                 above
                 exception
                 ,
                 that
                 the
                 blank
                 was
                 so
                 filled
                 up
                 before
                 the
                 Inhibition
                 ,
                 Jan.
                 15.
                 1670.
                 
                 Lady
                 
                   Lucia
                   Hamiltoun
                
                 contra
                 the
                 Creditors
                 of
                 Monkcastle
                 .
              
               
                 These
                 blank
                 Bonds
                 are
                 so
                 little
                 favoured
                 ,
                 that
                 when
                 the
                 Debitor
                 depones
                 that
                 he
                 is
                 only
                 debitor
                 by
                 a
                 Bond
                 blank
                 in
                 the
                 Creditors
                 name
                 ;
                 which
                 he
                 did
                 deliver
                 to
                 such
                 a
                 party
                 for
                 his
                 own
                 use
                 ,
                 but
                 knows
                 not
                 now
                 who
                 hath
                 the
                 Bond
                 ;
                 and
                 consequently
                 to
                 whom
                 he
                 is
                 debitor
                 ,
                 it
                 will
                 not
                 liberat
                 him
                 from
                 the
                 debt
                 of
                 that
                 party
                 to
                 whom
                 he
                 did
                 deliver
                 it
                 ,
                 though
                 it
                 may
                 make
                 him
                 lyable
                 to
                 double
                 payment
                 to
                 that
                 party
                 ,
                 and
                 to
                 him
                 who
                 hath
                 the
                 Bond
                 ,
                 it
                 being
                 his
                 own
                 deed
                 in
                 delivering
                 the
                 Bond
                 blank
                 in
                 the
                 Creditors
                 name
                 ,
                 which
                 infers
                 that
                 hazard
                 :
                 Yea
                 ,
                 if
                 the
                 Debitor
                 should
                 depone
                 that
                 the
                 Bond
                 was
                 blank
                 ,
                 abinitio
                 ,
                 and
                 delivered
                 to
                 such
                 a
                 party
                 ,
                 but
                 afterwards
                 it
                 was
                 shown
                 to
                 the
                 Debitor
                 ,
                 filled
                 up
                 in
                 the
                 name
                 of
                 such
                 another
                 party
                 ,
                 before
                 the
                 arrestment
                 ,
                 whereby
                 he
                 became
                 debitor
                 to
                 that
                 party
                 ,
                 and
                 not
                 to
                 the
                 first
                 ;
                 it
                 is
                 not
                 like
                 that
                 quality
                 will
                 be
                 respected
                 ,
                 unless
                 he
                 depone
                 that
                 he
                 had
                 payed
                 before
                 the
                 arrestment
                 ;
                 for
                 in
                 Veatches
                 case
                 ,
                 the
                 filling
                 up
                 of
                 Geddess
                 name
                 was
                 unquestionably
                 offered
                 to
                 be
                 proven
                 ,
                 that
                 the
                 Bond
                 was
                 registrat
                 in
                 Geddess
                 name
                 ,
                 before
                 the
                 arrestment
                 ,
                 which
                 is
                 much
                 stronger
                 probation
                 then
                 the
                 oath
                 of
                 the
                 debitor
                 .
              
               
                 A
                 blank
                 Bond
                 being
                 lost
                 ,
                 and
                 referred
                 to
                 the
                 debitors
                 oath
                 ,
                 who
                 confessed
                 the
                 same
                 ,
                 and
                 both
                 parties
                 agreeing
                 upon
                 the
                 date
                 ,
                 sum
                 ,
                 and
                 witnesses
                 ,
                 the
                 debitor
                 was
                 decerned
                 to
                 pay
                 the
                 sum
                 to
                 the
                 pursuer
                 ,
                 to
                 whom
                 he
                 had
                 delivered
                 the
                 blank
                 Bond
                 upon
                 Caution
                 ,
                 to
                 refound
                 ,
                 in
                 case
                 he
                 were
                 distrest
                 upon
                 a
                 Bond
                 ,
                 containing
                 ,
                 the
                 same
                 sum
                 ,
                 date
                 ,
                 and
                 witnesses
                 ,
                 June
                 27.
                 1676.
                 
                 
                   Elizabeth
                   Gibson
                
                 contra
                 Fise
                 .
                 The
                 like
                 was
                 done
                 at
                 the
                 instance
                 of
                 the
                 
                 Executors
                 of
                 the
                 person
                 to
                 whom
                 the
                 blank
                 Bond
                 was
                 delivered
                 ,
                 Jan.
                 4.
                 1678.
                 
                 Peebles
                 contra
                 Tennents
                 of
                 Rossie
                 .
              
               
                 6.
                 
                 The
                 Assignation
                 it self
                 is
                 not
                 a
                 compleat
                 valid
                 right
                 ,
                 till
                 it
                 be
                 orderly
                 intimate
                 to
                 the
                 debitor
                 ,
                 which
                 though
                 at
                 first
                 (
                 it
                 is
                 like
                 )
                 hath
                 been
                 only
                 used
                 to
                 put
                 the
                 debitor
                 in
                 
                   mala
                   fide
                
                 ,
                 to
                 pay
                 to
                 the
                 Cedent
                 ,
                 or
                 any
                 other
                 Assigney
                 :
                 Yet
                 now
                 it
                 is
                 a
                 solemnity
                 requisite
                 to
                 Assignations
                 ,
                 so
                 that
                 though
                 the
                 debt
                 remain
                 due
                 ,
                 if
                 there
                 be
                 diverse
                 Assignations
                 ,
                 the
                 first
                 intimation
                 is
                 preferable
                 ,
                 though
                 of
                 the
                 last
                 Assignation
                 .
                 and
                 that
                 not
                 as
                 a
                 legal
                 diligence
                 ,
                 which
                 can
                 be
                 prevented
                 and
                 excluded
                 by
                 another
                 diligence
                 ,
                 but
                 as
                 a
                 full
                 accomplishment
                 of
                 the
                 Assignation
                 ,
                 Jan.
                 13.
                 1629.
                 
                 Hutcheson
                 contra
                 
                   Kinloch
                   :
                   Jan.
                
                 18.
                 1628
                 ,
                 Laird
                 of
                 Halkertoun
                 contra
                 Falconer
                 .
                 But
                 where
                 both
                 Assignations
                 were
                 gratuitous
                 ,
                 implying
                 warrandice
                 from
                 fact
                 and
                 deed
                 ,
                 the
                 last
                 Assignation
                 though
                 first
                 intimat
                 was
                 not
                 preferred
                 ,
                 because
                 the
                 Cedent
                 was
                 Debitor
                 to
                 the
                 first
                 Assigney
                 ,
                 by
                 the
                 implyed
                 warrandice
                 against
                 future
                 Facts
                 and
                 Deeds
                 ,
                 July
                 15.
                 1675.
                 
                 
                   Anna
                   Alexander
                
                 contra
                 Lundies
                 .
              
               
                 7.
                 
                 Intimation
                 may
                 be
                 by
                 any
                 legal
                 Diligence
                 ,
                 as
                 by
                 arrestment
                 ,
                 by
                 a
                 charge
                 or
                 process
                 upon
                 the
                 Assignation
                 :
                 Yea
                 ,
                 though
                 the
                 process
                 be
                 not
                 sustained
                 ,
                 because
                 all
                 parties
                 having
                 initerest
                 ,
                 were
                 not
                 called
                 ,
                 it
                 will
                 stand
                 as
                 an
                 intimation
                 ;
                 but
                 it
                 is
                 most
                 ordinarly
                 by
                 way
                 of
                 Instrument
                 ,
                 either
                 by
                 the
                 assigney
                 himself
                 ,
                 showing
                 the
                 Assignation
                 ,
                 or
                 by
                 his
                 procurator
                 ,
                 showing
                 the
                 same
                 with
                 his
                 procuratory
                 ,
                 wherein
                 the
                 like
                 solemnities
                 will
                 be
                 requisite
                 ,
                 as
                 are
                 in
                 Instruments
                 of
                 premonition
                 and
                 requisition
                 :
                 Of
                 which
                 ,
                 
                   Title
                   Wodsets
                
                 .
                 So
                 an
                 intimation
                 was
                 found
                 null
                 by
                 exception
                 ,
                 because
                 one
                 person
                 was
                 both
                 Procurator
                 and
                 Nottar
                 ,
                 July
                 3.
                 1628.
                 
                 Scot
                 contra
                 Lord
                 Drumlanrig
                 .
                 Neither
                 was
                 an
                 Intimation
                 found
                 sufficient
                 by
                 an
                 Inhibition
                 ,
                 used
                 by
                 the
                 assigney
                 against
                 the
                 Cedent
                 upon
                 the
                 assignation
                 ,
                 March
                 14.
                 1626.
                 
                 Nisbit
                 contra
                 Williamson
                 .
                 where
                 payment
                 made
                 thereafter
                 to
                 the
                 Cedent
                 ,
                 was
                 found
                 valid
                 ,
                 and
                 done
                 ,
                 bonafide
                 .
              
               
                 In
                 this
                 case
                 it
                 was
                 also
                 found
                 ,
                 that
                 Intimation
                 will
                 not
                 be
                 supplied
                 by
                 a
                 parties
                 knowledge
                 of
                 the
                 Assignation
                 .
                 The
                 like
                 ,
                 June
                 15.
                 1624.
                 
                 Adamson
                 contra
                 Mcmitchel
                 :
                 Neither
                 by
                 the
                 Debitors
                 knowledge
                 ,
                 though
                 by
                 a
                 pursuite
                 against
                 him
                 upon
                 the
                 Write
                 ,
                 containing
                 the
                 Assignation
                 ,
                 but
                 in
                 relation
                 to
                 another
                 matter
                 therein
                 ,
                 this
                 was
                 in
                 shunning
                 the
                 committing
                 a
                 Clause
                 irritant
                 ,
                 Novem.
                 30
                 :
                 1622
                 :
                 Sir
                 
                   James
                   Durhame
                
                 contra
                 Lady
                 Wintoun
                 .
              
               
                 But
                 Assignations
                 to
                 annual
                 ,
                 prestations
                 as
                 to
                 Mails
                 and
                 Duties
                 ,
                 Teinds
                 or
                 Annualrents
                 or
                 Assignations
                 to
                 rights
                 ,
                 requiring
                 possession
                 to
                 compleat
                 them
                 as
                 Tacks
                 ,
                 are
                 perfected
                 by
                 use
                 of
                 payment
                 or
                 possession
                 ,
                 and
                 need
                 no
                 other
                 Intimation
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 the
                 annualrent
                 of
                 an
                 Heretable
                 Bond
                 ,
                 where
                 gerting
                 payment
                 of
                 some
                 years
                 ,
                 preferred
                 the
                 assigney
                 to
                 a
                 former
                 arrester
                 ,
                 though
                 there
                 was
                 no
                 Instrument
                 of
                 Intimation
                 ,
                 Jan
                 :
                 18
                 :
                 1628
                 :
                 Laird
                 of
                 Halkertoun
                 contra
                 Falconer
                 .
              
               
                 9.
                 
                 And
                 any
                 Write
                 under
                 the
                 debitors
                 hand
                 ,
                 acknowledging
                 the
                 production
                 of
                 the
                 Assignation
                 will
                 be
                 sufficient
                 Intimation
                 ,
                 as
                 if
                 he
                 give
                 a
                 Bond
                 of
                 Corroboration
                 to
                 the
                 assigney
                 ,
                 or
                 give
                 Discharges
                 of
                 annualrent
                 ,
                 or
                 any
                 part
                 of
                 the
                 principal
                 sum
                 .
              
               
                 10.
                 
                 Where
                 there
                 are
                 many
                 ,
                 
                   correi
                   debendi
                
                 ,
                 principal
                 or
                 Cautioners
                 ,
                 Intimation
                 made
                 to
                 any
                 will
                 be
                 sufficient
                 as
                 to
                 all
                 ;
                 yet
                 this
                 will
                 not
                 exclude
                 payment
                 
                 made
                 by
                 another
                 of
                 the
                 Debitors
                 ,
                 
                   bona
                   fide
                
                 ,
                 to
                 whom
                 no
                 Intimation
                 was
                 made
                 ;
                 to
                 secure
                 which
                 ,
                 it
                 is
                 safest
                 for
                 assigneys
                 to
                 intimat
                 to
                 all
                 the
                 
                   correi
                   debendi
                
                 .
              
               
                 11.
                 
                 Assignations
                 to
                 Reversions
                 or
                 Bonds
                 ,
                 for
                 granting
                 Reversions
                 ,
                 Renunciations
                 of
                 Wodsets
                 or
                 grants
                 of
                 Redemption
                 ,
                 being
                 registrat
                 in
                 the
                 register
                 of
                 Reversions
                 ,
                 conform
                 to
                 the
                 Act
                 of
                 Par.
                 1617.
                 require
                 no
                 Intimation
                 ,
                 that
                 register
                 being
                 designed
                 ,
                 not
                 for
                 conservation
                 of
                 these
                 Rights
                 ,
                 where
                 the
                 principals
                 are
                 not
                 detained
                 ,
                 but
                 for
                 publication
                 thereof
                 ,
                 to
                 all
                 parties
                 having
                 interest
                 ,
                 which
                 is
                 a
                 sufficient
                 Intimation
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 an
                 assignation
                 to
                 the
                 Legal
                 Reversion
                 of
                 an
                 appryzing
                 ,
                 December
                 5.
                 1665.
                 
                 Begg
                 contra
                 Begg
                 .
              
               
                 12.
                 
                 Intimation
                 being
                 by
                 our
                 proper
                 Custom
                 ,
                 so
                 necessary
                 a
                 solemnity
                 ,
                 holds
                 not
                 in
                 the
                 Orders
                 which
                 stand
                 for
                 assignations
                 amongst
                 Merchants
                 ,
                 Strangers
                 ,
                 especially
                 
                   qui
                   utuntur
                   communi
                   jure
                   gentium
                
                 ;
                 and
                 therefore
                 ,
                 the
                 first
                 order
                 by
                 a
                 Stranger
                 Merchant
                 ,
                 direct
                 to
                 his
                 debitor
                 here
                 ,
                 to
                 pay
                 the
                 Debt
                 to
                 the
                 obtainer
                 of
                 the
                 Order
                 ,
                 was
                 preferred
                 to
                 arresters
                 and
                 assigneys
                 ,
                 using
                 dilgence
                 before
                 him
                 though
                 there
                 was
                 neither
                 Intimation
                 of
                 the
                 Order
                 nor
                 acceptance
                 by
                 the
                 debitor
                 .
              
               
                 13.
                 
                 Neither
                 is
                 Intimation
                 necessary
                 to
                 Judicial
                 assignations
                 by
                 appryzings
                 or
                 adjudications
                 ,
                 March
                 25.
                 1635.
                 
                 Lord
                 Yester
                 contra
                 
                   Innerweel
                   .
                   Hope
                
                 assignations
                 ,
                 Idem
                 ,
                 appryzings
                 ,
                 Bruce
                 contra
                 Buckie
                 :
                 So
                 that
                 if
                 the
                 debt
                 remain
                 due
                 ,
                 the
                 first
                 appryzing
                 or
                 adjudication
                 ,
                 without
                 Intimation
                 will
                 be
                 preferred
                 ;
                 but
                 seing
                 there
                 is
                 nothing
                 to
                 put
                 the
                 debitor
                 in
                 
                   mala
                   fide
                
                 ,
                 payment
                 made
                 
                   bona
                   fide
                
                 ,
                 will
                 liberat
                 the
                 debitor
                 .
              
               
                 14.
                 
                 Marriage
                 also
                 is
                 a
                 legal
                 assignation
                 ,
                 requiring
                 no
                 Intimation
                 for
                 thereby
                 all
                 the
                 Moveable
                 rights
                 of
                 the
                 Wife
                 are
                 stated
                 in
                 the
                 Hushand
                 ,
                 
                   Jute
                   mariti
                
                 ,
                 without
                 other
                 Intimation
                 then
                 the
                 Marriage
                 :
                 Yea
                 ,
                 Intimation
                 was
                 not
                 found
                 necessary
                 to
                 a
                 Reposition
                 of
                 the
                 assigney
                 to
                 the
                 Cedent
                 ,
                 seing
                 the
                 assignation
                 was
                 by
                 a
                 wife
                 in
                 her
                 Contract
                 of
                 Marriage
                 ,
                 which
                 requires
                 no
                 Intimation
                 but
                 the
                 Marriage
                 ;
                 and
                 therefore
                 the
                 Husbands
                 reposition
                 to
                 her
                 needed
                 no
                 Intimation
                 ,
                 Decem.
                 2.
                 1674.
                 
                 
                   Beatrix
                   Craig
                
                 contra
                 Wedderly
                 .
              
               
                 15.
                 
                 Though
                 in
                 the
                 cases
                 aforesaid
                 ,
                 Intimation
                 be
                 a
                 necessary
                 Solemnity
                 to
                 assignations
                 ,
                 yet
                 the
                 assignation
                 alone
                 will
                 be
                 sufficient
                 against
                 the
                 Cedent
                 ,
                 if
                 he
                 should
                 quarrel
                 it
                 ,
                 because
                 he
                 is
                 author
                 thereof
                 ,
                 and
                 can
                 do
                 no
                 Deed
                 contrary
                 thereto
                 :
                 Yea
                 ,
                 it
                 was
                 preferred
                 to
                 an
                 Executor
                 Creditor
                 of
                 the
                 Cedents
                 ,
                 even
                 as
                 to
                 his
                 own
                 Debt
                 ,
                 July
                 27.
                 1669.
                 
                 Exeutors
                 of
                 Mr.
                 
                   Thomas
                   Ridpeth
                
                 contra
                 Home
                 .
              
               
                 As
                 to
                 the
                 extent
                 and
                 effect
                 of
                 assignations
                 ,
                 the
                 same
                 extends
                 to
                 all
                 personal
                 Rights
                 ,
                 whether
                 Moveable
                 or
                 Heretable
                 ,
                 as
                 to
                 Bonds
                 ,
                 Liferents
                 ,
                 Tacks
                 Reversions
                 ,
                 Mails
                 and
                 Duties
                 ,
                 Annualrents
                 ,
                 and
                 to
                 Dispositions
                 of
                 Lands
                 and
                 others
                 ,
                 till
                 Infeftment
                 follow
                 ,
                 but
                 is
                 no
                 valid
                 conveyance
                 of
                 any
                 Right
                 compleated
                 by
                 Infeftment
                 except
                 Liferents
                 ,
                 which
                 can
                 have
                 no
                 subaltern
                 Infeftment
                 ,
                 as
                 to
                 the
                 ground
                 right
                 it self
                 ,
                 though
                 it
                 may
                 extend
                 to
                 the
                 profits
                 thereof
                 ,
                 as
                 to
                 Mails
                 and
                 Duties
                 ,
                 and
                 annualrents
                 ,
                 and
                 to
                 these
                 no
                 longer
                 then
                 the
                 right
                 by
                 Infeftment
                 stands
                 in
                 the
                 Cedents
                 person
                 ,
                 whence
                 there
                 ariseth
                 to
                 him
                 and
                 to
                 his
                 assigney
                 ,
                 a
                 personal
                 obliegement
                 upon
                 the
                 possessors
                 ,
                 which
                 faileth
                 ,
                 as
                 to
                 all
                 Terms
                 after
                 Denunciation
                 ,
                 Decem.
                 17.
                 1622.
                 
                 Kinbrachmount
                 contra
                 Sir
                 
                   William
                   Anstruther
                
                 :
                 and
                 an
                 assignation
                 to
                 such
                 a
                 sum
                 yearly
                 out
                 of
                 Teinds
                 
                 was
                 found
                 excluded
                 by
                 an
                 appryzing
                 of
                 ,
                 or
                 assignation
                 to
                 the
                 Tack
                 of
                 these
                 Teinds
                 ,
                 Feb.
                 6.
                 1666.
                 
                 Watson
                 〈◊〉
                 Pleming
                 .
              
               
                 Assignations
                 are
                 effectual
                 ,
                 not
                 only
                 of
                 such
                 rights
                 as
                 are
                 granted
                 to
                 heirs
                 and
                 assigneys
                 ,
                 but
                 generally
                 to
                 all
                 Rights
                 ,
                 though
                 not
                 mentioning
                 assigneys
                 ,
                 which
                 by
                 their
                 nature
                 are
                 transmissible
                 ;
                 and
                 therefore
                 ,
                 an
                 annualrent
                 by
                 a
                 Father
                 to
                 his
                 Daughter
                 ,
                 wherein
                 his
                 Brother
                 and
                 Sisters
                 were
                 substitute
                 ,
                 failing
                 the
                 heirs
                 of
                 her
                 Body
                 ,
                 without
                 mentioning
                 her
                 assigneys
                 ,
                 and
                 wherein
                 the
                 annualrent
                 was
                 redeemable
                 ,
                 by
                 payment
                 of
                 a
                 principal
                 sum
                 ,
                 which
                 she
                 had
                 no
                 power
                 to
                 require
                 ,
                 unless
                 she
                 were
                 Married
                 ;
                 the
                 annualrent
                 was
                 found
                 to
                 belong
                 to
                 her
                 assigney
                 after
                 her
                 death
                 ,
                 being
                 principally
                 constitute
                 ,
                 and
                 not
                 accessory
                 to
                 the
                 principal
                 sum
                 ,
                 June
                 24.
                 1679.
                 
                 Sir
                 
                   William
                   Stuart
                
                 contra
                 Sir
                 
                   Thomas
                   Stuart
                
                 :
                 and
                 albeit
                 Superiours
                 be
                 not
                 oblieged
                 to
                 receiye
                 singular
                 Successors
                 without
                 appryzing
                 or
                 adjudication
                 ;
                 yet
                 before
                 Infeftment
                 ,
                 assigneys
                 to
                 the
                 Disposition
                 ,
                 granted
                 by
                 the
                 Superiour
                 ,
                 may
                 compell
                 him
                 to
                 receive
                 the
                 assigney
                 ,
                 which
                 was
                 so
                 found
                 ,
                 though
                 the
                 Superiour
                 alledged
                 ,
                 that
                 the
                 Superiour
                 was
                 not
                 in
                 good
                 Terms
                 with
                 him
                 ,
                 Decem.
                 23.
                 1673.
                 
                 Ogilbie
                 contra
                 Kinloch
                 of
                 Bandach
                 .
                 But
                 Reversions
                 and
                 Tacks
                 in
                 most
                 cases
                 unassignable
                 ,
                 unless
                 they
                 be
                 granted
                 to
                 assigneys
                 ;
                 for
                 albeit
                 the
                 Assignation
                 being
                 a
                 procuratory
                 ,
                 may
                 give
                 them
                 interest
                 to
                 
                   act
                   procuratorio
                   nomine
                
                 ,
                 for
                 the
                 Cedent
                 ;
                 yet
                 they
                 cannot
                 
                   act
                   proprio
                   nomine
                
                 ,
                 as
                 Procurators
                 ,
                 
                   in
                   rem
                   suam
                
                 ;
                 therefore
                 the
                 oath
                 of
                 the
                 Cedent
                 will
                 always
                 be
                 competent
                 against
                 them
                 ,
                 and
                 they
                 cannot
                 obtain
                 Declarator
                 of
                 Redemption
                 ,
                 in
                 their
                 own
                 name
                 or
                 Decreet
                 ,
                 for
                 denuding
                 of
                 the
                 Wodsetter
                 ,
                 in
                 their
                 favours
                 :
                 Neither
                 can
                 Assigneys
                 to
                 Tacks
                 enter
                 in
                 possession
                 ,
                 by
                 vertue
                 thereof
                 :
                 Yea
                 ,
                 Liferent-rights
                 by
                 Infeftment
                 or
                 Tack
                 ,
                 were
                 so
                 peculiar
                 to
                 the
                 Liferenter
                 ,
                 that
                 no
                 assignation
                 can
                 state
                 them
                 in
                 the
                 assigneys
                 person
                 ,
                 but
                 only
                 the
                 profits
                 thence
                 arising
                 :
                 So
                 that
                 in
                 the
                 assigneys
                 person
                 ,
                 they
                 are
                 not
                 Liferents
                 ;
                 and
                 therefore
                 ,
                 the
                 Liferents
                 of
                 Wives
                 ,
                 which
                 belonged
                 to
                 their
                 Husbands
                 ,
                 
                   jure
                   mariti
                
                 ,
                 as
                 a
                 legal
                 Assignation
                 ,
                 fall
                 not
                 under
                 the
                 Husbands
                 Liferent-escheat
                 ,
                 as
                 they
                 would
                 fall
                 under
                 the
                 Liferent
                 of
                 the
                 Wife
                 unmarried
                 ,
                 but
                 under
                 the
                 single
                 Escheat
                 ,
                 
                   Vide
                   title
                
                 〈◊〉
                 upon
                 Escheat
                 :
                 Upon
                 which
                 ground
                 ,
                 Hope
                 upon
                 Assignations
                 ,
                 observes
                 ,
                 that
                 Assignations
                 to
                 Liferent-tacks
                 ,
                 make
                 them
                 fall
                 under
                 the
                 Assigneys
                 single
                 Escheat
                 ,
                 in
                 the
                 case
                 of
                 Sir
                 
                   Robert
                   ker
                
                 contra
                 
                   John
                   Ker.
                
                 
              
               
                 17.
                 
                 Thirdly
                 ,
                 an
                 Assignation
                 to
                 a
                 sum
                 ,
                 carries
                 with
                 it
                 the
                 Inhibition
                 raised
                 thereupon
                 ,
                 Hope
                 Assignation
                 ,
                 
                   Walter
                   Hay
                
                 contra
                 
                   Mark
                   Ker.
                
                 The
                 like
                 ,
                 where
                 only
                 all
                 actions
                 following
                 thereupon
                 were
                 exprest
                 generally
                 ,
                 June
                 28.
                 1610.
                 
                 Blair
                 contra
                 Gray
                 .
                 And
                 an
                 Assignation
                 to
                 a
                 Bond
                 ,
                 found
                 to
                 carry
                 a
                 Bond
                 of
                 corroboration
                 of
                 the
                 foresaid
                 Bond
                 ,
                 though
                 not
                 mentioned
                 therein
                 ,
                 albeit
                 the
                 Assignation
                 bore
                 not
                 ,
                 that
                 ordinary
                 Clause
                 (
                 with
                 all
                 that
                 has
                 followed
                 ,
                 or
                 may
                 follow
                 thereupon
                 )
                 which
                 is
                 but
                 an
                 Explicatory
                 Clause
                 of
                 Style
                 of
                 that
                 which
                 ,
                 
                   innest
                   dejure
                   ,
                   February
                
                 3.
                 1676.
                 
                 Bultie
                 contra
                 Earl
                 of
                 Airly
                 .
              
               
                 18.
                 
                 Fourthly
                 ,
                 The
                 effect
                 of
                 Assignations
                 is
                 ,
                 that
                 the
                 oath
                 of
                 the
                 Cedent
                 cannot
                 prove
                 against
                 the
                 Assigney
                 ,
                 unless
                 the
                 matter
                 hath
                 been
                 litigious
                 before
                 the
                 Assignation
                 or
                 Intimation
                 ,
                 as
                 in
                 the
                 case
                 after
                 arrestment
                 ,
                 has
                 been
                 laid
                 on
                 ;
                 and
                 therefore
                 ,
                 a
                 debitor
                 having
                 pursued
                 the
                 Cedent
                 to
                 annul
                 the
                 Band
                 ,
                 upon
                 a
                 reason
                 to
                 be
                 verified
                 by
                 the
                 Cedents
                 oath
                 ,
                 before
                 the
                 Assigney
                 had
                 Intimat
                 the
                 Cedents
                 oath
                 was
                 sustained
                 ,
                 February
                 15.
                 1662.
                 
                 Pitfoddels
                 contra
                 Glenkindie
                 .
                 And
                 an
                 Assigney
                 pursuing
                 in
                 the
                 Cedents
                 name
                 ,
                 and
                 not
                 in
                 his
                 own
                 ,
                 albeir
                 he
                 produccd
                 his
                 Assignation
                 in
                 the
                 Process
                 ;
                 yet
                 there
                 being
                 no
                 other
                 Intimation
                 
                 thereof
                 ,
                 the
                 Cedents
                 oath
                 was
                 admitted
                 against
                 him
                 ,
                 Feb.
                 12.
                 1678.
                 
                 Firazer
                 contra
                 Frazer
                 of
                 
                   Strichen
                   ,
                   July
                
                 26.
                 1628.
                 
                 
                   John
                   Rule
                
                 contra
                 Laird
                 of
                 Aitoun
                 .
              
               
                 Or
                 if
                 the
                 Assignation
                 be
                 gratuitous
                 without
                 a
                 Cause
                 onerous
                 ,
                 the
                 Cedents
                 oath
                 will
                 be
                 competent
                 in
                 all
                 cases
                 against
                 the
                 Assigney
                 ,
                 June
                 16.
                 1665.
                 
                 
                   William
                   Wright
                
                 contra
                 
                   George
                   Sheil
                   :
                   June
                
                 13.
                 1668.
                 
                 Jack
                 contra
                 Mowat
                 :
                 But
                 the
                 oath
                 of
                 the
                 Cedent
                 will
                 prove
                 against
                 the
                 Assigney
                 in
                 England
                 ,
                 as
                 to
                 Assignations
                 made
                 by
                 residenters
                 there
                 ,
                 June
                 28.
                 1666.
                 
                 Mcmorland
                 contra
                 
                   William
                   Melvil
                
                 .
              
               
                 19.
                 
                 Fifthly
                 ,
                 Assignations
                 being
                 intimat
                 during
                 the
                 Cedents
                 Life
                 ,
                 having
                 summar
                 execution
                 ,
                 and
                 the
                 Assigney
                 got
                 protestation
                 against
                 a
                 Suspension
                 raised
                 against
                 the
                 Cedent
                 ,
                 after
                 the
                 Cedents
                 death
                 ,
                 without
                 walkning
                 or
                 transferrence
                 and
                 thereupon
                 all
                 execution
                 would
                 proceed
                 summarly
                 by
                 Horning
                 ,
                 Poynding
                 ,
                 Appryzing
                 ,
                 even
                 after
                 his
                 death
                 ,
                 Hope
                 assignation
                 ,
                 Lady
                 Craigmiller
                 contra
                 Stevinson
                 :
                 Otherways
                 it
                 will
                 yeeld
                 but
                 an
                 ordinary
                 action
                 ,
                 Jan.
                 23.
                 1624.
                 
                   inter
                   eosdem
                
                 .
                 The
                 same
                 was
                 found
                 ,
                 and
                 that
                 there
                 needed
                 no
                 confirmation
                 ,
                 July
                 27.
                 1664.
                 
                 Mr.
                 
                   John
                   Murehead
                
                 contra
                 Yea
                 ,
                 though
                 it
                 was
                 an
                 Assignation
                 by
                 a
                 Father
                 to
                 his
                 Son
                 ,
                 of
                 all
                 his
                 Goods
                 and
                 Debts
                 ;
                 yet
                 action
                 was
                 sustained
                 thereupon
                 without
                 Confirmation
                 ,
                 June
                 25.
                 1663.
                 
                 
                   James
                   Halyburtoun
                
                 contra
                 Earl
                 of
                 Roxburgh
                 .
                 But
                 where
                 there
                 was
                 no
                 delivery
                 ,
                 the
                 Assignation
                 of
                 all
                 the
                 Goods
                 was
                 not
                 found
                 to
                 give
                 action
                 without
                 Confirmation
                 ,
                 June
                 23.
                 1665.
                 
                 Procurator-fiscal
                 of
                 Edinburgh
                 contra
                 
                   Thomas
                   Fairholm
                
                 .
                 Or
                 where
                 there
                 was
                 reservation
                 to
                 the
                 Disponer
                 ,
                 to
                 dispone
                 otherways
                 during
                 his
                 life
                 ,
                 July
                 4.
                 1665
                 
                 :
                 Commissar
                 of
                 Saint
                 Andrews
                 contra
                 Hay
                 of
                 Bowsie
                 .
                 But
                 since
                 the
                 Restitution
                 of
                 Bishops
                 ,
                 and
                 reviving
                 of
                 the
                 Quots
                 :
                 actions
                 are
                 sustained
                 upon
                 Assignations
                 ,
                 not
                 intimat
                 in
                 the
                 Cedents
                 life
                 ,
                 if
                 they
                 be
                 special
                 ,
                 the
                 pursuer
                 always
                 confirming
                 before
                 the
                 Decreet
                 be
                 Extracted
                 .
              
               
                 20
                 :
                 Except
                 in
                 the
                 Matter
                 of
                 Probation
                 ,
                 all
                 Exceptions
                 competent
                 against
                 the
                 Cedent
                 before
                 the
                 Assignation
                 or
                 Intimation
                 ,
                 are
                 relevant
                 against
                 the
                 assigney
                 ,
                 as
                 payment
                 ,
                 compensation
                 ,
                 &c.
                 which
                 was
                 found
                 ,
                 even
                 as
                 to
                 assigneysto
                 Tacks
                 ,
                 that
                 the
                 Tacks-mans
                 Back-bond
                 was
                 sufficient
                 against
                 his
                 singular
                 Successor
                 by
                 assignation
                 ,
                 Decem.
                 18.
                 1668.
                 
                 Mr.
                 
                   Robert
                   Swintoun
                
                 contra
                 
                   John
                   Brown
                
                 :
                 This
                 is
                 clear
                 ,
                 when
                 exceptions
                 relates
                 to
                 the
                 matter
                 in
                 Question
                 .
              
               
                 21.
                 
                 Assignations
                 to
                 incompleat
                 real
                 Rights
                 ,
                 as
                 Appryzings
                 ,
                 Dispositions
                 of
                 Lands
                 before
                 Infeftment
                 ,
                 are
                 affected
                 with
                 the
                 assigneys
                 Back-bond
                 ,
                 if
                 the
                 competition
                 come
                 in
                 before
                 infeftment
                 ,
                 Inhibition
                 be
                 used
                 ,
                 or
                 legal
                 diligence
                 that
                 makes
                 the
                 matter
                 Litigious
                 ;
                 and
                 therefore
                 ,
                 the
                 Back-bond
                 of
                 an
                 asigney
                 to
                 an
                 appryzing
                 ,
                 was
                 found
                 effectual
                 against
                 his
                 Successors
                 by
                 translation
                 ,
                 July
                 6.
                 1676.
                 
                 Sir
                 
                   Lodovick
                   Gordoun
                
                 contra
                 Skeen
                 and
                 Crawford
                 .
                 But
                 the
                 Back-bond
                 of
                 an
                 assigney
                 to
                 a
                 Disposition
                 of
                 Land
                 ,
                 not
                 drawn
                 in
                 question
                 till
                 the
                 assigneys
                 singular
                 Successor
                 was
                 Infeft
                 upon
                 his
                 translation
                 ,
                 was
                 not
                 found
                 effectual
                 against
                 the
                 singular
                 Successor
                 ,
                 June
                 20.
                 1676.
                 
                 Brown
                 contra
                 Smith
                 :
                 For
                 if
                 assignations
                 ,
                 Back-ponds
                 ,
                 or
                 even
                 Discharges
                 or
                 Renunciations
                 of
                 redeemable
                 Dispositions
                 of
                 Lands
                 ,
                 were
                 effectual
                 against
                 singular
                 Successors
                 in
                 these
                 Lands
                 ,
                 after
                 the
                 Rights
                 were
                 perfected
                 in
                 their
                 own
                 persons
                 ,
                 or
                 their
                 authors
                 by
                 Infeftment
                 ,
                 it
                 might
                 in
                 a
                 great
                 part
                 disappoint
                 the
                 design
                 of
                 these
                 excellent
                 Statutes
                 for
                 Registration
                 of
                 Land
                 rights
                 ,
                 therefore
                 ,
                 unless
                 Inhibition
                 were
                 used
                 ,
                 
                 or
                 the
                 matter
                 made
                 Litigious
                 upon
                 these
                 personal
                 Rights
                 ,
                 before
                 Infeftment
                 ,
                 they
                 are
                 not
                 habile
                 to
                 affect
                 a
                 real
                 right
                 ,
                 or
                 a
                 singular
                 Successor
                 therein
                 ;
                 but
                 because
                 appryzings
                 within
                 the
                 legal
                 ,
                 may
                 be
                 taken
                 away
                 in
                 the
                 same
                 manner
                 as
                 personal
                 rights
                 ;
                 therefore
                 the
                 assignations
                 ,
                 discharges
                 and
                 back
                 bonds
                 ,
                 by
                 these
                 who
                 have
                 right
                 to
                 the
                 appryzing
                 ,
                 being
                 made
                 within
                 the
                 legal
                 ,
                 are
                 effectual
                 ,
                 if
                 thereupon
                 the
                 matter
                 be
                 made
                 litigious
                 before
                 the
                 expyry
                 of
                 the
                 Legal
                 Reversion
                 or
                 Inhibition
                 used
                 thereupon
                 ,
                 they
                 will
                 be
                 effectual
                 against
                 the
                 singular
                 successors
                 ,
                 even
                 after
                 the
                 Legal
                 is
                 expyred
                 ,
                 but
                 after
                 expyry
                 of
                 the
                 Legal
                 Infeftments
                 upon
                 appryzings
                 are
                 in
                 the
                 same
                 case
                 as
                 Infeftments
                 upon
                 Irredeemable
                 Dispositions
                 for
                 they
                 are
                 the
                 foundation
                 of
                 the
                 rights
                 of
                 most
                 Lands
                 in
                 the
                 Kingdom
                 ,
                 and
                 if
                 personal
                 Rights
                 should
                 make
                 them
                 insecure
                 after
                 the
                 expyry
                 of
                 the
                 legal
                 ,
                 it
                 would
                 be
                 of
                 great
                 inconvenience
                 .
              
               
                 22.
                 
                 Assigneys
                 by
                 Tutors
                 to
                 their
                 Pupils
                 Bonds
                 ,
                 will
                 have
                 no
                 execution
                 till
                 the
                 Tutors
                 counts
                 be
                 made
                 by
                 the
                 Cedent
                 ,
                 Decem.
                 2.
                 1679.
                 
                 
                   James
                   Cleiland
                
                 contra
                 Bailzie
                 of
                 Lamingtoun
                 .
              
               
                 23.
                 
                 It
                 is
                 more
                 dubious
                 and
                 hath
                 been
                 diversly
                 decided
                 ,
                 when
                 the
                 exceptions
                 are
                 personal
                 against
                 the
                 Cedent
                 ,
                 in
                 mutual
                 Contracts
                 ,
                 the
                 Contracter
                 himself
                 can
                 have
                 no
                 action
                 unless
                 he
                 fulfil
                 his
                 part
                 ;
                 but
                 whether
                 his
                 assigney
                 will
                 be
                 in
                 the
                 like
                 case
                 is
                 the
                 question
                 ,
                 which
                 is
                 at
                 large
                 cleared
                 ,
                 Tit.
                 10.
                 
                 §
                 .
                 16.
                 and
                 therefore
                 shall
                 not
                 be
                 here
                 repeated
                 .
              
               
                 Judicial
                 assignations
                 are
                 oftwo
                 sorts
                 ,
                 according
                 to
                 the
                 matter
                 conveyed
                 thereby
                 ,
                 which
                 if
                 it
                 be
                 moveable
                 is
                 conveyed
                 from
                 the
                 debitor
                 to
                 his
                 Creditor
                 by
                 arrestment
                 and
                 decreet
                 ,
                 for
                 making
                 the
                 arrested
                 sums
                 and
                 goods
                 forthcoming
                 ,
                 and
                 if
                 it
                 be
                 Heretable
                 by
                 appryzing
                 or
                 adjudication
                 .
              
               
                 As
                 to
                 the
                 first
                 ,
                 that
                 the
                 progress
                 upon
                 arrestment
                 may
                 be
                 clearly
                 taken
                 up
                 ;
                 we
                 shall
                 first
                 consider
                 the
                 arrestment
                 it self
                 .
                 Secondly
                 ,
                 The
                 lousing
                 of
                 it
                 .
                 Thirdly
                 ,
                 The
                 action
                 for
                 making
                 forthcoming
                 .
              
               
                 Arrestment
                 is
                 a
                 precept
                 or
                 command
                 of
                 a
                 Judge
                 ,
                 ordaining
                 the
                 thing
                 arrested
                 to
                 remain
                 in
                 the
                 same
                 case
                 it
                 is
                 when
                 arrested
                 ,
                 till
                 such
                 things
                 be
                 done
                 as
                 are
                 prescribed
                 in
                 the
                 precept
                 ,
                 or
                 Letters
                 of
                 arrestment
                 :
                 It
                 is
                 sometimes
                 extended
                 to
                 any
                 preparatory
                 Precept
                 of
                 a
                 Judge
                 ,
                 antecedent
                 unto
                 any
                 further
                 process
                 ,
                 so
                 the
                 first
                 Citation
                 or
                 securing
                 of
                 persons
                 till
                 tryal
                 were
                 made
                 ,
                 or
                 surety
                 found
                 ,
                 it
                 s
                 called
                 an
                 arrestment
                 or
                 attatchment
                 ,
                 as
                 appears
                 in
                 the
                 force
                 of
                 the
                 Crowners
                 arreftments
                 of
                 Delinquents
                 ,
                 Par.
                 1487.
                 cap.
                 99.
                 
                 Par.
                 1528.
                 cap.
                 5.
                 
                 But
                 arrestment
                 proceeds
                 most
                 ordinarly
                 upon
                 an
                 Interlocutor
                 sentence
                 ,
                 as
                 when
                 parties
                 are
                 contending
                 for
                 Peats
                 ,
                 Turffs
                 ,
                 or
                 Corn
                 upon
                 debateable
                 Land
                 ,
                 these
                 use
                 to
                 be
                 arrested
                 till
                 the
                 mater
                 be
                 decided
                 ,
                 whereby
                 the
                 thing
                 arrested
                 becomes
                 litigious
                 ,
                 and
                 any
                 thing
                 done
                 to
                 the
                 contrary
                 hath
                 the
                 effect
                 of
                 breach
                 of
                 arrestment
                 ,
                 and
                 is
                 of
                 the
                 Nature
                 of
                 
                   innovatalite
                   dependente
                
                 ,
                 which
                 therefore
                 must
                 be
                 summarly
                 restored
                 and
                 put
                 in
                 
                   statu
                   quo
                
                 and
                 brings
                 no
                 advantage
                 but
                 loss
                 to
                 the
                 actor
                 .
              
               
                 24.
                 
                 But
                 arrestment
                 which
                 we
                 are
                 now
                 about
                 ,
                 is
                 Precept
                 or
                 Letters
                 of
                 arrestment
                 ,
                 arresting
                 Debts
                 or
                 Goods
                 in
                 the
                 hands
                 of
                 any
                 party
                 ,
                 haver
                 thereof
                 ,
                 at
                 the
                 instance
                 of
                 the
                 Creditor
                 of
                 him
                 to
                 whom
                 the
                 Debts
                 or
                 Goods
                 belong
                 to
                 remain
                 under
                 arrestment
                 ,
                 untill
                 the
                 debt
                 whereupon
                 the
                 arrestment
                 proceeds
                 ,
                 be
                 secured
                 or
                 satisfied
                 ;
                 therefore
                 arrestments
                 may
                 be
                 granted
                 by
                 all
                 Judges
                 ordinar
                 ,
                 Superior
                 or
                 Inferior
                 ;
                 but
                 the
                 arrestment
                 of
                 an
                 Inferior
                 Judge
                 was
                 only
                 
                 found
                 effectual
                 in
                 Process
                 before
                 himself
                 ,
                 and
                 before
                 no
                 other
                 Inferiour
                 Judge
                 ,
                 March
                 8.
                 1634.
                 
                 Smith
                 contra
                 Miller
                 .
                 But
                 upon
                 occasion
                 of
                 this
                 debate
                 ,
                 most
                 of
                 the
                 Lords
                 thought
                 an
                 Inferiour
                 Judge
                 might
                 proceed
                 upon
                 the
                 Lords
                 arrestment
                 ,
                 passing
                 in
                 the
                 Kings
                 name
                 ,
                 and
                 there
                 is
                 not
                 wanting
                 ground
                 to
                 think
                 that
                 an
                 Inferiour
                 Judge
                 may
                 proceed
                 upon
                 the
                 arrestment
                 of
                 another
                 ,
                 seing
                 all
                 of
                 them
                 proceed
                 alone
                 upon
                 the
                 Kings
                 authority
                 ,
                 as
                 if
                 the
                 defender
                 change
                 his
                 Domicile
                 .
                 An
                 arrestment
                 made
                 by
                 the
                 Inferiour
                 Judge
                 ,
                 where
                 hedwelt
                 before
                 ,
                 ought
                 not
                 to
                 be
                 ineffectual
                 ,
                 nor
                 he
                 necessitate
                 to
                 pursue
                 before
                 the
                 Lords
                 ,
                 as
                 was
                 found
                 in
                 an
                 arrestment
                 before
                 the
                 Admiral
                 ,
                 March
                 22
                 -
                 1637.
                 〈◊〉
                 contra
                 Gray
                 .
                 Yet
                 an
                 arrestment
                 upon
                 the
                 Precept
                 of
                 an
                 Inferiour
                 Judge
                 ,
                 was
                 found
                 null
                 ,
                 because
                 execute
                 without
                 the
                 Jurisdiction
                 of
                 that
                 Judge
                 ,
                 although
                 the
                 party
                 in
                 whose
                 hands
                 it
                 was
                 made
                 ,
                 dw
                 eltwithin
                 the
                 Jurisdiction
                 ,
                 Decem.
                 5.
                 1671.
                 
                 Mr.
                 
                   Andrew
                   Miller
                
                 contra
                 
                   Orsburn
                   ,
                   Crawford
                
                 and
                 the
                 Laird
                 of
                 Bishoptoun
                 .
                 The
                 reason
                 hereof
                 was
                 ,
                 no
                 execution
                 is
                 valid
                 ,
                 
                   Extra
                   tertitorium
                   Judicis
                
                 ,
                 which
                 doth
                 not
                 conclude
                 against
                 the
                 arrestment
                 of
                 an
                 Inferiour
                 Judge
                 ,
                 made
                 within
                 his
                 own
                 Jurisdiction
                 ;
                 but
                 that
                 it
                 would
                 be
                 sustained
                 against
                 that
                 party
                 in
                 any
                 Process
                 before
                 the
                 Lords
                 ,
                 or
                 any
                 Superiour
                 having
                 cumulative
                 Jurisdiction
                 ,
                 or
                 even
                 before
                 a
                 Co-ordinat
                 or
                 Inferiour
                 Jurisdiction
                 ,
                 in
                 which
                 ,
                 if
                 any
                 question
                 were
                 made
                 ,
                 the
                 Lords
                 by
                 Letters
                 of
                 supplement
                 ,
                 would
                 readily
                 auctorize
                 the
                 same
                 .
              
               
                 Arrestment
                 requires
                 no
                 other
                 solemnity
                 but
                 the
                 execution
                 thereof
                 ,
                 by
                 him
                 to
                 whom
                 the
                 Letters
                 are
                 directed
                 ,
                 which
                 requires
                 the
                 like
                 requisites
                 as
                 other
                 executions
                 do
                 :
                 of
                 which
                 hereafter
                 .
              
               
                 25.
                 
                 There
                 hath
                 been
                 an
                 extraordinary
                 form
                 of
                 arrestment
                 ,
                 sometime
                 used
                 and
                 sustained
                 ,
                 whereby
                 Creditors
                 did
                 arrest
                 the
                 Goods
                 of
                 their
                 Debitors
                 in
                 the
                 Debitors
                 own
                 hand
                 ,
                 and
                 thereupon
                 did
                 pursue
                 such
                 as
                 bought
                 from
                 them
                 ,
                 whereof
                 there
                 is
                 an
                 instance
                 observed
                 by
                 
                   Dury
                   ,
                   Jan.
                
                 10.
                 1624.
                 betwixt
                 the
                 Laird
                 of
                 
                   Innerweek
                   ,
                   John
                   Wilkie
                
                 and
                 the
                 Lady
                 Bothwel
                 ,
                 wherein
                 Innerweek
                 having
                 arrested
                 a
                 parcel
                 of
                 Wool
                 in
                 the
                 Lady
                 Botwels
                 hand
                 ,
                 upon
                 a
                 debt
                 owing
                 by
                 her
                 to
                 him
                 ,
                 and
                 she
                 having
                 thereafter
                 sold
                 the
                 Wool
                 to
                 
                   John
                   Wilkie
                
                 ,
                 who
                 payed
                 the
                 price
                 ,
                 he
                 was
                 decerned
                 to
                 make
                 forthcoming
                 the
                 true
                 worth
                 of
                 the
                 Wool
                 to
                 Innerweek
                 ,
                 although
                 nothing
                 appears
                 instructed
                 ,
                 that
                 there
                 was
                 any
                 Collusion
                 betwixt
                 the
                 Lady
                 Bothwel
                 and
                 Wilkie
                 ,
                 but
                 what
                 may
                 be
                 conjectured
                 from
                 the
                 Lords
                 allowing
                 the
                 price
                 of
                 the
                 Wool.
                 This
                 kind
                 of
                 arrestment
                 hath
                 not
                 been
                 drawn
                 in
                 example
                 ,
                 for
                 I
                 have
                 found
                 no
                 instance
                 of
                 it
                 observed
                 by
                 any
                 since
                 that
                 time
                 ;
                 and
                 as
                 the
                 instance
                 observed
                 ,
                 is
                 but
                 the
                 arrestment
                 of
                 one
                 particular
                 ,
                 if
                 it
                 were
                 to
                 be
                 allowed
                 it
                 might
                 be
                 extended
                 to
                 more
                 particulars
                 ,
                 even
                 to
                 all
                 the
                 moveable
                 Goods
                 and
                 Means
                 of
                 the
                 debitor
                 ,
                 and
                 certainly
                 it
                 would
                 be
                 ordinarly
                 so
                 used
                 ;
                 as
                 straitning
                 the
                 debitor
                 more
                 ,
                 that
                 he
                 could
                 dispose
                 of
                 nothing
                 ,
                 but
                 to
                 the
                 use
                 of
                 the
                 arresting
                 Creditor
                 ,
                 and
                 so
                 it
                 would
                 become
                 an
                 Inhibition
                 in
                 Moveables
                 ,
                 yet
                 much
                 more
                 inconvenient
                 ,
                 because
                 Inhibition
                 must
                 be
                 published
                 at
                 the
                 Mercat
                 Cross
                 ,
                 and
                 registrat
                 ;
                 whereas
                 arrestment
                 may
                 be
                 done
                 most
                 privatly
                 before
                 two
                 witnesses
                 :
                 And
                 though
                 Inhibitions
                 at
                 first
                 were
                 designed
                 to
                 disable
                 debitors
                 ,
                 not
                 only
                 to
                 dispone
                 or
                 dilapidat
                 their
                 Lands
                 or
                 heritage
                 ,
                 but
                 their
                 Moveable
                 Goods
                 ,
                 as
                 the
                 stile
                 of
                 Inhibition
                 doth
                 still
                 express
                 ,
                 yet
                 experience
                 did
                 early
                 show
                 ,
                 that
                 there
                 was
                 a
                 necessity
                 for
                 current
                 course
                 of
                 Moveables
                 ,
                 and
                 that
                 it
                 could
                 not
                 consist
                 with
                 Traffick
                 and
                 Commerce
                 ,
                 that
                 no
                 man
                 could
                 securely
                 buy
                 Moveables
                 without
                 inspection
                 ofregisters
                 ;
                 and
                 therefore
                 ,
                 Inhibitions
                 have
                 now
                 no
                 effect
                 as
                 to
                 Moveables
                 ,
                 much
                 less
                 should
                 arrestment
                 of
                 the
                 debitors
                 moveables
                 in
                 his
                 own
                 hand
                 ,
                 which
                 could
                 with
                 no
                 reason
                 affect
                 the
                 moveables
                 ,
                 when
                 disponed
                 for
                 a
                 just
                 cause
                 to
                 third
                 parties
                 ,
                 
                 
                 
                 much
                 less
                 could
                 it
                 infer
                 breach
                 of
                 Arrestment
                 against
                 the
                 buyers
                 after
                 Arrestment
                 ;
                 and
                 all
                 the
                 effect
                 it
                 could
                 have
                 ,
                 were
                 only
                 to
                 superad
                 upon
                 the
                 Debitor
                 ,
                 the
                 penalty
                 of
                 breach
                 of
                 Arrestment
                 thereby
                 to
                 Confiscat
                 all
                 his
                 Moveables
                 ,
                 whereas
                 there
                 are
                 ordinarly
                 liquidat
                 penalties
                 agreed
                 upon
                 ,
                 of
                 consent
                 of
                 Debitor
                 and
                 Creditor
                 .
              
               
                 26.
                 
                 Arrestment
                 being
                 a
                 personal
                 Prohibition
                 ,
                 used
                 against
                 him
                 in
                 whose
                 hands
                 the
                 Arrestment
                 was
                 made
                 ,
                 if
                 he
                 die
                 it
                 is
                 not
                 extended
                 to
                 his
                 Successors
                 ,
                 but
                 they
                 may
                 dispose
                 of
                 the
                 Goods
                 or
                 Sums
                 Arrested
                 ,
                 unless
                 it
                 be
                 renewed
                 in
                 their
                 hands
                 ,
                 in
                 the
                 same
                 manner
                 as
                 an
                 Inhibition
                 ,
                 which
                 is
                 also
                 a
                 legal
                 Prohibition
                 ,
                 extending
                 to
                 Heretable
                 Rights
                 as
                 Arrestment
                 doth
                 to
                 Moveables
                 ;
                 but
                 though
                 the
                 Debitor
                 whose
                 Goods
                 or
                 Sums
                 were
                 Arrested
                 die
                 ,
                 the
                 Arrestment
                 ceasseth
                 not
                 ,
                 but
                 the
                 debt
                 being
                 established
                 against
                 his
                 successors
                 ,
                 Processmay
                 proceed
                 upon
                 the
                 Arrestment
                 ,
                 Feb.
                 19.
                 1669
                 
                 :
                 
                   Isobel
                   Glen
                
                 contra
                 
                   John
                   Home
                   .
                   Jan.
                
                 22.
                 1681.
                 
                 
                   James
                   Riddel
                
                 contra
                 Mr.
                 
                   William
                   Maxwel
                
                 .
              
               
                 As
                 to
                 the
                 effect
                 and
                 extent
                 of
                 Arrestments
                 ,
                 they
                 can
                 only
                 be
                 laid
                 on
                 ,
                 and
                 affect
                 moveable
                 goods
                 or
                 moveable
                 debts
                 ,
                 and
                 can
                 only
                 be
                 made
                 use
                 of
                 for
                 satisfying
                 of
                 moveable
                 debts
                 (
                 what
                 rights
                 are
                 moveable
                 and
                 what
                 heretable
                 ,
                 hath
                 been
                 shown
                 in
                 the
                 Title
                 
                   real
                   rights
                
                 )
                 wherein
                 by
                 heretable
                 ,
                 not
                 only
                 these
                 are
                 understood
                 ,
                 which
                 are
                 properly
                 so
                 by
                 Infeftment
                 ,
                 but
                 also
                 such
                 sums
                 and
                 deeds
                 ,
                 as
                 are
                 by
                 destination
                 such
                 ,
                 as
                 bearing
                 obliegement
                 for
                 Infeftment
                 or
                 Annualrent
                 ,
                 even
                 though
                 the
                 Bond
                 did
                 bear
                 no
                 Clause
                 of
                 requisition
                 ;
                 yet
                 it
                 did
                 bear
                 Annualrent
                 ,
                 Arrestment
                 ,
                 or
                 Appryzing
                 ,
                 had
                 been
                 found
                 null
                 thereupon
                 ,
                 unless
                 it
                 had
                 been
                 made
                 moveable
                 by
                 a
                 Charge
                 ,
                 July
                 20.
                 1622.
                 
                 
                   John
                   Cranstoun
                
                 contra
                 Laird
                 of
                 Eastnisbit
                 .
                 The
                 like
                 ,
                 Hope
                 Obligations
                 ,
                 
                   Alexander
                   Morison
                
                 contra
                 Creditors
                 of
                 
                   John
                   Richardson
                   .
                   John
                   Cranstoun
                
                 contra
                 Laird
                 of
                 Lugtoun
                 ,
                 Yet
                 the
                 contrary
                 hath
                 also
                 been
                 found
                 in
                 Bonds
                 ,
                 bearing
                 Annualrent
                 without
                 Clause
                 of
                 requisition
                 ,
                 that
                 Poinding
                 ,
                 Arrestment
                 and
                 Appryzing
                 ,
                 might
                 proceed
                 without
                 a
                 Charge
                 ,
                 July
                 10.
                 1629.
                 
                 Laird
                 of
                 Clakmannan
                 contra
                 
                   Barronnie
                   .
                   Jan.
                
                 25.
                 1642.
                 
                 Johnstoun
                 contra
                 
                   James
                   Lotch
                
                 :
                 But
                 the
                 matter
                 is
                 now
                 cleared
                 by
                 the
                 Act
                 of
                 Par.
                 1644.
                 cap.
                 41.
                 renewed
                 ,
                 Par.
                 1661.
                 cap.
                 51.
                 declaring
                 that
                 all
                 Bonds
                 and
                 Sums
                 ,
                 though
                 bearing
                 Annualrent
                 ,
                 are
                 Arrestable
                 at
                 the
                 Instance
                 of
                 any
                 Creditor
                 of
                 that
                 person
                 ,
                 if
                 Infeftment
                 hath
                 not
                 past
                 actually
                 thereupon
                 ;
                 yet
                 a
                 sum
                 whereupon
                 Appryzing
                 had
                 followed
                 ,
                 was
                 found
                 not
                 to
                 be
                 Arrestable
                 by
                 the
                 Appryzers
                 Creditor
                 ;
                 and
                 therefore
                 ,
                 an
                 Appryzer
                 from
                 that
                 prior
                 Appryzer
                 ,
                 though
                 posterior
                 to
                 the
                 Arrester
                 ,
                 was
                 preferred
                 Feb.
                 22.
                 1666.
                 
                 Lockhart
                 contra
                 Lord
                 Bargonzie
                 .
                 And
                 though
                 they
                 do
                 not
                 so
                 clearly
                 determine
                 upon
                 what
                 Bonds
                 Arrestment
                 may
                 proceed
                 ,
                 as
                 against
                 what
                 Bonds
                 or
                 sums
                 it
                 may
                 proceed
                 :
                 yet
                 it
                 bears
                 equally
                 for
                 satisfying
                 of
                 any
                 debt
                 ,
                 which
                 though
                 it
                 cannot
                 be
                 extended
                 to
                 Heretable
                 debt
                 ,
                 upon
                 which
                 actual
                 Infeftment
                 ,
                 is
                 till
                 they
                 be
                 made
                 moveable
                 ,
                 yet
                 ought
                 to
                 be
                 extended
                 to
                 all
                 other
                 moveable
                 debts
                 ,
                 upon
                 which
                 Infeftment
                 hath
                 not
                 followed
                 ,
                 that
                 
                   a
                   pari
                
                 ,
                 as
                 such
                 debts
                 are
                 Arrestable
                 without
                 a
                 Charge
                 ,
                 so
                 may
                 they
                 be
                 Arrested
                 for
                 satisfying
                 of
                 the
                 like
                 debt
                 ,
                 without
                 a
                 Charge
                 upon
                 the
                 debt
                 to
                 be
                 satisfied
                 ,
                 more
                 then
                 upon
                 the
                 debt
                 arrested
                 for
                 satisfying
                 thereof
                 .
              
               
                 27.
                 
                 Though
                 no
                 Heretable
                 right
                 ,
                 upon
                 which
                 Infeftment
                 hath
                 past
                 ,
                 can
                 be
                 arrested
                 till
                 it
                 be
                 made
                 Moveable
                 :
                 Yet
                 the
                 rents
                 and
                 profites
                 thereof
                 ,
                 are
                 Arrestable
                 and
                 moveable
                 ,
                 December
                 15.
                 1630.
                 
                 Ogilbie
                 contra
                 Lord
                 Ogilbie
                 .
              
               
               
                 28.
                 
                 And
                 so
                 are
                 the
                 bygones
                 of
                 an
                 Annualrent
                 ,
                 constitute
                 by
                 Infeftment
                 ,
                 for
                 these
                 bygones
                 are
                 as
                 to
                 all
                 effects
                 moveable
                 ,
                 though
                 the
                 right
                 it self
                 is
                 heretable
                 ,
                 as
                 Fruits
                 falling
                 from
                 a
                 Tree
                 are
                 moveable
                 ,
                 though
                 the
                 Tree
                 be
                 not
                 .
              
               
                 29.
                 
                 Yea
                 ,
                 Arrestment
                 of
                 Annualrents
                 ,
                 or
                 Mails
                 and
                 Duties
                 ,
                 is
                 effectual
                 ,
                 though
                 laid
                 on
                 before
                 the
                 Term
                 ,
                 if
                 the
                 Debitor
                 to
                 whom
                 they
                 belong
                 were
                 not
                 denuded
                 thereof
                 before
                 the
                 Term
                 ,
                 the
                 Term
                 being
                 current
                 when
                 it
                 was
                 laid
                 on
                 ,
                 March
                 28.
                 1624.
                 
                 Brown
                 contra
                 Jan.
                 15.
                 1628.
                 
                 Hamiltoun
                 contra
                 Falconer
                 :
                 where
                 it
                 was
                 found
                 that
                 the
                 Arrestment
                 did
                 only
                 extend
                 to
                 the
                 Term
                 current
                 against
                 an
                 Assigney
                 ,
                 though
                 not
                 intimating
                 till
                 long
                 after
                 ,
                 seing
                 he
                 was
                 a
                 singular
                 successor
                 ,
                 and
                 had
                 attained
                 payment
                 of
                 some
                 Terms
                 Annualrent
                 prior
                 to
                 the
                 Arrestment
                 ;
                 but
                 it
                 will
                 not
                 extend
                 beyond
                 the
                 subsequent
                 Term
                 ,
                 where
                 the
                 Rent
                 is
                 payed
                 Termly
                 ,
                 as
                 in
                 silver
                 rents
                 ,
                 Hope
                 arrestments
                 ,
                 Mr.
                 
                   Roger
                   Mowat
                
                 contra
                 
                   Walter
                   Dick.
                
                 Otherways
                 it
                 will
                 extend
                 to
                 the
                 whole
                 year
                 ,
                 in
                 which
                 it
                 was
                 laid
                 on
                 ,
                 as
                 in
                 Ferms
                 ,
                 which
                 are
                 payed
                 together
                 ,
                 Ibid.
                 Thomson
                 contra
                 Captain
                 Wishart
                 .
                 Yea
                 ,
                 an
                 arrestment
                 of
                 rent
                 laid
                 on
                 before
                 the
                 Term
                 ,
                 was
                 preserred
                 to
                 a
                 posterior
                 appryzing
                 ,
                 not
                 having
                 Infeftment
                 before
                 that
                 Term
                 ,
                 July
                 2.
                 1667.
                 
                 
                   William
                   Litster
                
                 contra
                 Aitoun
                 and
                 Slich
                 .
                 And
                 an
                 arrestment
                 laid
                 on
                 ,
                 
                   currente
                   termino
                
                 ,
                 was
                 preferred
                 to
                 a
                 posterior
                 assignation
                 to
                 that
                 Term
                 ,
                 July
                 27.
                 1673.
                 
                 Creditors
                 of
                 
                   Andrew
                   Scot
                
                 compeating
                 ,
                 arrestment
                 is
                 also
                 valid
                 ,
                 being
                 laid
                 on
                 upon
                 sums
                 before
                 the
                 Term
                 of
                 payment
                 ,
                 Feb.
                 21.
                 1624.
                 
                 Brown
                 contra
                 Laird
                 of
                 
                   Johnstoun
                   ,
                   eodem
                   die
                   ,
                   Rentoun
                
                 contra
                 Atcheson
                 .
                 But
                 in
                 all
                 these
                 ,
                 the
                 execution
                 was
                 superceded
                 till
                 the
                 Terms
                 of
                 payment
                 of
                 the
                 arrested
                 sums
                 were
                 payed
                 ,
                 July
                 3.
                 1628.
                 
                 Scot
                 contra
                 Laird
                 of
                 Drumlanrig
                 .
                 Yet
                 arrestments
                 ought
                 not
                 to
                 be
                 laid
                 on
                 for
                 satisfying
                 of
                 debts
                 ,
                 whereof
                 the
                 Term
                 of
                 payment
                 is
                 not
                 come
                 ;
                 Therefore
                 ,
                 such
                 an
                 arrestment
                 was
                 excluded
                 by
                 an
                 arrestment
                 posterior
                 ,
                 which
                 was
                 laid
                 one
                 for
                 satisfying
                 a
                 sum
                 ,
                 whereof
                 the
                 Term
                 of
                 payment
                 was
                 come
                 ,
                 when
                 it
                 was
                 laid
                 on
                 ,
                 July
                 17.
                 1678.
                 
                 Lord
                 Pitmaiden
                 contra
                 William
                 and
                 
                   Robert
                   patersons
                
                 .
                 Yea
                 ,
                 it
                 was
                 extended
                 to
                 the
                 price
                 of
                 Lands
                 ,
                 though
                 laid
                 on
                 before
                 Write
                 ,
                 but
                 after
                 agreement
                 ,
                 Hope
                 arrestment
                 Lord
                 Dalhousie
                 contra
              
               
                 30.
                 
                 Neither
                 was
                 arrestment
                 effectual
                 ,
                 being
                 only
                 laid
                 on
                 in
                 the
                 hands
                 of
                 the
                 debitors
                 Factor
                 ,
                 and
                 not
                 in
                 their
                 own
                 hands
                 for
                 making
                 the
                 same
                 forthcoming
                 for
                 payment
                 of
                 his
                 debt
                 to
                 whom
                 it
                 was
                 due
                 ;
                 because
                 Factors
                 are
                 not
                 Debitors
                 but
                 their
                 Constituents
                 ,
                 Hope
                 arrestment
                 ,
                 
                   William
                   Muirhead
                
                 and
                 Mcmichael
                 contra
                 
                   William
                   Wallace
                
                 .
              
               
                 31.
                 
                 Arrestments
                 have
                 never
                 been
                 extended
                 to
                 future
                 Debts
                 or
                 Goods
                 for
                 arrestments
                 ,
                 both
                 by
                 their
                 name
                 and
                 nature
                 ,
                 do
                 only
                 stop
                 the
                 Debitors
                 goods
                 or
                 debts
                 arrested
                 ,
                 to
                 remain
                 in
                 the
                 same
                 condition
                 they
                 were
                 in
                 when
                 arrested
                 ,
                 till
                 Caution
                 be
                 found
                 ,
                 or
                 Sentence
                 be
                 obtained
                 for
                 making
                 forthcoming
                 .
                 But
                 Inhibitions
                 do
                 prohibite
                 the
                 party
                 inhibite
                 ,
                 and
                 whole
                 Lieges
                 to
                 buy
                 from
                 the
                 person
                 inhibite
                 ,
                 till
                 the
                 debt
                 be
                 satisfied
                 ,
                 which
                 is
                 absolute
                 ,
                 and
                 extends
                 against
                 all
                 buying
                 or
                 blocking
                 with
                 the
                 inhibite
                 ,
                 whether
                 
                   pro
                   acquisitis
                
                 ,
                 or
                 acquirendis
                 .
              
               
                 32.
                 
                 Arrestment
                 orderly
                 laid
                 on
                 ,
                 renders
                 the
                 thing
                 litigious
                 ,
                 so
                 that
                 an
                 Assignation
                 made
                 thereto
                 ,
                 though
                 to
                 a
                 Creditor
                 thereafter
                 ,
                 hinders
                 not
                 the
                 arrester
                 to
                 prove
                 the
                 debt
                 by
                 the
                 Cedents
                 oath
                 ,
                 Decemb.
                 10.
                 1623.
                 
                 Dowglas
                 contra
                 Belshes
                 .
              
               
               
                 33.
                 
                 As
                 to
                 the
                 second
                 point
                 proposed
                 ,
                 concerning
                 the
                 lousing
                 of
                 arrestments
                 ,
                 it
                 hath
                 been
                 said
                 before
                 ,
                 that
                 the
                 intent
                 of
                 arrestment
                 ,
                 is
                 the
                 satisfaction
                 of
                 the
                 arresters
                 debts
                 ,
                 by
                 the
                 action
                 ,
                 for
                 making
                 forthcoming
                 ,
                 which
                 is
                 a
                 judicial
                 Assignation
                 to
                 him
                 ,
                 of
                 that
                 which
                 is
                 arrested
                 ,
                 or
                 otherways
                 by
                 security
                 ,
                 when
                 he
                 whose
                 goods
                 or
                 sums
                 are
                 arrested
                 ,
                 findeth
                 Caution
                 ,
                 and
                 thereby
                 louseth
                 the
                 arrestment
                 ,
                 which
                 is
                 done
                 by
                 supplication
                 to
                 the
                 Lords
                 ,
                 and
                 their
                 deliverance
                 ,
                 which
                 of
                 old
                 ,
                 gave
                 warrand
                 to
                 the
                 Messenger
                 to
                 receive
                 Caution
                 ,
                 and
                 louse
                 the
                 arrestment
                 ;
                 but
                 is
                 well
                 amended
                 by
                 the
                 Act
                 of
                 Par.
                 1617.
                 cap.
                 17.
                 annulling
                 that
                 way
                 of
                 lousing
                 arrestments
                 ,
                 and
                 ordaining
                 Caution
                 to
                 be
                 found
                 in
                 the
                 Books
                 of
                 Session
                 ,
                 before
                 giving
                 out
                 of
                 the
                 Letters
                 ,
                 which
                 are
                 not
                 effectual
                 ,
                 when
                 the
                 arrestment
                 proceeds
                 upon
                 a
                 Decreet
                 ;
                 and
                 therefore
                 ,
                 the
                 Letters
                 express
                 the
                 arrestment
                 to
                 be
                 loused
                 ,
                 unless
                 it
                 proceed
                 upon
                 a
                 Decreet
                 .
              
               
                 34.
                 
                 But
                 if
                 the
                 arrestment
                 proceed
                 upon
                 production
                 of
                 the
                 principal
                 Bond
                 unregistrate
                 ,
                 there
                 being
                 then
                 no
                 Decreet
                 of
                 Registration
                 ,
                 it
                 may
                 be
                 loused
                 ,
                 Feb.
                 7.
                 1665.
                 
                 
                   David
                   Graham
                
                 contra
                 
                   George
                   Bruce
                
                 and
                 Doctor
                 Martine
                 :
                 Or
                 if
                 the
                 Decreet
                 be
                 turned
                 in
                 a
                 Lybel
                 ,
                 June
                 30.
                 1675.
                 
                 
                   James
                   Murray
                
                 contra
                 
                   John
                   Hall
                
                 :
                 Or
                 if
                 the
                 Arrestment
                 was
                 laid
                 on
                 after
                 the
                 Decreet
                 was
                 suspended
                 ?
                 Or
                 if
                 the
                 Term
                 of
                 payment
                 of
                 the
                 sum
                 ,
                 for
                 which
                 it
                 was
                 laid
                 on
                 was
                 to
                 come
                 ,
                 Nov.
                 4.
                 1675.
                 
                 Mosman
                 supplicant
                 :
                 Or
                 upon
                 Consignation
                 of
                 the
                 sum
                 arrested
                 for
                 ,
                 June
                 18.
                 1675.
                 
                 Hamiltoun
                 supplicant
                 :
                 Or
                 when
                 the
                 Decreet
                 upon
                 which
                 the
                 arrestment
                 was
                 raised
                 ,
                 was
                 turned
                 to
                 a
                 Lybel
                 ,
                 June
                 30.
                 1675.
                 
                 
                   James
                   Murray
                
                 contra
                 
                   John
                   Hall.
                
                 But
                 when
                 the
                 arrestment
                 was
                 upon
                 a
                 dependence
                 ,
                 though
                 the
                 Decreet
                 proceeded
                 upon
                 the
                 dependence
                 before
                 the
                 lousing
                 of
                 the
                 arrestment
                 ;
                 yet
                 it
                 was
                 found
                 ,
                 the
                 arrestment
                 was
                 loused
                 upon
                 Caution
                 ,
                 June
                 9.
                 1674.
                 
                 Sibbald
                 of
                 Rankillor
                 contra
                 Sibbald
                 his
                 Son.
                 
              
               
                 In
                 lousing
                 arrestments
                 ,
                 no
                 Juratory
                 Caution
                 was
                 admitted
                 ,
                 July
                 16.
                 1661.
                 
                 Colledge
                 of
                 St.
                 Andrews
                 supplicant
                 .
              
               
                 35.
                 
                 Arrestment
                 being
                 loused
                 ,
                 the
                 party
                 in
                 whose
                 hands
                 it
                 was
                 made
                 ,
                 is
                 fred
                 of
                 the
                 action
                 following
                 thereupon
                 ,
                 and
                 may
                 safely
                 pay
                 the
                 sum
                 ,
                 or
                 deliver
                 the
                 goods
                 arrested
                 to
                 the
                 louser
                 of
                 the
                 arrestment
                 ,
                 June
                 21.
                 1626.
                 
                 Balmerino
                 contra
                 
                   Lochinvar
                   ,
                   Hope
                
                 arrestment
                 ,
                 Gordoun
                 contra
                 Brown.
                 But
                 if
                 the
                 sum
                 remain
                 unpayed
                 ,
                 the
                 Arrester
                 may
                 proceed
                 against
                 the
                 person
                 in
                 whose
                 hands
                 he
                 arrested
                 ,
                 Feb.
                 7.
                 1665.
                 
                 Graham
                 contra
                 Bruce
                 .
                 In
                 this
                 case
                 the
                 Debitor
                 who
                 loused
                 the
                 arrestment
                 ,
                 had
                 granted
                 Assignation
                 to
                 the
                 Debt
                 arrested
                 ;
                 yet
                 the
                 arrester
                 was
                 preferred
                 to
                 the
                 Assigney
                 ,
                 in
                 respect
                 the
                 Caution
                 is
                 insufficient
                 ordinarly
                 ,
                 which
                 comes
                 in
                 the
                 place
                 of
                 arrestments
                 .
              
               
                 Upon
                 arrestment
                 there
                 ariseth
                 two
                 actions
                 to
                 the
                 arrester
                 ,
                 the
                 one
                 is
                 against
                 the
                 Cautioner
                 ,
                 found
                 in
                 lousing
                 arrestment
                 ;
                 the
                 other
                 against
                 the
                 person
                 in
                 whose
                 hands
                 the
                 arrestment
                 was
                 made
                 .
              
               
                 36.
                 
                 The
                 other
                 action
                 for
                 making
                 sums
                 or
                 goods
                 arrested
                 forthcoming
                 ,
                 is
                 ordinary
                 ;
                 and
                 for
                 understanding
                 the
                 requisites
                 of
                 it
                 ,
                 it
                 would
                 be
                 adverted
                 ,
                 that
                 arrestment
                 may
                 be
                 raised
                 upon
                 production
                 of
                 the
                 principal
                 bond
                 ,
                 without
                 Decreet
                 or
                 dependence
                 ,
                 March
                 5.
                 1628.
                 
                 Binnie
                 contra
                 
                   Ross
                   :
                   Feb.
                
                 7.
                 1665.
                 
                 Graham
                 contra
                 
                   Bruce
                   .
                   Hope
                
                 arrestment
                 ,
                 Thomson
                 contra
                 Mcmorran
                 .
                 Secondly
                 ,
                 It
                 may
                 be
                 raised
                 upon
                 an
                 action
                 depending
                 .
                 Thirdly
                 ,
                 Upon
                 a
                 Decreet
                 obtained
                 against
                 the
                 Debitor
                 ,
                 whose
                 sums
                 are
                 arrested
                 :
                 But
                 there
                 can
                 be
                 no
                 process
                 for
                 making
                 forthcoming
                 ,
                 till
                 the
                 debt
                 be
                 Liquidat
                 and
                 established
                 by
                 a
                 Decreet
                 at
                 the
                 Arresters
                 Instance
                 ,
                 against
                 him
                 whose
                 goods
                 or
                 sums
                 are
                 arrested
                 ,
                 
                 or
                 against
                 some
                 representing
                 him
                 ,
                 which
                 was
                 so
                 done
                 ,
                 though
                 the
                 principal
                 Parties
                 Advocat
                 compeared
                 and
                 consented
                 ,
                 March.
                 13.
                 1628.
                 
                 Somervel
                 contra
                 
                   Herriot
                   .
                   Hope
                
                 transferring
                 ,
                 Laird
                 of
                 Lamingtoun
                 contra
                 Sir
                 
                   James
                   Durham
                
                 .
                 And
                 if
                 that
                 party
                 dy
                 before
                 the
                 Decreet
                 for
                 making
                 forthcoming
                 ,
                 the
                 Decreet
                 must
                 be
                 transferred
                 against
                 these
                 representing
                 him
                 :
                 But
                 if
                 none
                 will
                 enter
                 to
                 be
                 Heir
                 ,
                 or
                 Executor
                 to
                 him
                 ,
                 but
                 renunce
                 ;
                 yet
                 the
                 party
                 that
                 might
                 succeed
                 ,
                 must
                 be
                 called
                 
                   Cegnitionis
                   causa
                   ,
                   Spots
                   .
                   de
                   haereditariis
                   actionibus
                   ,
                   Murray
                
                 contra
                 Dalgleish
                 ;
                 and
                 therefore
                 ,
                 when
                 the
                 arrestment
                 is
                 upon
                 a
                 principal
                 Bond
                 ,
                 or
                 upon
                 a
                 dependence
                 ,
                 the
                 Bond
                 must
                 be
                 regisrate
                 ,
                 or
                 Decreet
                 obtained
                 thereupon
                 ,
                 or
                 upon
                 the
                 dependence
                 before
                 the
                 party
                 in
                 whose
                 hands
                 the
                 arrestment
                 was
                 made
                 ,
                 be
                 oblieged
                 to
                 answer
                 the
                 party
                 whose
                 sums
                 and
                 goods
                 are
                 arrested
                 ,
                 must
                 not
                 only
                 be
                 called
                 
                   in
                   initio
                   litis
                
                 ,
                 but
                 to
                 all
                 the
                 dyers
                 of
                 the
                 Process
                 ,
                 March.
                 17.
                 1637.
                 
                 Captain
                 Stuart
                 contra
                 
                   Iohn
                   Inglis
                
                 .
                 In
                 this
                 Process
                 the
                 arrestment
                 was
                 not
                 found
                 instructed
                 by
                 extracting
                 the
                 Horning
                 ,
                 containing
                 arrestment
                 ,
                 and
                 of
                 the
                 Executions
                 ,
                 but
                 that
                 the
                 principals
                 of
                 both
                 must
                 be
                 produced
                 ,
                 Spots
                 .
                 arrestment
                 ,
                 
                   Stevin
                   Boid
                
                 contra
                 Wilson
                 .
              
               
                 37.
                 
                 As
                 to
                 the
                 Exceptions
                 competent
                 in
                 this
                 action
                 ;
                 First
                 ,
                 it
                 is
                 not
                 competent
                 to
                 the
                 party
                 in
                 whose
                 hands
                 the
                 arrestment
                 was
                 made
                 ,
                 to
                 alledge
                 payment
                 made
                 by
                 the
                 party
                 whose
                 Goods
                 or
                 Sums
                 are
                 arresied
                 ,
                 that
                 being
                 justertij
                 ,
                 competent
                 only
                 to
                 that
                 party
                 himself
                 who
                 must
                 be
                 called
                 ,
                 Decem.
                 21.
                 1621.
                 
                 Mr.
                 
                   Patrick
                   Hamiltoun
                
                 contra
                 Dunlop
                 .
                 Neither
                 will
                 it
                 be
                 relevant
                 to
                 either
                 party
                 to
                 alledge
                 the
                 debt
                 ;
                 whereupon
                 the
                 arrestment
                 is
                 raised
                 ,
                 is
                 suspended
                 ;
                 but
                 the
                 reason
                 of
                 suspension
                 must
                 be
                 repealed
                 by
                 way
                 of
                 defence
                 ,
                 Ian.
                 25.
                 1642.
                 
                 Major
                 Stirling
                 contra
                 Mr.
                 
                   Iames
                   Aikenhead
                
                 .
                 But
                 it
                 will
                 be
                 relevant
                 to
                 alledge
                 that
                 the
                 arrestment
                 is
                 null
                 ,
                 as
                 being
                 execute
                 upon
                 the
                 Sabbath
                 day
                 ,
                 Feb.
                 3.
                 1663.
                 
                 
                   Charles
                   Oliphant
                
                 contra
                 Dowglas
                 :
                 Or
                 that
                 the
                 arrestment
                 not
                 being
                 upon
                 a
                 Decreet
                 ,
                 was
                 loused
                 ;
                 and
                 that
                 the
                 sums
                 are
                 payed
                 :
                 It
                 is
                 also
                 relevant
                 ,
                 that
                 the
                 goods
                 arrested
                 were
                 lawfully
                 poynded
                 by
                 another
                 Creditor
                 of
                 the
                 party
                 to
                 whom
                 they
                 belonged
                 ,
                 because
                 arrestment
                 is
                 but
                 a
                 begun
                 incompleat
                 diligence
                 ,
                 and
                 doth
                 not
                 transmit
                 the
                 right
                 ,
                 till
                 Decreet
                 be
                 obtained
                 thereupon
                 :
                 But
                 others
                 using
                 more
                 compleat
                 diligence
                 will
                 carry
                 the
                 same
                 ,
                 Iune
                 5.
                 1611.
                 
                 Wright
                 contra
                 Thomson
                 and
                 
                   Archibald
                   Dick
                
                 ,
                 which
                 was
                 sustained
                 ,
                 albeit
                 the
                 arrestment
                 was
                 laid
                 on
                 for
                 Excise
                 ,
                 Decem.
                 1679.
                 
                 Forrester
                 contra
                 the
                 Tacksmen
                 of
                 the
                 Excise
                 of
                 Edinburgh
                 :
                 Yea
                 ,
                 though
                 the
                 party
                 in
                 whose
                 hands
                 arrestment
                 was
                 made
                 .
                 suffered
                 the
                 poynder
                 to
                 enter
                 his
                 Cellers
                 ,
                 and
                 poynd
                 the
                 goods
                 arrested
                 ,
                 March
                 11.
                 1635.
                 
                 
                   William
                   Dick
                
                 contra
                 Spence
                 and
                 Thomson
                 .
                 In
                 this
                 case
                 the
                 haver
                 voluntarly
                 opened
                 his
                 Celler
                 by
                 paction
                 with
                 the
                 poynder
                 which
                 was
                 not
                 respected
                 ,
                 seing
                 he
                 refused
                 not
                 entry
                 to
                 the
                 arrester
                 ,
                 if
                 he
                 had
                 demanded
                 it
                 ,
                 Feb.
                 12.
                 1636.
                 
                 Lesly
                 contra
                 Lady
                 Ludquharn
                 .
                 But
                 this
                 exception
                 will
                 be
                 elided
                 by
                 this
                 reply
                 ,
                 that
                 the
                 party
                 in
                 whose
                 hands
                 the
                 arrestment
                 was
                 made
                 ,
                 colluded
                 with
                 the
                 poynder
                 ,
                 and
                 voluntarly
                 exhibited
                 the
                 goods
                 arrested
                 to
                 be
                 poynded
                 ,
                 not
                 being
                 passive
                 therein
                 ,
                 but
                 active
                 to
                 prefer
                 the
                 poynder
                 ,
                 as
                 was
                 formerly
                 found
                 relevant
                 ,
                 Hope
                 arrestment
                 ,
                 Doctor
                 Kinloch
                 contra
                 
                   Halyburtoun
                   .
                   Iames
                   White
                
                 contra
                 
                   Robert
                   Blackater
                   .
                   Ian.
                
                 20.
                 1672.
                 
                 
                   Iohn
                   Bell
                
                 contra
                 Fleming
                 and
                 Watson
                 .
                 It
                 is
                 also
                 a
                 relevant
                 Exception
                 ,
                 that
                 the
                 ground
                 of
                 the
                 arrestment
                 or
                 the
                 sum
                 arrested
                 was
                 Heretable
                 ,
                 before
                 the
                 Act
                 of
                 Par.
                 1664.
                 
                 Or
                 since
                 that
                 Infeftment
                 hath
                 passed
                 upon
                 either
                 ,
                 unlessit
                 be
                 made
                 moveable
                 ;
                 and
                 therefore
                 ,
                 arrestment
                 being
                 laid
                 on
                 upon
                 sums
                 consigned
                 ,
                 for
                 a
                 redemtion
                 was
                 not
                 found
                 effectual
                 till
                 Declarator
                 of
                 redemption
                 pass
                 ,
                 which
                 only
                 makes
                 the
                 sums
                 moveable
                 ;
                 and
                 during
                 the
                 dependance
                 of
                 the
                 redemption
                 ,
                 these
                 sums
                 cannot
                 be
                 arrested
                 ,
                 as
                 belonging
                 to
                 the
                 user
                 of
                 the
                 Order
                 ,
                 because
                 they
                 come
                 in
                 place
                 of
                 the
                 Lands
                 redeemed
                 ,
                 and
                 can
                 belong
                 only
                 to
                 the
                 Wodsetter
                 ,
                 
                 or
                 Appryzer
                 ,
                 or
                 any
                 having
                 right
                 from
                 them
                 to
                 the
                 Lands
                 Wodset
                 ;
                 but
                 after
                 Redemption
                 ,
                 the
                 sum
                 consigned
                 may
                 be
                 arrested
                 and
                 made
                 forthcoming
                 for
                 payment
                 of
                 the
                 Wodsetters
                 debt
                 ,
                 Spots
                 .
                 Arrestment
                 ,
                 Hepburn
                 contra
                 Hay
                 .
                 It
                 is
                 also
                 a
                 competent
                 exception
                 ,
                 that
                 the
                 thing
                 arrested
                 is
                 a
                 proper
                 Aliment
                 ,
                 Expresly
                 Constitute
                 ,
                 and
                 not
                 exceeding
                 the
                 measure
                 of
                 Aliment
                 ,
                 Novem.
                 19.
                 1622.
                 
                 
                   Thomas
                   Donaldson
                
                 contra
                 Kirkaldie
                 and
                 Barclay
                 .
                 And
                 the
                 Fee
                 of
                 a
                 Servant
                 was
                 not
                 found
                 arrestable
                 ,
                 in
                 so
                 far
                 as
                 it
                 was
                 necessary
                 for
                 the
                 service
                 he
                 was
                 in
                 ,
                 but
                 only
                 for
                 the
                 superplus
                 ,
                 more
                 then
                 was
                 necessary
                 for
                 his
                 Aliment
                 in
                 such
                 a
                 service
                 ,
                 July
                 9.
                 1668.
                 
                 
                   Heugh
                   Begg
                
                 contra
                 
                   Robert
                   Davidson
                
                 Preceptor
                 of
                 Heriots
                 Hospital
                 .
                 The
                 like
                 holds
                 in
                 the
                 Kings
                 Pensions
                 and
                 Fees
                 of
                 His
                 publick
                 Ministers
                 ,
                 Lords
                 of
                 Session
                 ,
                 and
                 others
                 which
                 are
                 not
                 arrestable
                 in
                 the
                 Thesaurers
                 hands
                 by
                 Act
                 of
                 Sederunt
                 ,
                 1613.
                 and
                 was
                 so
                 found
                 in
                 the
                 case
                 of
                 Sir
                 
                   Robert
                   Murray
                
                 Justice
                 Clerk
                 ,
                 a
                 part
                 of
                 whose
                 Sallary
                 was
                 arrested
                 ,
                 Feb.
                 8.
                 1662.
                 
              
               
                 38.
                 
                 When
                 pursuits
                 are
                 for
                 making
                 arrested
                 Goods
                 forthcoming
                 ,
                 which
                 are
                 not
                 liquid
                 ,
                 the
                 party
                 in
                 whose
                 hands
                 arrestment
                 was
                 made
                 ,
                 will
                 not
                 be
                 decerned
                 for
                 making
                 forthcoming
                 a
                 liquid
                 sum
                 for
                 the
                 price
                 :
                 But
                 if
                 he
                 offer
                 the
                 Goods
                 
                   ipsa
                   corpora
                
                 ,
                 the
                 Decreet
                 will
                 contain
                 a
                 Warrand
                 to
                 the
                 Magistrates
                 of
                 the
                 place
                 to
                 rope
                 the
                 Goods
                 arrested
                 ,
                 that
                 the
                 price
                 thereof
                 may
                 be
                 delivered
                 to
                 the
                 arrester
                 ,
                 Novem.
                 12.
                 1680.
                 
                 Stevinson
                 contra
                 Sir
                 
                   John
                   Paul.
                
                 
              
               
                 Appryzing
                 and
                 Adjudication
                 of
                 Heretable
                 sums
                 ,
                 whereupon
                 Infeftment
                 hath
                 not
                 followed
                 ,
                 being
                 little
                 in
                 use
                 ,
                 though
                 competent
                 since
                 the
                 Act
                 of
                 Parliament
                 ,
                 1644.
                 
                 We
                 shall
                 say
                 no
                 more
                 of
                 it
                 in
                 this
                 place
                 ,
                 but
                 as
                 we
                 have
                 considered
                 these
                 several
                 ways
                 of
                 Transmission
                 of
                 Personal
                 Rights
                 severally
                 ;
                 we
                 shall
                 now
                 consider
                 them
                 joyntly
                 as
                 they
                 fall
                 in
                 competition
                 ,
                 for
                 preference
                 amongst
                 themselves
                 ,
                 and
                 each
                 with
                 others
                 .
              
               
                 39.
                 
                 In
                 these
                 Competitions
                 it
                 must
                 be
                 considered
                 that
                 arrestment
                 doth
                 constitute
                 no
                 Right
                 in
                 the
                 Arrester
                 ,
                 but
                 is
                 only
                 a
                 legal
                 Prohibition
                 to
                 alter
                 the
                 condition
                 of
                 the
                 thing
                 arrested
                 ,
                 and
                 to
                 pay
                 or
                 deliver
                 the
                 same
                 to
                 the
                 Arresters
                 debitor
                 ;
                 but
                 that
                 it
                 may
                 remain
                 in
                 his
                 hand
                 for
                 satisfaction
                 of
                 the
                 debt
                 arrested
                 for
                 :
                 And
                 it
                 is
                 only
                 general
                 arresting
                 all
                 sums
                 of
                 Money
                 or
                 Goods
                 ,
                 in
                 the
                 hands
                 of
                 the
                 party
                 in
                 whose
                 hands
                 it
                 is
                 laid
                 on
                 ,
                 due
                 or
                 belonging
                 to
                 the
                 arresters
                 debitor
                 ,
                 for
                 satisfying
                 of
                 the
                 debt
                 whereupon
                 the
                 arrestment
                 proceeded
                 ;
                 and
                 therefore
                 ,
                 cannot
                 be
                 of
                 more
                 effect
                 ,
                 then
                 a
                 denunciation
                 of
                 Lands
                 to
                 be
                 appryzed
                 ,
                 or
                 a
                 Citation
                 on
                 a
                 summonds
                 of
                 Adjudication
                 ;
                 and
                 therefore
                 ,
                 doth
                 Constitute
                 or
                 Transfer
                 no
                 Right
                 ,
                 but
                 is
                 a
                 legal
                 diligence
                 ,
                 rendering
                 the
                 subject
                 matter
                 arrested
                 litigious
                 ,
                 so
                 that
                 the
                 party
                 in
                 whose
                 hands
                 the
                 arrestment
                 is
                 made
                 ,
                 cannot
                 alter
                 any
                 sums
                 or
                 debts
                 belonging
                 to
                 that
                 debitor
                 in
                 prejudice
                 of
                 the
                 debt
                 arrested
                 for
                 ,
                 until
                 the
                 Arrestment
                 be
                 loused
                 ,
                 and
                 Caution
                 found
                 for
                 the
                 debt
                 or
                 Decreet
                 ,
                 absolvitor
                 or
                 declarator
                 be
                 obtained
                 ,
                 excluding
                 the
                 arrestment
                 :
                 And
                 if
                 he
                 do
                 any
                 thing
                 in
                 the
                 contrary
                 ,
                 it
                 infers
                 breach
                 of
                 Arrestment
                 ,
                 confiscating
                 his
                 Moveables
                 ,
                 and
                 he
                 is
                 lyable
                 ,
                 as
                 if
                 the
                 sums
                 or
                 goods
                 remained
                 in
                 his
                 hand
                 ,
                 
                   pro
                   possessore
                   habetur
                   qui
                   dolo
                   desiit
                   possidere
                   :
                
                 And
                 though
                 the
                 Arrestment
                 have
                 no
                 intimation
                 to
                 the
                 Arresters
                 debitor
                 ,
                 or
                 any
                 of
                 his
                 Creditors
                 ;
                 yet
                 if
                 any
                 of
                 them
                 recover
                 the
                 sums
                 or
                 goods
                 arrested
                 by
                 the
                 Collusion
                 or
                 neglect
                 of
                 the
                 party
                 ,
                 in
                 whose
                 hands
                 arrestment
                 is
                 made
                 ,
                 he
                 will
                 still
                 remain
                 lyable
                 ;
                 and
                 if
                 he
                 have
                 not
                 acted
                 
                   bona
                   fide
                
                 ,
                 he
                 will
                 incur
                 the
                 breach
                 of
                 arrestment
                 ;
                 as
                 if
                 by
                 Collusion
                 and
                 gratification
                 ,
                 he
                 or
                 his
                 procurator
                 (
                 whose
                 deed
                 
                 will
                 be
                 presumed
                 his
                 )
                 oppose
                 the
                 arrester
                 ,
                 and
                 procure
                 delay
                 to
                 compear
                 ,
                 and
                 depone
                 and
                 acknowledge
                 the
                 debt
                 ,
                 or
                 he
                 holden
                 as
                 confest
                 to
                 another
                 arrester
                 ;
                 neither
                 will
                 he
                 be
                 liberat
                 by
                 offering
                 his
                 oath
                 ,
                 that
                 he
                 gave
                 no
                 such
                 Warrand
                 ,
                 for
                 the
                 imploying
                 a
                 Procurator
                 is
                 a
                 sufficient
                 Warrand
                 for
                 all
                 the
                 common
                 course
                 of
                 Process
                 ,
                 and
                 requires
                 no
                 special
                 mandat
                 :
                 Yea
                 ,
                 if
                 he
                 pay
                 or
                 deliver
                 to
                 any
                 other
                 arrester
                 ,
                 or
                 even
                 be
                 poynded
                 upon
                 a
                 Decreet
                 at
                 his
                 instance
                 ,
                 he
                 will
                 not
                 be
                 liberate
                 ,
                 seing
                 he
                 ought
                 to
                 have
                 raised
                 a
                 Process
                 of
                 multiple
                 poinding
                 ,
                 calling
                 the
                 debitor
                 and
                 all
                 the
                 arresters
                 or
                 assigneys
                 to
                 dispute
                 their
                 several
                 rights
                 ,
                 that
                 once
                 payment
                 to
                 the
                 party
                 ,
                 found
                 to
                 have
                 best
                 right
                 ,
                 might
                 liberate
                 him
                 ;
                 yet
                 if
                 he
                 have
                 payed
                 ,
                 he
                 does
                 thereby
                 without
                 a
                 direct
                 assignation
                 ,
                 come
                 in
                 the
                 place
                 of
                 the
                 party
                 to
                 whom
                 he
                 hath
                 payed
                 ;
                 and
                 if
                 he
                 can
                 show
                 that
                 parties
                 right
                 ,
                 is
                 preferable
                 to
                 the
                 arrester
                 insisting
                 ,
                 he
                 will
                 be
                 heard
                 thereupon
                 .
              
               
                 And
                 unless
                 it
                 be
                 found
                 that
                 he
                 proceeded
                 warrantably
                 ,
                 not
                 only
                 will
                 he
                 be
                 decerned
                 to
                 make
                 forthcoming
                 ,
                 though
                 it
                 infer
                 double
                 payment
                 ;
                 but
                 he
                 to
                 whom
                 he
                 payed
                 unwarrantably
                 ,
                 will
                 be
                 compelled
                 to
                 restore
                 and
                 satisfie
                 the
                 arrester
                 ,
                 the
                 subject
                 having
                 been
                 litigious
                 by
                 his
                 arrestment
                 ,
                 before
                 the
                 other
                 party
                 recovered
                 the
                 same
                 ,
                 albeit
                 he
                 have
                 recovered
                 payment
                 ,
                 
                   bona
                   fide
                
                 ,
                 without
                 any
                 fault
                 in
                 him
                 ,
                 but
                 by
                 the
                 litigiousness
                 of
                 the
                 subject
                 ;
                 For
                 payment
                 made
                 bonafide
                 ,
                 with
                 a
                 preferable
                 Right
                 ,
                 relieveth
                 only
                 the
                 payer
                 ,
                 who
                 was
                 or
                 might
                 have
                 been
                 compelled
                 to
                 pay
                 ,
                 being
                 conscious
                 of
                 no
                 other
                 Right
                 :
                 For
                 it
                 is
                 not
                 relevant
                 for
                 the
                 party
                 obtaining
                 payment
                 ,
                 
                   bona
                   fide
                
                 ;
                 nor
                 will
                 that
                 ground
                 of
                 Law
                 secure
                 him
                 ,
                 
                   qui
                   suum
                   recipit
                   ,
                   licet
                   a
                   non
                   debitore
                   non
                   tenetur
                   restituere
                   ,
                
                 which
                 holds
                 only
                 in
                 voluntary
                 payments
                 ,
                 
                   a
                   non
                   debitore
                
                 ,
                 and
                 where
                 the
                 subject
                 is
                 not
                 litigious
                 .
              
               
                 Upon
                 the
                 same
                 ground
                 ,
                 albeit
                 the
                 party
                 in
                 whose
                 hands
                 arrestment
                 is
                 made
                 ,
                 collude
                 not
                 ,
                 but
                 do
                 equally
                 passive
                 ,
                 or
                 equally
                 oppose
                 the
                 Competitors
                 :
                 Yet
                 if
                 the
                 debitor
                 collude
                 and
                 propone
                 Defences
                 against
                 some
                 of
                 the
                 Competitors
                 ,
                 and
                 not
                 equally
                 against
                 all
                 ,
                 and
                 thereby
                 procure
                 delay
                 ,
                 and
                 Terms
                 to
                 prove
                 ,
                 if
                 he
                 succumb
                 ,
                 though
                 another
                 pursuing
                 in
                 a
                 several
                 Process
                 ,
                 before
                 the
                 same
                 or
                 different
                 Judge
                 ,
                 obtain
                 Decreet
                 and
                 payment
                 thereupon
                 ,
                 yet
                 he
                 will
                 be
                 necessitate
                 to
                 refound
                 ,
                 if
                 he
                 had
                 not
                 a
                 preferable
                 Right
                 .
              
               
                 41.
                 
                 If
                 the
                 party
                 in
                 whose
                 hands
                 arrestment
                 was
                 made
                 ,
                 appear
                 and
                 offer
                 to
                 depone
                 ,
                 if
                 the
                 pursuer
                 suffer
                 him
                 to
                 depone
                 generally
                 ,
                 that
                 the
                 time
                 of
                 the
                 arrestment
                 he
                 had
                 neither
                 Goods
                 nor
                 Sums
                 belonging
                 to
                 the
                 Debitor
                 in
                 his
                 hands
                 ,
                 the
                 arrester
                 will
                 not
                 ,
                 
                   ex
                   intervallo
                
                 ,
                 obtain
                 him
                 to
                 be
                 more
                 particularly
                 interrogate
                 ,
                 
                   ad
                   vitandam
                   frandem
                   &
                   perjurium
                
                 ;
                 but
                 if
                 before
                 ,
                 or
                 at
                 his
                 oath
                 given
                 in
                 general
                 ,
                 there
                 be
                 special
                 interrogators
                 offered
                 by
                 the
                 party
                 or
                 the
                 Judge
                 ,
                 whether
                 at
                 any
                 time
                 in
                 his
                 hands
                 ,
                 sums
                 or
                 goods
                 belonging
                 to
                 the
                 arresters
                 Debitor
                 ,
                 and
                 how
                 ,
                 and
                 when
                 he
                 satisfied
                 or
                 delivered
                 the
                 same
                 ,
                 he
                 will
                 be
                 holden
                 as
                 confest
                 ,
                 unless
                 he
                 depone
                 particularly
                 that
                 he
                 be
                 not
                 his
                 own
                 Judge
                 ,
                 as
                 to
                 the
                 time
                 when
                 he
                 was
                 due
                 ,
                 or
                 when
                 he
                 ceassed
                 to
                 be
                 due
                 ;
                 For
                 he
                 may
                 pretend
                 or
                 imagine
                 ,
                 that
                 the
                 time
                 of
                 the
                 arrestment
                 ,
                 he
                 was
                 not
                 debitor
                 ,
                 because
                 he
                 had
                 payed
                 to
                 an
                 Assigney
                 ,
                 whose
                 Assignation
                 was
                 prior
                 to
                 the
                 arrestment
                 ,
                 albeit
                 intimation
                 was
                 not
                 prior
                 ,
                 though
                 he
                 had
                 promised
                 payment
                 before
                 intimation
                 ,
                 yet
                 he
                 could
                 not
                 thereupon
                 have
                 been
                 compelled
                 to
                 pay
                 it
                 ,
                 if
                 before
                 payment
                 an
                 arrestment
                 had
                 interveened
                 ,
                 because
                 his
                 promise
                 could
                 be
                 but
                 understood
                 
                 to
                 be
                 according
                 to
                 the
                 parties
                 Right
                 '
                 to
                 whom
                 he
                 promised
                 ,
                 which
                 he
                 could
                 not
                 quarrel
                 ;
                 but
                 if
                 another
                 did
                 exclude
                 that
                 party
                 ,
                 he
                 could
                 not
                 be
                 lyable
                 to
                 double
                 payment
                 ,
                 albeit
                 he
                 had
                 given
                 a
                 Bond
                 of
                 Corroboration
                 ,
                 unlesse
                 the
                 Assigney
                 had
                 offered
                 to
                 intimate
                 ,
                 and
                 he
                 had
                 hindered
                 the
                 same
                 ,
                 as
                 unnecessary
                 ,
                 and
                 promised
                 payment
                 ;
                 for
                 then
                 through
                 his
                 own
                 fraud
                 or
                 fault
                 ,
                 he
                 would
                 be
                 lyable
                 to
                 pay
                 both
                 parties
                 ;
                 and
                 therefore
                 ,
                 the
                 promise
                 of
                 payment
                 was
                 only
                 found
                 relevant
                 to
                 exclude
                 an
                 Arrestment
                 ,
                 after
                 the
                 promise
                 ,
                 to
                 be
                 proven
                 by
                 the
                 Oath
                 ,
                 or
                 Write
                 of
                 the
                 Arrester
                 ,
                 and
                 not
                 of
                 the
                 Promiser
                 ,
                 or
                 party
                 to
                 whom
                 he
                 promised
                 ;
                 yet
                 if
                 the
                 Promise
                 were
                 not
                 so
                 proven
                 ,
                 and
                 thereby
                 the
                 Arrester
                 were
                 preferred
                 ;
                 the
                 party
                 promiser
                 ,
                 in
                 whose
                 hands
                 the
                 Arrestment
                 was
                 made
                 ,
                 was
                 declared
                 free
                 of
                 the
                 promise
                 ,
                 unless
                 there
                 had
                 been
                 Transaction
                 ,
                 or
                 that
                 the
                 promiser
                 had
                 undertaken
                 the
                 hazard
                 ,
                 Mr.
                 
                   James
                   Elphingstoun
                
                 contra
                 
                   George
                   Home
                
                 and
                 the
                 Laird
                 of
                 Steonhope
                 ,
                 December
                 11.
                 1674.
                 
              
               
                 22.
                 
                 That
                 which
                 Transferreth
                 the
                 Right
                 ,
                 is
                 neither
                 the
                 Arrestment
                 ,
                 the
                 Citation
                 ,
                 nor
                 any
                 thing
                 in
                 Process
                 ,
                 but
                 only
                 the
                 Decreet
                 for
                 making
                 forthcoming
                 ,
                 which
                 is
                 in
                 the
                 same
                 conditions
                 ,
                 as
                 to
                 Subjects
                 ,
                 arrestable
                 as
                 Appryzings
                 ,
                 or
                 Adjudications
                 are
                 to
                 others
                 ,
                 which
                 do
                 not
                 import
                 full
                 satisfaction
                 of
                 the
                 Debt
                 ,
                 and
                 do
                 not
                 fully
                 liberate
                 the
                 Debitor
                 ,
                 but
                 that
                 other
                 diligences
                 may
                 be
                 used
                 for
                 the
                 same
                 debt
                 ,
                 unless
                 he
                 possesse
                 till
                 the
                 legal
                 expyre
                 ;
                 and
                 in
                 the
                 same
                 way
                 after
                 Decreet
                 ,
                 for
                 making
                 forthcoming
                 ,
                 the
                 Arrester
                 may
                 use
                 other
                 Diligences
                 ,
                 but
                 in
                 competition
                 with
                 other
                 Creditors
                 using
                 diligence
                 ,
                 he
                 may
                 not
                 exclude
                 them
                 and
                 keep
                 up
                 his
                 own
                 diligences
                 ,
                 but
                 hath
                 his
                 option
                 thereof
                 .
              
               
                 Seeing
                 the
                 Arrestment
                 maketh
                 the
                 Subject
                 Arrested
                 Litigious
                 ,
                 it
                 hath
                 the
                 common
                 effect
                 necessarly
                 introduced
                 by
                 Law
                 ,
                 
                   in
                   re
                   Litigiosa
                
                 ,
                 that
                 Inchoat
                 diligence
                 cannot
                 be
                 excluded
                 ,
                 either
                 by
                 the
                 voluntary
                 deed
                 of
                 the
                 Debitor
                 ,
                 or
                 by
                 any
                 legal
                 diligence
                 posterior
                 ,
                 unless
                 the
                 user
                 of
                 the
                 first
                 Inchoat
                 diligence
                 become
                 negligent
                 ,
                 
                   Nam
                   vigilantibus
                   ,
                   non
                   dormievtibus
                   jura
                   subveniunt
                   .
                
              
               
                 The
                 application
                 of
                 these
                 Grounds
                 will
                 easily
                 clear
                 the
                 preference
                 in
                 the
                 competition
                 of
                 Arrestments
                 with
                 Assignations
                 ,
                 or
                 of
                 Arrestments
                 with
                 Arrestments
                 .
              
               
                 43.
                 
                 And
                 as
                 to
                 the
                 Competition
                 betwixt
                 Assignations
                 and
                 Arrestments
                 ;
                 an
                 Assignation
                 duely
                 intimate
                 ,
                 is
                 a
                 full
                 and
                 compleat
                 Transmission
                 of
                 the
                 Right
                 assigned
                 ,
                 if
                 by
                 its
                 nature
                 it
                 be
                 assignable
                 ,
                 and
                 thereby
                 the
                 right
                 of
                 the
                 Cedent
                 ceasseth
                 ,
                 and
                 the
                 Assigney
                 becomes
                 Creditor
                 ,
                 and
                 hath
                 no
                 necessity
                 of
                 any
                 further
                 diligence
                 to
                 compleat
                 the
                 Right
                 :
                 Therefore
                 no
                 posterior
                 Arrestment
                 will
                 be
                 preferred
                 to
                 an
                 Assigney
                 ,
                 if
                 the
                 intimation
                 be
                 before
                 the
                 Arrestment
                 ,
                 which
                 is
                 accounted
                 ,
                 not
                 only
                 by
                 dayes
                 ,
                 but
                 by
                 houres
                 :
                 But
                 if
                 the
                 intimation
                 and
                 execution
                 of
                 the
                 Arrestment
                 be
                 both
                 in
                 one
                 day
                 ,
                 and
                 express
                 no
                 hour
                 ,
                 if
                 the
                 Arrester
                 be
                 not
                 negligent
                 ,
                 they
                 will
                 come
                 in
                 ,
                 
                   pari
                   passu
                
                 ,
                 because
                 no
                 priority
                 doth
                 appear
                 ,
                 Spots
                 .
                 Debitor
                 and
                 Creditor
                 ,
                 Mr.
                 
                   Cornelius
                   Ainsly
                
                 contra
                 
                   〈◊〉
                   Edward
                
                 ,
                 which
                 will
                 hold
                 in
                 the
                 competition
                 of
                 diverse
                 Arrestments
                 ,
                 or
                 diverse
                 Assignations
                 ,
                 where
                 no
                 priority
                 doth
                 appear
                 ;
                 for
                 we
                 have
                 little
                 respect
                 to
                 the
                 anteriority
                 
                 of
                 debts
                 in
                 competition
                 ,
                 but
                 to
                 the
                 anteriority
                 of
                 diligence
                 ,
                 as
                 is
                 evident
                 in
                 Appryzings
                 and
                 Adjudications
                 .
              
               
                 44.
                 
                 But
                 if
                 the
                 Arrestment
                 be
                 prior
                 to
                 the
                 Intimation
                 ,
                 the
                 Arrestment
                 is
                 preferable
                 ,
                 if
                 it
                 fail
                 not
                 in
                 diligence
                 ;
                 and
                 therefore
                 ,
                 an
                 Arrestment
                 was
                 preferred
                 to
                 an
                 Assignation
                 intimate
                 the
                 same
                 day
                 ,
                 but
                 two
                 hours
                 thereafter
                 ,
                 January
                 30.
                 1629.
                 
                 Davidson
                 contra
                 Balcanquel
                 :
                 Yea
                 ,
                 an
                 Arrestment
                 upon
                 a
                 dependence
                 ,
                 was
                 preferred
                 to
                 a
                 posteriour
                 Assignation
                 ,
                 though
                 intimate
                 half
                 a
                 year
                 before
                 sentence
                 ,
                 upon
                 that
                 dependence
                 ,
                 Hope
                 Assignation
                 :
                 It
                 must
                 be
                 in
                 the
                 discretion
                 of
                 the
                 Judge
                 to
                 determine
                 ,
                 when
                 Arresters
                 fail
                 in
                 diligence
                 .
              
               
                 45.
                 
                 And
                 as
                 to
                 Intimations
                 ,
                 they
                 are
                 inquestionable
                 ,
                 if
                 done
                 by
                 Instrument
                 ,
                 or
                 by
                 Charge
                 of
                 Horning
                 ,
                 at
                 the
                 instance
                 of
                 the
                 assigney
                 upon
                 the
                 assignation
                 ,
                 because
                 the
                 Letters
                 bears
                 ,
                 that
                 the
                 assignation
                 was
                 produced
                 to
                 the
                 Judge
                 ,
                 passer
                 of
                 the
                 Bill
                 :
                 and
                 there
                 is
                 little
                 doubt
                 ,
                 that
                 assignations
                 attaining
                 effect
                 by
                 Possession
                 ,
                 will
                 be
                 in
                 the
                 same
                 case
                 ,
                 as
                 if
                 intimate
                 by
                 Instrument
                 :
                 Or
                 if
                 Bond
                 of
                 Corroboration
                 be
                 obtained
                 upon
                 the
                 assignation
                 ,
                 or
                 Discharges
                 instructing
                 payment
                 of
                 a
                 part
                 of
                 the
                 debt
                 assigned
                 :
                 Or
                 if
                 in
                 Process
                 ,
                 the
                 Assignation
                 be
                 Judicially
                 produced
                 ;
                 but
                 the
                 case
                 is
                 not
                 alike
                 ,
                 nor
                 have
                 I
                 observed
                 it
                 decided
                 ,
                 if
                 Citation
                 before
                 the
                 Assignation
                 be
                 Judicially
                 produced
                 ,
                 will
                 exclude
                 an
                 Arrester
                 ,
                 
                   medio
                   tempore
                
                 .
              
               
                 46.
                 
                 As
                 to
                 the
                 competition
                 of
                 Arresters
                 ,
                 the
                 first
                 Arrestment
                 ,
                 not
                 failing
                 in
                 diligence
                 ,
                 is
                 preferable
                 ;
                 and
                 therefore
                 ,
                 the
                 first
                 Arrester
                 was
                 preferred
                 ,
                 though
                 prior
                 but
                 by
                 one
                 day
                 ,
                 though
                 both
                 obtained
                 Decreet
                 upon
                 the
                 same
                 day
                 ,
                 and
                 both
                 used
                 full
                 Diligence
                 ,
                 February
                 1.
                 1666.
                 
                 Collonel
                 Cuninghame
                 contra
                 Layel
                 .
                 And
                 likewise
                 ,
                 an
                 Arrestment
                 by
                 Letters
                 from
                 the
                 Lords
                 of
                 Session
                 ,
                 and
                 first
                 Citation
                 thereupon
                 ,
                 being
                 insisted
                 in
                 without
                 negligence
                 ,
                 was
                 preferred
                 to
                 a
                 posterior
                 Arrestment
                 ,
                 though
                 obtaining
                 the
                 first
                 Decreet
                 ,
                 before
                 a
                 Sheriff
                 ,
                 in
                 respect
                 that
                 Decreets
                 before
                 the
                 Lords
                 ,
                 cannot
                 be
                 so
                 summarly
                 obtained
                 ,
                 especially
                 ,
                 seing
                 they
                 must
                 abide
                 the
                 course
                 of
                 a
                 Roll
                 ,
                 November
                 23.
                 1677.
                 
                 Sir
                 
                   Robert
                   Montgomery
                
                 contra
                 
                   Alexander
                   Rankine
                
                 .
                 And
                 a
                 posterior
                 Arrestment
                 was
                 preferred
                 to
                 a
                 prior
                 ,
                 in
                 respect
                 the
                 Term
                 of
                 payment
                 of
                 the
                 sum
                 ,
                 for
                 satisfying
                 of
                 which
                 ,
                 the
                 first
                 Arrestment
                 was
                 laid
                 on
                 ,
                 was
                 not
                 come
                 at
                 the
                 time
                 of
                 the
                 first
                 Arrestment
                 ,
                 but
                 before
                 the
                 second
                 Arrestment
                 was
                 laid
                 on
                 ,
                 the
                 Term
                 of
                 payment
                 of
                 the
                 sum
                 ,
                 for
                 which
                 it
                 was
                 laid
                 on
                 was
                 past
                 ;
                 albeit
                 the
                 Terms
                 ofboth
                 sums
                 were
                 past
                 before
                 the
                 competition
                 came
                 before
                 the
                 Lords
                 by
                 Advocation
                 ,
                 July
                 29.
                 1670.
                 
                 
                   Charles
                   Charters
                
                 contra
                 
                   Cornelius
                   Neilson
                   :
                   July
                
                 17.
                 1678.
                 
                 Lord
                 Pitmaiden
                 contra
                 William
                 and
                 
                   Robert
                   Patersons
                
                 .
                 And
                 for
                 the
                 same
                 cause
                 ,
                 Arrestment
                 upon
                 a
                 Decreet
                 may
                 be
                 preferred
                 to
                 a
                 prior
                 arrestment
                 upon
                 a
                 dependence
                 ;
                 because
                 the
                 ground
                 of
                 the
                 former
                 hath
                 
                   paratam
                   executionem
                
                 :
                 and
                 not
                 the
                 ground
                 of
                 the
                 latter
                 :
                 Yet
                 an
                 Arrestment
                 upon
                 a
                 Dependence
                 was
                 preferred
                 to
                 a
                 posteriour
                 Arrestment
                 ,
                 obtained
                 upon
                 production
                 of
                 a
                 Registrable
                 Bond
                 ,
                 before
                 it
                 was
                 Registrate
                 ,
                 and
                 so
                 was
                 not
                 raised
                 upon
                 a
                 Decreet
                 ,
                 Hope
                 Arrestment
                 ,
                 Thomson
                 contra
                 Memorran
                 .
                 And
                 arrestment
                 laid
                 on
                 after
                 the
                 Term
                 of
                 payment
                 of
                 the
                 debt
                 arrested
                 ,
                 was
                 preferred
                 to
                 a
                 prior
                 arrestment
                 ,
                 laid
                 on
                 before
                 the
                 Term
                 of
                 payment
                 upon
                 the
                 debt
                 arrested
                 ,
                 
                 July
                 5.
                 1673
                 
                 Birnie
                 contra
                 Mowat
                 and
                 Crawfoord
                 .
                 And
                 an
                 arrestment
                 laid
                 on
                 verbally
                 by
                 a
                 Towns
                 Officer
                 ,
                 was
                 excluded
                 by
                 a
                 posterior
                 arrestment
                 ,
                 having
                 an
                 Execution
                 before
                 witnesses
                 ,
                 albeit
                 the
                 verbal
                 execution
                 was
                 the
                 custom
                 of
                 the
                 place
                 ,
                 July
                 19.
                 1678.
                 
                 Warrock
                 contra
                 Brown.
                 And
                 a
                 first
                 arrester
                 was
                 not
                 excluded
                 for
                 want
                 of
                 diligence
                 ,
                 but
                 was
                 preferred
                 to
                 a
                 posterior
                 Arrester
                 ,
                 who
                 had
                 brought
                 his
                 Cause
                 to
                 be
                 concluded
                 ,
                 at
                 which
                 time
                 the
                 prior
                 arrester
                 compeared
                 ,
                 and
                 produced
                 an
                 assignation
                 ,
                 after
                 his
                 arrestment
                 from
                 the
                 common
                 debitor
                 ,
                 whereby
                 he
                 needed
                 no
                 further
                 diligence
                 ,
                 July
                 19.
                 1673.
                 
                 Birnie
                 contra
                 Crawford
                 :
                 This
                 〈◊〉
                 was
                 found
                 no
                 voluntary
                 Gratification
                 ,
                 seing
                 it
                 preferred
                 the
                 first
                 legal
                 diligence
                 :
                 And
                 upon
                 the
                 same
                 ground
                 ,
                 an
                 Assigney
                 by
                 a
                 Bankrupt
                 ,
                 was
                 preferred
                 to
                 a
                 posterior
                 Arrester
                 ,
                 in
                 respect
                 the
                 Assigney
                 had
                 used
                 the
                 first
                 diligence
                 by
                 Horning
                 ,
                 before
                 the
                 arrestment
                 ,
                 Novem.
                 20.
                 1677.
                 
                 Bishop
                 of
                 Glasgow
                 contra
                 Nicolas
                 and
                 Brown.
                 
              
            
             
               
               
                 TITLE
                 XXIV
                 .
                 Dispositions
                 ,
                 Where
                 ,
                 of
                 Resignations
                 ,
                 in
                 favorem
                 ,
                 Appryzings
                 and
                 Adjudications
                 of
                 Real
                 Rights
                 .
              
               
                 
                   1.
                   
                   Dispositions
                   of
                   Properly
                   carry
                   virtually
                   all
                   Lesser
                   Rights
                   .
                
                 
                   2.
                   
                   How
                   superveening
                   Rights
                   ,
                   belonging
                   to
                   Authors
                   ,
                   belong
                   to
                   their
                   singular
                   successors
                   .
                
                 
                   3.
                   
                   Dispositions
                   descrived
                   .
                
                 
                   4.
                   
                   How
                   dispositions
                   are
                   accomplished
                   in
                   equity
                   .
                
                 
                   5.
                   
                   How
                   by
                   the
                   Law
                   of
                   the
                   Romans
                   ,
                   and
                   other
                   Civil
                   Nations
                   .
                
                 
                   6.
                   
                   Possession
                   accomplisheth
                   reall
                   Rights
                   .
                
                 
                   7.
                   
                   Properly
                   of
                   Moveables
                   is
                   presumed
                   from
                   Possession
                   .
                
                 
                   8.
                   
                   Resignation
                   
                     in
                     favorem
                  
                   .
                
                 
                   9.
                   
                   Dispositions
                   or
                   Assignations
                   ,
                   by
                   these
                   who
                   have
                   no
                   Right
                   with
                   consent
                   of
                   these
                   who
                   have
                   Right
                   ,
                   how
                   far
                   effectual
                   .
                
                 
                   10.
                   
                   Procuratories
                   or
                   Infeftments
                   of
                   Resignation
                   ,
                   after
                   fourty
                   years
                   possession
                   by
                   Charters
                   ,
                   needs
                   not
                   be
                   produced
                   .
                
                 
                   11.
                   
                   Infeftments
                   on
                   Resignation
                   carries
                   any
                   lesser
                   right
                   in
                   the
                   disponer
                   ,
                   though
                   not
                   exprest
                   .
                
                 
                   12.
                   
                   The
                   effect
                   of
                   resignations
                   accepted
                   by
                   the
                   Superiour
                   ,
                   before
                   Infeftment
                   follow
                   thereon
                   .
                
                 
                   
                   13.
                   
                   Superiours
                   are
                   not
                   oblieged
                   to
                   receive
                   the
                   singular
                   Successors
                   of
                   of
                   the
                   Vassals
                   after
                   Infeftment
                   expede
                   ,
                   though
                   it
                   bear
                   to
                   the
                   Vassals
                   Heir
                   and
                   Assigneys
                   .
                
                 
                   14.
                   
                   Appryzings
                   can
                   only
                   proceed
                   on
                   liquid
                   sums
                   .
                
                 
                   15.
                   
                   Appryzings
                   reaches
                   al
                   Heritable
                   Rights
                   though
                   not
                   provided
                   to
                   Assigneys
                   .
                
                 
                   16.
                   
                   Appryzings
                   carry
                   all
                   personal
                   Rights
                   ,
                   without
                   Intimation
                   .
                
                 
                   17.
                   
                   The
                   rise
                   of
                   Infeftments
                   upon
                   posterior
                   Appryzings
                   .
                
                 
                   18.
                   
                   Infeftments
                   may
                   be
                   obtained
                   summarly
                   upon
                   Appryzings
                   after
                   the
                   debitors
                   death
                   .
                
                 
                   19.
                   
                   The
                   effect
                   of
                   Appryzings
                   as
                   to
                   Non-entry
                   ,
                   Ward
                   ,
                   and
                   Liferent-escheat
                   .
                
                 
                   20.
                   
                   The
                   denunciation
                   whereupon
                   Appryzing
                   follows
                   ,
                   renders
                   the
                   matter
                   litigious
                   ,
                   and
                   excludes
                   posterior
                   voluntary
                   Rights
                   .
                
                 
                   21.
                   
                   Competition
                   of
                   Appryzings
                   .
                
                 
                   22.
                   
                   The
                   effect
                   of
                   Appryzings
                   at
                   the
                   Instance
                   ofSuperiours
                   against
                   their
                   own
                   Vassals
                   .
                
                 
                   23.
                   
                   The
                   effect
                   of
                   Appryzings
                   ,
                   as
                   to
                   Removings
                   ,
                   Mails
                   ,
                   and
                   Duties
                   .
                
                 
                   24.
                   
                   Allowance
                   of
                   Appryzings
                   .
                
                 
                   25.
                   
                   Whether
                   Superiours
                   must
                   receive
                   appryzers
                   ,
                   not
                   instructing
                   their
                   authors
                   Right
                   .
                
                 
                   26.
                   
                   The
                   quantity
                   of
                   the
                   Years
                   Rent
                   due
                   to
                   Superiours
                   for
                   entering
                   Appryzer
                   .
                
                 
                   27.
                   
                   What
                   course
                   is
                   competent
                   against
                   contumacious
                   Superiours
                   .
                
                 
                   28.
                   
                   The
                   Legal
                   Reversion
                   of
                   Appryzings
                   .
                
                 
                   29.
                   
                   Appryzers
                   may
                   use
                   other
                   diligence
                   for
                   their
                   payment
                   ,
                   though
                   the
                   Apprizings
                   were
                   expired
                   .
                
                 
                   30.
                   
                   Nullities
                   of
                   Apprizings
                   .
                
                 
                   31.
                   
                   Modification
                   of
                   exorbitant
                   Penalties
                   in
                   Apprizings
                   .
                
                 
                   32.
                   
                   Apprizing
                   sustained
                   without
                   a
                   charge
                   for
                   the
                   sum
                   .
                
                 
                   33.
                   
                   Apprizing
                   sustained
                   ,
                   though
                   the
                   Letters
                   and
                   Execuitons
                   were
                   blank
                   as
                   to
                   the
                   Lands
                   ,
                   the
                   Messenger
                   who
                   denunced
                   ,
                   being
                   Judge
                   to
                   the
                   Apprizing
                   ,
                   in
                   which
                   they
                   were
                   filled
                   up
                   ,
                   which
                   was
                   a
                   more
                   solemn
                   Execution
                   .
                
                 
                   34.
                   
                   An
                   Apprizing
                   sustained
                   without
                   producing
                   the
                   Letters
                   of
                   Apprizing
                   ,
                   being
                   long
                   before
                   ,
                   but
                   the
                   Instructions
                   of
                   the
                   debt
                   were
                   found
                   necessary
                   to
                   be
                   produced
                   within
                   Prescription
                   .
                
                 
                   35.
                   
                   An
                   Apprizing
                   sustained
                   ,
                   though
                   by
                   dispensation
                   at
                   a
                   private
                   place
                   ,
                   and
                   the
                   Court
                   of
                   Apprizing
                   adjourned
                   .
                
                 
                   36.
                   
                   An
                   Apprizing
                   of
                   Rights
                   ,
                   generally
                   preferred
                   to
                   a
                   posterior
                   Apprizing
                   of
                   the
                   Right
                   in
                   special
                   ,
                   being
                   an
                   Annualrent
                   .
                
                 
                   37.
                   
                   Apprizings
                   become
                   extinct
                   by
                   payment
                   ,
                   and
                   the
                   debitors
                   Right
                   revives
                   without
                   new
                   Investiture
                   .
                
                 
                   38.
                   
                   In
                   what
                   cases
                   Apprizers
                   must
                   possesse
                   and
                   how
                   they
                   are
                   countable
                
                 
                   
                   39.
                   
                   What
                   alterations
                   in
                   Apprizings
                   are
                   Introduced
                   by
                   the
                   Act
                   of
                   
                     Parliament
                     ,
                     1661.
                     cap.
                     62.
                  
                   as
                   to
                   the
                   indurance
                   of
                   the
                   Legal
                   ,
                   and
                   coming
                   in
                   
                     pari
                     passu
                  
                   .
                
                 
                   40.
                   
                   Now
                   Apprizings
                   coming
                   in
                   the
                   person
                   of
                   the
                   Debitors
                   appearand
                   Heir
                   ,
                   are
                   satisfiable
                   from
                   him
                   or
                   his
                   Trusties
                   .
                
                 
                   41.
                   
                   How
                   Apprizings
                   against
                   parties
                   charged
                   to
                   enter
                   Heir
                   ,
                   are
                   redeemable
                   .
                
                 
                   42.
                   
                   Legals
                   run
                   not
                   against
                   Minors
                   .
                
                 
                   43.
                   
                   Apprizers
                   continuing
                   to
                   possess
                   after
                   the
                   Legal
                   ,
                   can
                   use
                   no
                   other
                   diligence
                   ,
                   but
                   the
                   sums
                   are
                   thereby
                   satisfied
                   ,
                   though
                   a
                   part
                   of
                   the
                   Lands
                   were
                   evicted
                   ,
                   the
                   rest
                   being
                   worth
                   the
                   whole
                   sum
                   .
                
                 
                   44.
                   
                   The
                   rise
                   of
                   Adjudications
                   .
                
                 
                   45.
                   
                   The
                   Form
                   of
                   Adjudications
                   on
                   Renunciations
                   to
                   be
                   Heir
                   .
                
                 
                   46.
                   
                   Why
                   Adjudications
                   past
                   at
                   random
                   ,
                   and
                   may
                   now
                   be
                   put
                   to
                   Instruct
                   some
                   Interest
                   in
                   the
                   Debitor
                   .
                
                 
                   47.
                   
                   What
                   Rights
                   are
                   affected
                   with
                   Adjudications
                   .
                
                 
                   48.
                   
                   Superiours
                   must
                   receive
                   Adjudgers
                   ,
                   paying
                   a
                   years
                   Rent
                   ,
                   unless
                   they
                   pay
                   the
                   Creditor
                   ,
                   and
                   then
                   the
                   Superiour
                   will
                   have
                   no
                   years
                   Rent
                   .
                
                 
                   49.
                   
                   How
                   Adjudications
                   are
                   Redeemable
                   .
                
                 
                   50.
                   
                   Adjudications
                   may
                   be
                   for
                   the
                   appearand
                   Heirs
                   own
                   debt
                   .
                
                 
                   51.
                   
                   How
                   Adjudications
                   become
                   Extinct
                   .
                
                 
                   52.
                   
                   The
                   form
                   and
                   effect
                   of
                   Adjudications
                   to
                   perfect
                   Dispositions
                   .
                
                 
                   53.
                   
                   The
                   form
                   and
                   effect
                   of
                   the
                   partial
                   and
                   total
                   Adjudications
                   introduced
                   by
                   the
                   Act
                   of
                   
                     Parliament
                     ,
                     6.
                  
                   of
                   
                     September
                     ,
                     1672.
                  
                   
                
              
               
               
                 A
                 DISPOSITION
                 may
                 ,
                 and
                 sometime
                 doth
                 signifie
                 the
                 alienation
                 of
                 any
                 Right
                 ,
                 whether
                 real
                 or
                 personal
                 ,
                 so
                 the
                 stile
                 and
                 translations
                 ordinarly
                 bears
                 ,
                 the
                 assigney
                 to
                 transfer
                 and
                 dispone
                 ,
                 as
                 assignation
                 is
                 sometime
                 extended
                 to
                 the
                 disposal
                 of
                 real
                 Rights
                 ,
                 which
                 are
                 srequently
                 provided
                 ,
                 not
                 only
                 to
                 Heirs
                 ,
                 but
                 to
                 Assigneys
                 ;
                 yet
                 these
                 Terms
                 are
                 so
                 appropriat
                 and
                 distinguished
                 ,
                 that
                 a
                 Disposition
                 is
                 applyed
                 to
                 the
                 alienation
                 of
                 real
                 Rights
                 ,
                 and
                 Assignation
                 of
                 personal
                 Rights
                 .
              
               
                 1.
                 
                 In
                 both
                 dispositions
                 and
                 assignations
                 ,
                 the
                 Disponer
                 or
                 Cedent
                 is
                 called
                 authour
                 ,
                 and
                 the
                 acquirer
                 is
                 called
                 the
                 singular
                 successor
                 ,
                 and
                 in
                 both
                 ,
                 this
                 common
                 Brockard
                 takes
                 place
                 ,
                 
                   jus
                   superveniens
                   authori
                   accrescit
                   Successori
                
                 ,
                 that
                 is
                 ,
                 what
                 ever
                 Right
                 befalleth
                 to
                 the
                 author
                 after
                 his
                 Disposition
                 or
                 assignation
                 ,
                 it
                 accresseth
                 to
                 his
                 Successour
                 ,
                 to
                 whom
                 he
                 had
                 before
                 disponed
                 ,
                 as
                 if
                 it
                 had
                 been
                 in
                 his
                 Person
                 when
                 he
                 disponed
                 ,
                 and
                 as
                 if
                 it
                 had
                 been
                 expresly
                 disponed
                 by
                 him
                 ,
                 whence
                 ariseth
                 the
                 distinction
                 ;
                 betwixt
                 dispositions
                 and
                 assignations
                 ,
                 express
                 and
                 implicite
                 ,
                 or
                 tacit
                 when
                 the
                 Right
                 is
                 not
                 expresly
                 disponed
                 ,
                 but
                 tacitely
                 or
                 virtually
                 ,
                 as
                 he
                 who
                 dispones
                 the
                 property
                 ,
                 
                   hoc
                   ipso
                
                 ,
                 doth
                 tacitely
                 and
                 virtually
                 dispone
                 any
                 lesser
                 Right
                 ,
                 as
                 a
                 Reversion
                 ,
                 Servitude
                 ,
                 Liferent
                 ,
                 though
                 no
                 particular
                 mention
                 be
                 of
                 these
                 ,
                 according
                 to
                 another
                 Rule
                 of
                 Law
                 
                   majori
                   inest
                   minis
                
                 ,
                 so
                 ary
                 person
                 Infeft
                 in
                 Property
                 ,
                 and
                 his
                 Seasine
                 Registrat
                 ,
                 will
                 have
                 right
                 to
                 a
                 Reversion
                 ,
                 if
                 no
                 more
                 was
                 in
                 the
                 Disponers
                 Person
                 ;
                 albeit
                 assignations
                 to
                 Reversions
                 require
                 special
                 Solemnities
                 ,
                 as
                 to
                 be
                 registrat
                 in
                 the
                 Register
                 of
                 Reversions
                 ;
                 yet
                 the
                 Registration
                 of
                 this
                 Seasine
                 will
                 be
                 equivalent
                 :
                 so
                 a
                 Liferent
                 Right
                 ,
                 granted
                 by
                 him
                 ,
                 who
                 had
                 only
                 right
                 of
                 Tack
                 ,
                 was
                 found
                 to
                 carry
                 the
                 right
                 of
                 that
                 Tack
                 ,
                 during
                 the
                 Liferenters
                 life
                 ,
                 Hope
                 Liferents
                 ,
                 Laird
                 Rossyth
                 contra
                 his
                 Tennents
                 .
                 The
                 like
                 of
                 a
                 Back-tack
                 ,
                 Ibid.
                 Lady
                 Boyd
                 contra
                 her
                 Tennents
                 ,
                 Stuart
                 contra
                 Fleming
                 .
                 The
                 like
                 found
                 of
                 a
                 Liferent
                 ,
                 which
                 carried
                 the
                 Right
                 of
                 a
                 Reversion
                 ,
                 
                   quo
                   ad
                
                 ,
                 the
                 Liferenters
                 life
                 ,
                 Decem.
                 5.
                 1665.
                 
                 Beg
                 contra
                 Beg.
                 
              
               
                 2.
                 
                 There
                 is
                 no
                 question
                 of
                 this
                 accression
                 ,
                 when
                 the
                 disponer
                 disponeth
                 for
                 all
                 Right
                 he
                 hath
                 had
                 ,
                 or
                 shall
                 acquire
                 ,
                 which
                 is
                 a
                 general
                 assignation
                 or
                 disposition
                 ,
                 of
                 any
                 Right
                 superveening
                 ,
                 if
                 the
                 debate
                 fall
                 betwixt
                 the
                 disponer
                 and
                 successor
                 ,
                 there
                 is
                 also
                 little
                 question
                 ,
                 if
                 the
                 Right
                 disponed
                 have
                 exprest
                 or
                 implyed
                 absolute
                 Warrandice
                 ,
                 as
                 being
                 for
                 a
                 Cause
                 Onerous
                 :
                 In
                 which
                 case
                 ,
                 if
                 the
                 question
                 be
                 betwixt
                 the
                 disponer
                 and
                 successor
                 ,
                 he
                 who
                 disponed
                 for
                 an
                 equivalent
                 Cause
                 ,
                 importing
                 his
                 acknowledgement
                 of
                 having
                 an
                 absolute
                 Right
                 ,
                 cannot
                 cloath
                 himself
                 with
                 any
                 posterior
                 Right
                 ,
                 which
                 would
                 infer
                 warrandice
                 against
                 him
                 ,
                 if
                 it
                 were
                 in
                 another
                 person
                 ;
                 and
                 therefore
                 ,
                 that
                 personal
                 objection
                 excludes
                 him
                 ,
                 it
                 being
                 in
                 his
                 own
                 person
                 :
                 Neither
                 is
                 it
                 questionable
                 ,
                 that
                 if
                 the
                 Disposition
                 or
                 Assignation
                 be
                 limited
                 ,
                 as
                 being
                 only
                 to
                 a
                 particular
                 Title
                 ,
                 or
                 generally
                 ,
                 for
                 any
                 Right
                 the
                 Disponer
                 hath
                 ,
                 or
                 bearing
                 
                 warrandice
                 from
                 his
                 own
                 Fact
                 and
                 Deed
                 ,
                 then
                 if
                 he
                 acquire
                 a
                 posterior
                 Right
                 ,
                 he
                 may
                 make
                 use
                 thereof
                 against
                 that
                 person
                 to
                 whom
                 he
                 disponed
                 ,
                 much
                 more
                 may
                 any
                 singular
                 Successor
                 of
                 his
                 ;
                 and
                 therefore
                 ,
                 in
                 the
                 case
                 decided
                 ,
                 July
                 19.
                 1664.
                 betwixt
                 Dam
                 
                   Elizabeth
                   Dowglas
                
                 and
                 Sir
                 
                   Robert
                   Sinclar
                
                 her
                 Spouse
                 contra
                 the
                 Laird
                 of
                 Wedderburn
                 ,
                 anent
                 the
                 Teinds
                 of
                 Kello
                 and
                 Kimmergem
                 ,
                 whereof
                 the
                 Earl
                 of
                 Home
                 ,
                 common
                 author
                 ,
                 gave
                 a
                 Tack
                 to
                 Wedderburns
                 predecessor
                 ,
                 with
                 warrandice
                 from
                 his
                 own
                 deed
                 ;
                 and
                 any
                 right
                 the
                 Earl
                 then
                 had
                 being
                 reduced
                 ,
                 he
                 did
                 thereafter
                 acquire
                 a
                 new
                 Right
                 from
                 Coldinghame
                 ,
                 and
                 thereupon
                 granted
                 a
                 Right
                 to
                 
                   William
                   Dowglas
                
                 of
                 Evla
                 ,
                 to
                 whom
                 the
                 said
                 Dam
                 
                   Elizabeth
                   Dowglas
                
                 is
                 :
                 heir
                 ,
                 which
                 supperveening
                 Right
                 was
                 found
                 not
                 to
                 accresce
                 to
                 Wedderburn
                 ,
                 to
                 defend
                 his
                 Tack
                 ,
                 seing
                 he
                 had
                 not
                 absolute
                 warrandice
                 ,
                 but
                 from
                 his
                 own
                 deed
                 only
                 :
                 But
                 the
                 main
                 question
                 is
                 ,
                 when
                 the
                 contraversie
                 is
                 not
                 betwixt
                 the
                 author
                 and
                 the
                 party
                 to
                 whom
                 he
                 dispones
                 ,
                 but
                 betwixt
                 the
                 singular
                 Successor
                 of
                 that
                 author
                 and
                 that
                 party
                 to
                 whom
                 he
                 had
                 disponed
                 before
                 ,
                 in
                 which
                 case
                 the
                 personal
                 objection
                 upon
                 the
                 warrandice
                 ,
                 hath
                 no
                 place
                 ;
                 and
                 oftimes
                 the
                 right
                 superveening
                 ,
                 requireth
                 special
                 solemnities
                 ,
                 and
                 cannot
                 be
                 transmitted
                 without
                 these
                 ,
                 as
                 Resignation
                 ,
                 Confirmation
                 ,
                 Seasine
                 ,
                 yet
                 even
                 in
                 these
                 cases
                 ,
                 reason
                 and
                 the
                 Lords
                 Decision
                 extended
                 the
                 rule
                 so
                 ,
                 that
                 the
                 superveening
                 Right
                 ,
                 
                   ipso
                   facto
                
                 ,
                 accresces
                 without
                 any
                 new
                 solemnities
                 ;
                 but
                 if
                 the
                 necessar
                 solemnities
                 have
                 preceeded
                 when
                 there
                 was
                 no
                 right
                 ,
                 whensoever
                 the
                 Right
                 superveens
                 ,
                 it
                 is
                 drawn
                 back
                 ,
                 as
                 if
                 it
                 had
                 been
                 in
                 the
                 time
                 of
                 the
                 former
                 solemnities
                 ,
                 
                   fictione
                   juris
                
                 ;
                 and
                 so
                 if
                 a
                 Superiour
                 acquire
                 the
                 Right
                 of
                 Forefaultry
                 of
                 his
                 Superiour
                 ,
                 the
                 same
                 
                   ipso
                   facto
                
                 ,
                 accresceth
                 to
                 the
                 sub-vassals
                 ,
                 and
                 cannot
                 be
                 made
                 use
                 of
                 against
                 them
                 ,
                 Spots
                 .
                 Conjunctfees
                 ,
                 
                   Malcolm
                   Crawford
                
                 contra
                 Mordistoun
                 .
                 The
                 like
                 was
                 found
                 ,
                 Feb.
                 15.
                 16.
                 1665.
                 
                 Boid
                 of
                 Penkil
                 contra
                 Vassals
                 of
                 Carsluth
                 :
                 In
                 which
                 case
                 the
                 Vassals
                 were
                 ordained
                 to
                 pay
                 their
                 share
                 of
                 the
                 Composition
                 of
                 a
                 Ward
                 :
                 But
                 where
                 the
                 superveening
                 Right
                 befell
                 to
                 the
                 Authors
                 appearand
                 Heir
                 ,
                 and
                 was
                 by
                 him
                 disponed
                 to
                 another
                 ,
                 before
                 he
                 was
                 entered
                 Heir
                 ;
                 in
                 that
                 case
                 ,
                 the
                 Authors
                 appearand
                 Heir
                 ,
                 obtaining
                 gift
                 of
                 the
                 Liferent-escheat
                 of
                 Lands
                 disponed
                 to
                 Vassals
                 ,
                 the
                 said
                 Liferent
                 was
                 not
                 found
                 to
                 accresce
                 to
                 the
                 Vassals
                 ,
                 because
                 the
                 appearand
                 Heir
                 was
                 denuded
                 thereof
                 ,
                 in
                 favours
                 of
                 another
                 ,
                 before
                 he
                 was
                 Heir
                 ,
                 July
                 5.
                 1611.
                 
                 
                   James
                   Skeen
                
                 contra
                 Vassals
                 of
                 Athol
                 ;
                 this
                 Rule
                 was
                 so
                 far
                 extended
                 ,
                 that
                 a
                 supervenient
                 Right
                 ,
                 by
                 Decreet
                 of
                 Reduction
                 and
                 Improbation
                 acquired
                 by
                 Swintown
                 ,
                 having
                 right
                 to
                 the
                 Lands
                 of
                 Brimstoun
                 ,
                 was
                 found
                 to
                 accresce
                 to
                 the
                 Earl
                 of
                 Lauderdail
                 ,
                 being
                 restored
                 ,
                 July
                 13.
                 1664.
                 
                 Earl
                 of
                 Lauderdale
                 contra
                 Heretor
                 of
                 Wolmet
                 .
                 But
                 where
                 a
                 person
                 having
                 a
                 disposition
                 of
                 Lands
                 ,
                 did
                 Insest
                 another
                 in
                 Liferent
                 himself
                 never
                 being
                 Infeft
                 ,
                 did
                 assign
                 the
                 Disposition
                 to
                 a
                 third
                 partie
                 ,
                 who
                 was
                 thereupon
                 Infeft
                 ,
                 that
                 Disposition
                 was
                 not
                 found
                 to
                 accresce
                 to
                 the
                 Annualrenter
                 ,
                 because
                 his
                 Author
                 was
                 never
                 Infeft
                 thereupon
                 ,
                 June
                 29.
                 1676.
                 
                 
                   James
                   Brown
                
                 contra
                 Smith
                 .
              
               
                 It
                 is
                 the
                 common
                 opinion
                 ,
                 that
                 if
                 a
                 party
                 grant
                 Infeftment
                 ,
                 before
                 he
                 be
                 infeft
                 himself
                 ,
                 and
                 he
                 thereafter
                 Infeft
                 ,
                 it
                 accresceth
                 to
                 that
                 party
                 whom
                 he
                 Infeft
                 before
                 ,
                 if
                 the
                 question
                 be
                 betwixt
                 them
                 ,
                 but
                 I
                 have
                 not
                 observed
                 it
                 directly
                 decided
                 ,
                 
                   quid
                   juris
                
                 ;
                 in
                 these
                 〈◊〉
                 ,
                 if
                 a
                 person
                 not
                 infeft
                 ,
                 do
                 give
                 Right
                 to
                 two
                 parties
                 ,
                 and
                 thereafter
                 be
                 Infeft
                 ,
                 to
                 which
                 of
                 the
                 two
                 his
                 superveening
                 Infeftment
                 will
                 accresce
                 :
                 Or
                 if
                 he
                 Infeft
                 one
                 ,
                 when
                 he
                 is
                 not
                 Infeft
                 ,
                 and
                 thereafter
                 another
                 ,
                 when
                 he
                 is
                 Infeft
                 ,
                 which
                 of
                 these
                 will
                 have
                 right
                 ;
                 but
                 it
                 seems
                 the
                 first
                 Infeftment
                 in
                 both
                 cases
                 will
                 be
                 preferred
                 ,
                 because
                 she
                 common
                 Authors
                 Right
                 accresceth
                 ,
                 
                   ipso
                   facto
                
                 :
                 Yet
                 if
                 the
                 common
                 Authors
                 Infeftment
                 proceed
                 upon
                 the
                 diligence
                 of
                 any
                 party
                 ,
                 it
                 may
                 seem
                 the
                 same
                 will
                 only
                 accresce
                 
                 to
                 him
                 who
                 is
                 the
                 procurer
                 of
                 it
                 ;
                 yet
                 even
                 in
                 that
                 case
                 ,
                 it
                 was
                 found
                 to
                 accress
                 to
                 the
                 first
                 Right
                 ,
                 with
                 absolute
                 warrandice
                 ,
                 June
                 21
                 1671.
                 
                 
                   John
                   Nielson
                
                 contra
                 Menzies
                 of
                 Enoch
                 .
                 But
                 now
                 to
                 return
                 to
                 what
                 is
                 special
                 in
                 Dispositions
                 .
              
               
                 3.
                 
                 A
                 Disposition
                 is
                 the
                 transmission
                 ,
                 or
                 conveyance
                 of
                 real
                 Rights
                 from
                 the
                 Disponer
                 to
                 his
                 singular
                 Successor
                 ,
                 not
                 in
                 contemplation
                 of
                 the
                 Disponers
                 Death
                 ,
                 for
                 such
                 are
                 comprehended
                 among
                 successions
                 ,
                 from
                 the
                 dead
                 as
                 Legacies
                 ,
                 Donations
                 ,
                 
                   mortis
                   causa
                
                 ,
                 &c.
                 
              
               
                 A
                 Disposition
                 is
                 said
                 to
                 be
                 a
                 conveyance
                 ,
                 and
                 so
                 it
                 is
                 taken
                 ,
                 not
                 for
                 the
                 Dispositive
                 act
                 of
                 the
                 Will
                 only
                 ,
                 but
                 whatsoever
                 else
                 is
                 requisite
                 to
                 compleat
                 the
                 conveyance
                 ,
                 as
                 Tradition
                 ,
                 Resignation
                 ,
                 Possession
                 ,
                 though
                 a
                 Disposition
                 is
                 oftimes
                 taken
                 as
                 distinct
                 from
                 these
                 ,
                 for
                 the
                 more
                 clear
                 uptaking
                 of
                 conveyances
                 of
                 real
                 Rights
                 ;
                 Consider
                 first
                 ,
                 what
                 is
                 requifite
                 to
                 transmit
                 them
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 without
                 any
                 positive
                 Law
                 or
                 Custom
                 :
                 and
                 next
                 ,
                 what
                 by
                 these
                 is
                 requisite
                 to
                 transmit
                 the
                 several
                 Rights
                 .
              
               
                 As
                 to
                 the
                 first
                 ,
                 it
                 hath
                 been
                 shown
                 in
                 the
                 Title
                 (
                 
                   real
                   Rights
                
                 )
                 how
                 far
                 Dominion
                 and
                 Property
                 is
                 competent
                 by
                 the
                 Law
                 of
                 rational
                 Nature
                 ,
                 and
                 it
                 cannot
                 be
                 doubted
                 ,
                 but
                 that
                 though
                 there
                 were
                 no
                 positive
                 Law
                 nor
                 Custom
                 ,
                 that
                 the
                 rational
                 Creature
                 is
                 naturally
                 instructed
                 how
                 to
                 Dispone
                 and
                 Alienate
                 his
                 own
                 ,
                 the
                 power
                 of
                 Disposal
                 being
                 the
                 Characteristick
                 of
                 Dominion
                 ,
                 which
                 is
                 natural
                 to
                 man
                 ,
                 being
                 created
                 Lord
                 of
                 the
                 Creatures
                 .
              
               
                 The
                 question
                 then
                 is
                 ,
                 by
                 what
                 act
                 men
                 may
                 naturally
                 exercise
                 the
                 power
                 of
                 Disposal
                 ,
                 which
                 can
                 be
                 no
                 act
                 of
                 the
                 Understanding
                 ,
                 that
                 being
                 only
                 contemplative
                 ,
                 and
                 nothing
                 active
                 nor
                 operative
                 ,
                 for
                 Constituting
                 or
                 Transmitting
                 of
                 Rights
                 ,
                 but
                 it
                 must
                 needs
                 be
                 an
                 act
                 of
                 the
                 Will
                 ,
                 for
                 by
                 it
                 ,
                 Rights
                 are
                 both
                 acquired
                 ,
                 Relinquished
                 and
                 alienate
                 :
                 There
                 may
                 be
                 three
                 acts
                 of
                 the
                 Will
                 about
                 the
                 Disposal
                 of
                 Rights
                 ,
                 a
                 resolution
                 to
                 Dispone
                 a
                 Paction
                 ,
                 Contract
                 or
                 Obligation
                 ,
                 to
                 Dispone
                 ,
                 and
                 a
                 present
                 will
                 or
                 consent
                 ,
                 that
                 that
                 which
                 is
                 the
                 Disponers
                 ,
                 be
                 the
                 Acquirers
                 .
                 Resolution
                 terminats
                 within
                 the
                 Resolver
                 and
                 may
                 be
                 dissolved
                 by
                 a
                 contrary
                 resolution
                 ,
                 and
                 so
                 transmits
                 no
                 Right
                 ;
                 Paction
                 does
                 only
                 Constitute
                 or
                 transmit
                 a
                 personal
                 Right
                 ,
                 or
                 Obligation
                 whereby
                 the
                 person
                 oblieged
                 may
                 be
                 compelled
                 to
                 transmit
                 the
                 real
                 Right
                 It
                 must
                 needs
                 then
                 be
                 the
                 present
                 dispositive
                 will
                 of
                 the
                 Owner
                 ,
                 which
                 conveyeth
                 the
                 right
                 to
                 any
                 other
                 ,
                 which
                 is
                 exprest
                 by
                 such
                 words
                 ,
                 
                   de
                   presenti
                   ,
                   Titius
                
                 Disponeth
                 ,
                 Alienateth
                 ,
                 or
                 Annualzeth
                 ,
                 Gifteth
                 ,
                 Granteth
                 ,
                 Selleth
                 ,
                 &c.
                 which
                 connot
                 properly
                 import
                 an
                 Obligation
                 ,
                 having
                 its
                 effect
                 in
                 the
                 future
                 ;
                 though
                 there
                 may
                 be
                 Obligations
                 consequent
                 as
                 to
                 delivery
                 ,
                 warrandice
                 ,
                 &c.
                 
                 But
                 these
                 Terms
                 do
                 expresse
                 something
                 presently
                 done
                 ,
                 and
                 not
                 ingaged
                 to
                 be
                 done
                 ,
                 and
                 so
                 can
                 be
                 nothing
                 else
                 but
                 Alienation
                 or
                 Transmission
                 of
                 the
                 Right
                 itself
                 .
              
               
                 That
                 the
                 Dispositive
                 will
                 of
                 the
                 owner
                 alone
                 ,
                 without
                 any
                 further
                 ,
                 is
                 sufficient
                 to
                 alienate
                 his
                 Right
                 ,
                 without
                 Delivery
                 or
                 Possession
                 ,
                 is
                 evident
                 in
                 personal
                 Rights
                 ,
                 wherein
                 the
                 Dispositive
                 Clause
                 of
                 Assignations
                 or
                 Translations
                 is
                 sufficient
                 ;
                 Intimation
                 or
                 Possession
                 being
                 introduced
                 for
                 expediency
                 in
                 some
                 cases
                 ,
                 by
                 our
                 Custom
                 ,
                 that
                 the
                 dispositive
                 will
                 is
                 also
                 sufficient
                 to
                 transmit
                 real
                 Rights
                 ;
                 it
                 appeareth
                 ,
                 because
                 the
                 will
                 alone
                 is
                 sufficient
                 to
                 retain
                 ,
                 not
                 only
                 Rights
                 ,
                 but
                 even
                 Possession
                 it self
                 ,
                 though
                 there
                 be
                 no
                 Corporeal
                 act
                 exercised
                 therein
                 ;
                 and
                 therefore
                 ,
                 the
                 act
                 of
                 the
                 will
                 alone
                 ,
                 as
                 it
                 retaineth
                 ,
                 so
                 may
                 it
                 relinquish
                 that
                 Right
                 or
                 Possession
                 ,
                 whereby
                 it
                 ceasseth
                 to
                 be
                 the
                 former
                 
                 Owners
                 ;
                 and
                 therefore
                 ,
                 if
                 the
                 Will
                 be
                 not
                 simply
                 to
                 Relinquish
                 ,
                 but
                 to
                 remit
                 or
                 transmit
                 the
                 Right
                 to
                 any
                 other
                 ,
                 
                   hoc
                   ipso
                
                 ,
                 that
                 other
                 doth
                 become
                 dominus
                 ;
                 Dominion
                 being
                 the
                 power
                 of
                 disposal
                 ,
                 which
                 is
                 a
                 Faculty
                 ,
                 and
                 no
                 Corporeal
                 thing
                 ,
                 and
                 may
                 be
                 fitly
                 Constitute
                 in
                 the
                 Acquirer
                 ,
                 by
                 the
                 will
                 of
                 the
                 Disponer
                 ,
                 unlels
                 the
                 Acquirer
                 reject
                 it
                 ,
                 for
                 the
                 Disponer
                 before
                 having
                 the
                 only
                 power
                 of
                 disposal
                 ,
                 and
                 remitting
                 that
                 power
                 to
                 the
                 Acquirer
                 ,
                 the
                 thing
                 cannot
                 be
                 said
                 to
                 be
                 nullius
                 ,
                 as
                 being
                 relinquished
                 ;
                 and
                 therefore
                 ,
                 the
                 Dominion
                 or
                 disposal
                 of
                 it
                 ,
                 must
                 either
                 be
                 in
                 the
                 Disponer
                 or
                 the
                 Acquirer
                 ;
                 not
                 in
                 the
                 Disponer
                 ,
                 because
                 by
                 his
                 will
                 ,
                 which
                 is
                 sufficient
                 to
                 Relinquish
                 or
                 quite
                 it
                 ,
                 he
                 hath
                 remitted
                 it
                 ;
                 and
                 therefore
                 ,
                 that
                 power
                 must
                 be
                 in
                 the
                 Purchaser
                 ,
                 unless
                 he
                 reject
                 it
                 :
                 This
                 is
                 the
                 more
                 evident
                 ,
                 that
                 Positive
                 Law
                 and
                 Custom
                 ,
                 which
                 requireth
                 Delivery
                 or
                 Possession
                 ,
                 resteth
                 in
                 symbolical
                 or
                 imaginary
                 Possession
                 ,
                 as
                 by
                 delivery
                 ofEarth
                 and
                 Stone
                 ,
                 for
                 Land
                 of
                 a
                 Penny
                 for
                 Annualrent
                 ,
                 and
                 in
                 some
                 cases
                 requireth
                 no
                 Possession
                 ,
                 so
                 the
                 Fisk
                 acquireth
                 real
                 Right
                 without
                 Possession
                 ;
                 and
                 the
                 right
                 ofLegacies
                 ,
                 and
                 others
                 from
                 the
                 dead
                 ,
                 are
                 transmitted
                 without
                 possession
                 .
              
               
                 5.
                 
                 But
                 for
                 Utilities
                 sake
                 ,
                 not
                 only
                 the
                 Romans
                 ,
                 but
                 almost
                 all
                 Nations
                 require
                 some
                 kind
                 of
                 Possession
                 ,
                 to
                 accomplish
                 real
                 Rights
                 ,
                 that
                 thereby
                 the
                 will
                 of
                 the
                 Owner
                 may
                 sensibly
                 touch
                 the
                 thing
                 disponed
                 ,
                 and
                 thereby
                 be
                 more
                 manifest
                 and
                 sure
                 ,
                 so
                 the
                 Law
                 saith
                 ,
                 
                   Traditionibus
                   &
                   Usucapionibus
                   ,
                   non
                   nudis
                   pact
                   is
                   dominia
                   〈◊〉
                   transferuntur
                   ,
                
                 with
                 which
                 our
                 Custom
                 accordeth
                 .
              
               
                 It
                 useth
                 here
                 to
                 be
                 debated
                 ,
                 whether
                 Possession
                 it self
                 be
                 sufficient
                 to
                 accomplish
                 Dispositions
                 ;
                 or
                 if
                 there
                 must
                 be
                 Tradition
                 ,
                 or
                 delivery
                 of
                 that
                 Possession
                 ,
                 by
                 the
                 disponer
                 to
                 the
                 acquirer
                 ,
                 the
                 forecited
                 Law
                 seems
                 to
                 require
                 tradition
                 ;
                 or
                 at
                 least
                 Usucapion
                 ,
                 or
                 Prescription
                 ,
                 which
                 doubtless
                 are
                 the
                 most
                 proper
                 ways
                 to
                 accomplish
                 dispositions
                 ;
                 yet
                 Utiliter
                 and
                 Equivalenter
                 Possession
                 ,
                 lawfully
                 attained
                 by
                 vertue
                 of
                 the
                 Disposition
                 ,
                 although
                 not
                 delivered
                 by
                 the
                 Disponer
                 ,
                 will
                 be
                 sufficient
                 ,
                 as
                 if
                 the
                 disponer
                 were
                 not
                 in
                 Possession
                 himself
                 ,
                 and
                 so
                 cannot
                 deliver
                 it
                 ,
                 yet
                 the
                 Acquirer
                 may
                 recover
                 it
                 from
                 the
                 detainer
                 ,
                 or
                 the
                 acquirer
                 might
                 have
                 been
                 in
                 Possession
                 before
                 ,
                 by
                 any
                 other
                 Title
                 ,
                 as
                 by
                 Custody
                 ,
                 Conduction
                 ,
                 &c.
                 
                 In
                 which
                 case
                 ,
                 none
                 require
                 delivery
                 ;
                 yea
                 ,
                 it
                 is
                 more
                 questionable
                 ,
                 whether
                 the
                 Possession
                 would
                 not
                 Consumate
                 the
                 disposition
                 ,
                 though
                 unlawfully
                 attained
                 ,
                 as
                 if
                 the
                 disponer
                 not
                 being
                 in
                 Possession
                 ,
                 the
                 acquirer
                 attained
                 the
                 Possession
                 from
                 a
                 third
                 party
                 ,
                 
                   vi
                   aut
                   clam
                
                 ,
                 though
                 he
                 might
                 be
                 oblieged
                 to
                 restore
                 that
                 Possession
                 to
                 the
                 third
                 party
                 ;
                 yet
                 whether
                 it
                 would
                 not
                 exclude
                 a
                 posteriour
                 disposition
                 ,
                 though
                 more
                 Legal
                 Possession
                 ;
                 It
                 is
                 a
                 Question
                 as
                 probable
                 in
                 the
                 Affirmative
                 ,
                 as
                 in
                 the
                 Negative
                 .
              
               
                 It
                 remaineth
                 then
                 that
                 Possession
                 is
                 the
                 accomplishment
                 of
                 the
                 Disposition
                 of
                 real
                 Rights
                 ,
                 so
                 that
                 not
                 the
                 first
                 Disposition
                 ,
                 but
                 the
                 first
                 Possession
                 ,
                 by
                 vertue
                 thereof
                 preferreth
                 .
                 This
                 Possession
                 is
                 not
                 alike
                 in
                 all
                 cases
                 ,
                 for
                 in
                 some
                 real
                 ,
                 in
                 others
                 symbolical
                 ,
                 Possession
                 is
                 requisite
                 ,
                 which
                 cannot
                 be
                 supplied
                 by
                 real
                 Possesson
                 it self
                 ,
                 as
                 in
                 Propertie
                 of
                 Lands
                 or
                 Annualrents
                 by
                 Infeftment
                 ,
                 wherein
                 the
                 disposition
                 and
                 natural
                 Possession
                 makes
                 no
                 real
                 Right
                 without
                 Seasine
                 ,
                 July
                 12.
                 1628.
                 
                 Bennet
                 contra
                 
                   Turnbul
                   .
                   Novem.
                
                 25.
                 1628.
                 
                 Mitchel
                 contra
                 Wright
                 .
              
               
                 Possession
                 is
                 requisite
                 ,
                 not
                 only
                 to
                 the
                 conveyance
                 of
                 the
                 Property
                 of
                 Moveable
                 Goods
                 ,
                 but
                 also
                 of
                 Liferent-rights
                 ,
                 Tacks
                 and
                 Rentals
                 ,
                 Servitudes
                 ,
                 Pledges
                 ;
                 which
                 Tacks
                 ,
                 though
                 they
                 be
                 truely
                 personal
                 Rights
                 of
                 Location
                 ,
                 and
                 constitute
                 
                 only
                 as
                 real
                 Rights
                 by
                 Statute
                 ,
                 yet
                 Intimation
                 will
                 not
                 transmit
                 them
                 ;
                 but
                 there
                 is
                 necessity
                 of
                 Possession
                 :
                 and
                 though
                 Liferents
                 be
                 more
                 properly
                 real
                 Rights
                 ,
                 because
                 Constitute
                 by
                 Infeftment
                 ;
                 yet
                 seing
                 a
                 Liferenter
                 cannot
                 Infeft
                 another
                 as
                 a
                 Fiar
                 can
                 ,
                 Assignation
                 or
                 Disposition
                 is
                 sufficient
                 ,
                 but
                 it
                 must
                 be
                 cled
                 with
                 Possession
                 :
                 But
                 Reversions
                 ,
                 though
                 they
                 be
                 accounted
                 as
                 real
                 Rights
                 by
                 Statute
                 ,
                 require
                 no
                 Possession
                 for
                 Transmitting
                 them
                 ,
                 but
                 an
                 Assignation
                 duely
                 Registrate
                 ,
                 according
                 to
                 the
                 Act
                 of
                 Par.
                 1617.
                 is
                 sufficient
                 as
                 a
                 publick
                 Intimation
                 .
              
               
                 In
                 Moveables
                 ,
                 Possession
                 is
                 of
                 such
                 efficacy
                 ,
                 that
                 it
                 doth
                 not
                 only
                 consumate
                 the
                 disposition
                 thereof
                 ,
                 but
                 thereupon
                 the
                 disposition
                 is
                 presumed
                 without
                 any
                 necessity
                 to
                 prove
                 the
                 same
                 ,
                 which
                 was
                 found
                 sufficient
                 to
                 inctruct
                 the
                 Property
                 of
                 a
                 Ship
                 from
                 Possession
                 ,
                 without
                 vendition
                 in
                 Write
                 ,
                 July
                 26.
                 1623.
                 
                 Captain
                 Hamilloun
                 contra
                 the
                 Master
                 of
                 the
                 Ship
                 Stetine
                 .
                 And
                 the
                 property
                 of
                 Money
                 was
                 inferred
                 ,
                 from
                 having
                 the
                 Key
                 of
                 the
                 Chist
                 in
                 which
                 the
                 Money
                 was
                 found
                 sealed
                 ,
                 unless
                 a
                 contrary
                 probation
                 were
                 adduced
                 ,
                 June
                 18.
                 1675.
                 
                 Tailzior
                 contra
                 Rankine
                 .
                 And
                 so
                 a
                 Creditor
                 having
                 poynded
                 Goods
                 from
                 his
                 debitor
                 was
                 preferred
                 thereunto
                 to
                 a
                 third
                 party
                 ,
                 who
                 offered
                 to
                 prove
                 these
                 goods
                 to
                 be
                 his
                 own
                 proper
                 goods
                 ,
                 bred
                 upon
                 his
                 own
                 ground
                 ,
                 and
                 set
                 a
                 grassing
                 to
                 that
                 debitor
                 ,
                 the
                 poynder
                 instructing
                 that
                 the
                 goods
                 were
                 milked
                 ,
                 wrought
                 ,
                 and
                 the
                 off-spring
                 thereof
                 enjoyed
                 by
                 the
                 debitor
                 for
                 two
                 years
                 ,
                 without
                 any
                 possession
                 by
                 the
                 other
                 party
                 ,
                 during
                 that
                 space
                 ,
                 which
                 so
                 far
                 presumed
                 his
                 right
                 ,
                 that
                 the
                 Lords
                 admitted
                 not
                 the
                 contrary
                 probation
                 ,
                 Nevem
                 .
                 24.
                 1624.
                 
                 Turnbul
                 of
                 Symontoun
                 contra
                 Ker
                 of
                 Cavers
                 .
                 The
                 like
                 upon
                 two
                 years
                 possession
                 ,
                 June
                 17.
                 1625.
                 
                 Brown
                 contra
                 Hunterstoun
                 .
                 But
                 restitution
                 of
                 a
                 Horse
                 was
                 not
                 excluded
                 ,
                 because
                 the
                 possessour
                 offered
                 to
                 prove
                 he
                 bought
                 him
                 from
                 one
                 who
                 then
                 had
                 him
                 in
                 possession
                 ,
                 in
                 respect
                 the
                 pursuer
                 then
                 offered
                 to
                 prove
                 that
                 immediatly
                 before
                 he
                 had
                 set
                 the
                 Horse
                 in
                 hyre
                 for
                 a
                 Journey
                 to
                 that
                 person
                 who
                 sold
                 him
                 ,
                 Novem.
                 18.
                 1680.
                 
                 
                   William
                   Forsyth
                
                 Stabler
                 contra
                 
                   Hugh
                   Kilpatrick
                
                 :
                 So
                 that
                 it
                 will
                 not
                 be
                 sufficient
                 to
                 any
                 claiming
                 right
                 to
                 moveable
                 goods
                 ,
                 against
                 the
                 lawful
                 possessor
                 to
                 ,
                 alledge
                 he
                 had
                 a
                 good
                 Title
                 to
                 these
                 goods
                 ,
                 and
                 possession
                 of
                 them
                 ,
                 but
                 he
                 must
                 condescend
                 ,
                 
                   quo
                   modo
                   desiit
                   possidere
                
                 ,
                 by
                 Spuilzie
                 ,
                 Stealth
                 ,
                 &c.
                 
                 Or
                 that
                 he
                 gave
                 them
                 only
                 in
                 grassing
                 and
                 custody
                 ,
                 and
                 continued
                 to
                 use
                 Acts
                 ofProperty
                 ;
                 the
                 reason
                 whereof
                 is
                 ,
                 because
                 in
                 the
                 Commerce
                 of
                 moveables
                 ,
                 write
                 useth
                 not
                 to
                 be
                 adhibite
                 ,
                 and
                 it
                 would
                 be
                 an
                 unseparable
                 labour
                 ,
                 if
                 the
                 acquirer
                 thereof
                 behoved
                 to
                 be
                 instructed
                 by
                 all
                 the
                 preceeding
                 acquirers
                 ;
                 as
                 if
                 one
                 should
                 instruct
                 that
                 he
                 bought
                 or
                 bred
                 such
                 goods
                 some
                 years
                 agoe
                 ,
                 the
                 present
                 possessor
                 behoved
                 either
                 to
                 instruct
                 a
                 progress
                 of
                 them
                 ,
                 through
                 all
                 the
                 hands
                 they
                 passed
                 from
                 the
                 first
                 owner
                 ,
                 or
                 lose
                 them
                 ,
                 which
                 being
                 destructive
                 to
                 Commerce
                 ,
                 Custom
                 hath
                 introduced
                 this
                 way
                 ,
                 that
                 possession
                 being
                 present
                 and
                 lawful
                 ,
                 presumethproperty
                 without
                 further
                 probation
                 ,
                 unless
                 the
                 pursuer
                 condescend
                 upon
                 a
                 clear
                 probable
                 way
                 of
                 the
                 goods
                 passing
                 from
                 him
                 ,
                 not
                 by
                 alienation
                 ,
                 as
                 if
                 they
                 were
                 spuilzied
                 ,
                 stolen
                 ,
                 strayed
                 ,
                 &c.
                 Feb
                 ,
                 3.
                 1672.
                 
                 Scot
                 of
                 Gorrenberry
                 contra
                 Eliot
                 .
                 In
                 which
                 case
                 ,
                 the
                 Lybel
                 was
                 only
                 found
                 relevant
                 to
                 be
                 proven
                 by
                 the
                 defenders
                 oath
                 ,
                 that
                 he
                 had
                 not
                 bought
                 or
                 acquired
                 the
                 goods
                 ,
                 
                   bona
                   fide
                
                 ;
                 Or
                 that
                 the
                 goods
                 were
                 in
                 a
                 Defuncts
                 possession
                 the
                 time
                 of
                 his
                 death
                 ,
                 February
                 24.
                 1672.
                 
                 Semple
                 contra
                 Givan
                 ;
                 In
                 which
                 case
                 a
                 Defuncts
                 goods
                 were
                 restored
                 ,
                 albeit
                 they
                 were
                 long
                 possessed
                 after
                 by
                 his
                 Wife
                 ,
                 and
                 impignorate
                 by
                 her
                 ,
                 and
                 her
                 second
                 Husband
                 ,
                 without
                 Confirmation
                 ,
                 the
                 Children
                 of
                 the
                 Defunct
                 Husband
                 ,
                 recovered
                 the
                 same
                 from
                 the
                 Acquirer
                 .
              
               
               
                 The
                 passing
                 from
                 the
                 Proprietar
                 must
                 be
                 so
                 evidently
                 instructed
                 ,
                 that
                 there
                 may
                 no
                 probability
                 remain
                 of
                 their
                 being
                 recovered
                 ,
                 and
                 thereafter
                 alienat
                 :
                 Upon
                 this
                 ground
                 it
                 was
                 ,
                 that
                 Sir
                 
                   John
                   Scot
                
                 ,
                 pursuing
                 Sir
                 
                   John
                   Fletcher
                
                 ,
                 for
                 a
                 Book
                 delivered
                 to
                 him
                 ,
                 The
                 Lords
                 found
                 the
                 Lybel
                 not
                 relevant
                 ,
                 unless
                 it
                 were
                 condescended
                 ,
                 
                   quo
                   modo
                
                 ,
                 the
                 pursuer
                 delivered
                 the
                 same
                 ,
                 viz.
                 by
                 Loan
                 ,
                 and
                 would
                 not
                 put
                 the
                 defender
                 to
                 prove
                 gifted
                 ,
                 but
                 presumed
                 his
                 Title
                 ,
                 unless
                 the
                 contrary
                 were
                 proven
                 by
                 oath
                 or
                 witnesses
                 ,
                 Jan.
                 27.
                 1665.
                 
                 And
                 in
                 a
                 Process
                 for
                 Jewels
                 ,
                 at
                 the
                 Instance
                 of
                 
                   John
                   Ramsay
                
                 contra
                 
                   James
                   Wilson
                
                 ,
                 who
                 had
                 them
                 from
                 Mr.
                 
                   Robert
                   Byres
                
                 ;
                 the
                 Lords
                 found
                 ,
                 that
                 the
                 presumptive
                 Title
                 of
                 the
                 defender
                 and
                 his
                 author
                 was
                 elided
                 upon
                 the
                 contrary
                 presumption
                 ,
                 that
                 Jewels
                 of
                 such
                 value
                 ,
                 could
                 not
                 be
                 bought
                 ,
                 
                   bona
                   fide
                
                 ,
                 seing
                 the
                 seller
                 was
                 neither
                 Merchant
                 nor
                 Jeweller
                 ,
                 nor
                 the
                 Jewels
                 fit
                 for
                 his
                 proper
                 use
                 ,
                 and
                 because
                 it
                 was
                 offered
                 to
                 be
                 proven
                 ,
                 he
                 took
                 them
                 at
                 his
                 own
                 hand
                 out
                 of
                 the
                 pursuers
                 possession
                 to
                 whom
                 they
                 were
                 impignorat
                 by
                 write
                 ,
                 by
                 the
                 Proprietar
                 ,
                 who
                 immediatly
                 went
                 out
                 of
                 the
                 Kingdom
                 .
              
               
                 The
                 most
                 ordinary
                 and
                 important
                 conveyances
                 are
                 of
                 Lands
                 and
                 Annualrents
                 ,
                 which
                 pass
                 by
                 Infeftment
                 ,
                 for
                 perfecting
                 whereof
                 ,
                 there
                 must
                 not
                 only
                 be
                 a
                 Disposition
                 ,
                 but
                 also
                 a
                 Resignation
                 in
                 the
                 hands
                 of
                 the
                 Superiour
                 ,
                 and
                 new
                 Infeftment
                 granted
                 by
                 him
                 to
                 the
                 Acquirer
                 thereupon
                 ,
                 or
                 by
                 Confirmation
                 ,
                 or
                 for
                 obedience
                 upon
                 Appryzing
                 or
                 Adjudication
                 :
                 For
                 disposition
                 of
                 Lands
                 to
                 be
                 holden
                 of
                 the
                 granter
                 ,
                 do
                 not
                 transmit
                 the
                 granters
                 Right
                 ,
                 because
                 he
                 continues
                 Superiour
                 in
                 the
                 direct
                 Dominion
                 ,
                 but
                 it
                 becomes
                 an
                 Original
                 Right
                 ,
                 constituting
                 a
                 new
                 subaltern
                 Infeftment
                 .
              
               
                 Resignation
                 is
                 either
                 in
                 favours
                 of
                 the
                 Superiour
                 himself
                 ,
                 for
                 consolidating
                 of
                 the
                 Property
                 with
                 the
                 Superiority
                 ;
                 and
                 therefore
                 ,
                 is
                 called
                 Resignation
                 ,
                 
                   ad
                   perpetuam
                   remanentiam
                
                 :
                 Or
                 it
                 is
                 a
                 Resignation
                 in
                 the
                 Superiours
                 hands
                 ,
                 in
                 favours
                 of
                 the
                 Resigner
                 himself
                 ,
                 or
                 infavours
                 of
                 an
                 Acquirer
                 ;
                 and
                 therefore
                 ,
                 is
                 called
                 Resignation
                 ,
                 
                   in
                   favorem
                
                 .
                 The
                 first
                 of
                 these
                 is
                 no
                 transmission
                 ,
                 but
                 an
                 extinction
                 of
                 the
                 Fee
                 ,
                 and
                 hath
                 been
                 spoken
                 to
                 in
                 that
                 Title
                 .
              
               
                 The
                 second
                 is
                 not
                 properly
                 a
                 transmission
                 ,
                 because
                 it
                 passeth
                 not
                 from
                 ,
                 but
                 returneth
                 to
                 the
                 Resigner
                 ;
                 yet
                 ordinarly
                 under
                 diverse
                 Considerations
                 ,
                 as
                 when
                 he
                 resigns
                 from
                 himself
                 and
                 such
                 heirs
                 ,
                 in
                 favours
                 of
                 himself
                 and
                 other
                 heirs
                 ,
                 or
                 when
                 he
                 resigns
                 a
                 Ward
                 holding
                 ,
                 that
                 it
                 may
                 be
                 returned
                 blench
                 ,
                 or
                 few
                 ;
                 for
                 the
                 right
                 understanding
                 of
                 Resignations
                 ,
                 
                   in
                   favorem
                
                 ,
                 consider
                 the
                 solemnities
                 requisite
                 thereto
                 ,
                 and
                 the
                 effect
                 which
                 flow
                 from
                 the
                 several
                 steps
                 thereof
                 .
              
               
                 For
                 the
                 first
                 ,
                 a
                 Resignation
                 must
                 proceed
                 upon
                 a
                 Disposition
                 ,
                 or
                 Procuratory
                 of
                 Resignation
                 ,
                 having
                 in
                 it
                 the
                 effects
                 of
                 a
                 Disposition
                 ,
                 which
                 must
                 be
                 in
                 write
                 ,
                 for
                 the
                 Instrument
                 of
                 Resignation
                 being
                 but
                 the
                 assertion
                 of
                 a
                 Nottar
                 ,
                 will
                 not
                 be
                 sufficient
                 alone
                 ,
                 without
                 an
                 adminicle
                 in
                 write
                 ,
                 and
                 though
                 Resignation
                 
                   propriis
                   manibus
                
                 ,
                 can
                 have
                 no
                 Procuratory
                 yet
                 the
                 Disposition
                 whereupon
                 it
                 proceeds
                 ,
                 must
                 be
                 shown
                 .
              
               
                 The
                 second
                 step
                 in
                 Resignation
                 ,
                 is
                 the
                 Act
                 of
                 Resignation
                 it self
                 ,
                 which
                 necessarly
                 must
                 be
                 by
                 way
                 of
                 Instrument
                 of
                 a
                 Nottar
                 ,
                 expressing
                 the
                 warrand
                 of
                 it
                 ,
                 viz.
                 the
                 Disposition
                 if
                 it
                 be
                 done
                 by
                 the
                 resigner
                 ,
                 
                   propriis
                   manibus
                
                 ,
                 or
                 the
                 Procuratory
                 if
                 it
                 be
                 done
                 by
                 a
                 Procurator
                 ,
                 and
                 that
                 conform
                 thereto
                 ,
                 the
                 Resigner
                 or
                 Procurator
                 compeared
                 personally
                 before
                 the
                 Superiour
                 or
                 his
                 Commissioners
                 ,
                 
                 having
                 special
                 warrand
                 to
                 receive
                 Resignations
                 ,
                 and
                 that
                 the
                 Resignation
                 was
                 made
                 in
                 the
                 hands
                 of
                 the
                 Superiour
                 by
                 Staff
                 and
                 Bastoun
                 ,
                 delivered
                 by
                 the
                 Resigner
                 or
                 his
                 Procurator
                 to
                 the
                 Superiour
                 ,
                 as
                 the
                 token
                 or
                 symbol
                 of
                 the
                 thing
                 resigned
                 ,
                 and
                 that
                 the
                 same
                 was
                 accepted
                 and
                 received
                 by
                 the
                 Superiour
                 ,
                 or
                 his
                 Commissioners
                 ,
                 by
                 taking
                 the
                 said
                 symbol
                 in
                 their
                 hands
                 ,
                 for
                 new
                 Infeftment
                 ,
                 to
                 be
                 given
                 to
                 the
                 Acquirer
                 ;
                 and
                 though
                 the
                 Resignation
                 useth
                 to
                 be
                 made
                 by
                 the
                 Vassal
                 ,
                 or
                 his
                 Procurator
                 on
                 their
                 knees
                 ,
                 and
                 so
                 is
                 exprest
                 in
                 the
                 Instrument
                 ,
                 either
                 generally
                 or
                 specially
                 with
                 all
                 humility
                 ,
                 and
                 that
                 the
                 superiour
                 or
                 his
                 Commissioner
                 ,
                 use
                 to
                 deliver
                 the
                 Staff
                 as
                 the
                 symbol
                 of
                 the
                 Fee
                 to
                 the
                 Acquirer
                 ,
                 which
                 is
                 also
                 exprest
                 in
                 the
                 Instrument
                 ;
                 yet
                 these
                 are
                 not
                 essential
                 ,
                 but
                 that
                 without
                 the
                 being
                 or
                 expressing
                 of
                 the
                 Instrument
                 will
                 be
                 valid
                 .
              
               
                 The
                 last
                 step
                 of
                 this
                 transmission
                 by
                 Resignation
                 ,
                 is
                 the
                 Superiour
                 or
                 his
                 Commissioners
                 ,
                 giving
                 new
                 Infeftment
                 to
                 the
                 Acquirer
                 ,
                 the
                 nature
                 and
                 requisites
                 of
                 which
                 Infeftment
                 ,
                 hath
                 been
                 exprest
                 before
                 in
                 the
                 Title
                 Infeftments
                 .
              
               
                 The
                 Solemnities
                 of
                 Resignation
                 are
                 so
                 effectual
                 and
                 necessar
                 ,
                 that
                 the
                 omission
                 of
                 any
                 of
                 them
                 annulleth
                 the
                 Resignation
                 ;
                 and
                 therefore
                 ,
                 Renunciation
                 without
                 a
                 formal
                 Resignation
                 ,
                 though
                 it
                 may
                 be
                 sufficient
                 against
                 the
                 Renuncer
                 ,
                 yet
                 it
                 is
                 not
                 sufficient
                 to
                 take
                 away
                 Infeftment
                 ,
                 renunced
                 against
                 singular
                 successors
                 :
                 Nor
                 can
                 it
                 constitute
                 any
                 real
                 Right
                 in
                 the
                 person
                 of
                 the
                 Acquirer
                 ,
                 unless
                 he
                 had
                 ,
                 aliunde
                 ,
                 another
                 right
                 standing
                 in
                 his
                 person
                 ,
                 in
                 which
                 case
                 ,
                 the
                 Renunciation
                 might
                 exclude
                 the
                 Renuncer
                 ,
                 or
                 his
                 Heirs
                 ,
                 to
                 quarrel
                 that
                 right
                 ,
                 Hope
                 alienation
                 ,
                 Hamiltoun
                 contra
                 Mcadam
                 :
                 The
                 reason
                 thereof
                 is
                 ,
                 because
                 ,
                 
                   jura
                   eodem
                   modo
                   destituuntur
                   quo
                   constituuntur
                
                 ;
                 and
                 therefore
                 ,
                 as
                 Infeftments
                 cannot
                 be
                 constitute
                 without
                 an
                 Instrument
                 of
                 Seasine
                 ,
                 so
                 they
                 cannot
                 be
                 destitute
                 without
                 an
                 Instrument
                 of
                 resignation
                 ,
                 or
                 at
                 least
                 another
                 Instrument
                 of
                 seasine
                 ,
                 with
                 the
                 superiours
                 Confirmation
                 ,
                 or
                 upon
                 his
                 Charter
                 for
                 obedience
                 ,
                 so
                 that
                 renunciation
                 being
                 personal
                 ,
                 operats
                 nothing
                 ,
                 except
                 in
                 the
                 case
                 of
                 Wodsets
                 ,
                 which
                 are
                 extinguished
                 by
                 a
                 renunciation
                 registrate
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 1617.
                 
                 But
                 even
                 Wodsets
                 cannot
                 be
                 transmitted
                 without
                 resignation
                 .
              
               
                 9.
                 
                 But
                 where
                 it
                 is
                 said
                 that
                 the
                 resignation
                 must
                 be
                 by
                 the
                 Vassal
                 or
                 his
                 Procurator
                 ,
                 this
                 question
                 ariseth
                 ,
                 if
                 the
                 Assignation
                 be
                 made
                 by
                 him
                 who
                 is
                 not
                 truely
                 Vassal
                 ,
                 but
                 with
                 consent
                 of
                 the
                 true
                 Vassal
                 ,
                 
                   quid
                   juris
                   ,
                   Craig
                   ,
                   lib.
                
                 3.
                 dieg
                 .
                 1.
                 shows
                 ,
                 that
                 in
                 his
                 time
                 this
                 question
                 was
                 not
                 clearly
                 determined
                 ,
                 nor
                 is
                 he
                 positive
                 in
                 it
                 ,
                 but
                 this
                 far
                 ,
                 if
                 the
                 resigner
                 had
                 no
                 Title
                 ,
                 no
                 consent
                 could
                 be
                 sufficient
                 :
                 yet
                 if
                 he
                 had
                 a
                 colourable
                 Title
                 ,
                 the
                 consent
                 of
                 the
                 true
                 Vassal
                 might
                 validate
                 it
                 :
                 If
                 the
                 true
                 Vassal
                 be
                 consenter
                 to
                 the
                 Procuratory
                 of
                 resignation
                 ,
                 either
                 expresly
                 bearing
                 ,
                 that
                 the
                 disponer
                 ,
                 with
                 consent
                 ,
                 &c.
                 constitute
                 his
                 Procurators
                 :
                 Or
                 if
                 he
                 be
                 consenter
                 to
                 the
                 disposition
                 ,
                 by
                 being
                 exprest
                 in
                 the
                 entry
                 thereof
                 ,
                 which
                 is
                 holden
                 as
                 extensive
                 to
                 the
                 whole
                 disposition
                 ,
                 and
                 so
                 as
                 repeated
                 in
                 the
                 same
                 ,
                 will
                 be
                 as
                 valide
                 ,
                 as
                 if
                 the
                 consenter
                 himself
                 had
                 granted
                 the
                 disposition
                 ,
                 or
                 Procuratory
                 for
                 the
                 Act
                 of
                 the
                 disponer
                 ,
                 though
                 more
                 express
                 and
                 amplified
                 ,
                 is
                 no
                 more
                 but
                 his
                 consent
                 ,
                 and
                 so
                 the
                 other
                 consenting
                 ,
                 doth
                 the
                 same
                 materially
                 ,
                 which
                 he
                 would
                 do
                 if
                 he
                 were
                 disponer
                 ,
                 formally
                 ,
                 but
                 if
                 his
                 consent
                 be
                 adhibite
                 after
                 the
                 resignation
                 is
                 made
                 ,
                 it
                 is
                 meerly
                 personal
                 ,
                 and
                 cannot
                 have
                 influence
                 on
                 the
                 resignation
                 ,
                 which
                 was
                 before
                 it
                 ;
                 or
                 if
                 he
                 but
                 permit
                 or
                 give
                 license
                 to
                 the
                 disponer
                 ,
                 or
                 which
                 is
                 alike
                 ,
                 if
                 he
                 consent
                 ,
                 that
                 the
                 disponer
                 dispone
                 in
                 so
                 far
                 as
                 may
                 concern
                 the
                 disponers
                 
                 right
                 ,
                 these
                 will
                 not
                 be
                 sufficient
                 warrand
                 for
                 the
                 resignation
                 ,
                 but
                 if
                 he
                 give
                 warrand
                 or
                 consent
                 to
                 the
                 resignation
                 ,
                 it
                 is
                 sufficient
                 ;
                 neither
                 is
                 there
                 neces
                 sity
                 to
                 distinguish
                 ,
                 whether
                 the
                 disponer
                 have
                 a
                 colourable
                 Title
                 or
                 not
                 ,
                 se
                 ing
                 it
                 is
                 the
                 consent
                 of
                 the
                 true
                 Vassal
                 and
                 the
                 resignation
                 as
                 flowing
                 from
                 ,
                 and
                 warranted
                 by
                 that
                 consent
                 ,
                 which
                 transmitteth
                 the
                 right
                 ;
                 and
                 therefore
                 ,
                 an
                 Infeftment
                 of
                 an
                 annualrent
                 ,
                 granted
                 by
                 a
                 person
                 not
                 Infeft
                 ,
                 was
                 found
                 valide
                 ,
                 because
                 a
                 consenter
                 thereto
                 was
                 Infeft
                 ,
                 and
                 so
                 it
                 did
                 exclude
                 a
                 valide
                 right
                 flowing
                 from
                 that
                 consenter
                 to
                 a
                 singular
                 successor
                 thereafter
                 ,
                 viz.
                 a
                 Tack
                 ,
                 Decem.
                 15.
                 1630.
                 
                 
                   Jean
                   Stirling
                
                 contra
                 Tennents
                 .
              
               
                 10.
                 
                 Resignation
                 how
                 necessar
                 soever
                 to
                 transmit
                 an
                 Infeftment
                 ,
                 yet
                 because
                 the
                 Procuratory
                 and
                 Instrument
                 of
                 resignation
                 may
                 be
                 lost
                 ;
                 therefore
                 ,
                 the
                 Vassal
                 possessing
                 fourty
                 years
                 ,
                 by
                 vertue
                 of
                 an
                 Infeftment
                 ,
                 mentioning
                 such
                 a
                 resignation
                 ,
                 the
                 same
                 will
                 be
                 valide
                 without
                 the
                 production
                 of
                 the
                 procuratory
                 ,
                 or
                 Instrument
                 of
                 resignation
                 ,
                 which
                 therefore
                 is
                 presumed
                 ,
                 thence
                 
                   presumptione
                   juris
                   ,
                   Par.
                
                 1594.
                 cap.
                 214.
                 
              
               
                 11.
                 
                 As
                 to
                 the
                 effect
                 of
                 resignation
                 ,
                 there
                 is
                 no
                 doubt
                 ,
                 but
                 when
                 the
                 same
                 is
                 truely
                 made
                 ,
                 and
                 Infeftment
                 follows
                 conform
                 ,
                 the
                 resigner
                 is
                 fully
                 divested
                 ,
                 and
                 the
                 acquirer
                 is
                 fully
                 invested
                 ,
                 and
                 if
                 there
                 be
                 conditions
                 or
                 provisiions
                 ,
                 whether
                 bearing
                 express
                 clauses
                 irritant
                 ,
                 that
                 the
                 acquirers
                 Infeftment
                 shall
                 be
                 null
                 ,
                 and
                 the
                 disponers
                 Infeftment
                 shall
                 revive
                 ,
                 or
                 he
                 have
                 regress
                 ,
                 how
                 far
                 these
                 are
                 effectual
                 ,
                 till
                 by
                 resignation
                 or
                 judicial
                 process
                 ,
                 the
                 same
                 be
                 recovered
                 ,
                 is
                 more
                 fully
                 cleared
                 before
                 ,
                 
                   Title
                   Infeftments
                
                 .
              
               
                 It
                 is
                 no
                 less
                 evident
                 ,
                 that
                 before
                 resignation
                 be
                 made
                 the
                 disposition
                 or
                 procuratory
                 ,
                 operats
                 nothing
                 as
                 to
                 the
                 real
                 right
                 ,
                 which
                 notwithstanding
                 remains
                 fully
                 in
                 the
                 disponer
                 ,
                 though
                 he
                 be
                 personally
                 oblieged
                 to
                 perfect
                 it
                 ,
                 albeit
                 there
                 be
                 no
                 such
                 express
                 obliegement
                 in
                 the
                 disposition
                 ;
                 yet
                 by
                 the
                 nature
                 thereof
                 ,
                 the
                 disponer
                 is
                 oblieged
                 to
                 Infeft
                 himself
                 ,
                 if
                 he
                 be
                 not
                 Infeft
                 ,
                 and
                 to
                 Infeft
                 the
                 acquirer
                 ,
                 Hope
                 alienations
                 ,
                 
                   William
                   Gladstanes
                
                 contra
                 Laird
                 of
                 Mckerstoun
                 :
                 Yea
                 ,
                 the
                 disposition
                 of
                 property
                 being
                 accomplished
                 ,
                 carrysall
                 real
                 right
                 of
                 the
                 Land
                 ,
                 or
                 Bonds
                 for
                 granting
                 real
                 right
                 ,
                 in
                 favour
                 of
                 the
                 disponer
                 ,
                 or
                 his
                 authors
                 ,
                 neither
                 assigned
                 nor
                 mentioned
                 in
                 the
                 disposition
                 ,
                 July
                 1.
                 1623.
                 
                 
                   Craigy
                   Wallace
                
                 contra
                 
                   John
                   Chalmers
                
                 .
                 Yea
                 ,
                 a
                 liferent
                 carryeth
                 the
                 reversion
                 in
                 the
                 disponers
                 person
                 ,
                 as
                 to
                 the
                 Liferenters
                 Liferent
                 use
                 ,
                 that
                 ther
                 eupon
                 he
                 might
                 redeem
                 a
                 Wodset
                 :
                 So
                 likeways
                 a
                 disposition
                 of
                 Lands
                 immediatly
                 before
                 a
                 Term
                 ,
                 not
                 expressing
                 an
                 Entry
                 ,
                 nor
                 Assignation
                 to
                 the
                 rent
                 ,
                 was
                 found
                 to
                 exclude
                 the
                 disponer
                 therefrom
                 ,
                 though
                 Infeftment
                 followed
                 not
                 ,
                 till
                 after
                 the
                 Term
                 ,
                 Spots
                 .
                 Mails
                 and
                 Duties
                 ,
                 
                   Andrew
                   Caldwal
                
                 contra
                 
                   Robert
                   Stark
                
                 .
                 And
                 generally
                 ,
                 it
                 carrys
                 Mails
                 and
                 Duties
                 ,
                 as
                 including
                 virtually
                 an
                 Assignation
                 thereto
                 ,
                 July
                 15.
                 1629.
                 
                 
                   Inter
                   eosdem
                
                 :
                 And
                 though
                 the
                 Disposition
                 ,
                 or
                 Procuratory
                 ,
                 cannot
                 constitute
                 a
                 real
                 right
                 ,
                 yet
                 it
                 doth
                 sufficiently
                 exclude
                 the
                 Disponer
                 or
                 his
                 Heirs
                 ,
                 from
                 troubling
                 the
                 Acquirers
                 Possession
                 thereupon
                 .
              
               
                 12.
                 
                 The
                 Main
                 question
                 then
                 is
                 ,
                 what
                 is
                 the
                 effect
                 of
                 a
                 resignation
                 ,
                 when
                 done
                 and
                 accepted
                 by
                 the
                 Superiour
                 ,
                 and
                 no
                 Infeftment
                 following
                 thereon
                 ,
                 where
                 ,
                 in
                 that
                 case
                 ,
                 the
                 right
                 standeth
                 ,
                 whether
                 in
                 the
                 Disponer
                 ,
                 Acquirer
                 ,
                 or
                 Superiour
                 ,
                 and
                 whether
                 the
                 resigner
                 be
                 fully
                 thereby
                 denuded
                 ,
                 or
                 if
                 he
                 may
                 not
                 grant
                 a
                 second
                 resignation
                 ,
                 whereupon
                 the
                 first
                 Infeftment
                 being
                 recovered
                 ,
                 will
                 be
                 effectual
                 :
                 This
                 is
                 very
                 learnedly
                 debated
                 by
                 Craig
                 in
                 the
                 forementioned
                 place
                 ,
                 where
                 he
                 sheweth
                 ,
                 that
                 the
                 common
                 opinion
                 was
                 ,
                 that
                 the
                 second
                 resignation
                 ,
                 
                 
                 
                 with
                 the
                 first
                 seasine
                 will
                 be
                 preferred
                 ,
                 though
                 the
                 Lords
                 had
                 decided
                 otherways
                 ,
                 in
                 the
                 case
                 of
                 a
                 Citizen
                 of
                 Perth
                 ,
                 who
                 making
                 a
                 second
                 resignation
                 in
                 favours
                 of
                 his
                 Son
                 ,
                 though
                 after
                 the
                 first
                 resignation
                 by
                 the
                 space
                 of
                 twenty
                 years
                 ;
                 yet
                 Craig
                 approveth
                 the
                 old
                 opinion
                 concerning
                 the
                 resigner
                 ,
                 never
                 to
                 befully
                 divested
                 ,
                 till
                 the
                 acquirer
                 were
                 invested
                 ;
                 this
                 is
                 clear
                 ,
                 that
                 by
                 the
                 resignation
                 ,
                 the
                 Fee
                 falls
                 in
                 Non-entry
                 '
                 and
                 is
                 in
                 the
                 superiours
                 hands
                 ,
                 and
                 while
                 the
                 resigner
                 resigning
                 in
                 his
                 own
                 favours
                 ,
                 bereceived
                 ,
                 or
                 the
                 resignation
                 past
                 from
                 :
                 Or
                 otherways
                 ,
                 the
                 acquirer
                 be
                 infeft
                 ,
                 the
                 superiour
                 hath
                 the
                 Non-entry
                 duties
                 of
                 the
                 Lands
                 resigned
                 ,
                 if
                 the
                 Infeftment
                 be
                 not
                 delayed
                 ,
                 through
                 his
                 own
                 fault
                 .
                 It
                 is
                 also
                 clear
                 ,
                 that
                 by
                 the
                 superiours
                 acceptance
                 of
                 the
                 resignation
                 ,
                 
                   in
                   〈◊〉
                
                 ,
                 there
                 is
                 upon
                 him
                 a
                 personal
                 obligation
                 to
                 Infeft
                 that
                 person
                 in
                 whose
                 favours
                 the
                 resignation
                 was
                 made
                 ;
                 and
                 therefore
                 ,
                 though
                 the
                 resigner
                 dieuninfeft
                 ,
                 his
                 heir
                 by
                 a
                 single
                 service
                 ,
                 hath
                 right
                 to
                 that
                 asother
                 personal
                 rights
                 ,
                 and
                 thereupon
                 may
                 compel
                 the
                 superiour
                 to
                 infeft
                 him
                 ;
                 yea
                 ,
                 
                   as
                   Craig
                
                 observeth
                 in
                 the
                 fore-cited
                 place
                 ,
                 the
                 Lords
                 upon
                 supplication
                 ,
                 without
                 Citation
                 ,
                 will
                 grant
                 Letters
                 summarly
                 upon
                 sight
                 of
                 the
                 Instrument
                 of
                 resignation
                 ,
                 and
                 warrand
                 therefore
                 ,
                 to
                 charge
                 the
                 Superiour
                 to
                 Infeft
                 the
                 party
                 in
                 whose
                 favour
                 it
                 was
                 made
                 ,
                 who
                 may
                 not
                 receive
                 another
                 resignation
                 ,
                 or
                 nfeft
                 an
                 other
                 party
                 ,
                 or
                 else
                 his
                 obliegement
                 may
                 make
                 him
                 lyable
                 to
                 the
                 obtainer
                 of
                 the
                 first
                 Resignation
                 ,
                 
                   pro
                   〈◊〉
                   &
                   inter
                   esse
                
                 ,
                 if
                 he
                 be
                 not
                 
                   in
                   mora
                
                 ,
                 in
                 doing
                 diligence
                 to
                 get
                 his
                 new
                 Infeftment
                 expede
                 ,
                 recenter
                 ;
                 but
                 the
                 real
                 right
                 will
                 be
                 carryed
                 by
                 the
                 first
                 Infeftment
                 ,
                 though
                 upona
                 posterior
                 Resignation
                 ;
                 and
                 so
                 posterior
                 Decisions
                 go
                 along
                 with
                 Craigs
                 opinion
                 ,
                 not
                 only
                 in
                 the
                 case
                 of
                 the
                 first
                 publick
                 Infeftment
                 ,
                 upona
                 second
                 Resignation
                 ,
                 but
                 which
                 is
                 much
                 more
                 ,
                 after
                 a
                 Resignation
                 ,
                 made
                 a
                 base
                 Infeftment
                 ,
                 flowing
                 thereafter
                 from
                 the
                 Resigner
                 ,
                 and
                 being
                 but
                 a
                 short
                 time
                 before
                 the
                 publick
                 Infeftment
                 ,
                 upon
                 the
                 Resignation
                 ,
                 yet
                 was
                 preferred
                 thereto
                 ,
                 as
                 Dury
                 observes
                 ,
                 but
                 expresses
                 not
                 the
                 parties
                 ,
                 July
                 22.
                 1626.
                 
                 As
                 to
                 the
                 contrair
                 Decision
                 observed
                 by
                 Craig
                 ,
                 it
                 saith
                 nothing
                 ,
                 seing
                 the
                 first
                 Infeftment
                 upon
                 the
                 last
                 Resignation
                 ,
                 was
                 in
                 favours
                 of
                 the
                 resigners
                 Son
                 ,
                 and
                 so
                 
                   inter
                   〈◊〉
                   〈◊〉
                
                 ,
                 was
                 fraudulent
                 ,
                 which
                 would
                 not
                 hold
                 ,
                 so
                 if
                 that
                 Son
                 had
                 been
                 a
                 stranger
                 ,
                 acquiring
                 
                   bona
                   fide
                
                 ,
                 for
                 a
                 cause
                 onerous
                 ,
                 so
                 then
                 the
                 Resignation
                 ,
                 
                   in
                   〈◊〉
                
                 ,
                 doth
                 not
                 denude
                 the
                 resigner
                 of
                 the
                 real
                 right
                 ,
                 but
                 is
                 incompleat
                 till
                 Infeftment
                 follow
                 ;
                 and
                 therefore
                 ,
                 a
                 personal
                 renunciation
                 of
                 him
                 in
                 whose
                 favour
                 it
                 was
                 ,
                 will
                 fully
                 evacuat
                 the
                 Resignation
                 ,
                 and
                 make
                 the
                 resigners
                 Infeftment
                 as
                 intire
                 as
                 at
                 first
                 ,
                 which
                 could
                 not
                 be
                 without
                 a
                 new
                 Infeftment
                 ,
                 if
                 the
                 resigner
                 had
                 been
                 divested
                 ,
                 as
                 in
                 the
                 case
                 of
                 a
                 Resignation
                 
                   ad
                   remanentiam
                
                 ,
                 the
                 Superiours
                 simple
                 renunciation
                 or
                 discharge
                 thereof
                 ,
                 could
                 not
                 revive
                 the
                 Vassalsprior
                 Infeftment
                 ,
                 but
                 he
                 behoved
                 to
                 be
                 Infeft
                 ,
                 
                   de
                   〈◊〉
                
                 ,
                 and
                 though
                 after
                 the
                 Resignation
                 ,
                 till
                 it
                 be
                 past
                 from
                 ,
                 or
                 Infeftment
                 follow
                 ,
                 the
                 Lands
                 be
                 in
                 Non-entry
                 ,
                 it
                 will
                 not
                 conclude
                 that
                 the
                 resigner
                 is
                 denuded
                 ,
                 and
                 the
                 Fee
                 is
                 in
                 the
                 Superiour
                 ,
                 more
                 then
                 other
                 Non-entries
                 ,
                 which
                 give
                 not
                 the
                 Superiour
                 the
                 property
                 ,
                 but
                 a
                 Casuality
                 of
                 the
                 Fee.
                 
              
               
                 In
                 what
                 case
                 Dispositions
                 of
                 Moveables
                 or
                 Lands
                 ,
                 are
                 holden
                 to
                 be
                 simulate
                 or
                 fraudulent
                 ,
                 hath
                 been
                 shown
                 before
                 ,
                 
                   Title
                   Reparation
                
                 (
                 upon
                 Circumvention
                 or
                 Fraud
                 )
                 wherein
                 retention
                 of
                 Possession
                 in
                 Moveables
                 is
                 a
                 main
                 ground
                 for
                 presuming
                 simulation
                 ,
                 especially
                 in
                 gifts
                 of
                 Escheat
                 ;
                 yet
                 if
                 the
                 Disposition
                 of
                 Moveables
                 bear
                 expresly
                 to
                 take
                 effect
                 after
                 the
                 Disponers
                 death
                 ,
                 retention
                 of
                 Possession
                 will
                 not
                 annul
                 it
                 ,
                 neither
                 will
                 it
                 be
                 esteemed
                 as
                 a
                 Legacy
                 ,
                 or
                 
                   donatio
                   mortis
                   causa
                
                 ,
                 if
                 death
                 be
                 the
                 Term
                 ,
                 and
                 not
                 the
                 consideration
                 of
                 it
                 ,
                 and
                 it
                 was
                 not
                 found
                 ptejudged
                 by
                 the
                 Disponers
                 universal
                 Legacy
                 ,
                 March
                 8.
                 1626.
                 
                 Traquair
                 contra
                 Traquair
                 .
              
               
               
                 13.
                 
                 So
                 much
                 for
                 Conventional
                 Conveyances
                 of
                 real
                 Rights
                 ;
                 Judicial
                 Conveyances
                 of
                 real
                 Rights
                 ,
                 are
                 competent
                 ,
                 not
                 by
                 the
                 nature
                 of
                 the
                 right
                 ,
                 which
                 cannot
                 be
                 alienate
                 without
                 consent
                 of
                 the
                 owner
                 ,
                 and
                 in
                 the
                 case
                 of
                 Infeftments
                 ,
                 holden
                 of
                 the
                 Superiour
                 ,
                 without
                 his
                 consent
                 ,
                 who
                 is
                 not
                 oblieged
                 to
                 receive
                 any
                 to
                 be
                 his
                 Vassal
                 ,
                 but
                 the
                 Heirs
                 and
                 Successors
                 of
                 the
                 first
                 Vassal
                 ,
                 provided
                 in
                 the
                 first
                 Investiture
                 ;
                 and
                 though
                 the
                 Investiture
                 bear
                 also
                 ,
                 the
                 Vassals
                 Heirs
                 and
                 Assigneys
                 ,
                 yet
                 the
                 Superiour
                 cannot
                 thereupon
                 be
                 compelled
                 directly
                 to
                 receive
                 a
                 singular
                 Successor
                 ,
                 Assigneys
                 being
                 only
                 meaned
                 such
                 Assigneys
                 to
                 whom
                 the
                 Dispositions
                 should
                 be
                 assigned
                 before
                 Infeftment
                 thereon
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 recognition
                 ,
                 Lady
                 Carnagy
                 contra
                 
                   Cranburn
                   .
                   February
                
                 5.
                 1663.
                 
                 But
                 Law
                 hath
                 introduced
                 in
                 favours
                 of
                 Creditors
                 ,
                 Judicial
                 Conveyances
                 ,
                 requiring
                 no
                 consent
                 ,
                 but
                 authority
                 of
                 Law
                 ,
                 which
                 hath
                 also
                 its
                 Foundation
                 in
                 natural
                 equity
                 ,
                 by
                 which
                 ,
                 as
                 Obligations
                 are
                 effectual
                 for
                 exaction
                 of
                 what
                 is
                 thereby
                 due
                 :
                 So
                 is
                 there
                 were
                 no
                 positive
                 Law
                 norCustom
                 ,
                 the
                 Creditor
                 might
                 exact
                 ,
                 either
                 what
                 is
                 due
                 in
                 specie
                 ,
                 or
                 the
                 equivalent
                 ;
                 and
                 therefore
                 ,
                 reprysals
                 betwixt
                 Nations
                 not
                 governed
                 by
                 one
                 common
                 Authority
                 ,
                 are
                 lawful
                 :
                 And
                 by
                 the
                 custom
                 of
                 Nations
                 ,
                 extended
                 not
                 only
                 against
                 the
                 party
                 injurer
                 ,
                 who
                 is
                 oblieged
                 to
                 repair
                 ,
                 but
                 against
                 all
                 the
                 Subjects
                 of
                 his
                 Soveraign
                 ,
                 if
                 he
                 do
                 not
                 cause
                 reparation
                 to
                 be
                 made
                 .
                 The
                 Judicial
                 transmission
                 of
                 Moveables
                 ,
                 is
                 by
                 poynding
                 ,
                 which
                 being
                 a
                 legal
                 execution
                 ,
                 we
                 shall
                 leave
                 it
                 to
                 that
                 place
                 .
                 Arrestment
                 and
                 the
                 action
                 for
                 making
                 for
                 the
                 coming
                 ,
                 do
                 also
                 transmit
                 moveables
                 ;
                 but
                 is
                 rather
                 proper
                 to
                 personal
                 rights
                 ,
                 and
                 so
                 is
                 competent
                 against
                 the
                 havers
                 of
                 Moveables
                 ,
                 by
                 reason
                 of
                 that
                 personal
                 obligation
                 of
                 restitution
                 ,
                 which
                 is
                 upon
                 the
                 haver
                 to
                 the
                 owner
                 ,
                 beside
                 his
                 own
                 property
                 .
              
               
                 Of
                 old
                 ,
                 alienations
                 of
                 Lands
                 for
                 money
                 ,
                 were
                 very
                 rare
                 in
                 Scotland
                 ,
                 or
                 the
                 contracting
                 of
                 considerable
                 debts
                 ,
                 for
                 the
                 Nobility
                 and
                 Gentry
                 did
                 then
                 live
                 in
                 a
                 plain
                 and
                 sober
                 way
                 ,
                 contenting
                 themselves
                 with
                 that
                 which
                 their
                 own
                 Estates
                 did
                 afford
                 :
                 And
                 there
                 was
                 then
                 known
                 no
                 legal
                 execution
                 for
                 Debt
                 ,
                 against
                 Lands
                 or
                 Heretable
                 Rights
                 ,
                 but
                 only
                 against
                 Moveables
                 ,
                 by
                 the
                 brieff
                 of
                 distress
                 or
                 Poynding
                 ;
                 by
                 which
                 ,
                 not
                 only
                 the
                 Moveables
                 of
                 the
                 Debitor
                 were
                 poynded
                 for
                 his
                 debt
                 ;
                 but
                 all
                 the
                 Moveables
                 upon
                 his
                 Lands
                 belonging
                 to
                 his
                 Tennents
                 ,
                 as
                 appeareth
                 from
                 Act
                 36.
                 
                 Par.
                 1469.
                 bearing
                 this
                 Title
                 ,
                 
                   That
                   the
                   poor
                   Tennents
                   shall
                   pay
                   no
                   further
                   then
                   their
                   Terms
                   Mail
                   for
                   their
                   Lords
                   Debt
                   ,
                   by
                   the
                   Brieff
                   of
                   distress
                   ,
                
                 which
                 is
                 correctory
                 of
                 the
                 former
                 custom
                 ,
                 whereby
                 the
                 goods
                 and
                 cattel
                 of
                 the
                 Inhabitants
                 of
                 the
                 Ground
                 were
                 distrenzied
                 for
                 their
                 Lords
                 debts
                 ,
                 though
                 their
                 Mails
                 extended
                 not
                 to
                 the
                 avail
                 of
                 the
                 debt
                 ,
                 and
                 that
                 not
                 only
                 for
                 real
                 debts
                 affecting
                 the
                 ground
                 by
                 Infeftments
                 of
                 Annualrent
                 ,
                 Feu-duties
                 ,
                 or
                 Casualities
                 of
                 Superiority
                 ,
                 or
                 other
                 
                   debita
                   fundi
                
                 ,
                 for
                 which
                 the
                 Moveables
                 of
                 the
                 Tennents
                 and
                 Possessors
                 ,
                 may
                 yet
                 be
                 poynded
                 for
                 the
                 Lords
                 debt
                 ,
                 not
                 exceeding
                 their
                 Terms
                 Mail
                 ,
                 which
                 is
                 ordinarly
                 in
                 their
                 hand
                 ,
                 or
                 if
                 payed
                 ,
                 may
                 be
                 allowed
                 in
                 the
                 next
                 Term
                 ,
                 but
                 for
                 the
                 Heritors
                 personal
                 debt
                 ;
                 for
                 by
                 the
                 Act
                 ,
                 the
                 Debitors
                 moveables
                 in
                 that
                 ,
                 or
                 any
                 other
                 Barony
                 or
                 Shire
                 ,
                 are
                 appointed
                 to
                 be
                 poynded
                 for
                 satisfying
                 of
                 the
                 Debt
                 ;
                 but
                 
                   debita
                   fundi
                
                 ,
                 can
                 only
                 reach
                 the
                 Moveables
                 of
                 the
                 Barony
                 or
                 Tenement
                 affected
                 therewith
                 ,
                 and
                 though
                 that
                 this
                 Act
                 ,
                 by
                 its
                 Tenor
                 ,
                 would
                 yet
                 extend
                 to
                 poynding
                 of
                 Tennents
                 Moveables
                 for
                 their
                 Masters
                 personal
                 debt
                 ,
                 custom
                 hath
                 restricted
                 it
                 only
                 to
                 real
                 debts
                 ,
                 and
                 it
                 is
                 intirely
                 in
                 desuetude
                 ,
                 as
                 to
                 personal
                 debts
                 ,
                 which
                 cannot
                 burden
                 Tennents
                 ,
                 but
                 upon
                 arrestment
                 ,
                 in
                 so
                 far
                 as
                 they
                 are
                 then
                 debitors
                 to
                 their
                 Masters
                 .
              
               
                 Before
                 this
                 Statute
                 in
                 the
                 year
                 1469.
                 there
                 is
                 no
                 mention
                 in
                 our
                 Law
                 or
                 Customes
                 ,
                 of
                 Appryzing
                 or
                 Adjudication
                 :
                 But
                 Appryzing
                 was
                 thereby
                 introduced
                 
                 in
                 this
                 manner
                 ,
                 that
                 where
                 the
                 debitor
                 has
                 not
                 Moveable
                 Goods
                 but
                 Lands
                 ,
                 the
                 Sheriff
                 shall
                 cause
                 sell
                 the
                 Lands
                 to
                 the
                 avail
                 of
                 the
                 debt
                 ,
                 and
                 pay
                 the
                 Creditor
                 ,
                 which
                 shall
                 be
                 redeemable
                 by
                 the
                 debitor
                 within
                 seven
                 years
                 ,
                 and
                 if
                 he
                 cannot
                 find
                 a
                 buyer
                 ,
                 he
                 shall
                 appryze
                 the
                 debitors
                 Lands
                 by
                 thirteen
                 persons
                 of
                 the
                 best
                 and
                 worthiest
                 in
                 the
                 〈◊〉
                 ,
                 least
                 suspect
                 to
                 either
                 party
                 ,
                 and
                 assign
                 to
                 the
                 Creditors
                 Lands
                 to
                 the
                 avail
                 of
                 the
                 sum
                 ,
                 and
                 the
                 superiour
                 shall
                 receive
                 the
                 Creditor
                 ,
                 or
                 any
                 othe
                 buyer
                 ,
                 for
                 a
                 years
                 Rent
                 ,
                 as
                 the
                 Land
                 is
                 set
                 for
                 the
                 time
                 ;
                 or
                 otherways
                 shall
                 take
                 the
                 Land
                 to
                 himself
                 ,
                 and
                 undergo
                 the
                 debt
                 .
                 According
                 to
                 this
                 Act
                 ,
                 Appryzings
                 did
                 proceed
                 by
                 Sheriffs
                 and
                 Baihes
                 ,
                 who
                 for
                 satisfying
                 of
                 debts
                 ,
                 Liquidat
                 by
                 Decreets
                 ,
                 issued
                 Precepts
                 for
                 denuncing
                 such
                 Lands
                 to
                 be
                 appryzed
                 upon
                 fifteen
                 days
                 warning
                 ,
                 conform
                 to
                 the
                 act
                 of
                 Parliament
                 ,
                 which
                 denunciation
                 was
                 publickly
                 read
                 upon
                 the
                 ground
                 of
                 the
                 Land
                 ,
                 before
                 witnesses
                 ,
                 and
                 a
                 Copy
                 thereof
                 left
                 fixed
                 thereupon
                 ,
                 and
                 also
                 at
                 the
                 Mercat
                 Cross
                 of
                 the
                 head
                 Burgh
                 of
                 the
                 Jurisdiction
                 ,
                 where
                 the
                 Lands
                 ly
                 ,
                 and
                 to
                 the
                 debitor
                 whose
                 Lands
                 were
                 to
                 be
                 appryzed
                 ,
                 expressing
                 the
                 Creditor
                 ,
                 sum
                 ,
                 day
                 and
                 place
                 of
                 appryzing
                 ,
                 that
                 all
                 parties
                 interested
                 might
                 appear
                 ,
                 persons
                 of
                 Inquest
                 and
                 Witnesses
                 were
                 also
                 summond
                 to
                 the
                 same
                 dyet
                 ;
                 and
                 ordinarly
                 the
                 place
                 was
                 upon
                 the
                 ground
                 of
                 the
                 Lands
                 ,
                 that
                 the
                 value
                 and
                 worth
                 thereof
                 might
                 the
                 more
                 clearly
                 appear
                 ,
                 where
                 ,
                 after
                 discussing
                 of
                 the
                 Appryzers
                 Claim
                 ,
                 the
                 hability
                 of
                 the
                 persons
                 of
                 Inquest
                 ,
                 and
                 Witnesses
                 ,
                 so
                 much
                 Land
                 was
                 appryzed
                 and
                 adjudged
                 as
                 was
                 worth
                 the
                 sum
                 ,
                 the
                 years
                 Rent
                 to
                 the
                 Superiour
                 ,
                 and
                 expenses
                 of
                 Infeftments
                 ;
                 and
                 if
                 the
                 Lands
                 were
                 burdened
                 with
                 any
                 former
                 annualrents
                 ,
                 whereby
                 a
                 proportion
                 of
                 Land
                 could
                 not
                 be
                 appryzed
                 ,
                 free
                 of
                 burden
                 ;
                 there
                 was
                 appryzed
                 an
                 annualrent
                 forth
                 of
                 the
                 Lands
                 ,
                 effeirand
                 to
                 the
                 sums
                 ,
                 and
                 expenses
                 foresaid
                 ,
                 and
                 redeemable
                 in
                 the
                 same
                 manner
                 ;
                 which
                 was
                 sustained
                 by
                 the
                 meaning
                 and
                 intent
                 of
                 the
                 Statute
                 ,
                 though
                 by
                 the
                 words
                 of
                 it
                 ,
                 appryzing
                 of
                 Lands
                 was
                 only
                 mentioned
                 ,
                 it
                 was
                 ever
                 extended
                 to
                 all
                 Heretable
                 Rights
                 ;
                 thus
                 it
                 continued
                 till
                 the
                 Lords
                 of
                 Session
                 ,
                 upon
                 exceptions
                 against
                 the
                 Sheriff
                 ,
                 upon
                 his
                 interest
                 ,
                 relation
                 ,
                 or
                 enimity
                 ,
                 or
                 upon
                 the
                 lying
                 of
                 Lands
                 in
                 diverse
                 Jurisdictions
                 ,
                 for
                 preventing
                 of
                 expenses
                 by
                 many
                 appryzings
                 ,
                 where
                 the
                 Lands
                 in
                 one
                 Jurisdiction
                 sufficed
                 not
                 ,
                 did
                 grant
                 Letters
                 of
                 appryzing
                 under
                 the
                 signet
                 ,
                 direct
                 not
                 to
                 the
                 ordinar
                 Sheriffs
                 ,
                 but
                 to
                 sherifts
                 in
                 that
                 part
                 ,
                 which
                 being
                 frequent
                 ,
                 did
                 come
                 to
                 run
                 in
                 course
                 to
                 Messengers
                 ,
                 as
                 sheriffs
                 in
                 that
                 part
                 ,
                 &c.
                 
                 And
                 thereby
                 the
                 appryzer
                 ,
                 in
                 respect
                 the
                 Letters
                 had
                 a
                 blank
                 for
                 inserting
                 the
                 Messengers
                 name
                 ,
                 did
                 choise
                 the
                 Messenger
                 ,
                 who
                 did
                 denunce
                 all
                 Lands
                 and
                 other
                 Heretable
                 Rights
                 ,
                 which
                 the
                 appryzer
                 pretended
                 to
                 belong
                 to
                 his
                 debitor
                 :
                 And
                 in
                 respect
                 the
                 Letters
                 bore
                 dispensation
                 of
                 the
                 place
                 ,
                 did
                 apprize
                 ,
                 at
                 Edinhurgh
                 ,
                 all
                 that
                 the
                 appryzer
                 clamed
                 ,
                 in
                 satisfaction
                 of
                 the
                 debt
                 ,
                 without
                 knowledge
                 or
                 consideration
                 of
                 the
                 value
                 of
                 the
                 Lands
                 ,
                 or
                 others
                 appryzed
                 ,
                 or
                 proportion
                 to
                 the
                 sums
                 appryzed
                 for
                 ,
                 and
                 thereupon
                 was
                 Infeft
                 in
                 the
                 whole
                 ,
                 and
                 payed
                 to
                 the
                 superiour
                 a
                 composition
                 for
                 a
                 years
                 Rent
                 of
                 the
                 whole
                 ,
                 which
                 was
                 a
                 considerable
                 accession
                 to
                 the
                 Debitors
                 debt
                 ,
                 and
                 behoved
                 to
                 be
                 payed
                 by
                 him
                 ,
                 and
                 by
                 the
                 saids
                 appryzings
                 ,
                 the
                 appryzer
                 might
                 ,
                 and
                 oftentimes
                 did
                 enter
                 in
                 possession
                 of
                 the
                 whole
                 Lands
                 ,
                 without
                 being
                 countable
                 for
                 the
                 rents
                 thereof
                 ,
                 of
                 what
                 quantity
                 soever
                 :
                 By
                 this
                 abuse
                 ,
                 the
                 intent
                 of
                 that
                 excellent
                 statute
                 for
                 appryzings
                 ,
                 was
                 enervat
                 ,
                 and
                 the
                 same
                 turned
                 in
                 a
                 meer
                 Formality
                 ,
                 until
                 the
                 Par.
                 1621.
                 cap.
                 6.
                 which
                 began
                 to
                 correct
                 that
                 exorbitant
                 abuse
                 ,
                 and
                 declared
                 appryzers
                 countable
                 for
                 their
                 intromissions
                 ,
                 in
                 so
                 far
                 as
                 exceeded
                 their
                 Annualrents
                 ,
                 to
                 be
                 imputed
                 in
                 their
                 principal
                 sums
                 ,
                 
                   pro
                   tanto
                
                 ,
                 and
                 that
                 they
                 being
                 thereby
                 satisfied
                 of
                 their
                 sums
                 ,
                 principal
                 and
                 annual
                 ,
                 composition
                 to
                 the
                 superiour
                 ,
                 and
                 expenses
                 of
                 appryzing
                 and
                 infeftments
                 ,
                 that
                 thereby
                 the
                 appryzing
                 should
                 expyre
                 ,
                 
                   ipso
                   facto
                
                 ,
                 and
                 it
                 is
                 also
                 declared
                 ,
                 that
                 if
                 the
                 Lands
                 appryzed
                 
                 be
                 not
                 worth
                 of
                 free
                 rent
                 ,
                 effeirand
                 to
                 the
                 annualrent
                 of
                 the
                 said
                 sums
                 ,
                 that
                 before
                 redemption
                 he
                 shall
                 be
                 satisfied
                 of
                 the
                 superplus
                 .
                 By
                 which
                 Act
                 it
                 is
                 declared
                 ,
                 that
                 Minors
                 may
                 redeem
                 Lands
                 appryzed
                 from
                 them
                 at
                 any
                 time
                 ,
                 within
                 their
                 age
                 of
                 twenty
                 five
                 years
                 compleat
                 ,
                 yet
                 so
                 ,
                 that
                 after
                 the
                 first
                 seven
                 year
                 ,
                 the
                 appryzer
                 shall
                 have
                 the
                 benefit
                 of
                 the
                 whole
                 Mails
                 and
                 Duties
                 till
                 he
                 be
                 redeemed
                 ,
                 which
                 hath
                 always
                 been
                 extended
                 to
                 Lands
                 appryzed
                 from
                 persons
                 being
                 Major
                 ,
                 if
                 a
                 Minor
                 succeed
                 ,
                 during
                 the
                 Legal
                 ;
                 and
                 if
                 a
                 person
                 being
                 Major
                 succeed
                 to
                 him
                 who
                 was
                 Minor
                 ,
                 he
                 hath
                 the
                 benefit
                 of
                 Reversion
                 of
                 seven
                 year
                 ,
                 in
                 so
                 far
                 as
                 was
                 not
                 run
                 in
                 the
                 Minors
                 life
                 ,
                 and
                 if
                 less
                 remain
                 then
                 a
                 year
                 ,
                 at
                 the
                 Minors
                 death
                 ,
                 the
                 Major
                 hath
                 a
                 full
                 year
                 to
                 redeem
                 after
                 the
                 Minors
                 death
                 ;
                 and
                 by
                 the
                 Act
                 1669.
                 of
                 the
                 abrogat
                 Parliament
                 ,
                 1641.
                 appryzers
                 were
                 declared
                 countable
                 for
                 the
                 rents
                 of
                 appryzed
                 Lands
                 intrometted
                 with
                 by
                 them
                 ,
                 during
                 all
                 the
                 time
                 of
                 the
                 Legal
                 ,
                 whether
                 competent
                 to
                 Minors
                 or
                 others
                 .
              
               
                 And
                 because
                 of
                 another
                 great
                 abuse
                 ,
                 by
                 the
                 debording
                 of
                 Appryzings
                 from
                 the
                 first
                 institution
                 .
                 that
                 the
                 first
                 appryzer
                 ,
                 appryzing
                 the
                 whole
                 Estate
                 ,
                 the
                 other
                 Creditors
                 had
                 no
                 more
                 but
                 the
                 Legal
                 Reversion
                 ,
                 which
                 did
                 ordinarly
                 expyre
                 ,
                 the
                 subsequent
                 Creditors
                 not
                 being
                 able
                 to
                 raise
                 money
                 to
                 redeem
                 the
                 anterior
                 appryzer
                 ,
                 whereby
                 the
                 first
                 appryzer
                 carried
                 the
                 whole
                 Estate
                 ,
                 and
                 excluded
                 all
                 the
                 rest
                 ,
                 and
                 being
                 ashamed
                 to
                 take
                 so
                 great
                 a
                 Legal
                 advantage
                 ,
                 and
                 sometimes
                 not
                 daring
                 to
                 make
                 use
                 of
                 it
                 ,
                 did
                 ordinarly
                 compone
                 with
                 the
                 debitor
                 ,
                 his
                 appearand
                 heir
                 ,
                 or
                 some
                 confident
                 to
                 their
                 behove
                 ,
                 whereby
                 the
                 debitors
                 heir
                 recovered
                 his
                 whole
                 Estate
                 ,
                 by
                 satisfying
                 one
                 Creditor
                 ,
                 and
                 excluding
                 all
                 the
                 rest
                 ;
                 therefore
                 the
                 Par.
                 1661.
                 by
                 their
                 Act
                 62.
                 anent
                 debitor
                 and
                 creditor
                 ,
                 declared
                 that
                 all
                 appryzings
                 deduced
                 since
                 the
                 first
                 of
                 January
                 1652.
                 or
                 to
                 be
                 deduced
                 in
                 time
                 coming
                 ,
                 within
                 a
                 year
                 after
                 the
                 first
                 appryzing
                 ,
                 which
                 became
                 effectual
                 by
                 infeftment
                 or
                 Charge
                 ,
                 should
                 come
                 in
                 
                   pari
                   passu
                
                 ,
                 as
                 if
                 one
                 appryzing
                 had
                 been
                 led
                 for
                 all
                 the
                 sums
                 ,
                 and
                 thereby
                 the
                 legal
                 was
                 extended
                 to
                 ten
                 year
                 ;
                 and
                 it
                 is
                 declared
                 ,
                 that
                 whensoever
                 the
                 appearand
                 heir
                 or
                 any
                 to
                 his
                 behove
                 ,
                 shall
                 acquire
                 right
                 to
                 any
                 expyred
                 appryzing
                 ,
                 that
                 the
                 same
                 shall
                 be
                 redeemed
                 from
                 them
                 within
                 the
                 space
                 of
                 ten
                 year
                 ,
                 after
                 their
                 acquiry
                 ,
                 by
                 posterior
                 appryzers
                 ,
                 upon
                 payment
                 of
                 what
                 they
                 truly
                 payed
                 ,
                 in
                 so
                 far
                 as
                 shall
                 not
                 be
                 satisfied
                 by
                 their
                 intromission
                 .
              
               
                 But
                 neither
                 did
                 this
                 statute
                 cure
                 the
                 abuse
                 of
                 appryzings
                 ;
                 and
                 therefore
                 the
                 Act
                 of
                 Par.
                 of
                 the
                 6.
                 of
                 septem
                 .
                 1672.
                 upon
                 consideration
                 of
                 debording
                 of
                 appryzings
                 from
                 the
                 first
                 design
                 ,
                 and
                 of
                 the
                 great
                 inconveniencies
                 arising
                 thereby
                 for
                 the
                 bringing
                 in
                 of
                 all
                 appryzers
                 within
                 year
                 and
                 day
                 ,
                 did
                 give
                 way
                 to
                 break
                 the
                 credit
                 and
                 ruine
                 the
                 interest
                 of
                 the
                 most
                 considerable
                 Heretors
                 in
                 the
                 Kingdom
                 ,
                 that
                 creditors
                 being
                 thereby
                 invited
                 ,
                 under
                 the
                 hazard
                 of
                 being
                 excluded
                 to
                 appryze
                 within
                 a
                 year
                 ;
                 and
                 thereby
                 one
                 wilful
                 ,
                 malicious
                 ,
                 or
                 necessitous
                 Creditor
                 apprizing
                 ,
                 all
                 the
                 rest
                 followed
                 ,
                 and
                 intirely
                 brook
                 their
                 credit
                 ,
                 unless
                 they
                 would
                 pay
                 all
                 their
                 debt
                 in
                 one
                 day
                 ;
                 therefore
                 ,
                 the
                 Parliament
                 ,
                 did
                 in
                 place
                 of
                 Appryzings
                 ,
                 ordain
                 adjudications
                 ,
                 to
                 proceed
                 before
                 the
                 Lords
                 of
                 Session
                 ,
                 for
                 adjudging
                 the
                 Lands
                 and
                 other
                 Heretable
                 Rights
                 of
                 debitors
                 ,
                 effeirand
                 to
                 the
                 sums
                 appryzed
                 for
                 ,
                 and
                 a
                 fifth
                 part
                 more
                 in
                 place
                 of
                 the
                 penaltiies
                 and
                 sheriff-fee
                 ,
                 and
                 allowed
                 Witnesses
                 for
                 either
                 party
                 ,
                 for
                 clearing
                 of
                 the
                 Rental
                 and
                 rate
                 of
                 the
                 Lands
                 ,
                 in
                 the
                 several
                 places
                 where
                 they
                 ly
                 ,
                 and
                 appointed
                 the
                 adjudger
                 to
                 have
                 present
                 Possession
                 of
                 the
                 Lands
                 adjudged
                 ,
                 not
                 being
                 accountable
                 for
                 his
                 intromission
                 during
                 the
                 Legal
                 ,
                 redeemable
                 only
                 within
                 five
                 year
                 ,
                 whereby
                 the
                 Creditor
                 had
                 easie
                 accress
                 for
                 his
                 satisfaction
                 ,
                 without
                 all
                 hazard
                 or
                 account
                 ,
                 which
                 had
                 been
                 the
                 ground
                 of
                 many
                 tedious
                 Processes
                 
                 of
                 Count
                 and
                 Reckoning
                 for
                 the
                 Intromission
                 of
                 former
                 Appryzers
                 ,
                 and
                 wherein
                 the
                 Adjudgers
                 is
                 to
                 have
                 the
                 Consent
                 of
                 his
                 debitor
                 ,
                 both
                 as
                 to
                 Right
                 and
                 Possession
                 ,
                 and
                 delivery
                 of
                 the
                 Evidents
                 ;
                 and
                 it
                 is
                 declared
                 ,
                 that
                 if
                 the
                 debitor
                 do
                 not
                 instruct
                 ,
                 and
                 deliver
                 a
                 good
                 Right
                 ,
                 and
                 consent
                 ,
                 as
                 said
                 is
                 ,
                 that
                 the
                 creditor
                 might
                 adjudge
                 all
                 the
                 debitors
                 Estate
                 in
                 the
                 same
                 manner
                 ,
                 and
                 to
                 the
                 same
                 effect
                 ,
                 as
                 is
                 appointed
                 by
                 the
                 Act
                 of
                 Par.
                 1661.
                 between
                 debitor
                 and
                 creditor
                 .
              
               
                 We
                 shall
                 not
                 here
                 speak
                 of
                 Adjudications
                 and
                 Appryzings
                 ,
                 as
                 they
                 are
                 legal
                 Executions
                 ,
                 and
                 of
                 the
                 Order
                 and
                 Solemnities
                 requisite
                 to
                 them
                 ,
                 as
                 such
                 ;
                 but
                 only
                 as
                 they
                 are
                 Conveyances
                 of
                 real
                 Rights
                 ,
                 wherein
                 we
                 shall
                 consider
                 ;
                 first
                 ,
                 upon
                 what
                 ground
                 Appryzings
                 proceed
                 .
                 Secondly
                 ,
                 against
                 what
                 Rights
                 they
                 are
                 competent
                 .
                 Thirdly
                 ,
                 what
                 is
                 the
                 effect
                 of
                 the
                 Process
                 ,
                 or
                 Decreet
                 of
                 Appryzing
                 ,
                 without
                 further
                 Diligence
                 .
                 Fourthly
                 ,
                 what
                 is
                 the
                 effect
                 thereof
                 ,
                 when
                 further
                 Diligence
                 is
                 used
                 .
                 Fifthly
                 ,
                 what
                 is
                 the
                 effect
                 thereof
                 when
                 Infeftment
                 is
                 obtained
                 .
                 And
                 lastly
                 ,
                 in
                 what
                 manner
                 it
                 ceaseth
                 and
                 becometh
                 extinct
                 .
              
               
                 14.
                 
                 As
                 to
                 the
                 first
                 ,
                 Appryzing
                 is
                 an
                 Appretiation
                 and
                 Judicial
                 Vendition
                 of
                 the
                 thing
                 appryzed
                 ,
                 from
                 the
                 Debitor
                 to
                 the
                 Creditor
                 ;
                 and
                 as
                 in
                 all
                 Venditions
                 ,
                 there
                 must
                 be
                 merx
                 and
                 pretium
                 ,
                 or
                 the
                 price
                 in
                 numerat
                 Money
                 ;
                 for
                 if
                 the
                 mutual
                 consist
                 in
                 any
                 thing
                 else
                 ,
                 it
                 is
                 not
                 Sale
                 but
                 Exchange
                 ;
                 therefore
                 the
                 ground
                 of
                 Appryzing
                 must
                 be
                 numerate
                 and
                 current
                 Money
                 ,
                 and
                 if
                 originally
                 it
                 be
                 not
                 so
                 ,
                 it
                 must
                 be
                 liquidat
                 before
                 Appryzing
                 can
                 proceed
                 ;
                 neither
                 can
                 it
                 proceed
                 but
                 upon
                 a
                 Decreet
                 establishing
                 the
                 Debt
                 by
                 Registration
                 ,
                 or
                 otherways
                 in
                 the
                 person
                 of
                 the
                 Appryzer
                 active
                 ,
                 and
                 of
                 the
                 Debitor
                 Passive
                 ;
                 yet
                 an
                 Assigney
                 intimating
                 before
                 the
                 Cedents
                 death
                 ,
                 may
                 Appryze
                 summarly
                 without
                 Action
                 ,
                 establishing
                 the
                 Debt
                 in
                 his
                 person
                 ,
                 as
                 hath
                 been
                 shown
                 ,
                 
                   Title
                   Assignations
                
                 .
                 Neither
                 could
                 Appryzing
                 proceed
                 upon
                 Heretable
                 Bonds
                 ,
                 unless
                 the
                 same
                 had
                 been
                 made
                 moveable
                 ,
                 by
                 Requisition
                 or
                 Charge
                 ;
                 and
                 therefore
                 ,
                 was
                 found
                 null
                 ,
                 proceeding
                 upon
                 an
                 Heretable
                 Sum
                 ,
                 bearing
                 a
                 Clause
                 of
                 Annualrent
                 ,
                 though
                 payable
                 without
                 requisition
                 upon
                 a
                 single
                 Charge
                 of
                 six
                 days
                 ,
                 seing
                 that
                 Charge
                 was
                 not
                 given
                 July
                 20.
                 1622.
                 
                 
                   John
                   Cranstoun
                
                 contra
                 Laird
                 of
                 
                   East-nisbit
                   .
                   Hope
                
                 Obligations
                 ,
                 
                   Alexander
                   Mowat
                
                 contra
                 the
                 Creditors
                 of
                 
                   John
                   Richardson
                   .
                   John
                   Cranstoun
                
                 contra
                 Laird
                 of
                 Lugtoun
                 .
                 But
                 Posterior
                 Decisions
                 have
                 run
                 in
                 the
                 contrair
                 ,
                 that
                 if
                 the
                 sum
                 were
                 payable
                 without
                 Requisition
                 ,
                 Appryzing
                 might
                 proceed
                 thereupon
                 without
                 a
                 Charge
                 ,
                 as
                 well
                 as
                 Poynding
                 or
                 Arrestment
                 ,
                 July
                 4.
                 1627.
                 
                 Edgar
                 and
                 Johnstoun
                 contra
                 
                   Findlason
                   .
                   July
                
                 10.
                 1629.
                 
                 Clackmannan
                 contra
                 Barroun
                 .
                 In
                 which
                 case
                 ,
                 the
                 principal
                 sum
                 was
                 payable
                 at
                 a
                 precise
                 Term
                 ,
                 and
                 no
                 mention
                 of
                 any
                 Term
                 or
                 time
                 thereafter
                 ,
                 and
                 yet
                 was
                 Appryzed
                 for
                 ,
                 after
                 that
                 Term
                 ,
                 January
                 25.
                 1642.
                 
                 
                   John
                   Seatoun
                
                 contra
                 
                   James
                   Loch
                
                 .
                 But
                 if
                 Infeftment
                 have
                 followed
                 ,
                 or
                 Requisition
                 be
                 requisite
                 ,
                 the
                 sum
                 must
                 be
                 made
                 moveable
                 ,
                 before
                 Appryzing
                 :
                 But
                 other
                 Sums
                 ,
                 though
                 by
                 Destination
                 Heretable
                 ,
                 yet
                 having
                 Summar
                 Execution
                 by
                 the
                 parties
                 consent
                 ,
                 Appryzing
                 is
                 sustained
                 thereupon
                 .
              
               
                 15.
                 
                 As
                 to
                 the
                 second
                 point
                 against
                 what
                 Rights
                 Appryzings
                 extend
                 ;
                 First
                 ,
                 though
                 Letters
                 of
                 Appryzings
                 contain
                 power
                 to
                 poynd
                 Moveables
                 ,
                 which
                 must
                 be
                 searched
                 for
                 ;
                 yet
                 that
                 which
                 is
                 properly
                 called
                 Appryzing
                 ,
                 extends
                 to
                 no
                 Moveables
                 ,
                 but
                 only
                 to
                 Heretable
                 Rights
                 ,
                 as
                 Lands
                 ,
                 Annualrents
                 ,
                 Liferents
                 ,
                 Tacks
                 ,
                 Reversions
                 ,
                 Heretable
                 Bonds
                 ,
                 July
                 25.
                 1623.
                 
                 Earl
                 of
                 Errel
                 contra
                 Buckie
                 ;
                 and
                 therefore
                 ,
                 it
                 extends
                 not
                 to
                 the
                 Mails
                 and
                 Duties
                 of
                 the
                 Appryzed
                 Lands
                 ,
                 before
                 the
                 Appryzing
                 ,
                 Feb.
                 14.
                 1623.
                 
                 Saltcoats
                 contra
                 Home
                 .
                 The
                 like
                 ,
                 though
                 
                 the
                 question
                 was
                 against
                 the
                 Debitor
                 himself
                 ,
                 and
                 that
                 the
                 style
                 of
                 the
                 Appyzing
                 bore
                 ,
                 all
                 Right
                 that
                 the
                 Debitor
                 had
                 to
                 the
                 Lands
                 to
                 be
                 Appryzed
                 ,
                 March
                 13.
                 1627.
                 
                 Mackre
                 of
                 Balmagie
                 contra
                 Livingstoun
                 .
                 And
                 where
                 an
                 Annualrent
                 is
                 Appryzed
                 ,
                 it
                 extends
                 not
                 to
                 the
                 bygone
                 Annualrents
                 ,
                 which
                 are
                 Moveable
                 ;
                 but
                 these
                 being
                 Moveable
                 ,
                 are
                 Arrestable
                 ,
                 neither
                 doth
                 it
                 extend
                 to
                 the
                 Duties
                 after
                 Denunciation
                 ,
                 and
                 before
                 Appryzing
                 ,
                 Feb.
                 16.
                 1633.
                 
                 Harper
                 contra
                 Cockburn
                 and
                 Johnstoun
                 .
              
               
                 Appryzing
                 is
                 extended
                 to
                 all
                 Heretable
                 Rights
                 ,
                 though
                 they
                 were
                 not
                 provided
                 to
                 Assigneys
                 ,
                 but
                 to
                 the
                 Debitor
                 and
                 his
                 Heirs
                 only
                 ,
                 or
                 failing
                 ,
                 such
                 Heirs
                 to
                 return
                 ;
                 and
                 therefore
                 ,
                 publick
                 utility
                 and
                 the
                 favour
                 of
                 the
                 Creditor
                 makes
                 it
                 more
                 effectual
                 then
                 any
                 voluntar
                 Disposition
                 or
                 Assignation
                 could
                 be
                 ,
                 so
                 an
                 Appryzing
                 was
                 found
                 to
                 carry
                 a
                 Right
                 ,
                 though
                 not
                 granted
                 to
                 Assigneys
                 ,
                 Hope
                 Appryzing
                 ,
                 
                   John
                   Brown
                
                 contra
                 Fssilmont
                 of
                 Buckie
                 .
                 And
                 a
                 Husband
                 granting
                 Right
                 to
                 his
                 Wife
                 ,
                 but
                 with
                 provision
                 that
                 she
                 should
                 renounce
                 it
                 ,
                 if
                 he
                 required
                 it
                 in
                 his
                 own
                 life
                 allennerly
                 ,
                 a
                 Creditor
                 of
                 his
                 Appryzing
                 that
                 Land
                 ,
                 and
                 requiring
                 the
                 Wife
                 to
                 renunce
                 ,
                 was
                 found
                 to
                 have
                 right
                 thereto
                 ,
                 spots
                 .
                 Appryzing
                 ,
                 Lady
                 Huttonhal
                 contra
                 Cranstoun
                 of
                 Moristoun
                 .
                 An
                 Appryzing
                 of
                 the
                 ground
                 Right
                 and
                 Property
                 of
                 Lands
                 ,
                 and
                 all
                 other
                 Rights
                 ,
                 &c.
                 carryeth
                 not
                 only
                 the
                 Property
                 ,
                 but
                 all
                 other
                 real
                 Right
                 ,
                 or
                 Obliegements
                 for
                 granting
                 thereof
                 ,
                 and
                 though
                 no
                 Infeftment
                 follow
                 ,
                 the
                 Appryzing
                 so
                 conceived
                 will
                 carry
                 any
                 Right
                 ,
                 which
                 requireth
                 not
                 Infeftment
                 ,
                 as
                 if
                 it
                 had
                 been
                 specially
                 Denunced
                 and
                 Appryzed
                 ,
                 June
                 19.
                 1635.
                 
                 
                   James
                   Rule
                
                 contra
                 
                   Alexander
                   Home
                
                 .
              
               
                 16.
                 
                 To
                 come
                 now
                 to
                 the
                 third
                 Point
                 concerning
                 the
                 Efficacy
                 of
                 the
                 Process
                 and
                 Decreet
                 of
                 Appryzing
                 ,
                 without
                 further
                 Diligence
                 ;
                 and
                 first
                 ,
                 it
                 hath
                 the
                 effect
                 of
                 an
                 Assignation
                 ,
                 without
                 necessity
                 of
                 Intimation
                 ,
                 and
                 carries
                 all
                 Rights
                 which
                 require
                 not
                 Infeftments
                 to
                 transmit
                 them
                 ,
                 as
                 Liferents
                 ,
                 Reversions
                 ,
                 Tacks
                 And
                 so
                 an
                 Appryzing
                 was
                 found
                 to
                 carry
                 the
                 Legal
                 of
                 an
                 anterior
                 Appryzing
                 ,
                 though
                 the
                 Denunciation
                 ,
                 whereupon
                 it
                 proceeded
                 ,
                 was
                 anterior
                 to
                 the
                 Denunciation
                 whereupon
                 the
                 first
                 Appryzing
                 proceeded
                 ,
                 and
                 thereby
                 at
                 the
                 time
                 of
                 the
                 Denunciation
                 of
                 the
                 second
                 Appryzing
                 ,
                 neither
                 was
                 the
                 first
                 Appryzing
                 ,
                 in
                 being
                 neither
                 the
                 Denunciation
                 thereof
                 ,
                 and
                 so
                 could
                 not
                 be
                 Denunced
                 or
                 Appryzed
                 ;
                 yet
                 the
                 Denunciation
                 of
                 the
                 Ground-right
                 ,
                 and
                 all
                 Right
                 competent
                 ,
                 or
                 that
                 might
                 be
                 competent
                 to
                 the
                 Debitor
                 ,
                 was
                 found
                 to
                 carry
                 the
                 Reversion
                 of
                 the
                 said
                 first
                 Appryzing
                 ,
                 Novem.
                 18.
                 1624.
                 
                 Doctor
                 Kincaid
                 contra
                 
                   James
                   Halyburtoun
                
                 .
              
               
                 17.
                 
                 Though
                 second
                 Appryzings
                 carry
                 the
                 legal
                 Reversions
                 of
                 anterior
                 Appryzings
                 without
                 Infeftment
                 :
                 Yet
                 Infeftment
                 is
                 frequently
                 taken
                 thereupon
                 ,
                 that
                 the
                 posterior
                 Appryzer
                 may
                 have
                 Interest
                 thereby
                 ,
                 to
                 reduce
                 or
                 quarrel
                 the
                 Anterior
                 Appryzings
                 ,
                 and
                 to
                 pursue
                 for
                 Mails
                 and
                 Duties
                 ,
                 or
                 Removing
                 ,
                 if
                 the
                 Anterior
                 appryzer
                 should
                 forbear
                 .
              
               
                 18.
                 
                 The
                 second
                 effect
                 of
                 Appryzing
                 is
                 ,
                 that
                 the
                 Debitor
                 is
                 thereby
                 so
                 far
                 divested
                 ,
                 that
                 after
                 his
                 death
                 ,
                 Infeftment
                 may
                 be
                 taken
                 by
                 the
                 Appryzer
                 ,
                 without
                 transfering
                 or
                 Infefting
                 the
                 Debitors
                 Heir
                 ,
                 Novemb.
                 20.
                 1624.
                 
                 Lag
                 contra
                 his
                 Tennents
                 .
                 So
                 likewise
                 the
                 heir
                 of
                 the
                 Appryzer
                 dying
                 before
                 allowance
                 ,
                 or
                 Infeftment
                 upon
                 Supplication
                 obtained
                 allowance
                 from
                 the
                 Lords
                 ,
                 and
                 Letters
                 to
                 Charge
                 the
                 Superiour
                 to
                 receive
                 him
                 ,
                 
                   Spots
                   .
                   hic
                   ,
                   Alexander
                   Frazer
                
                 Supplicant
                 .
                 The
                 like
                 was
                 granted
                 by
                 the
                 Appryzers
                 Assigney
                 ,
                 March
                 22.
                 1626.
                 
                 Collace
                 contra
                 Lord
                 Elphingstoun
                 .
                 Yea
                 ,
                 an
                 appryzer
                 did
                 obtain
                 allowance
                 
                 and
                 varrand
                 to
                 Charge
                 the
                 heir
                 of
                 the
                 Superiour
                 ,
                 contained
                 in
                 the
                 first
                 allowance
                 ,
                 being
                 dead
                 ,
                 Decem.
                 5.
                 1628.
                 
                 Laird
                 of
                 Corsbie
                 contra
                 Kilsyth
                 .
                 From
                 this
                 ground
                 it
                 is
                 ,
                 that
                 an
                 Appryzing
                 excludes
                 prior
                 assignations
                 ,
                 granted
                 by
                 the
                 Debitor
                 ,
                 to
                 the
                 Mails
                 and
                 Duties
                 of
                 the
                 Lands
                 appryzed
                 ,
                 as
                 to
                 Terms
                 after
                 the
                 appryzing
                 ,
                 Hope
                 assignations
                 ,
                 
                   George
                   Meldrum
                
                 contra
                 Laird
                 of
                 Anstruther
                 .
              
               
                 19.
                 
                 And
                 when
                 an
                 appryzing
                 was
                 led
                 before
                 an
                 Husbands
                 death
                 ,
                 it
                 excluded
                 his
                 Wife
                 from
                 a
                 Terce
                 ,
                 Hope
                 appryzings
                 ,
                 
                   James
                   Chrightoun
                
                 contra
                 Relict
                 of
                 
                   John
                   Cranstoun
                
                 :
                 Where
                 he
                 doth
                 also
                 observe
                 it
                 to
                 exclude
                 a
                 subsequent
                 Ward
                 ,
                 in
                 respect
                 the
                 Superiour
                 gave
                 a
                 Charter
                 upon
                 the
                 appryzing
                 ,
                 in
                 his
                 Vassals
                 life
                 ,
                 though
                 no
                 Seasine
                 followed
                 thereupon
                 ,
                 
                   Ibidem
                   ,
                   George
                   Hamiltoun
                
                 contra
                 Tennents
                 of
                 Newburgh
                 .
                 And
                 albeit
                 Dury
                 observes
                 ,
                 that
                 in
                 the
                 case
                 betwixt
                 the
                 Lord
                 Fleming
                 and
                 the
                 Lord
                 Balmerino
                 ,
                 dispute
                 the
                 7.
                 of
                 March
                 1633.
                 it
                 was
                 not
                 decided
                 ,
                 but
                 superceeded
                 in
                 hopes
                 of
                 agreement
                 ,
                 whether
                 a
                 Superiour
                 could
                 be
                 compelled
                 to
                 receive
                 the
                 Minor
                 himself
                 till
                 his
                 Majority
                 ,
                 it
                 seems
                 the
                 Superiour
                 ought
                 to
                 receive
                 the
                 appryzer
                 upon
                 his
                 legal
                 diligence
                 ,
                 but
                 prejudice
                 of
                 the
                 Ward
                 ,
                 during
                 the
                 Minority
                 of
                 his
                 former
                 Vassal
                 ,
                 though
                 he
                 would
                 not
                 receive
                 the
                 Minor
                 ,
                 yet
                 he
                 would
                 be
                 necessitate
                 to
                 receive
                 the
                 appryzer
                 ,
                 and
                 his
                 heirs
                 whatsomever
                 ,
                 though
                 the
                 Lands
                 were
                 Tailzied
                 ,
                 and
                 to
                 return
                 to
                 the
                 Superiour
                 himself
                 .
              
               
                 20.
                 
                 The
                 third
                 effect
                 of
                 appryzing
                 is
                 ,
                 that
                 being
                 a
                 legal
                 diligence
                 ,
                 it
                 renders
                 the
                 thing
                 appryzed
                 litigious
                 ,
                 not
                 only
                 from
                 the
                 date
                 of
                 the
                 appryzing
                 ,
                 but
                 from
                 the
                 date
                 of
                 the
                 Denunciation
                 :
                 So
                 that
                 no
                 voluntary
                 deed
                 of
                 the
                 Debitor
                 ,
                 after
                 the
                 Denunciation
                 can
                 prejudge
                 the
                 appryzer
                 ,
                 if
                 he
                 be
                 not
                 
                   in
                   mora
                
                 .
                 Thus
                 a
                 Tack
                 set
                 by
                 the
                 debitor
                 after
                 Denunciation
                 ,
                 was
                 found
                 null
                 ,
                 Spots
                 .
                 appryzing
                 ,
                 
                   Peter
                   Blackburn
                
                 contra
                 
                   Walter
                   Balvaird
                
                 .
                 Yet
                 where
                 the
                 appryzer
                 was
                 negligent
                 ,
                 and
                 obtained
                 not
                 Infeftment
                 ,
                 nor
                 did
                 diligence
                 ;
                 therefore
                 ,
                 for
                 some
                 years
                 ,
                 a
                 Tack
                 set
                 by
                 a
                 Debitor
                 before
                 the
                 appryzing
                 ,
                 but
                 having
                 its
                 Entry
                 after
                 the
                 appryzing
                 ,
                 was
                 preferred
                 thereto
                 ,
                 July
                 11.
                 27.
                 
                 Wallace
                 contra
                 Harvie
                 .
                 Yea
                 ,
                 no
                 Infeftment
                 or
                 diligence
                 being
                 used
                 upon
                 an
                 appryzing
                 ,
                 for
                 many
                 years
                 ,
                 an
                 arrestment
                 thereafter
                 was
                 preferred
                 to
                 the
                 Mails
                 and
                 Duties
                 of
                 the
                 Landsappryzed
                 ,
                 Feb.
                 14.
                 1623.
                 
                 Saltcoats
                 contra
                 Brown.
                 But
                 Custom
                 since
                 hath
                 always
                 preferred
                 appryzings
                 to
                 arrestments
                 ,
                 although
                 there
                 were
                 no
                 Infeftment
                 or
                 diligence
                 upon
                 the
                 appryzing
                 ,
                 because
                 it
                 is
                 a
                 legal
                 assignation
                 ,
                 and
                 needs
                 no
                 Intimation
                 ,
                 unless
                 the
                 appryzer
                 had
                 relinquished
                 his
                 right
                 ;
                 and
                 therefore
                 ,
                 though
                 that
                 case
                 of
                 Saltcoats
                 was
                 adduced
                 ,
                 an
                 appryzer
                 of
                 an
                 annualrent
                 ,
                 was
                 preferred
                 to
                 an
                 arrestment
                 ,
                 though
                 the
                 appryzer
                 neither
                 was
                 infeft
                 nor
                 used
                 diligence
                 ,
                 for
                 nine
                 years
                 before
                 the
                 arrestment
                 ,
                 Feb.
                 23.
                 1671.
                 
                 Lord
                 Justice
                 Clerk
                 contra
                 Mr.
                 
                   John
                   Fairholm
                
                 .
                 It
                 is
                 said
                 ,
                 no
                 voluntary
                 disposition
                 deed
                 of
                 the
                 debitor
                 after
                 the
                 denunciation
                 ,
                 will
                 prejudge
                 the
                 appryzing
                 ,
                 because
                 if
                 the
                 deed
                 done
                 thereafter
                 be
                 necessary
                 ,
                 and
                 that
                 thereunto
                 the
                 debitor
                 was
                 specially
                 oblieged
                 before
                 ,
                 and
                 might
                 have
                 been
                 directly
                 compelled
                 ;
                 such
                 ,
                 even
                 after
                 denunciation
                 may
                 be
                 preferred
                 ,
                 as
                 an
                 annualrent
                 proceeding
                 upon
                 a
                 Bond
                 ,
                 prior
                 to
                 the
                 denunciation
                 ,
                 containing
                 an
                 obliegemement
                 to
                 Infeft
                 ,
                 in
                 that
                 annualrent
                 ,
                 the
                 Infeftment
                 thereupon
                 ,
                 though
                 after
                 denunciation
                 was
                 preferred
                 ,
                 Hope
                 appryzing
                 ,
                 
                   Samuel
                   Henderson
                
                 contra
                 
                   John
                   Mcadam
                
                 .
                 The
                 like
                 of
                 an
                 Infeftment
                 ,
                 whereof
                 the
                 Charter
                 was
                 before
                 denunciation
                 ,
                 and
                 the
                 〈◊〉
                 before
                 the
                 Seasine
                 upon
                 the
                 appryzing
                 ,
                 Ibid.
                 The
                 like
                 of
                 an
                 Infeftment
                 upon
                 Resignation
                 ;
                 which
                 Resignation
                 preceeded
                 the
                 Denunciation
                 ;
                 and
                 though
                 the
                 Resignation
                 was
                 at
                 first
                 refused
                 by
                 the
                 Superiour
                 ,
                 being
                 accepted
                 thereafter
                 ,
                 it
                 was
                 preferred
                 ,
                 Ibid.
                 Mr.
                 
                   Thomas
                   Hope
                
                 contra
                 Mr.
                 
                   Thomas
                   Hendrison
                
                 .
                 
                 And
                 so
                 an
                 Infeftment
                 upon
                 a
                 disposition
                 for
                 a
                 Cause
                 onerous
                 :
                 Which
                 disposition
                 was
                 of
                 the
                 same
                 date
                 with
                 the
                 denunciation
                 ,
                 and
                 whereupon
                 Infeftment
                 followed
                 ,
                 before
                 the
                 appryzing
                 was
                 preferred
                 to
                 the
                 appryzing
                 ,
                 Spots
                 .
                 appryzing
                 ,
                 
                   Mark
                   Hamiltoun
                
                 contra
                 Brown.
                 Yea
                 ,
                 an
                 Infeftment
                 upon
                 a
                 disposition
                 ,
                 posterior
                 to
                 an
                 appryzing
                 ,
                 was
                 preferred
                 thereto
                 ,
                 seing
                 the
                 Appryzer
                 did
                 no
                 diligence
                 for
                 six
                 years
                 ,
                 
                   Ibid.
                   Hamiltoun
                
                 contra
                 Mcculloch
                 .
              
               
                 21.
                 
                 In
                 the
                 competition
                 of
                 Appryzings
                 being
                 both
                 legal
                 diligences
                 ;
                 The
                 first
                 appyzer
                 doing
                 sufficient
                 diligence
                 ,
                 is
                 preferred
                 as
                 the
                 first
                 appryzer
                 ,
                 last
                 Infeft
                 ,
                 but
                 having
                 〈◊〉
                 Charged
                 ,
                 was
                 preferred
                 ,
                 though
                 the
                 Superiour
                 did
                 voluntarly
                 Infeft
                 a
                 posterior
                 appryzer
                 ,
                 Jan.
                 last
                 ,
                 1632.
                 
                 Ferguson
                 contra
                 Mckenzie
                 .
                 Yea
                 ,
                 a
                 posterior
                 appryzing
                 was
                 preferred
                 to
                 a
                 prior
                 ,
                 where
                 the
                 debitor
                 by
                 Collusion
                 suspended
                 the
                 Letters
                 ,
                 and
                 denunciation
                 of
                 the
                 one
                 and
                 not
                 of
                 the
                 other
                 ,
                 whereby
                 the
                 other
                 appryzed
                 first
                 .
                 Nov.
                 28.
                 1628.
                 
                 Borthwick
                 contra
                 Clerk.
                 The
                 like
                 where
                 the
                 prior
                 proceeded
                 upon
                 a
                 Citation
                 of
                 the
                 party
                 upon
                 sixty
                 days
                 ,
                 as
                 being
                 out
                 of
                 the
                 Countrey
                 ,
                 and
                 the
                 debitor
                 was
                 brought
                 to
                 the
                 Countrey
                 of
                 purpose
                 ,
                 that
                 a
                 posterior
                 denunciation
                 upon
                 fifteen
                 days
                 by
                 another
                 appryzer
                 ,
                 might
                 give
                 him
                 the
                 first
                 appryzing
                 :
                 and
                 yet
                 the
                 other
                 was
                 preferred
                 ,
                 Nicol.
                 Tennents
                 of
                 Cockburnspeth
                 contra
                 Sir
                 
                   Hendry
                   Wardlaw
                
                 ,
                 and
                 upon
                 the
                 late
                 competition
                 betwixt
                 the
                 Laird
                 of
                 Clerkintoun
                 pursuing
                 a
                 Reduction
                 of
                 Corsbies
                 appryzing
                 ,
                 as
                 collusive
                 in
                 so
                 far
                 as
                 after
                 his
                 author
                 Sir
                 
                   William
                   Dick
                
                 had
                 Charged
                 the
                 Superiour
                 ,
                 with
                 the
                 first
                 Charge
                 upon
                 the
                 Letters
                 of
                 four
                 Forms
                 ,
                 they
                 gave
                 Infeftment
                 to
                 Corsbie
                 before
                 the
                 dayes
                 of
                 the
                 first
                 Charge
                 were
                 Expyred
                 ,
                 the
                 Lords
                 reduced
                 the
                 Infeftment
                 ,
                 but
                 assoilzied
                 him
                 from
                 bygones
                 ,
                 as
                 possessing
                 
                   bona
                   fide
                
                 ,
                 and
                 seing
                 the
                 pursuer
                 suffered
                 him
                 to
                 possesse
                 without
                 pursuit
                 ,
                 till
                 the
                 legal
                 was
                 expyred
                 ,
                 they
                 found
                 that
                 Corsbie
                 ,
                 as
                 now
                 the
                 second
                 appryzer
                 might
                 redeem
                 ,
                 December
                 3.
                 1664.
                 
                   inter
                   eosdem
                
                 .
              
               
                 22.
                 
                 The
                 fourth
                 effect
                 of
                 an
                 appryzing
                 is
                 ,
                 that
                 being
                 led
                 by
                 the
                 Superiour
                 against
                 his
                 Vassal
                 ,
                 it
                 needs
                 no
                 Infeftment
                 ,
                 but
                 consolidats
                 the
                 property
                 with
                 the
                 Superiority
                 ,
                 and
                 is
                 preferable
                 to
                 all
                 posterior
                 appryzings
                 ,
                 whatever
                 be
                 their
                 diligence
                 ,
                 Spots
                 .
                 appryzing
                 ,
                 Stevinson
                 contra
                 Laird
                 of
                 Craigmiller
                 .
                 But
                 in
                 other
                 cases
                 ,
                 appryzing
                 without
                 further
                 diligence
                 ,
                 doth
                 not
                 transmit
                 the
                 real
                 Right
                 ,
                 though
                 it
                 may
                 exclude
                 assignations
                 to
                 Mails
                 and
                 Duties
                 ,
                 or
                 arrestments
                 upon
                 personal
                 debts
                 ,
                 it
                 is
                 no
                 sufficient
                 title
                 for
                 Mails
                 and
                 Duties
                 ,
                 against
                 any
                 other
                 having
                 any
                 real
                 Title
                 ,
                 March
                 5.
                 1628.
                 
                 
                   Andrew
                   Scot
                
                 contra
                 Tennents
                 of
                 Whitesland
                 .
              
               
                 23.
                 
                 As
                 to
                 the
                 fourth
                 point
                 concerning
                 the
                 efficacy
                 of
                 appryzings
                 ,
                 whereupon
                 diligenceis
                 used
                 before
                 Infeftment
                 obtained
                 .
                 They
                 have
                 no
                 effect
                 to
                 remove
                 Tennents
                 ,
                 though
                 the
                 Superiour
                 was
                 Charged
                 ,
                 and
                 the
                 Letters
                 found
                 orderly
                 proceeded
                 against
                 him
                 ,
                 and
                 though
                 only
                 proponed
                 by
                 the
                 Tennents
                 ,
                 and
                 no
                 party
                 pretending
                 right
                 ,
                 March
                 25.
                 1628.
                 
                 Lockhart
                 contra
                 his
                 Tennents
                 .
                 But
                 the
                 appryzing
                 with
                 diligence
                 hath
                 this
                 effect
                 ;
                 First
                 ,
                 it
                 is
                 a
                 sufficient
                 title
                 for
                 Mails
                 and
                 Duties
                 against
                 the
                 Possessors
                 .
                 Secondly
                 ,
                 it
                 excludes
                 all
                 posterior
                 Infeftments
                 or
                 Diligences
                 by
                 the
                 Collusion
                 ,
                 or
                 voluntary
                 deed
                 of
                 the
                 Superiour
                 ,
                 or
                 any
                 other
                 .
                 Thirdly
                 ,
                 It
                 is
                 effectual
                 to
                 compel
                 the
                 Superiour
                 to
                 receive
                 ,
                 and
                 Infeft
                 the
                 appryzer
                 upon
                 payment
                 to
                 him
                 of
                 a
                 years
                 rent
                 ,
                 which
                 was
                 formerly
                 by
                 Letters
                 of
                 four
                 Forms
                 ,
                 till
                 the
                 Statute
                 ,
                 1644.
                 cap.
                 43.
                 whereby
                 one
                 Charge
                 upon
                 twenty
                 one
                 days
                 is
                 sufficient
                 ,
                 all
                 which
                 proceeds
                 upon
                 the
                 allowance
                 of
                 the
                 Lords
                 ,
                 upon
                 the
                 back
                 of
                 the
                 appryzing
                 :
                 And
                 albeit
                 
                 the
                 Act
                 is
                 not
                 revived
                 in
                 the
                 late
                 Parliament
                 ,
                 yet
                 the
                 Lords
                 continue
                 the
                 Custome
                 .
              
               
                 24.
                 
                 This
                 allowance
                 of
                 appryzings
                 is
                 appointed
                 to
                 be
                 registrate
                 ,
                 and
                 not
                 the
                 whole
                 appryzing
                 ,
                 Par.
                 1641.
                 cap.
                 54.
                 yet
                 neither
                 the
                 want
                 of
                 the
                 allowance
                 ,
                 nor
                 the
                 want
                 of
                 Registration
                 thereof
                 ,
                 annulleth
                 the
                 appryzing
                 ,
                 till
                 the
                 last
                 Act
                 of
                 Par.
                 1661.
                 cap.
                 31.
                 making
                 the
                 Registration
                 of
                 the
                 allowance
                 necessary
                 :
                 Otherways
                 posterior
                 appryzings
                 ,
                 first
                 allowed
                 ,
                 are
                 to
                 be
                 preferred
                 ,
                 unless
                 without
                 allowance
                 the
                 appryzer
                 hath
                 obtained
                 Infeftment
                 ,
                 before
                 the
                 others
                 Diligence
                 ,
                 upon
                 which
                 grounds
                 ,
                 the
                 Lords
                 upon
                 Supplication
                 ,
                 without
                 Citation
                 ,
                 ordained
                 an
                 appryzing
                 to
                 be
                 allowed
                 ,
                 and
                 registrate
                 long
                 after
                 sixty
                 days
                 ,
                 and
                 after
                 the
                 debitors
                 death
                 ,
                 seing
                 it
                 would
                 be
                 thereby
                 preferable
                 to
                 all
                 other
                 Rights
                 ,
                 after
                 the
                 Registration
                 thereof
                 ,
                 June
                 8.
                 1665.
                 
              
               
                 25.
                 
                 There
                 are
                 many
                 debates
                 which
                 arise
                 concerning
                 the
                 Entry
                 betwixt
                 appryzers
                 and
                 Superiours
                 ,
                 as
                 whether
                 the
                 Superiour
                 can
                 be
                 compelled
                 to
                 receive
                 the
                 appryzer
                 ,
                 without
                 instructing
                 that
                 the
                 Vassal
                 from
                 whom
                 he
                 hath
                 appryzed
                 ,
                 was
                 Infeft
                 ,
                 or
                 specially
                 Charged
                 ,
                 which
                 hath
                 been
                 several
                 times
                 decided
                 Negative
                 ,
                 fifty
                 years
                 since
                 .
                 But
                 now
                 of
                 a
                 long
                 time
                 ,
                 Charges
                 against
                 Superiours
                 for
                 Infefting
                 appryzers
                 ,
                 
                   salvo
                   jure
                   ejuslibet
                   &
                   suo
                
                 ,
                 have
                 been
                 still
                 sustained
                 ,
                 because
                 it
                 is
                 unusual
                 and
                 difficult
                 for
                 the
                 appryzer
                 to
                 get
                 his
                 debitors
                 Evidents
                 ,
                 unless
                 it
                 were
                 the
                 Extract
                 of
                 his
                 Seasine
                 ,
                 and
                 the
                 Superiours
                 receiving
                 him
                 upon
                 obedience
                 ,
                 cannot
                 prejudge
                 him
                 ;
                 and
                 therefore
                 ,
                 the
                 Superiour
                 was
                 ordained
                 to
                 receive
                 the
                 appryzer
                 ,
                 though
                 himself
                 was
                 in
                 possession
                 ,
                 by
                 vertue
                 of
                 a
                 Right
                 ,
                 March
                 5.
                 1634.
                 
                 Black
                 contra
                 Pitmedden
                 .
                 The
                 like
                 ,
                 whatever
                 Right
                 the
                 Superiour
                 might
                 pretend
                 ,
                 March
                 11.
                 2636.
                 
                 
                   Margaret
                   Scot
                
                 contra
                 
                   Gilbert
                   Eliot
                
                 .
              
               
                 26.
                 
                 The
                 quantity
                 of
                 the
                 years
                 Rent
                 by
                 the
                 Act
                 of
                 Par.
                 1469.
                 cap.
                 36.
                 is
                 exprest
                 to
                 be
                 a
                 years
                 Mail
                 ,
                 as
                 the
                 Land
                 is
                 set
                 for
                 the
                 time
                 ,
                 wherein
                 consideration
                 is
                 had
                 of
                 such
                 real
                 burdens
                 affecting
                 the
                 Land
                 ,
                 as
                 are
                 taken
                 one
                 with
                 the
                 Superiours
                 consent
                 :
                 But
                 in
                 the
                 case
                 of
                 a
                 Liferent
                 so
                 taken
                 on
                 ,
                 the
                 years
                 Rent
                 was
                 modified
                 full
                 ,
                 but
                 delayed
                 to
                 be
                 payed
                 till
                 the
                 Liferenters
                 death
                 ,
                 July
                 18.
                 1633.
                 
                 
                   Branden
                   Baird
                
                 contra
                 Consideration
                 is
                 also
                 had
                 of
                 Feus
                 set
                 by
                 the
                 debitor
                 before
                 the
                 appryzing
                 ,
                 which
                 while
                 warranted
                 by
                 Law
                 ,
                 the
                 Superiour
                 will
                 only
                 get
                 a
                 years
                 Feu-duty
                 for
                 receiving
                 the
                 appryzer
                 in
                 the
                 Superiority
                 ,
                 Feb.
                 15.
                 1634.
                 
                 Munktoun
                 contra
                 Lord
                 
                   Yester
                   .
                   Spots
                
                 .
                 appryzing
                 ,
                 
                   Walter
                   Cowan
                
                 contra
                 Master
                 of
                 Elphingstoun
                 .
                 But
                 the
                 Superiour
                 will
                 not
                 be
                 oblieged
                 to
                 receive
                 the
                 appryzer
                 for
                 a
                 years
                 Rent
                 of
                 the
                 Money
                 appryzed
                 for
                 ,
                 but
                 of
                 the
                 Lands
                 appryzed
                 ,
                 March
                 23.
                 1622.
                 
                 Mr.
                 
                   Simeon
                   Ramsay
                
                 contra
                 Laird
                 of
                 
                   Corstoun
                   .
                   March
                
                 30.
                 1637.
                 
                 
                   Thomas
                   Peterson
                
                 contra
                 
                   Walter
                   Murray
                
                 .
                 Yet
                 in
                 this
                 last
                 case
                 ,
                 the
                 Lords
                 modified
                 the
                 Rent
                 far
                 within
                 the
                 worth
                 of
                 the
                 Lands
                 ,
                 for
                 the
                 Rent
                 being
                 worth
                 800.
                 
                 Merks
                 ,
                 was
                 modified
                 to
                 300.
                 
                 Merks
                 .
              
               
                 A
                 Superiour
                 must
                 not
                 only
                 receive
                 the
                 first
                 Appryzer
                 ,
                 but
                 all
                 others
                 who
                 Charge
                 ,
                 though
                 one
                 was
                 Infeft
                 before
                 any
                 other
                 Charged
                 ,
                 March
                 11.
                 1628.
                 
                 Ferguson
                 contra
                 Couper
                 .
                 And
                 if
                 more
                 Charge
                 ,
                 he
                 must
                 accept
                 a
                 years
                 Rent
                 for
                 all
                 ,
                 providing
                 that
                 he
                 who
                 should
                 be
                 preferred
                 ,
                 refound
                 to
                 the
                 rest
                 the
                 proportions
                 payed
                 by
                 them
                 to
                 the
                 Superiour
                 ,
                 July
                 22.
                 1628.
                 
                 Lord
                 Borthwick
                 and
                 
                   Walter
                   Hay
                
                 contra
                 Haistoun
                 and
                 Smith
                 .
              
               
               
                 27.
                 
                 If
                 the
                 Superiour
                 be
                 contumacious
                 ,
                 and
                 will
                 not
                 enter
                 the
                 appryzer
                 upon
                 diligence
                 ,
                 
                   Craig
                   lib.
                
                 2.
                 dieg
                 .
                 2.
                 
                 Prescrives
                 ,
                 that
                 the
                 Superiour
                 may
                 be
                 thrice
                 required
                 ,
                 and
                 if
                 he
                 refuse
                 ,
                 Letters
                 may
                 be
                 obtained
                 from
                 the
                 Lords
                 to
                 Charge
                 his
                 Superiour
                 ,
                 to
                 receive
                 the
                 appryzer
                 ,
                 supplying
                 his
                 place
                 ,
                 and
                 so
                 from
                 Superiour
                 to
                 Superiour
                 ,
                 till
                 he
                 come
                 to
                 the
                 King
                 ,
                 who
                 refuseth
                 none
                 ,
                 by
                 which
                 the
                 Superiour
                 would
                 loose
                 the
                 Casualities
                 of
                 his
                 Superiority
                 ,
                 during
                 his
                 Life
                 ,
                 as
                 is
                 ordinary
                 in
                 the
                 Entry
                 of
                 heirs
                 upon
                 retour
                 .
              
               
                 28.
                 
                 As
                 to
                 the
                 next
                 Point
                 ,
                 Infeftment
                 following
                 upon
                 appryzing
                 doth
                 Constitute
                 a
                 real
                 Right
                 ,
                 but
                 under
                 Reversion
                 of
                 seven
                 years
                 ,
                 being
                 before
                 the
                 Act
                 debitor
                 and
                 creditor
                 ,
                 Par.
                 1661.
                 cap.
                 62.
                 or
                 since
                 of
                 ten
                 years
                 ,
                 which
                 is
                 counted
                 from
                 the
                 date
                 of
                 the
                 Appryzing
                 ,
                 and
                 not
                 from
                 the
                 allowance
                 ,
                 or
                 Infeftment
                 ,
                 November
                 11.
                 1630.
                 
                 Laird
                 of
                 Limpitlaw
                 contra
                 Mr.
                 
                   James
                   Aikenhead
                
                 .
              
               
                 29.
                 
                 Yet
                 it
                 remains
                 but
                 as
                 a
                 security
                 ,
                 which
                 the
                 appryzer
                 may
                 renunce
                 ,
                 or
                 make
                 use
                 of
                 other
                 securities
                 till
                 he
                 be
                 satisfied
                 ,
                 March
                 15.
                 1628.
                 
                 Lord
                 Blantyre
                 ,
                 contra
                 Parochioners
                 of
                 Bothwel
                 .
                 The
                 like
                 ,
                 though
                 after
                 the
                 Legal
                 was
                 expyred
                 ,
                 Decem.
                 7.
                 1631.
                 
                 Scarlet
                 contra
                 Paterson
                 .
                 But
                 here
                 the
                 appryzer
                 had
                 attained
                 no
                 Possession
                 .
              
               
                 30.
                 
                 Remains
                 the
                 last
                 Point
                 proposed
                 ,
                 how
                 appryzings
                 become
                 extinct
                 ,
                 and
                 are
                 taken
                 off
                 ;
                 and
                 that
                 is
                 first
                 ,
                 when
                 the
                 appryzing
                 is
                 declared
                 null
                 ,
                 thorow
                 defect
                 of
                 any
                 essential
                 Solemnity
                 .
                 Secondly
                 ,
                 When
                 the
                 sum
                 whereupon
                 it
                 is
                 deduced
                 ,
                 is
                 not
                 due
                 ,
                 as
                 when
                 the
                 half
                 thereof
                 was
                 payed
                 ,
                 Hope
                 appryzing
                 ,
                 
                   Samuel
                   Blackburn
                
                 contra
                 
                   James
                   Lamb.
                   James
                   Lamb
                
                 contra
                 Hepburn
                 of
                 Smeatoun
                 .
                 Or
                 being
                 deduced
                 for
                 a
                 Terms
                 Rent
                 ,
                 which
                 was
                 not
                 due
                 till
                 after
                 the
                 appryzing
                 ;
                 albeit
                 it
                 was
                 an
                 assigney
                 who
                 appryzed
                 ,
                 seing
                 it
                 was
                 to
                 the
                 behove
                 of
                 the
                 Cedent
                 ,
                 it
                 was
                 found
                 relevan
                 to
                 reduce
                 the
                 appryzing
                 
                   in
                   totum
                   ,
                   June
                
                 20.
                 1678.
                 
                 Scot
                 of
                 Burnfoot
                 contra
                 Sir
                 
                   John
                   Falconer
                
                 and
                 
                   James
                   Edmonston
                   .
                   Jan.
                
                 31.
                 1679.
                 
                 
                   Francis
                   Irving
                
                 contra
                 contra
                 Laird
                 of
                 Drum.
                 The
                 like
                 ,
                 where
                 a
                 part
                 of
                 the
                 sum
                 was
                 Poinded
                 for
                 ,
                 and
                 yet
                 the
                 appryzing
                 was
                 for
                 the
                 whole
                 ,
                 
                   Nicol
                   qui
                   potiores
                   in
                   pignore
                   ,
                   John
                   Steven
                
                 contra
                 Maxwels
                 :
                 Or
                 where
                 the
                 denunciation
                 was
                 before
                 the
                 Term
                 of
                 payment
                 ,
                 though
                 the
                 appryzing
                 was
                 after
                 ,
                 Nov.
                 28.
                 1623.
                 
                 Mr.
                 
                   Robert
                   Craig
                
                 contra
                 Wilson
                 .
                 And
                 an
                 appryzing
                 for
                 two
                 Sums
                 ,
                 instead
                 thereof
                 as
                 to
                 one
                 of
                 which
                 sums
                 the
                 decreet
                 was
                 loosed
                 &
                 turnedin
                 a
                 Lybel
                 ,
                 before
                 the
                 appryzing
                 was
                 deduced
                 :
                 Yet
                 the
                 appryzers
                 intromission
                 thereby
                 before
                 Citation
                 ,
                 was
                 not
                 found
                 to
                 be
                 repealed
                 ,
                 as
                 being
                 consumed
                 bonafide
                 ,
                 upon
                 a
                 colourable
                 Title
                 ,
                 Nov.
                 23.
                 1677.
                 
                 Boid
                 and
                 Graham
                 contra
                 Malloch
                 .
                 And
                 an
                 appryzing
                 was
                 reduced
                 ,
                 because
                 one
                 of
                 the
                 sums
                 appryzed
                 for
                 ,
                 was
                 Registrat
                 ,
                 
                   a
                   non
                   suo
                   judice
                   ,
                   July
                
                 20.
                 1678.
                 
                 Moreis
                 contra
                 Orrock
                 of
                 Balram
                 .
                 In
                 which
                 case
                 the
                 Lords
                 would
                 have
                 sustained
                 the
                 appryzing
                 as
                 a
                 security
                 for
                 the
                 true
                 sums
                 resting
                 ,
                 if
                 the
                 appryzer
                 would
                 have
                 past
                 by
                 the
                 Termly
                 failzie
                 ;
                 for
                 the
                 Lords
                 do
                 frequently
                 Supply
                 defects
                 in
                 appryzings
                 or
                 adjudications
                 ,
                 in
                 so
                 far
                 as
                 they
                 may
                 stand
                 as
                 securities
                 of
                 true
                 debt
                 ,
                 and
                 real
                 expence
                 ,
                 especially
                 when
                 the
                 question
                 is
                 betwixt
                 the
                 debitor
                 and
                 the
                 appryzer
                 ,
                 but
                 not
                 in
                 competition
                 with
                 more
                 formal
                 Rights
                 ,
                 and
                 they
                 are
                 most
                 strict
                 against
                 appryzings
                 or
                 adjudications
                 ,
                 when
                 they
                 are
                 insisted
                 upon
                 ,
                 as
                 expired
                 ,
                 or
                 for
                 penalties
                 ,
                 Sheriff-fees
                 ,
                 and
                 the
                 annualrents
                 thereof
                 ;
                 and
                 therefore
                 ,
                 a
                 posterior
                 appryzing
                 being
                 solemn
                 and
                 formal
                 ,
                 according
                 to
                 the
                 Custome
                 then
                 in
                 use
                 ,
                 was
                 preferred
                 to
                 a
                 prior
                 not
                 being
                 so
                 formal
                 ,
                 July
                 15.
                 1670.
                 
                 Lady
                 
                   Lucia
                   Hamiltoun
                
                 contra
                 Boyd
                 of
                 Pitcon
                 .
                 And
                 likeways
                 ,
                 an
                 appryzing
                 being
                 led
                 for
                 Penalties
                 and
                 termly
                 Failzies
                 ,
                 was
                 reduced
                 as
                 to
                 these
                 ,
                 because
                 a
                 part
                 of
                 the
                 sum
                 was
                 not
                 due
                 at
                 the
                 date
                 of
                 the
                 appryzing
                 ,
                 though
                 it
                 was
                 deduced
                 
                 at
                 the
                 instance
                 of
                 an
                 assigney
                 :
                 But
                 if
                 it
                 were
                 proven
                 to
                 the
                 Cedents
                 behove
                 ,
                 it
                 was
                 also
                 found
                 reducible
                 ,
                 
                   quo
                   ad
                
                 ,
                 the
                 accumulation
                 of
                 the
                 annualrents
                 ,
                 and
                 making
                 them
                 and
                 penalties
                 Principal
                 sums
                 .
                 But
                 seing
                 the
                 appryzer
                 declared
                 it
                 redeemable
                 ,
                 though
                 the
                 Legal
                 Reversion
                 was
                 expyred
                 ,
                 it
                 was
                 sustained
                 as
                 a
                 security
                 of
                 the
                 first
                 principal
                 sum
                 ,
                 and
                 current
                 annualrents
                 thereof
                 ,
                 Jan.
                 31.
                 1679.
                 
                 
                   Francis
                   lrving
                
                 contra
                 Laird
                 of
                 Drum.
                 And
                 appryzing
                 was
                 sustained
                 upon
                 a
                 Bond
                 ,
                 bearing
                 a
                 long
                 Term
                 of
                 payment
                 ,
                 with
                 a
                 Clause
                 irritant
                 ,
                 that
                 if
                 two
                 Terms
                 annualrent
                 run
                 together
                 unpayed
                 ,
                 the
                 whole
                 principal
                 and
                 annual
                 should
                 be
                 payable
                 ,
                 without
                 abiding
                 the
                 first
                 Term
                 ,
                 though
                 there
                 was
                 no
                 Declarator
                 of
                 the
                 irritancy
                 ,
                 it
                 not
                 being
                 penal
                 ,
                 but
                 taking
                 away
                 the
                 favour
                 of
                 the
                 Creditor
                 to
                 the
                 debitor
                 ,
                 by
                 delay
                 of
                 the
                 term
                 ,
                 June
                 20.
                 1678.
                 
                 Scot
                 of
                 Burn-foot
                 contra
                 Falconer
                 and
                 Edmistoun
                 .
              
               
                 31.
                 
                 Albeit
                 the
                 Lords
                 do
                 not
                 ordinarly
                 modifie
                 Penalties
                 after
                 appryzing
                 ;
                 yet
                 if
                 they
                 be
                 exorbitant
                 ,
                 they
                 do
                 modifie
                 the
                 same
                 ,
                 and
                 all
                 Termly
                 Failzies
                 ,
                 as
                 they
                 did
                 in
                 the
                 said
                 case
                 of
                 Orrock
                 of
                 Balram
                 and
                 
                   Francis
                   Irvin
                
                 .
              
               
                 32.
                 
                 Appryzing
                 was
                 sustained
                 upon
                 a
                 sum
                 ,
                 payable
                 without
                 Requisition
                 ,
                 albeit
                 there
                 was
                 no
                 Charge
                 preceeding
                 the
                 appryzing
                 ,
                 July
                 21.
                 1666.
                 
                 Mr.
                 
                   John
                   Thomson
                
                 contra
                 Mcgutrig
                 .
                 The
                 like
                 ,
                 though
                 the
                 Bond
                 bore
                 annualrent
                 before
                 1641.
                 seing
                 there
                 was
                 no
                 Infeftment
                 thereupon
                 ,
                 or
                 Requisition
                 therein
                 ,
                 Jan.
                 14.
                 1679.
                 
                 Farquhar
                 of
                 Finian
                 contra
                 
                   Robert
                   Stuart
                
                 .
              
               
                 33.
                 
                 And
                 an
                 appryzing
                 was
                 sustained
                 ,
                 though
                 the
                 Lands
                 appryzed
                 were
                 not
                 filled
                 up
                 in
                 the
                 Letters
                 of
                 appryzing
                 ,
                 or
                 special
                 Charge
                 ,
                 nor
                 in
                 the
                 Executions
                 ,
                 because
                 the
                 Messenger
                 who
                 execute
                 was
                 Judge
                 in
                 the
                 Appryzing
                 ,
                 which
                 relating
                 the
                 Denunciation
                 of
                 the
                 Lands
                 particularly
                 ,
                 and
                 Charging
                 the
                 appearand
                 heir
                 to
                 Enter
                 thereto
                 in
                 special
                 ,
                 was
                 found
                 a
                 more
                 solemn
                 Execution
                 ,
                 then
                 any
                 Execution
                 a-part
                 ,
                 Jan.
                 16.
                 1680.
                 
                 
                   John
                   Brown
                
                 contra
                 Nicol.
                 
              
               
                 34.
                 
                 An
                 appryzing
                 was
                 sustained
                 without
                 producing
                 the
                 Letters
                 of
                 appryzing
                 ,
                 being
                 in
                 anno
                 1636.
                 
                 But
                 the
                 Instructions
                 of
                 the
                 debt
                 was
                 found
                 necessary
                 to
                 be
                 produced
                 ,
                 being
                 within
                 Prescription
                 ,
                 February
                 11.
                 1681.
                 
                 
                   James
                   Kenuay
                
                 contra
                 
                   Thomas
                   Crawford
                
                 :
                 Yea
                 ,
                 an
                 appryzing
                 was
                 sustained
                 upon
                 a
                 Bond
                 ,
                 payable
                 upon
                 Requisition
                 ,
                 though
                 the
                 appryzing
                 made
                 no
                 mention
                 of
                 the
                 Requisition
                 ,
                 the
                 Instrument
                 of
                 Requisition
                 being
                 produced
                 .
              
               
                 35.
                 
                 And
                 though
                 the
                 Dispensation
                 to
                 appryze
                 ,
                 was
                 neither
                 at
                 Edinburgh
                 ,
                 nor
                 the
                 head
                 Burgh
                 of
                 the
                 Shire
                 ,
                 but
                 a
                 place
                 upon
                 the
                 open
                 Fields
                 ,
                 and
                 upon
                 a
                 count
                 of
                 a
                 great
                 rain
                 ,
                 the
                 Messenger
                 did
                 not
                 appryze
                 that
                 day
                 ,
                 but
                 adjurned
                 the
                 Court
                 of
                 appryzing
                 til
                 the
                 next
                 day
                 ,
                 July
                 12.
                 1671.
                 the
                 heirs
                 Mr.
                 
                   Thomas
                   Lundie
                
                 contra
                 the
                 Earl
                 of
                 Southesk
                 .
              
               
                 36.
                 
                 And
                 an
                 appryzing
                 of
                 the
                 ground-right
                 of
                 Lands
                 ,
                 and
                 all
                 other
                 right
                 belonging
                 to
                 his
                 debititor
                 ,
                 the
                 Superiour
                 being
                 Charged
                 thereupon
                 ,
                 was
                 preferred
                 to
                 a
                 posteriour
                 appryzer
                 ,
                 who
                 appryzed
                 particularly
                 an
                 annualrent
                 out
                 of
                 the
                 Lands
                 ,
                 which
                 was
                 the
                 only
                 Right
                 of
                 the
                 common
                 debitor
                 ,
                 November
                 21.
                 1673.
                 
                 Mr.
                 
                   John
                   Fairholm
                
                 contra
                 Rentoun
                 and
                 the
                 Countess
                 of
                 Levin
                 .
              
               
               
                 37.
                 
                 Appryzings
                 are
                 elided
                 by
                 satisfaction
                 or
                 payment
                 ,
                 without
                 necessity
                 of
                 Renunciation
                 ,
                 Resignation
                 ,
                 or
                 Reduction
                 ,
                 as
                 in
                 the
                 case
                 of
                 other
                 Infeftment
                 ,
                 July
                 25.
                 1626.
                 
                 Lord
                 Lovat
                 contra
                 Frazer
                 :
                 The
                 reason
                 is
                 ,
                 because
                 appryzing
                 being
                 but
                 a
                 legal
                 diligence
                 ,
                 for
                 security
                 of
                 the
                 sum
                 ,
                 which
                 ceassing
                 ,
                 it
                 falleth
                 without
                 other
                 solemnities
                 ;
                 and
                 the
                 dobitors
                 own
                 Infeftment
                 stands
                 valid
                 ,
                 without
                 Renovation
                 ;
                 which
                 ,
                 with
                 the
                 Infeftment
                 upon
                 the
                 Appryzing
                 ,
                 stood
                 but
                 as
                 a
                 paralel
                 Right
                 for
                 security
                 ,
                 so
                 that
                 all
                 returned
                 ,
                 
                   adpristinum
                   statum
                
                 ;
                 and
                 amongst
                 the
                 rest
                 ,
                 the
                 Casualities
                 of
                 the
                 Superiority
                 ,
                 if
                 they
                 were
                 taken
                 off
                 by
                 the
                 appryzing
                 ;
                 and
                 therefore
                 ,
                 an
                 heir
                 not
                 entering
                 ,
                 but
                 being
                 Chargeed
                 ,
                 if
                 he
                 satisfie
                 and
                 redeem
                 the
                 appryzing
                 ,
                 he
                 will
                 be
                 in
                 non-entry
                 till
                 he
                 be
                 received
                 of
                 new
                 .
              
               
                 38.
                 
                 Appryzings
                 are
                 excluded
                 and
                 qualified
                 with
                 the
                 Back-bonds
                 and
                 obliegements
                 of
                 the
                 appryzer
                 ,
                 as
                 in
                 personal
                 Rights
                 ,
                 which
                 are
                 valid
                 against
                 singular
                 Successors
                 ,
                 as
                 a
                 back-bond
                 ,
                 that
                 an
                 apprysing
                 should
                 not
                 be
                 prejudicial
                 to
                 anothers
                 parties
                 Right
                 ,
                 was
                 found
                 relevant
                 against
                 the
                 appryzers
                 singular
                 Successor
                 ,
                 the
                 Kings
                 Donatar
                 of
                 the
                 appryzers
                 forefaulture
                 ,
                 July
                 31.
                 1666.
                 the
                 Earl
                 of
                 Southesk
                 contra
                 Marquess
                 of
                 Huntly
                 .
              
               
                 The
                 last
                 and
                 most
                 ordinary
                 Exstintcion
                 of
                 appryzing
                 ,
                 is
                 by
                 Intromission
                 with
                 the
                 Mails
                 and
                 Duties
                 of
                 the
                 appryzed
                 Land
                 over
                 and
                 above
                 the
                 annualrent
                 ,
                 for
                 these
                 are
                 imputed
                 in
                 the
                 principal
                 Sum
                 ,
                 by
                 the
                 
                   Statute
                   ,
                   Par.
                
                 1621.
                 cap.
                 6.
                 which
                 is
                 also
                 extended
                 to
                 Minors
                 having
                 the
                 priviledge
                 after
                 the
                 ordinary
                 legal
                 of
                 seven
                 year
                 :
                 But
                 it
                 was
                 not
                 provided
                 for
                 in
                 the
                 said
                 Statute
                 ,
                 that
                 the
                 appryzer
                 should
                 be
                 countable
                 for
                 his
                 Intromission
                 thereafter
                 ,
                 which
                 is
                 therefore
                 provided
                 for
                 ,
                 Par.
                 1641.
                 cap.
                 67.
                 which
                 ,
                 though
                 it
                 was
                 neglected
                 ,
                 and
                 not
                 revived
                 ,
                 Par.
                 1661.
                 yet
                 the
                 Lords
                 sustained
                 the
                 same
                 ,
                 as
                 now
                 in
                 Custom
                 twenty
                 years
                 and
                 more
                 ,
                 Feb.
                 18.
                 1663.
                 
                 
                   John
                   Ross
                
                 contra
                 Mckenzie
                 .
                 But
                 the
                 Tenor
                 of
                 the
                 said
                 first
                 Statute
                 ;
                 being
                 ,
                 that
                 the
                 quantities
                 of
                 the
                 Mails
                 and
                 Duties
                 shall
                 extend
                 to
                 as
                 much
                 as
                 will
                 satisfie
                 the
                 whole
                 principal
                 sum
                 ,
                 and
                 annualrents
                 thereof
                 ,
                 composition
                 to
                 the
                 Superiour
                 ,
                 and
                 annualrent
                 thereof
                 and
                 expenses
                 ,
                 in
                 deducing
                 the
                 appryzing
                 :
                 In
                 that
                 case
                 the
                 appryzing
                 is
                 declared
                 to
                 expyre
                 ,
                 
                   ipso
                   facto
                
                 ;
                 So
                 that
                 if
                 any
                 part
                 thereof
                 remain
                 ,
                 and
                 the
                 debitor
                 be
                 so
                 negligent
                 ,
                 as
                 not
                 to
                 use
                 an
                 Order
                 ,
                 and
                 count
                 and
                 reckoning
                 within
                 the
                 legal
                 ,
                 but
                 suffer
                 it
                 to
                 expire
                 ,
                 the
                 appryzing
                 will
                 stand
                 valid
                 ,
                 and
                 carry
                 the
                 Right
                 of
                 the
                 whole
                 Lands
                 ,
                 and
                 will
                 not
                 be
                 extinct
                 in
                 so
                 far
                 as
                 satisfied
                 proportionally
                 ,
                 Hope
                 Confirmation
                 ,
                 Doctor
                 kincaid
                 contra
                 Halyburtoun
                 ,
                 which
                 was
                 so
                 found
                 ,
                 where
                 a
                 part
                 of
                 the
                 sum
                 was
                 satisfied
                 ,
                 by
                 payment
                 ,
                 Novem.
                 28.
                 1623.
                 
                 Mr.
                 
                   Robert
                   Craig
                
                 contra
                 Wilson
                 .
                 But
                 if
                 the
                 remainer
                 be
                 very
                 small
                 ,
                 the
                 Lords
                 may
                 be
                 the
                 more
                 strict
                 in
                 modifying
                 pryces
                 ,
                 and
                 if
                 that
                 be
                 not
                 sufficient
                 ,
                 a
                 small
                 remainder
                 will
                 not
                 take
                 away
                 the
                 Right
                 ,
                 
                   de
                   minimis
                   non
                   curat
                   Lex
                
                 .
                 Intromission
                 is
                 not
                 only
                 extended
                 to
                 the
                 Rents
                 and
                 Profits
                 of
                 the
                 appryzed
                 Lands
                 ,
                 but
                 to
                 the
                 pryce
                 of
                 any
                 part
                 thereof
                 ,
                 sold
                 by
                 the
                 appryzer
                 within
                 the
                 Legal
                 ,
                 Jan.
                 14.
                 1669.
                 
                 Mckenzie
                 contra
                 Ross.
                 And
                 ansappryzing
                 was
                 also
                 found
                 extinct
                 by
                 the
                 Intromission
                 of
                 him
                 ,
                 to
                 whom
                 the
                 appryzer
                 granted
                 Back-bond
                 ,
                 declaring
                 the
                 appryzing
                 to
                 be
                 to
                 his
                 behove
                 ,
                 and
                 that
                 against
                 a
                 singular
                 Successor
                 ,
                 who
                 thereafter
                 was
                 Infeft
                 upon
                 the
                 appryzers
                 Resignation
                 ,
                 July
                 12.
                 1670.
                 
                 Kennedy
                 contra
                 Cunninghame
                 and
                 Wallace
                 .
                 Yea
                 ,
                 An
                 appryzing
                 was
                 found
                 excluded
                 ,
                 as
                 being
                 satisfied
                 by
                 the
                 debitor
                 ,
                 and
                 retired
                 by
                 him
                 ,
                 with
                 a
                 blank
                 Assignation
                 thereto
                 ,
                 lying
                 by
                 him
                 at
                 his
                 death
                 ,
                 though
                 his
                 Son
                 thereafter
                 filled
                 up
                 his
                 name
                 therein
                 ,
                 which
                 was
                 instructed
                 by
                 the
                 sons
                 oath
                 and
                 witnesses
                 ,
                 
                   ex
                   officio
                   ,
                   Feb.
                
                 27.
                 1666.
                 
                 Creditors
                 of
                 the
                 Lord
                 Gray
                 contra
                 the
                 Lord
                 Gray
                 .
                 But
                 an
                 appryzing
                 was
                 not
                 found
                 extinct
                 by
                 Intromission
                 ,
                 where
                 the
                 appryzer
                 payed
                 to
                 
                 
                 
                 his
                 debitor
                 ,
                 the
                 superplus
                 of
                 the
                 rent
                 ,
                 above
                 his
                 annualrent
                 ,
                 before
                 the
                 leading
                 of
                 any
                 other
                 appryzing
                 ;
                 yet
                 where
                 any
                 order
                 of
                 Redemption
                 is
                 used
                 before
                 the
                 expyrie
                 of
                 the
                 legal
                 ,
                 the
                 appryzing
                 was
                 found
                 extinct
                 by
                 intromission
                 ,
                 after
                 the
                 course
                 of
                 the
                 legal
                 ,
                 July
                 7.
                 1676.
                 
                 
                   John
                   Edgar
                
                 contra
                 
                   Patrick
                   Milu
                
                 .
                 The
                 like
                 was
                 found
                 in
                 respect
                 of
                 an
                 order
                 ,
                 used
                 by
                 a
                 second
                 appryzer
                 ,
                 and
                 was
                 sustained
                 ,
                 though
                 the
                 first
                 appryzer
                 had
                 acquired
                 right
                 to
                 an
                 order
                 of
                 Redemption
                 by
                 a
                 third
                 appryzer
                 ,
                 used
                 against
                 the
                 second
                 appryzer
                 ,
                 which
                 was
                 not
                 found
                 to
                 hinder
                 the
                 second
                 appryzer
                 ,
                 to
                 declare
                 the
                 first
                 appryzing
                 satisfied
                 by
                 Intromission
                 during
                 the
                 legal
                 or
                 the
                 order
                 ,
                 but
                 prejudice
                 to
                 the
                 third
                 appryzer
                 ,
                 or
                 to
                 the
                 first
                 appryzer
                 ,
                 having
                 Right
                 from
                 the
                 third
                 appryzer
                 to
                 Redeem
                 the
                 Lands
                 from
                 the
                 second
                 appryzer
                 ,
                 by
                 satisfaction
                 of
                 the
                 sums
                 due
                 to
                 him
                 ,
                 July
                 18.
                 1676.
                 
                 Gordoun
                 of
                 Seatoun
                 contra
                 Watson
                 .
                 Yea
                 ,
                 an
                 appryzing
                 being
                 both
                 against
                 the
                 Principal
                 and
                 Cautioners
                 Estates
                 ,
                 an
                 order
                 of
                 Redemption
                 used
                 by
                 the
                 principal
                 debitor
                 was
                 found
                 to
                 keep
                 the
                 appryzing
                 unexpyred
                 ,
                 not
                 only
                 as
                 to
                 his
                 own
                 Estate
                 ,
                 but
                 as
                 to
                 the
                 Cautioners
                 Estate
                 ,
                 February
                 10.
                 1675.
                 
                 Lady
                 Torwoed-head
                 contra
                 
                   Florence
                   Gardner
                
                 .
              
               
                 39.
                 
                 But
                 the
                 appryzer
                 hath
                 it
                 in
                 his
                 option
                 ,
                 whether
                 he
                 will
                 enter
                 in
                 Possession
                 of
                 the
                 Mails
                 and
                 Duties
                 ,
                 or
                 will
                 uplift
                 more
                 thereof
                 then
                 his
                 annualrent
                 ;
                 yet
                 if
                 a
                 posteriour
                 appryzer
                 insist
                 for
                 Possession
                 ,
                 the
                 first
                 must
                 either
                 Possess
                 ,
                 do
                 diligence
                 ,
                 and
                 be
                 countable
                 ,
                 or
                 suffer
                 him
                 to
                 possess
                 ,
                 February
                 11.
                 1636.
                 
                 Colqhoun
                 contra
                 Laird
                 of
                 Balvie
                 .
                 But
                 if
                 the
                 appryzer
                 possess
                 ,
                 he
                 must
                 do
                 diligence
                 for
                 the
                 rent
                 of
                 that
                 Land
                 he
                 possest
                 ,
                 and
                 be
                 countable
                 ,
                 not
                 only
                 for
                 what
                 he
                 intrometted
                 with
                 but
                 for
                 what
                 he
                 might
                 have
                 intrometted
                 with
                 ;
                 and
                 if
                 the
                 Lands
                 were
                 Tennent-stead
                 at
                 his
                 entry
                 ,
                 he
                 must
                 count
                 accordingly
                 at
                 that
                 rate
                 ,
                 though
                 thereafter
                 given
                 over
                 and
                 waste
                 ,
                 if
                 he
                 neither
                 set
                 nor
                 laboured
                 them
                 himself
                 ,
                 nor
                 intimat
                 to
                 the
                 debitor
                 so
                 to
                 do
                 ,
                 Feb.
                 9.
                 1639.
                 
                 Brownhill
                 contra
                 Cawder
                 .
                 The
                 like
                 found
                 ,
                 that
                 the
                 appryzer
                 was
                 countable
                 according
                 to
                 the
                 Rental
                 ,
                 allowing
                 all
                 defalcations
                 ,
                 Jan.
                 4.
                 1662.
                 
                 
                   James
                   Seaton
                
                 contra
                 
                   Antony
                   Roswal
                
                 .
                 But
                 where
                 the
                 appryzer
                 entered
                 in
                 possession
                 of
                 the
                 Lands
                 waste
                 ,
                 he
                 was
                 not
                 found
                 countable
                 ,
                 according
                 as
                 he
                 set
                 them
                 thereafter
                 ,
                 for
                 the
                 first
                 year
                 of
                 his
                 proper
                 Labourage
                 ,
                 seing
                 by
                 the
                 Season
                 without
                 his
                 fault
                 ,
                 he
                 lost
                 thereby
                 ,
                 Decem.
                 23.
                 1629.
                 
                 
                   John
                   Dickson
                
                 contra
                 Young.
                 But
                 an
                 appryzer
                 was
                 found
                 countable
                 for
                 the
                 Rental
                 of
                 all
                 the
                 Tennents
                 of
                 a
                 small
                 Tenement
                 ,
                 lying
                 contigue
                 ,
                 having
                 taken
                 Decreet
                 against
                 all
                 the
                 Tennents
                 ,
                 and
                 yet
                 refusing
                 to
                 count
                 for
                 some
                 particular
                 Rooms
                 ,
                 without
                 showing
                 any
                 hinderance
                 to
                 uplift
                 from
                 these
                 ,
                 which
                 other
                 appryzers
                 calling
                 to
                 account
                 ,
                 could
                 not
                 know
                 that
                 he
                 had
                 forborn
                 these
                 ,
                 but
                 nothing
                 was
                 determined
                 as
                 to
                 the
                 common
                 debitors
                 own
                 labourage
                 ,
                 Jan.
                 14.
                 1681.
                 
                 Schaw
                 of
                 Grimmat
                 contra
                 
                   John
                   Mure
                
                 Writer
                 .
                 Yet
                 where
                 the
                 appryzer
                 was
                 disturbed
                 in
                 his
                 Possession
                 by
                 the
                 debitor
                 ,
                 
                   Via
                   facti
                
                 ,
                 or
                 
                   via
                   juris
                
                 ,
                 he
                 was
                 not
                 found
                 countable
                 by
                 a
                 Rental
                 ,
                 but
                 what
                 he
                 recovered
                 till
                 he
                 attained
                 to
                 peaceable
                 Possession
                 ,
                 Jan.
                 20.
                 1681.
                 
                 Burnet
                 contra
                 Burnet
                 of
                 Barns
                 .
              
               
                 40.
                 
                 The
                 Act
                 of
                 Par.
                 1661.
                 cap.
                 62.
                 hath
                 lengthened
                 the
                 legal
                 of
                 appryzings
                 ,
                 and
                 hath
                 brought
                 in
                 all
                 who
                 appryze
                 ,
                 within
                 a
                 year
                 of
                 the
                 first
                 effectual
                 appryzing
                 ,
                 
                   pari
                   passu
                
                 .
                 By
                 this
                 Act
                 these
                 ,
                 these
                 alterations
                 are
                 introduced
                 as
                 to
                 appryzings
                 :
                 First
                 ,
                 Whereas
                 before
                 the
                 first
                 appryzer
                 being
                 infeft
                 or
                 doing
                 diligence
                 ,
                 had
                 only
                 access
                 to
                 the
                 whole
                 appryzed
                 Lands
                 till
                 he
                 were
                 satisfied
                 :
                 Now
                 the
                 Lords
                 are
                 impowered
                 to
                 limit
                 the
                 Possession
                 during
                 the
                 legal
                 ,
                 as
                 they
                 shall
                 see
                 cause
                 ,
                 the
                 appryzer
                 getting
                 his
                 annualrent
                 or
                 security
                 therefore
                 ;
                 and
                 therefore
                 ,
                 an
                 appryzer
                 pursuing
                 for
                 removing
                 ,
                 and
                 Mails
                 and
                 
                 Duties
                 ,
                 his
                 pursuit
                 was
                 only
                 sustained
                 ,
                 for
                 so
                 much
                 of
                 the
                 appryzed
                 Land
                 as
                 she
                 should
                 choose
                 ,
                 the
                 rent
                 whereof
                 would
                 be
                 equivalent
                 to
                 eight
                 
                   per
                   cent
                
                 .
                 of
                 the
                 sums
                 appryzed
                 for
                 ,
                 he
                 being
                 countable
                 for
                 the
                 superplus
                 ,
                 more
                 then
                 his
                 annualrent
                 and
                 publick
                 burdens
                 ,
                 the
                 defenders
                 House
                 and
                 Mains
                 being
                 always
                 excepted
                 ,
                 seing
                 there
                 was
                 sufficient
                 of
                 other
                 Rents
                 ,
                 June
                 27.
                 1672.
                 
                 Nicolson
                 contra
                 Sir
                 
                   William
                   Murray
                
                 .
                 But
                 the
                 power
                 granted
                 to
                 the
                 Lords
                 to
                 restrict
                 appryzers
                 ,
                 is
                 only
                 personal
                 and
                 peculiar
                 to
                 the
                 debitor
                 ,
                 and
                 not
                 to
                 the
                 posterior
                 appryzers
                 ,
                 July
                 28.
                 1671.
                 
                 Murray
                 contra
                 Earl
                 of
                 Southesk
                 and
                 others
                 .
                 Secondly
                 ,
                 All
                 appryzings
                 led
                 since
                 the
                 first
                 of
                 January
                 1652.
                 before
                 the
                 first
                 effectual
                 Compryzing
                 ,
                 obtaining
                 Infeftment
                 ,
                 or
                 charging
                 the
                 Superiour
                 to
                 receive
                 ,
                 or
                 within
                 a
                 year
                 after
                 the
                 same
                 ,
                 or
                 to
                 be
                 led
                 thereafter
                 upon
                 any
                 persosonal
                 debts
                 ,
                 come
                 in
                 
                   pari
                   passu
                
                 ,
                 as
                 if
                 they
                 all
                 had
                 been
                 contained
                 in
                 one
                 compryzing
                 ,
                 the
                 other
                 appryzers
                 paying
                 to
                 the
                 first
                 effectual
                 Compryzer
                 ,
                 the
                 expenses
                 of
                 his
                 compryzing
                 ,
                 and
                 Infeftment
                 thereupon
                 ,
                 but
                 the
                 year
                 is
                 not
                 to
                 counted
                 from
                 the
                 Infeftment
                 or
                 Charge
                 ,
                 by
                 which
                 the
                 appryzing
                 becomes
                 effectual
                 ,
                 but
                 from
                 the
                 date
                 of
                 the
                 Decreet
                 of
                 appryzing
                 ,
                 July
                 4.
                 1671.
                 
                 Laird
                 of
                 Balfour
                 contra
                 Mr.
                 
                   William
                   Dowglas
                
                 .
                 But
                 this
                 extends
                 not
                 to
                 appryzings
                 or
                 annualrents
                 ,
                 or
                 other
                 
                   debita
                   fundi
                
                 ;
                 and
                 accordingly
                 it
                 was
                 decided
                 by
                 the
                 Lords
                 ,
                 that
                 those
                 other
                 appryzers
                 behoved
                 to
                 pay
                 the
                 whole
                 composition
                 to
                 the
                 Superiour
                 ,
                 Feb.
                 5.
                 1663.
                 
                 
                   Robert
                   Graham
                
                 contra
                 
                   John
                   Ross.
                
                 Yet
                 these
                 appryzings
                 that
                 were
                 prior
                 to
                 the
                 Act
                 ,
                 were
                 not
                 found
                 to
                 come
                 in
                 
                   pari
                   passu
                
                 ,
                 from
                 the
                 dates
                 of
                 the
                 appryzings
                 ,
                 albeit
                 the
                 Act
                 bear
                 ,
                 that
                 they
                 should
                 come
                 in
                 as
                 if
                 they
                 were
                 in
                 one
                 appryzing
                 ,
                 but
                 only
                 from
                 the
                 date
                 of
                 the
                 Act
                 of
                 Parliament
                 .
                 And
                 as
                 to
                 what
                 the
                 first
                 appryzer
                 had
                 possessed
                 ,
                 
                   bona
                   fide
                
                 ,
                 before
                 the
                 act
                 of
                 his
                 intromission
                 ,
                 exceeded
                 his
                 annualrent
                 ,
                 the
                 same
                 should
                 be
                 imputed
                 to
                 the
                 expenses
                 of
                 the
                 compryzings
                 and
                 composition
                 ,
                 and
                 in
                 payment
                 of
                 the
                 sums
                 appryzed
                 for
                 ,
                 
                   pro
                   tanto
                   ,
                   Jan.
                
                 7.
                 1665.
                 
                 Graham
                 of
                 Blaitwood
                 contra
                 Browns
                 .
              
               
                 But
                 an
                 appryzing
                 led
                 before
                 January
                 1652.
                 though
                 Infeftment
                 or
                 Charge
                 were
                 used
                 thereon
                 ,
                 after
                 Jan.
                 1652.
                 was
                 found
                 to
                 exclude
                 all
                 appryzers
                 after
                 Jan.
                 1652.
                 whose
                 Infeftment
                 or
                 Charge
                 were
                 posterior
                 to
                 the
                 Infeftment
                 or
                 Charge
                 upon
                 the
                 appryzing
                 ,
                 led
                 before
                 Jan.
                 1652.
                 and
                 that
                 the
                 said
                 posterior
                 appryzing
                 did
                 not
                 come
                 in
                 
                   pari
                   passu
                
                 ,
                 with
                 that
                 led
                 before
                 Jan.
                 1652.
                 
                 Because
                 the
                 Act
                 of
                 Parliament
                 relates
                 nothing
                 to
                 appryzings
                 deduced
                 before
                 Jan.
                 1652.
                 
                 Decemb.
                 12.
                 1666.
                 
                 Sir
                 
                   Henry
                   Home
                
                 contra
                 Creditors
                 of
                 Kello
                 .
                 And
                 albeit
                 the
                 first
                 effectual
                 appryzing
                 was
                 satisfied
                 ,
                 and
                 so
                 extinct
                 ;
                 yet
                 it
                 did
                 stand
                 valid
                 as
                 to
                 the
                 second
                 appryzing
                 ,
                 within
                 year
                 and
                 day
                 ;
                 but
                 a
                 third
                 appryzing
                 was
                 not
                 found
                 thereby
                 to
                 come
                 in
                 
                   pari
                   passu
                
                 ,
                 with
                 the
                 second
                 appryzing
                 ,
                 as
                 being
                 within
                 year
                 and
                 day
                 thereof
                 ,
                 as
                 if
                 the
                 second
                 appryzing
                 became
                 the
                 first
                 appryzer
                 ,
                 Decemb.
                 13.
                 1672.
                 
                 Street
                 contra
                 Earl
                 of
                 Northesk
                 and
                 
                   James
                   Deans
                   .
                   Feb.
                
                 20.
                 1679.
                 
                 Tennents
                 of
                 Mortoun
                 contra
                 Earl
                 of
                 Queensberry
                 .
                 And
                 where
                 the
                 first
                 appryzer
                 〈◊〉
                 but
                 a
                 part
                 of
                 the
                 Lands
                 appryzed
                 ,
                 the
                 second
                 appryzer
                 not
                 Infeft
                 ,
                 was
                 preferred
                 to
                 the
                 third
                 appryzer
                 Infeft
                 ,
                 as
                 to
                 the
                 remanent
                 Rents
                 ,
                 because
                 the
                 second
                 appryzer
                 needed
                 no
                 Infeftment
                 ,
                 but
                 the
                 Infeftment
                 upon
                 the
                 first
                 appryzing
                 was
                 sufficient
                 for
                 all
                 the
                 appryzings
                 led
                 within
                 the
                 year
                 of
                 the
                 first
                 ,
                 Decemb.
                 22.
                 1664.
                 
                 Doctor
                 Ramsay
                 and
                 
                   William
                   Hay
                
                 contra
                 
                   Alexander
                   Seatoun
                
                 .
                 There
                 is
                 also
                 an
                 exception
                 from
                 this
                 Clause
                 ,
                 by
                 another
                 Act
                 of
                 Parliament
                 ,
                 1661.
                 cap.
                 21.
                 
                 Session
                 3.
                 that
                 second
                 apprysers
                 shall
                 not
                 be
                 prejudged
                 if
                 they
                 did
                 acquire
                 right
                 to
                 a
                 former
                 apprysing
                 ,
                 redeemed
                 and
                 satisfied
                 by
                 them
                 ,
                 for
                 their
                 own
                 security
                 ,
                 before
                 the
                 said
                 Act
                 ,
                 albeit
                 led
                 since
                 Jan.
                 1652.
                 which
                 first
                 comprysing
                 shall
                 remain
                 in
                 the
                 same
                 case
                 ,
                 as
                 apprysings
                 were
                 formerly
                 ;
                 it
                 was
                 so
                 decided
                 ,
                 without
                 necessity
                 to
                 alledge
                 that
                 Right
                 was
                 taken
                 
                 to
                 the
                 first
                 apprysing
                 ,
                 to
                 shun
                 the
                 expyring
                 of
                 the
                 legal
                 ,
                 or
                 any
                 other
                 necessary
                 cause
                 ,
                 Decemb.
                 9.
                 1664.
                 
                 Veatch
                 of
                 Dawick
                 contra
                 
                   Alexander
                   Williamson
                
                 .
                 Thirdly
                 ,
                 The
                 extent
                 of
                 the
                 legal
                 is
                 altered
                 from
                 seven
                 years
                 to
                 ten
                 years
                 ;
                 so
                 that
                 where
                 the
                 legal
                 was
                 not
                 〈◊〉
                 the
                 time
                 of
                 the
                 act
                 ,
                 three
                 years
                 were
                 allowed
                 to
                 redeem
                 them
                 ,
                 from
                 Whitsonday
                 1661.
                 which
                 terminated
                 at
                 Whitsonday
                 ,
                 1664.
                 
                 Whereanent
                 it
                 being
                 questioned
                 ,
                 whether
                 intromission
                 during
                 these
                 three
                 years
                 ,
                 should
                 satisfie
                 apprysings
                 ,
                 which
                 being
                 deduced
                 since
                 ,
                 Jan.
                 1652.
                 were
                 expyred
                 according
                 to
                 the
                 Law
                 then
                 standing
                 ,
                 and
                 disponed
                 to
                 others
                 ,
                 there
                 being
                 no
                 mention
                 of
                 that
                 Point
                 in
                 the
                 said
                 Act
                 ,
                 the
                 Lords
                 decided
                 affirmative
                 ,
                 January
                 20.
                 1666.
                 
                 Clappertoun
                 contra
                 Laird
                 of
                 Torfonce
                 .
              
               
                 41.
                 
                 Fourthly
                 ,
                 The
                 benefit
                 of
                 Redemption
                 is
                 competent
                 to
                 Creditors
                 against
                 the
                 appearand
                 Heirs
                 of
                 their
                 Debitors
                 ,
                 acquiring
                 right
                 to
                 expyred
                 Compryzings
                 ,
                 which
                 was
                 extended
                 to
                 appearand
                 Heirs
                 ,
                 even
                 during
                 his
                 Fathers
                 Life
                 ,
                 June
                 19.
                 1668.
                 
                 
                   Burnet
                   contra
                   Naesmith
                
                 ,
                 or
                 any
                 person
                 to
                 their
                 behove
                 ,
                 acquiring
                 right
                 to
                 appryzings
                 within
                 ten
                 years
                 after
                 the
                 acquirers
                 right
                 ,
                 for
                 such
                 sums
                 only
                 as
                 they
                 payed
                 for
                 acquiring
                 thereof
                 ,
                 and
                 they
                 were
                 found
                 extinct
                 by
                 the
                 appearand
                 Heirs
                 intromission
                 by
                 exception
                 ,
                 which
                 was
                 so
                 far
                 extended
                 ,
                 that
                 it
                 reached
                 an
                 appryzing
                 assigned
                 to
                 an
                 appearand
                 Heir
                 ,
                 though
                 the
                 assignation
                 was
                 before
                 this
                 Statute
                 ,
                 seing
                 the
                 infeftment
                 which
                 made
                 the
                 appearand
                 Heirs
                 Right
                 real
                 and
                 effectual
                 ,
                 was
                 after
                 ;
                 and
                 though
                 the
                 appryzing
                 was
                 redeemable
                 when
                 acquired
                 ,
                 but
                 expired
                 in
                 the
                 person
                 of
                 the
                 appearand
                 Heir
                 ,
                 July
                 21.
                 1671.
                 
                 Sir
                 
                   George
                   Maxwel
                
                 contra
                 Maxwel
                 of
                 Kirkconnel
                 .
                 But
                 the
                 appearand
                 heir
                 getting
                 right
                 to
                 the
                 appryzing
                 ,
                 gratis
                 ,
                 it
                 was
                 not
                 found
                 to
                 accress
                 to
                 the
                 Creditors
                 ,
                 but
                 only
                 to
                 be
                 redeemable
                 within
                 ten
                 years
                 after
                 his
                 Right
                 ,
                 for
                 the
                 sum
                 whereupon
                 the
                 appryzing
                 proceeded
                 ,
                 Feb.
                 13.
                 1673.
                 intereosdem
                 .
                 An
                 appryzing
                 acquired
                 by
                 the
                 Husband
                 of
                 an
                 appearand
                 Heir
                 ,
                 found
                 not
                 redeemable
                 by
                 what
                 be
                 payed
                 ,
                 unless
                 it
                 were
                 proven
                 that
                 it
                 was
                 acquired
                 by
                 the
                 Wifes
                 Means
                 ,
                 or
                 upon
                 her
                 account
                 ,
                 June
                 13.
                 1674.
                 
                 
                   William
                   Richardson
                
                 con
                 .
                 
                   Palmer
                   .
                   Feb.
                
                 21.
                 1673.
                 
                 Richardson
                 contra
                 
                   Colline
                   Laumond
                
                 and
                 Skeen
                 of
                 
                   Halyards
                   .
                   Jan.
                
                 15.
                 1679.
                 
                 
                   Andrew
                   Mcdowgal
                
                 contra
                 Sir
                 
                   Hendrie
                   Guthrie
                
                 and
                 his
                 Spouse
                 .
                 But
                 this
                 ten
                 years
                 Reversion
                 was
                 not
                 found
                 competent
                 to
                 the
                 debitor
                 himself
                 ,
                 to
                 redeem
                 from
                 his
                 appearand
                 heir
                 ,
                 Decem.
                 3.
                 1680.
                 
                 Sir
                 
                   Michael
                   Naesmith
                
                 contra
                 
                   James
                   Naesmith
                
                 .
                 But
                 a
                 second
                 Brother
                 acquiring
                 an
                 appryzing
                 upon
                 easie
                 terms
                 ,
                 when
                 his
                 elder
                 Brother
                 was
                 out
                 of
                 the
                 Countrey
                 ,
                 was
                 not
                 found
                 redeemable
                 by
                 this
                 Act
                 ,
                 not
                 being
                 esteemed
                 as
                 appearand
                 Heir
                 ,
                 
                   alioqui
                   successurus
                   ,
                   Feb.
                
                 17.
                 1675.
                 
                 
                   John
                   Mclurg
                
                 contra
                 
                   John
                   Gordoun
                
                 .
              
               
                 And
                 an
                 appryzing
                 coming
                 to
                 the
                 person
                 of
                 the
                 appearand
                 Heir
                 of
                 the
                 principal
                 debitor
                 ,
                 found
                 satisfiable
                 by
                 the
                 sums
                 payable
                 therefore
                 ,
                 by
                 the
                 appearand
                 Heir
                 ,
                 summarly
                 without
                 reduction
                 ,
                 Feb.
                 22.
                 1671.
                 
                 Sir
                 
                   David
                   Dumbar
                
                 of
                 Baldoon
                 contra
                 
                   David
                   Dick.
                
                 The
                 like
                 found
                 by
                 exception
                 or
                 reply
                 ,
                 where
                 the
                 appryzing
                 was
                 to
                 the
                 behove
                 of
                 the
                 debirors
                 eldest
                 Son
                 ,
                 July
                 4.
                 1671.
                 
                 Laird
                 of
                 Balfour
                 contra
                 
                   William
                   Douglas
                
                 .
                 The
                 like
                 ,
                 where
                 the
                 apprizing
                 acquired
                 by
                 the
                 appearand
                 Heir
                 ,
                 was
                 found
                 satisfied
                 by
                 intromission
                 equivalent
                 to
                 what
                 was
                 payed
                 for
                 the
                 appryzing
                 :
                 the
                 said
                 intromission
                 being
                 either
                 within
                 the
                 ten
                 years
                 ,
                 or
                 after
                 the
                 intenting
                 a
                 summons
                 of
                 Declarator
                 ,
                 offering
                 to
                 pay
                 what
                 remained
                 after
                 count
                 and
                 reckoning
                 ,
                 it
                 was
                 found
                 to
                 prorogate
                 the
                 ten
                 years
                 Reversion
                 ,
                 without
                 any
                 other
                 order
                 ,
                 June
                 26.
                 1677.
                 
                 Mr.
                 
                   John
                   Kincaid
                
                 contra
                 Gordoun
                 of
                 Abergeldie
                 .
              
               
               
                 41.
                 
                 Apprysings
                 deduced
                 against
                 appearand
                 Heirs
                 ,
                 specially
                 Charged
                 to
                 enter
                 Heir
                 ,
                 are
                 not
                 redeemable
                 by
                 the
                 Heir
                 of
                 the
                 Party
                 Charged
                 to
                 enter
                 Heir
                 who
                 was
                 never
                 Infeft
                 ,
                 but
                 by
                 the
                 Heir
                 of
                 the
                 Defunct
                 ,
                 for
                 whose
                 debt
                 the
                 apprysiing
                 was
                 deduced
                 ,
                 who
                 died
                 last
                 vest
                 before
                 the
                 apprysing
                 ,
                 February
                 6.
                 1668.
                 
                 January
                 19.
                 1669.
                 
                 Mr.
                 
                   John
                   Johnstoun
                
                 contra
                 Sir
                 
                   Charles
                   Erskine
                
                 .
              
               
                 42.
                 
                 Minors
                 have
                 a
                 special
                 priviledge
                 ,
                 that
                 the
                 legal
                 Reversions
                 of
                 apprysings
                 ,
                 run
                 not
                 against
                 them
                 during
                 their
                 Minority
                 ;
                 and
                 how
                 far
                 this
                 is
                 extended
                 to
                 Majors
                 succeeding
                 to
                 Minors
                 ,
                 
                   Vide
                   Tit.
                
                 6.
                 amongst
                 Priviledge
                 of
                 Minors
                 ,
                 Vide
                 ,
                 what
                 hath
                 been
                 said
                 of
                 apprysing
                 ,
                 Tit.
                 13.
                 
                 Section
                 29.
                 and
                 30.
                 
              
               
                 43.
                 
                 Apprysing
                 while
                 it
                 is
                 redeemable
                 ,
                 is
                 but
                 a
                 legal
                 diligence
                 for
                 security
                 ;
                 and
                 the
                 appryser
                 may
                 relinquish
                 the
                 same
                 ,
                 though
                 he
                 be
                 in
                 Possession
                 ,
                 and
                 may
                 do
                 any
                 other
                 diligence
                 for
                 recovering
                 his
                 debt
                 ;
                 but
                 if
                 he
                 continue
                 to
                 Possess
                 after
                 the
                 apprysing
                 becomes
                 irredeemable
                 ,
                 the
                 debt
                 is
                 thereby
                 satisfied
                 and
                 extinct
                 ,
                 which
                 was
                 so
                 found
                 ,
                 albeit
                 the
                 apprysing
                 proved
                 ineffectual
                 as
                 to
                 a
                 part
                 of
                 the
                 Lands
                 apprysed
                 ,
                 the
                 remnant
                 being
                 equivalent
                 to
                 the
                 debt
                 apprysed
                 for
                 ,
                 and
                 it
                 was
                 not
                 found
                 ,
                 that
                 a
                 proportional
                 part
                 of
                 the
                 sums
                 apprysed
                 for
                 ,
                 correspondent
                 to
                 the
                 Lands
                 that
                 were
                 evicted
                 ,
                 should
                 remain
                 due
                 to
                 the
                 appryser
                 ,
                 June
                 18.
                 1675.
                 
                 Laird
                 of
                 Leys
                 contra
                 Forbess
                 of
                 Blacktoun
                 .
              
               
                 The
                 form
                 and
                 manner
                 of
                 Procedure
                 in
                 apprysings
                 will
                 come
                 in
                 amongst
                 legal
                 executions
                 of
                 which
                 hereafter
                 .
              
               
                 44.
                 
                 Adjudication
                 is
                 
                   remedium
                   extraordinarium
                
                 ,
                 introduced
                 by
                 Custom
                 ,
                 where
                 apprysing
                 could
                 have
                 no
                 place
                 ,
                 as
                 when
                 the
                 debt
                 to
                 be
                 satisfied
                 is
                 not
                 a
                 liquidat
                 sum
                 or
                 goods
                 ordinarly
                 liquidable
                 ,
                 but
                 is
                 a
                 disposition
                 of
                 Lands
                 ,
                 containing
                 expresly
                 or
                 virtually
                 ,
                 an
                 Obligation
                 to
                 Infeft
                 the
                 acquirer
                 ,
                 or
                 some
                 other
                 :
                 Or
                 an
                 Obligation
                 consisting
                 in
                 some
                 fact
                 to
                 be
                 performed
                 :
                 Or
                 otherways
                 ,
                 where
                 the
                 debitors
                 heir
                 renunces
                 to
                 be
                 heir
                 ,
                 whereby
                 there
                 is
                 no
                 Party
                 from
                 whom
                 the
                 Lands
                 can
                 be
                 apprysed
                 ;
                 therefore
                 ,
                 
                   Haereditas
                   Jacens
                
                 is
                 adjudged
                 .
                 This
                 remeid
                 is
                 introduced
                 by
                 the
                 Lords
                 ,
                 who
                 having
                 ample
                 power
                 to
                 administrate
                 Justice
                 in
                 all
                 cases
                 ,
                 and
                 to
                 make
                 orders
                 for
                 that
                 effect
                 ,
                 do
                 supplie
                 the
                 defect
                 of
                 the
                 Law
                 ,
                 or
                 ancient
                 Customs
                 ,
                 by
                 such
                 new
                 remeids
                 ,
                 as
                 such
                 new
                 occurring
                 cases
                 do
                 require
                 ,
                 amongst
                 which
                 adjudication
                 is
                 a
                 prime
                 one
                 ,
                 which
                 Craig
                 testifieth
                 to
                 have
                 been
                 unknown
                 to
                 our
                 Predicessours
                 ,
                 and
                 being
                 but
                 recent
                 in
                 his
                 time
                 ,
                 and
                 few
                 decisions
                 thereupon
                 ,
                 the
                 nature
                 and
                 effect
                 of
                 it
                 was
                 little
                 known
                 ,
                 but
                 is
                 now
                 by
                 course
                 of
                 time
                 further
                 illustrate
                 .
              
               
                 Adjudication
                 hath
                 place
                 in
                 two
                 cases
                 ;
                 the
                 first
                 and
                 most
                 ordinary
                 is
                 ,
                 when
                 the
                 heir
                 recounces
                 to
                 be
                 heir
                 ,
                 in
                 which
                 case
                 adjudication
                 is
                 competent
                 ,
                 whether
                 the
                 debt
                 to
                 be
                 satisfied
                 be
                 liquidate
                 or
                 not
                 .
                 The
                 other
                 is
                 ,
                 when
                 the
                 obliegement
                 to
                 be
                 satisfied
                 consisteth
                 
                   in
                   facto
                
                 ,
                 and
                 relateth
                 to
                 the
                 Disposition
                 of
                 particular
                 things
                 ;
                 which
                 Disposition
                 or
                 Obliegement
                 ,
                 not
                 being
                 fulfilled
                 by
                 the
                 debitor
                 or
                 disponer
                 ,
                 though
                 all
                 ordinary
                 diligence
                 be
                 done
                 ,
                 then
                 adjudication
                 taketh
                 place
                 to
                 make
                 the
                 same
                 effectual
                 .
              
               
                 As
                 to
                 the
                 first
                 case
                 ,
                 adjudication
                 upon
                 the
                 appearand
                 Heirs
                 renuncing
                 to
                 be
                 heir
                 ,
                 proceedeth
                 upon
                 these
                 ways
                 ,
                 if
                 he
                 be
                 pursued
                 as
                 lawfully
                 Charged
                 to
                 enter
                 heir
                 ,
                 for
                 satisfying
                 of
                 his
                 Predicessors
                 debt
                 or
                 obliegement
                 ,
                 he
                 may
                 renunce
                 
                 
                 
                 to
                 be
                 heir
                 (
                 if
                 he
                 have
                 not
                 meddled
                 )
                 either
                 in
                 the
                 Process
                 against
                 him
                 ,
                 as
                 Charged
                 to
                 enter
                 heir
                 in
                 the
                 first
                 instance
                 ,
                 or
                 some
                 time
                 thereafter
                 ,
                 by
                 Suspension
                 or
                 Reduction
                 ,
                 if
                 he
                 renunce
                 in
                 the
                 first
                 instance
                 ,
                 when
                 the
                 debt
                 is
                 not
                 yet
                 instructed
                 and
                 established
                 ,
                 as
                 when
                 it
                 proceeds
                 not
                 upon
                 a
                 clear
                 Bond
                 or
                 Write
                 ,
                 but
                 abides
                 Probation
                 by
                 Witnesses
                 ,
                 or
                 otherways
                 then
                 before
                 the
                 Process
                 of
                 adjudication
                 ,
                 there
                 must
                 be
                 a
                 Process
                 and
                 Sentence
                 against
                 the
                 heir
                 renuncing
                 
                   cognitionis
                   causa
                
                 ,
                 for
                 establishing
                 and
                 proving
                 the
                 debt
                 ;
                 in
                 which
                 ,
                 because
                 there
                 is
                 necessity
                 in
                 all
                 Processes
                 ,
                 to
                 have
                 a
                 defender
                 ,
                 the
                 appearand
                 heir
                 renuncing
                 ,
                 is
                 only
                 called
                 to
                 supply
                 that
                 place
                 ,
                 
                   cognitionis
                   causa
                
                 ,
                 but
                 without
                 any
                 effect
                 against
                 him
                 ,
                 but
                 only
                 
                   contra
                   haereditatem
                   jacentem
                
                 .
                 But
                 if
                 the
                 appearand
                 heir
                 renunce
                 in
                 the
                 second
                 instance
                 ,
                 after
                 Decreet
                 obtained
                 against
                 him
                 ;
                 Or
                 in
                 the
                 first
                 instance
                 ,
                 when
                 the
                 Ground
                 and
                 Title
                 of
                 the
                 Pursuite
                 instructs
                 the
                 debt
                 ,
                 then
                 there
                 needs
                 no
                 other
                 decreet
                 ,
                 
                   cognitionis
                   causa
                
                 ;
                 but
                 the
                 Pursuer
                 Protesting
                 for
                 adjudication
                 ,
                 the
                 same
                 will
                 be
                 admitted
                 summarly
                 .
              
               
                 Adjudication
                 it self
                 is
                 a
                 most
                 simple
                 and
                 summar
                 Process
                 ,
                 whereby
                 the
                 heir
                 renuncing
                 ,
                 and
                 the
                 debt
                 being
                 established
                 ,
                 as
                 said
                 is
                 ,
                 the
                 whole
                 heretage
                 renunced
                 ,
                 orbenefite
                 ,
                 whereto
                 the
                 heir
                 might
                 succeed
                 ,
                 is
                 adjudged
                 by
                 the
                 Lords
                 to
                 the
                 pursuer
                 for
                 satisfaction
                 of
                 the
                 Defuncts
                 obliegement
                 ,
                 wherein
                 the
                 heir
                 renuncing
                 is
                 again
                 called
                 to
                 sustain
                 the
                 part
                 of
                 a
                 defender
                 ,
                 which
                 is
                 only
                 for
                 forms
                 sake
                 ,
                 for
                 he
                 can
                 propone
                 nothing
                 ,
                 and
                 one
                 single
                 summonds
                 is
                 sufficient
                 without
                 continuation
                 ;
                 because
                 it
                 is
                 accessory
                 to
                 a
                 prior
                 Decreet
                 ,
                 as
                 Dury
                 observes
                 ,
                 but
                 expresseth
                 not
                 the
                 Parties
                 ,
                 Feb.
                 26.
                 1629.
                 
                 And
                 all
                 is
                 adjudged
                 ,
                 
                   periculo
                   potentis
                
                 ,
                 whatsoever
                 the
                 Pursuer
                 pleaseth
                 to
                 Lybel
                 ,
                 alledging
                 that
                 it
                 might
                 have
                 belonged
                 to
                 the
                 heir
                 entring
                 :
                 Yea
                 ,
                 though
                 any
                 Party
                 having
                 Interest
                 ,
                 should
                 compear
                 and
                 instruct
                 that
                 he
                 hath
                 the
                 only
                 Right
                 ,
                 and
                 the
                 Defunct
                 was
                 fully
                 denuded
                 ;
                 it
                 would
                 be
                 incompetent
                 ,
                 
                   hoc
                   loco
                   ,
                   Spots
                
                 .
                 adjudication
                 ,
                 Cairncorss
                 contra
                 Laird
                 of
                 Drumlanrig
                 .
              
               
                 46.
                 
                 The
                 reason
                 is
                 ,
                 because
                 the
                 Adjudication
                 is
                 but
                 
                   periculo
                   petentis
                
                 ,
                 and
                 can
                 give
                 no
                 Right
                 ,
                 unless
                 the
                 Defuncts
                 Right
                 ,
                 competent
                 to
                 the
                 heir
                 renuncing
                 be
                 instructed
                 .
                 Neither
                 can
                 the
                 adjudger
                 ,
                 who
                 is
                 a
                 stranger
                 to
                 the
                 debitors
                 right
                 be
                 put
                 to
                 dispute
                 the
                 same
                 ,
                 in
                 obtaining
                 the
                 adjudication
                 ;
                 yet
                 the
                 Lords
                 admitted
                 a
                 singular
                 successor
                 to
                 propone
                 upon
                 his
                 Infeftment
                 ,
                 that
                 the
                 Defunct
                 was
                 denuded
                 and
                 adjudged
                 ,
                 not
                 the
                 Property
                 ,
                 but
                 all
                 Right
                 of
                 Reversion
                 ,
                 or
                 other
                 Right
                 competent
                 to
                 the
                 appearand
                 heir
                 ,
                 July
                 22.
                 1669.
                 
                 
                   Alexander
                   Livingstoun
                
                 and
                 Sornbeg
                 contra
                 heirs
                 of
                 Line
                 of
                 the
                 Lord
                 Forrester
                 .
                 In
                 this
                 case
                 the
                 matter
                 was
                 notour
                 to
                 many
                 of
                 the
                 Lords
                 ,
                 that
                 the
                 Lord
                 Forrester
                 having
                 no
                 Sons
                 ,
                 did
                 contract
                 his
                 Estate
                 with
                 one
                 of
                 his
                 Daughters
                 ,
                 to
                 Leiutenent
                 General
                 Baities
                 Son
                 ,
                 who
                 was
                 thereupon
                 publickly
                 Infeft
                 .
                 But
                 the
                 reason
                 why
                 appryzings
                 and
                 adjudications
                 have
                 past
                 so
                 much
                 at
                 Random
                 is
                 ,
                 because
                 the
                 appryzings
                 have
                 deboarded
                 from
                 their
                 ancient
                 form
                 ,
                 by
                 an
                 Inquest
                 ,
                 knowing
                 the
                 Lands
                 ,
                 which
                 therefore
                 would
                 never
                 have
                 appryzed
                 Lands
                 ,
                 but
                 where
                 the
                 debitor
                 was
                 commonly
                 repute
                 Heretor
                 ,
                 or
                 Heretable
                 Possessor
                 :
                 But
                 when
                 appryzings
                 came
                 to
                 be
                 deduced
                 by
                 Sheriffs
                 in
                 that
                 part
                 ,
                 constitute
                 by
                 the
                 Lords
                 by
                 Dispensation
                 at
                 Edinburgh
                 ,
                 where
                 persons
                 were
                 made
                 the
                 Inquest
                 ,
                 who
                 knew
                 nothing
                 of
                 the
                 Lands
                 ,
                 then
                 all
                 became
                 to
                 be
                 appryzed
                 which
                 was
                 claimed
                 ,
                 and
                 though
                 the
                 appryzer
                 would
                 not
                 pay
                 a
                 years
                 Rent
                 for
                 entering
                 him
                 in
                 Lands
                 ,
                 where
                 he
                 had
                 no
                 probability
                 of
                 Right
                 in
                 his
                 debitor
                 ;
                 the
                 greatest
                 inconvenience
                 was
                 as
                 to
                 the
                 Lands
                 holden
                 of
                 the
                 King
                 ,
                 it
                 was
                 little
                 addition
                 of
                 Expences
                 ,
                 to
                 passe
                 one
                 Infeftment
                 for
                 all
                 ;
                 and
                 other
                 Superiours
                 ,
                 
                 getting
                 a
                 years
                 Rent
                 ,
                 
                   salvo
                   jure
                
                 ,
                 they
                 were
                 not
                 suffered
                 to
                 Contravert
                 .
              
               
                 But
                 now
                 Adjudications
                 being
                 in
                 place
                 of
                 Apppryzings
                 ,
                 and
                 passing
                 upon
                 Citation
                 before
                 the
                 Lords
                 ,
                 it
                 is
                 not
                 like
                 they
                 will
                 adjudge
                 Lands
                 where
                 the
                 Debitors
                 are
                 not
                 ,
                 at
                 least
                 repute
                 heretable
                 Possessors
                 or
                 Liferenters
                 ;
                 for
                 now
                 the
                 Lords
                 are
                 in
                 place
                 of
                 the
                 Inquest
                 :
                 And
                 albeit
                 as
                 they
                 suffer
                 Decreets
                 in
                 absence
                 ,
                 to
                 pass
                 
                   periculo
                   petentis
                
                 ;
                 so
                 they
                 will
                 suffer
                 Adjudication
                 to
                 pass
                 of
                 all
                 that
                 is
                 Lybelled
                 ;
                 but
                 if
                 any
                 other
                 shall
                 appear
                 ,
                 and
                 make
                 it
                 appear
                 that
                 they
                 and
                 their
                 Predicessors
                 have
                 been
                 holden
                 and
                 repute
                 Heretable
                 Possessors
                 ,
                 and
                 that
                 there
                 was
                 no
                 Right
                 repute
                 to
                 be
                 in
                 the
                 Debitor
                 ,
                 the
                 Lords
                 might
                 readily
                 superceed
                 to
                 adjudge
                 ,
                 till
                 some
                 evidence
                 were
                 given
                 of
                 the
                 Interest
                 of
                 the
                 debitor
                 ,
                 Seasines
                 having
                 been
                 now
                 Registrat
                 ,
                 since
                 the
                 year
                 1617.
                 
                 And
                 likewise
                 Reversions
                 ,
                 though
                 adjudicationes
                 ,
                 of
                 these
                 might
                 more
                 easily
                 pass
                 then
                 ,
                 because
                 no
                 Infeftment
                 would
                 follow
                 :
                 But
                 where
                 Lands
                 are
                 adjudged
                 ,
                 and
                 Infeftments
                 follow
                 ,
                 there
                 arises
                 thence
                 grounds
                 of
                 pleas
                 and
                 pursuits
                 ,
                 especially
                 for
                 Reduction
                 and
                 Improbation
                 ,
                 upon
                 which
                 all
                 the
                 Heretors
                 of
                 the
                 Lands
                 contained
                 in
                 the
                 Infeftments
                 ,
                 would
                 be
                 oblieged
                 to
                 produce
                 their
                 Rights
                 ,
                 and
                 open
                 their
                 Charter
                 Chests
                 ,
                 to
                 parties
                 having
                 no
                 pretence
                 to
                 their
                 Estates
                 .
                 The
                 adjudication
                 was
                 sustained
                 of
                 all
                 Lands
                 generally
                 ,
                 without
                 condescendence
                 ,
                 Decemb.
                 14.
                 1638.
                 
                 Corser
                 contra
                 Dury
                 .
                 But
                 where
                 the
                 Defender
                 appeared
                 not
                 ,
                 or
                 contraverted
                 it
                 not
                 in
                 the
                 adjudication
                 ,
                 Process
                 for
                 Mails
                 and
                 Duties
                 of
                 the
                 Lands
                 adjudged
                 ,
                 was
                 sustained
                 in
                 the
                 same
                 Libel
                 ,
                 Ibidem
                 .
                 And
                 in
                 adjudication
                 of
                 a
                 Reversion
                 ,
                 the
                 Declarator
                 for
                 redeeming
                 the
                 same
                 ,
                 was
                 sustained
                 in
                 the
                 same
                 Lybel
                 ,
                 July
                 8.
                 1629.
                 
                 Dury
                 contra
                 Kinross
                 .
              
               
                 47.
                 
                 In
                 adjudication
                 all
                 is
                 competent
                 to
                 be
                 adjudged
                 ,
                 Which
                 should
                 have
                 befallen
                 the
                 heir
                 entering
                 ,
                 as
                 Lands
                 ,
                 Annualrents
                 ,
                 Reversions
                 ,
                 Tacks
                 ,
                 Liferents
                 ,
                 and
                 all
                 Heretable
                 Bonds
                 ;
                 yea
                 ,
                 not
                 only
                 these
                 Rights
                 themselves
                 ,
                 but
                 the
                 bygone
                 Rents
                 and
                 Duties
                 thereof
                 ,
                 preceeding
                 the
                 adjudication
                 ,
                 and
                 after
                 the
                 Defuncts
                 death
                 ,
                 may
                 be
                 adjudged
                 and
                 pursued
                 against
                 the
                 Possessors
                 and
                 Intrometters
                 in
                 that
                 same
                 Process
                 ,
                 because
                 these
                 are
                 competent
                 to
                 the
                 Heir
                 renuncing
                 ,
                 and
                 there
                 is
                 no
                 other
                 way
                 to
                 attain
                 them
                 ,
                 as
                 in
                 the
                 case
                 of
                 appryzings
                 ,
                 which
                 are
                 not
                 extended
                 to
                 bygones
                 ,
                 seing
                 these
                 may
                 be
                 arrested
                 ,
                 and
                 pursued
                 as
                 Moveables
                 belonging
                 to
                 the
                 Debitor
                 ,
                 as
                 was
                 found
                 in
                 the
                 said
                 case
                 ,
                 Corser
                 contra
                 
                   Dury
                   .
                   Decemb.
                
                 14.
                 1638.
                 
                 And
                 likewise
                 ,
                 heirship
                 Moveables
                 ,
                 for
                 the
                 same
                 reason
                 are
                 competent
                 in
                 adjudications
                 ,
                 but
                 not
                 against
                 other
                 Moveables
                 of
                 the
                 Defunct
                 ,
                 which
                 may
                 be
                 confirmed
                 ,
                 Spotswood
                 Caption
                 ,
                 
                   Isobel
                   Hagie
                
                 contra
                 her
                 Daughters
                 .
                 Novemb.
                 24.
                 1638.
                 
                 Campbel
                 contra
                 
                   John
                   Baxter
                
                 :
                 and
                 so
                 it
                 is
                 not
                 competent
                 against
                 an
                 Heritable
                 Bond
                 ,
                 made
                 moveable
                 by
                 a
                 Charge
                 ,
                 Jan.
                 30.
                 1627.
                 
                 Couper
                 contra
                 Williamson
                 and
                 Bogmiln
                 .
                 Yet
                 if
                 an
                 Heritable
                 sum
                 should
                 become
                 moveable
                 after
                 the
                 Defuncts
                 death
                 ,
                 as
                 by
                 an
                 order
                 of
                 Redemption
                 ,
                 it
                 would
                 be
                 competent
                 by
                 adjudication
                 ,
                 seing
                 it
                 could
                 be
                 reached
                 no
                 other
                 way
                 .
                 In
                 adjudications
                 it
                 is
                 only
                 competent
                 to
                 Creditors
                 to
                 appear
                 ,
                 having
                 like
                 Process
                 of
                 adjudication
                 depending
                 ,
                 for
                 all
                 will
                 be
                 brought
                 in
                 
                   pari
                   passu
                
                 ,
                 who
                 are
                 ready
                 before
                 Sentence
                 ,
                 with
                 the
                 first
                 pursuer
                 ,
                 Hope
                 adjudications
                 ,
                 Stuart
                 contra
                 Sturt
                 .
              
               
                 48.
                 
                 If
                 the
                 adjudication
                 be
                 of
                 Lands
                 or
                 Annualrents
                 ,
                 requiring
                 Infeftment
                 ,
                 the
                 Superiour
                 will
                 be
                 compelled
                 to
                 receive
                 the
                 adjudger
                 ,
                 though
                 a
                 stranger
                 his
                 Vassal
                 ,
                 though
                 he
                 do
                 not
                 instruct
                 his
                 Authors
                 Right
                 ,
                 
                   salvo
                   jure
                   cujustibet
                
                 &
                 
                 
                   suo
                   ,
                   Feb.
                
                 9.
                 1667.
                 
                 
                   Elizabeth
                   Ramsay
                
                 contra
                 Ker.
                 But
                 as
                 to
                 the
                 years
                 Duty
                 ,
                 payable
                 by
                 the
                 adjudger
                 to
                 the
                 Superiour
                 ,
                 for
                 their
                 Entry
                 ,
                 though
                 the
                 Lords
                 thought
                 it
                 equitable
                 ,
                 that
                 it
                 should
                 take
                 place
                 ,
                 as
                 well
                 in
                 adjudications
                 as
                 appryzings
                 ,
                 the
                 reason
                 being
                 alike
                 in
                 both
                 ,
                 yet
                 found
                 not
                 sufficient
                 ground
                 ,
                 whereupon
                 to
                 decern
                 it
                 ,
                 seing
                 the
                 said
                 years
                 Rent
                 is
                 exprest
                 in
                 the
                 Act
                 of
                 Parliament
                 ,
                 1469.
                 cap.
                 36.
                 
                 And
                 the
                 Composition
                 of
                 the
                 Superiour
                 ,
                 for
                 receiving
                 appryzers
                 ,
                 Parliament
                 1621.
                 cap.
                 6.
                 
                 Yet
                 in
                 the
                 next
                 Act
                 of
                 the
                 same
                 Parliament
                 ,
                 anent
                 adjudications
                 ,
                 there
                 is
                 no
                 mention
                 of
                 Composition
                 to
                 the
                 Superiour
                 ,
                 though
                 the
                 Act
                 relateth
                 to
                 the
                 former
                 Act
                 ,
                 anent
                 appryzings
                 ;
                 and
                 therefore
                 ,
                 they
                 thought
                 it
                 not
                 competent
                 to
                 them
                 to
                 extend
                 the
                 said
                 composition
                 ,
                 
                   ad
                   pares
                   casus
                
                 ,
                 where
                 it
                 did
                 so
                 much
                 appear
                 ,
                 that
                 the
                 Parliament
                 of
                 purpose
                 had
                 omitted
                 it
                 ;
                 yet
                 in
                 the
                 said
                 case
                 ,
                 Greirson
                 contra
                 Closburn
                 upon
                 the
                 21.
                 of
                 July
                 1636.
                 they
                 did
                 forbear
                 to
                 intimate
                 their
                 Decision
                 ,
                 and
                 desired
                 the
                 parties
                 to
                 agree
                 .
                 And
                 no
                 Composition
                 was
                 found
                 due
                 by
                 an
                 Adjudger
                 ,
                 having
                 Charged
                 before
                 the
                 late
                 Act
                 of
                 
                   Parliament
                   ,
                   December
                
                 23.
                 1669.
                 whereby
                 ,
                 like
                 Compositions
                 are
                 appointed
                 for
                 Adjudication
                 ,
                 as
                 for
                 appryzing
                 ,
                 July
                 10.
                 1671.
                 
                 Scot
                 of
                 Thirlestain
                 contra
                 Lord
                 Drumlanrig
                 .
                 In
                 which
                 case
                 ,
                 it
                 was
                 found
                 ,
                 that
                 the
                 Superiour
                 might
                 refuse
                 to
                 enter
                 the
                 Adjudger
                 ,
                 if
                 he
                 payed
                 his
                 debt
                 ;
                 but
                 that
                 he
                 was
                 to
                 have
                 nothing
                 for
                 Composition
                 ,
                 if
                 he
                 did
                 so
                 in
                 the
                 same
                 way
                 ,
                 as
                 in
                 appryzing
                 ,
                 by
                 the
                 old
                 Act
                 of
                 Par.
                 1469.
                 cap.
                 36.
                 by
                 which
                 that
                 option
                 is
                 given
                 to
                 the
                 Superiour
                 .
              
               
                 49.
                 
                 Craig
                 observeth
                 ,
                 that
                 it
                 was
                 doubtful
                 in
                 his
                 time
                 ,
                 whether
                 there
                 were
                 a
                 Legal
                 Reversion
                 competent
                 to
                 any
                 renuncing
                 ,
                 and
                 afterward
                 returning
                 to
                 Redeem
                 Adjudications
                 or
                 Appryzings
                 ,
                 wherein
                 he
                 favoureth
                 the
                 affirmative
                 ,
                 but
                 the
                 said
                 Statute
                 ,
                 Par.
                 1621.
                 cap.
                 7.
                 determineth
                 the
                 case
                 ,
                 and
                 granteth
                 a
                 legal
                 Reversion
                 ,
                 in
                 favours
                 of
                 these
                 who
                 have
                 posterior
                 Adjudications
                 ,
                 within
                 the
                 space
                 of
                 seven
                 years
                 ,
                 or
                 ten
                 years
                 since
                 the
                 Act
                 of
                 Par.
                 1661
                 betwixt
                 Debitor
                 and
                 Creditor
                 ,
                 which
                 is
                 also
                 competent
                 to
                 any
                 Renuncing
                 in
                 their
                 Minority
                 ,
                 and
                 being
                 restored
                 against
                 the
                 said
                 Renunciation
                 ;
                 but
                 it
                 is
                 not
                 competent
                 to
                 any
                 other
                 Heir
                 renuncing
                 ;
                 yet
                 if
                 the
                 Heir
                 ,
                 though
                 Major
                 ,
                 find
                 that
                 he
                 hath
                 prejudged
                 himself
                 ,
                 by
                 renuncing
                 a
                 profitable
                 Heritage
                 ,
                 he
                 may
                 grant
                 a
                 Bond
                 ,
                 and
                 thereupon
                 cause
                 within
                 the
                 legal
                 ,
                 adjudge
                 and
                 redeem
                 the
                 former
                 Adjudications
                 ,
                 which
                 ,
                 though
                 to
                 his
                 own
                 behove
                 ,
                 will
                 be
                 effectual
                 ,
                 there
                 being
                 so
                 much
                 equity
                 and
                 favour
                 upon
                 his
                 part
                 ,
                 being
                 willing
                 to
                 satisfie
                 the
                 whole
                 debts
                 .
              
               
                 50.
                 
                 It
                 is
                 clear
                 by
                 the
                 said
                 Statute
                 ,
                 the
                 Lands
                 or
                 Heretage
                 of
                 a
                 Defunct
                 may
                 be
                 Adjudged
                 ,
                 the
                 heirs
                 renuncing
                 ,
                 not
                 only
                 for
                 satisfaction
                 of
                 the
                 Defuncts
                 debt
                 ,
                 but
                 of
                 the
                 heirs
                 own
                 proper
                 debt
                 .
              
               
                 51.
                 
                 Adjudications
                 are
                 taken
                 off
                 and
                 extinguished
                 in
                 the
                 same
                 manner
                 as
                 appryzings
                 are
                 ,
                 by
                 intrometting
                 with
                 the
                 Mails
                 and
                 Duties
                 of
                 the
                 Lands
                 adjudged
                 ,
                 as
                 is
                 clear
                 from
                 the
                 said
                 Statute
                 .
                 And
                 though
                 cases
                 be
                 not
                 so
                 frequent
                 in
                 Adjudications
                 ,
                 as
                 in
                 appryzings
                 ;
                 to
                 clear
                 the
                 other
                 ways
                 of
                 their
                 extinction
                 :
                 Yet
                 the
                 reason
                 being
                 the
                 same
                 in
                 both
                 ,
                 there
                 is
                 no
                 doubt
                 but
                 the
                 determination
                 will
                 also
                 be
                 the
                 same
                 .
              
               
                 52.
                 
                 The
                 other
                 manner
                 of
                 Adjudications
                 ,
                 is
                 for
                 making
                 effectual
                 Dispositions
                 or
                 obliegements
                 to
                 Infeft
                 ,
                 whereupon
                 ,
                 when
                 the
                 acquirer
                 hath
                 used
                 all
                 diligence
                 competent
                 in
                 Law
                 ,
                 against
                 the
                 disponer
                 to
                 fulfil
                 the
                 same
                 ,
                 by
                 obtaining
                 
                 Decreets
                 and
                 Horning
                 Registrat
                 thereupon
                 ,
                 either
                 against
                 the
                 Disponer
                 or
                 his
                 Heir
                 ,
                 Law
                 being
                 there
                 defective
                 ,
                 and
                 cannot
                 make
                 the
                 Disposition
                 or
                 Obliegement
                 effectual
                 ;
                 the
                 Lords
                 have
                 allowed
                 Adjudications
                 of
                 the
                 Lands
                 disponed
                 ,
                 whether
                 in
                 Fee
                 or
                 Liferent
                 ,
                 July
                 19.
                 1611.
                 
                 Lord
                 Johnstoun
                 contra
                 Lord
                 
                   Carmichael
                   ,
                   Spots
                   .
                   hic
                
                 ,
                 contra
                 Bruce
                 of
                 Airth
                 .
              
               
                 And
                 thereupon
                 the
                 Superiour
                 will
                 be
                 discerned
                 to
                 receive
                 the
                 Adjudger
                 ,
                 as
                 was
                 found
                 in
                 the
                 case
                 of
                 an
                 Obliegement
                 to
                 Infeft
                 a
                 Woman
                 in
                 Liferent
                 ,
                 holden
                 of
                 the
                 Superiour
                 ,
                 wherein
                 she
                 having
                 used
                 Horning
                 ,
                 the
                 Superiour
                 was
                 decerned
                 to
                 receive
                 her
                 ,
                 July
                 10.
                 1628.
                 
                 Harris
                 and
                 Cunningham
                 contra
                 
                   Lindsay
                   .
                   Feb.
                
                 24.
                 1675.
                 
                 
                   Marion
                   Hamiltoun
                
                 contra
                 Mr
                 :
                 
                   William
                   Chiefly
                
                 :
                 The
                 like
                 in
                 the
                 case
                 of
                 an
                 Heretable
                 Disposition
                 ,
                 whereupon
                 the
                 acquirer
                 having
                 obtained
                 Decreeet
                 against
                 the
                 disponers
                 heir
                 ,
                 for
                 Infefting
                 him
                 ,
                 and
                 used
                 Horning
                 thereupon
                 :
                 The
                 Director
                 of
                 the
                 Chancelary
                 was
                 decerned
                 to
                 Infeft
                 the
                 acquirer
                 ,
                 Decemb
                 :
                 16
                 :
                 1657
                 :
                 Ross
                 contra
                 Laird
                 of
                 May.
                 This
                 manner
                 of
                 Adjudication
                 is
                 extended
                 no
                 further
                 then
                 to
                 the
                 thing
                 disponed
                 ,
                 and
                 hath
                 no
                 Reversion
                 :
                 It
                 requires
                 no
                 Charge
                 to
                 enter
                 heir
                 ,
                 or
                 renunciation
                 ;
                 but
                 the
                 adjudger
                 must
                 instruct
                 his
                 Authors
                 right
                 ,
                 June
                 24.
                 1669.
                 
                 Mr.
                 Dowgal
                 contra
                 Glenurchie
                 .
              
               
                 These
                 Adjudications
                 do
                 not
                 come
                 in
                 
                   pari
                   passu
                
                 ,
                 with
                 other
                 Adjudications
                 within
                 the
                 year
                 ,
                 nor
                 any
                 other
                 with
                 them
                 ,
                 July
                 16.
                 1675.
                 
                 Campbel
                 of
                 Riddoch
                 contra
                 Stuart
                 of
                 
                   Ardvorlick
                   .
                   Decemb.
                
                 2.
                 1676.
                 
                 Lady
                 Frazer
                 contra
                 Creditors
                 of
                 the
                 Lord
                 Frazer
                 and
                 Lady
                 Marr.
                 
              
               
                 53.
                 
                 By
                 the
                 late
                 Act
                 of
                 Pavliament
                 ,
                 anent
                 adjudications
                 ,
                 there
                 are
                 introduced
                 two
                 new
                 forms
                 of
                 Adjudications
                 ;
                 the
                 one
                 special
                 of
                 Lands
                 effeirand
                 to
                 the
                 sum
                 ,
                 and
                 a
                 fifth
                 part
                 more
                 ,
                 in
                 case
                 the
                 debitor
                 produce
                 his
                 Rights
                 ,
                 and
                 put
                 the
                 adjudger
                 in
                 his
                 Possession
                 ,
                 of
                 his
                 particular
                 Lands
                 adjudged
                 :
                 But
                 if
                 he
                 do
                 not
                 ,
                 adjudications
                 are
                 to
                 proceed
                 as
                 appryzings
                 did
                 generally
                 of
                 all
                 the
                 debitors
                 Lands
                 ,
                 or
                 real
                 rights
                 ,
                 
                   periculo
                   petentis
                
                 ,
                 redeemable
                 within
                 ten
                 years
                 :
                 These
                 Adjudications
                 are
                 come
                 in
                 place
                 of
                 appryzings
                 ,
                 especially
                 the
                 general
                 adjudications
                 ,
                 which
                 are
                 declared
                 to
                 be
                 in
                 the
                 same
                 condition
                 in
                 all
                 points
                 as
                 appryzings
                 were
                 by
                 the
                 Act
                 of
                 Par.
                 1661.
                 cap.
                 62.
                 
                 Except
                 as
                 to
                 the
                 lengthening
                 of
                 a
                 Reversion
                 from
                 seven
                 to
                 ten
                 years
                 :
                 So
                 that
                 what
                 hath
                 been
                 said
                 of
                 Appryzings
                 ,
                 will
                 have
                 the
                 same
                 effect
                 as
                 to
                 general
                 Adjudications
                 ;
                 but
                 special
                 Adjudications
                 being
                 equitable
                 and
                 favourable
                 ,
                 will
                 not
                 meet
                 with
                 such
                 strictness
                 :
                 This
                 Statute
                 hath
                 taken
                 away
                 the
                 greatest
                 Reproach
                 upon
                 our
                 Law
                 ,
                 which
                 for
                 every
                 debt
                 indefinitely
                 appryzed
                 every
                 Estate
                 great
                 or
                 smal
                 ,
                 which
                 had
                 no
                 excuse
                 ,
                 but
                 that
                 the
                 debitor
                 might
                 redeem
                 in
                 seven
                 years
                 :
                 But
                 all
                 debitors
                 being
                 necessitat
                 to
                 appryze
                 within
                 a
                 year
                 ,
                 or
                 to
                 have
                 no
                 more
                 then
                 the
                 legal
                 Reversion
                 ,
                 paying
                 the
                 whole
                 debts
                 ,
                 the
                 power
                 of
                 Redemption
                 came
                 to
                 be
                 of
                 little
                 effect
                 ,
                 few
                 being
                 able
                 to
                 pay
                 all
                 their
                 debt
                 in
                 one
                 day
                 :
                 But
                 now
                 if
                 any
                 debitor
                 complain
                 ,
                 that
                 his
                 whole
                 Estate
                 is
                 adjudged
                 ,
                 and
                 no
                 proportion
                 keeped
                 betwixt
                 the
                 debt
                 and
                 his
                 Estate
                 ,
                 it
                 is
                 altogether
                 his
                 own
                 fault
                 ,
                 seing
                 he
                 might
                 offer
                 a
                 proportional
                 part
                 ,
                 and
                 liberat
                 all
                 the
                 rest
                 of
                 his
                 Estate
                 ;
                 which
                 part
                 is
                 Redeemable
                 also
                 in
                 five
                 years
                 :
                 And
                 though
                 a
                 fifth
                 part
                 be
                 added
                 ,
                 it
                 is
                 no
                 more
                 then
                 the
                 ordinary
                 penalty
                 ,
                 being
                 an
                 100.
                 
                 Pounds
                 for
                 a
                 1000
                 ,
                 Merks
                 ,
                 and
                 50.
                 
                 Merks
                 for
                 the
                 Sheriff-fee
                 ;
                 makes
                 200.
                 
                 Merks
                 ,
                 being
                 the
                 fifth
                 part
                 of
                 a
                 1000.
                 
                 Merks
                 ,
                 and
                 which
                 was
                 sustained
                 in
                 the
                 most
                 favourable
                 cases
                 of
                 Appryzings
                 from
                 the
                 beginning
                 ,
                 and
                 the
                 Reversion
                 was
                 for
                 seven
                 years
                 .
              
               
               
                 Adjudications
                 being
                 executive
                 Decreet
                 ,
                 the
                 Lords
                 allow
                 them
                 the
                 greatest
                 dispatch
                 ;
                 and
                 to
                 prevent
                 Collusion
                 ,
                 whereby
                 some
                 debitors
                 might
                 be
                 postponed
                 by
                 debate
                 and
                 probation
                 till
                 the
                 year
                 pass
                 ,
                 which
                 would
                 excludethem
                 ;
                 Therefore
                 the
                 Lords
                 do
                 not
                 suffer
                 Co-creditors
                 to
                 stop
                 Adjudications
                 ,
                 that
                 they
                 might
                 see
                 for
                 their
                 entress
                 ,
                 and
                 put
                 the
                 pursuer
                 to
                 abide
                 the
                 course
                 of
                 the
                 Roll
                 ,
                 unless
                 they
                 produce
                 an
                 Entress
                 ,
                 upon
                 which
                 the
                 Ordinar
                 will
                 hear
                 them
                 immediatly
                 without
                 going
                 to
                 the
                 Roll
                 ,
                 
                   Jan.
                   22.
                   1681.
                
                 
                 Earl
                 of
                 Dundonald
                 contra
                 Dunlop
                 and
                 his
                 Creditors
                 .
                 Neither
                 is
                 the
                 Superiour
                 suffered
                 to
                 propone
                 defences
                 ,
                 Jan.
                 13.
                 1675.
                 
                 Kinloch
                 of
                 Gourdie
                 contra
                 Mr.
                 
                   James
                   Blair
                
                 and
                 
                   James
                   Strachan
                
                 .
                 Yea
                 ,
                 the
                 Lords
                 sustained
                 the
                 establishment
                 of
                 the
                 debt
                 in
                 the
                 same
                 Lybel
                 with
                 the
                 Adjudication
                 ,
                 July
                 26.
                 1676.
                 
                 
                   Alexander
                   Boyd
                
                 contra
                 Boyd
                 of
                 Pinkill
                 .
                 But
                 if
                 the
                 debitor
                 himself
                 appear
                 ,
                 the
                 Cause
                 goes
                 to
                 the
                 Roll
                 ;
                 and
                 if
                 there
                 be
                 prior
                 adjudgers
                 ,
                 defences
                 proponed
                 against
                 the
                 debt
                 ,
                 or
                 adjudication
                 ,
                 which
                 are
                 not
                 like
                 to
                 be
                 verified
                 within
                 a
                 year
                 of
                 the
                 first
                 adjudication
                 ;
                 the
                 Lords
                 adjudge
                 and
                 reserve
                 these
                 defences
                 
                   contra
                   executionem
                
                 ,
                 by
                 Suspension
                 ;
                 In
                 which
                 terms
                 will
                 be
                 granted
                 ,
                 because
                 of
                 the
                 reservation
                 ;
                 but
                 there
                 is
                 this
                 advantage
                 ,
                 that
                 how
                 long
                 soever
                 the
                 Suspension
                 be
                 of
                 expeding
                 ,
                 the
                 first
                 decreet
                 being
                 within
                 the
                 year
                 ,
                 brings
                 the
                 adjudger
                 in
                 
                   pari
                   passu
                
                 .
              
            
             
               
               
                 TITLE
                 XXV
                 .
                 Confiscation
                 ,
                 Where
                 ,
                 of
                 single
                 Escheat
                 ,
                 Liferent-Escheat
                 ,
                 Shipwrack
                 ,
                 Waith-goods
                 ,
                 Treasure
                 ,
                 Forefaulture
                 ,
                 Bastardy
                 ,
                 and
                 Last-heir
                 .
              
               
                 
                   1.
                   
                   The
                   Tenor
                   of
                   Letters
                   of
                   Horning
                   .
                
                 
                   2.
                   
                   The
                   executions
                   of
                   Horning
                   must
                   bear
                   the
                   party
                   Charged
                   personally
                   ,
                   or
                   at
                   his
                   dwelling-house
                   designed
                   .
                
                 
                   3.
                   
                   The
                   Execution
                   at
                   the
                   dwelling-house
                   ,
                   must
                   bear
                   six
                   knocks
                   at
                   the
                   most
                   patent
                   Gate
                   ,
                   because
                   the
                   Messenger
                   could
                   get
                   no
                   Entry
                   .
                
                 
                   4.
                   
                   The
                   knocks
                   must
                   be
                   audible
                   ,
                   that
                   these
                   within
                   may
                   hear
                   .
                
                 
                   5
                   :
                   If
                   the
                   Messenger
                   get
                   entry
                   ,
                   the
                   delivery
                   of
                   a
                   Copy
                   to
                   any
                   of
                   the
                   Family
                   is
                   sufficient
                   without
                   knocks
                   ,
                   and
                   must
                   be
                   so
                   exprest
                   .
                
                 
                   6
                   The
                   days
                   requisite
                   for
                   the
                   Charge
                   beyond
                   the
                   Water
                   of
                   Dee
                   .
                
                 
                   7.
                   
                   The
                   denunciation
                   must
                   be
                   against
                   the
                   party
                   ,
                   and
                   at
                   the
                   Mercat
                   Cross
                   of
                   the
                   Jurisdiction
                   where
                   he
                   dwells
                   .
                
                 
                   
                   8.
                   
                   The
                   denunciations
                   must
                   bear
                   three
                   Oyesses
                   ,
                   or
                   the
                   equivalent
                   .
                
                 
                   9.
                   
                   The
                   execution
                   must
                   bear
                   three
                   blasts
                   of
                   the
                   Horn.
                   
                
                 
                   10.
                   
                   The
                   execution
                   must
                   be
                   stamped
                   .
                
                 
                   11.
                   
                   The
                   Horning
                   must
                   be
                   Registrate
                   ,
                   and
                   how
                   .
                
                 
                   12.
                   
                   Denunciation
                   after
                   satisfaction
                   hath
                   no
                   effect
                   .
                
                 
                   13.
                   
                   The
                   effect
                   of
                   general
                   Letters
                   of
                   Horning
                   .
                
                 
                   14.
                   
                   The
                   order
                   and
                   effect
                   of
                   Relaxation
                   from
                   the
                   Horn.
                   
                
                 
                   15.
                   
                   The
                   single
                   Escheat
                   and
                   extent
                   thereof
                
                 
                   16.
                   
                   How
                   far
                   the
                   denunceds
                   debts
                   ,
                   or
                   deeds
                   affect
                   his
                   Escheat-goods
                   .
                
                 
                   17.
                   
                   Gists
                   of
                   Escheat
                   ,
                   and
                   preference
                   thereof
                   .
                
                 
                   18.
                   
                   Gifts
                   of
                   Escheat
                   not
                   expressing
                   the
                   particular
                   Horning
                   whereon
                   they
                   proceed
                   .
                
                 
                   19.
                   
                   Gifts
                   of
                   escheat
                   ,
                   though
                   bearing
                   goods
                   to
                   be
                   acquired
                   ,
                   extend
                   but
                   to
                   these
                   acquired
                   within
                   a
                   year
                   after
                   the
                   gift
                   .
                
                 
                   20.
                   
                   Escheats
                   within
                   Regality
                   .
                
                 
                   21.
                   
                   In
                   what
                   cases
                   gifts
                   ofescheat
                   are
                   held
                   simulat
                   .
                
                 
                   22.
                   
                   Who
                   must
                   be
                   called
                   in
                   the
                   general
                   declarator
                   .
                
                 
                   23.
                   
                   The
                   Titles
                   and
                   Tenors
                   of
                   general
                   declarators
                   .
                
                 
                   24.
                   
                   Exceptions
                   against
                   general
                   declarators
                   .
                
                 
                   25.
                   
                   Special
                   declarators
                   of
                   escheat
                   .
                
                 
                   26.
                   
                   Liferent-escheat
                   .
                
                 
                   27.
                   
                   Confiscation
                   of
                   Treasures
                   ,
                   Waith
                   ,
                   or
                   Shipwrack-goods
                   .
                
                 
                   28.
                   
                   Forefaulture
                   .
                
                 
                   29.
                   
                   Several
                   kinds
                   of
                   Treason
                   by
                   Statute
                   .
                
                 
                   30.
                   
                   Forefaulture
                   Confiscats
                   without
                   the
                   burden
                   of
                   the
                   debts
                   or
                   infeftments
                   not
                   confirmed
                   by
                   the
                   King.
                   
                
                 
                   31.
                   
                   How
                   far
                   fews
                   are
                   effectual
                   against
                   Forefaulture
                   .
                
                 
                   32.
                   
                   How
                   far
                   Tacks
                   of
                   forefault
                   Lands
                   are
                   effectual
                   .
                
                 
                   33.
                   
                   Forefaulture
                   by
                   arescinded
                   Act
                   ,
                   was
                   burdened
                   with
                   the
                   debts
                   and
                   deeds
                   of
                   the
                   Rebel
                   .
                
                 
                   34.
                   
                   Forefaulture
                   ,
                   when
                   ,
                   and
                   how
                   it
                   may
                   proceed
                   in
                   absence
                   .
                
                 
                   35.
                   
                   How
                   far
                   the
                   person
                   of
                   the
                   Rebel
                   gives
                   Right
                   to
                   the
                   Fisk.
                   
                
                 
                   36
                   The
                   effect
                   offorefaulture
                   of
                   appearand
                   heirs
                   .
                
                 
                   37.
                   
                   In
                   what
                   cases
                   forefaulture
                   dishabilitats
                   .
                
                 
                   38
                   How
                   far
                   the
                   forefaulture
                   of
                   appearand
                   heirs
                   may
                   be
                   extended
                   .
                
                 
                   39
                   Explanation
                   of
                   the
                   Act
                   of
                   Parliament
                   1594.
                   cap.
                   202.
                   importing
                   burdening
                   of
                   forfaultures
                   with
                   the
                   debts
                   and
                   deeds
                   of
                   the
                   Rebel
                   .
                
                 
                   40
                   Forefaulture
                   is
                   reducible
                   upon
                   any
                   nullity
                   ,
                   but
                   only
                   by
                   way
                   of
                   grace
                   .
                
                 
                   41
                   How
                   far
                   forefaulture
                   takes
                   effect
                   without
                   declarator
                   .
                
                 
                   42
                   What
                   Children
                   are
                   lawful
                   and
                   what
                   bastards
                   .
                
                 
                   43
                   Declarator
                   of
                   Bastardy
                   .
                
                 
                   
                   44
                   The
                   effects
                   of
                   Bastardy
                   ,
                   as
                   to
                   Succession
                   .
                
                 
                   45
                   Legitimation
                   and
                   effects
                   thereof
                   .
                
                 
                   46
                   How
                   the
                   debts
                   and
                   deeds
                   of
                   the
                   Bastard
                   affect
                   his
                   Estate
                   .
                
                 
                   
                     47
                     Ultimus
                     haeres
                  
                   ,
                   and
                   the
                   difference
                   thereof
                   from
                   Bastardy
                   .
                
              
               
                 THE
                 Conveyance
                 and
                 Transmission
                 of
                 all
                 kinds
                 of
                 Rights
                 from
                 private
                 parties
                 to
                 the
                 Fisk
                 ,
                 are
                 here
                 comprehended
                 under
                 one
                 common
                 Term
                 and
                 Title
                 of
                 Confiscation
                 :
                 It
                 is
                 not
                 proper
                 in
                 this
                 place
                 to
                 treat
                 of
                 the
                 Fisk
                 ,
                 or
                 priviledges
                 thereof
                 ,
                 or
                 upon
                 the
                 several
                 Causes
                 ,
                 upon
                 which
                 Confiscation
                 followeth
                 ;
                 these
                 being
                 publick
                 Rights
                 ;
                 but
                 we
                 shall
                 only
                 consider
                 the
                 several
                 kinds
                 of
                 Rights
                 ,
                 or
                 things
                 that
                 befal
                 to
                 the
                 Fisk
                 from
                 private
                 parties
                 ,
                 and
                 how
                 they
                 return
                 to
                 private
                 parties
                 again
                 ,
                 by
                 Gifts
                 and
                 Processes
                 thereupon
                 ;
                 and
                 this
                 is
                 either
                 in
                 reference
                 to
                 Moveables
                 ,
                 Liferents
                 ,
                 or
                 the
                 Property
                 and
                 Stock
                 of
                 Heretable
                 Rights
                 and
                 others
              
               
                 Moveables
                 fall
                 to
                 the
                 Fisk
                 ,
                 either
                 wholly
                 and
                 intire
                 ,
                 and
                 that
                 is
                 chiefly
                 by
                 Denunciation
                 and
                 Rebellion
                 ,
                 or
                 by
                 some
                 special
                 Statute
                 ,
                 the
                 penalty
                 whereof
                 is
                 Confiscation
                 of
                 Moveables
                 ;
                 such
                 are
                 breach
                 of
                 Arrestment
                 ,
                 or
                 Deforcement
                 wherein
                 ,
                 though
                 the
                 private
                 party
                 injured
                 have
                 an
                 interest
                 ;
                 yet
                 in
                 effect
                 the
                 whole
                 is
                 Confiscat
                 ,
                 and
                 a
                 part
                 belongs
                 to
                 that
                 party
                 ,
                 by
                 vertue
                 of
                 the
                 Statute
                 thereanent
                 ,
                 whereby
                 they
                 are
                 constitute
                 Donatars
                 :
                 Or
                 otherways
                 some
                 particular
                 Moveables
                 befalleth
                 to
                 the
                 Fisk
                 ;
                 either
                 by
                 Custome
                 ,
                 as
                 Waith-goods
                 ,
                 Ship-wrack
                 ,
                 &c.
                 or
                 by
                 Statute
                 .
                 Liferents
                 befal
                 to
                 the
                 Fisk
                 by
                 the
                 Denunciation
                 of
                 the
                 Owner
                 ,
                 and
                 remaining
                 unrelaxed
                 year
                 and
                 day
                 ,
                 or
                 by
                 such
                 Statutes
                 ,
                 whose
                 penalty
                 is
                 the
                 loss
                 of
                 the
                 Liferent
                 .
              
               
                 The
                 Stock
                 or
                 Property
                 of
                 Heretable
                 Rights
                 ,
                 fall
                 to
                 the
                 Fisk
                 by
                 forefaulture
                 ,
                 or
                 becoming
                 caduciary
                 ;
                 the
                 Confiscation
                 of
                 the
                 whole
                 Moveables
                 is
                 called
                 the
                 single-escheat
                 ;
                 and
                 of
                 the
                 Liferent
                 ,
                 is
                 called
                 the
                 Liferent-escheat
                 .
                 We
                 shall
                 only
                 speak
                 of
                 the
                 Single-escheat
                 of
                 Moveables
                 by
                 Denunciation
                 ;
                 having
                 spoken
                 of
                 breach
                 of
                 Arrestment
                 and
                 Deforcement
                 ,
                 
                   Title
                   Reparation
                
                 .
                 Secondly
                 ,
                 Of
                 Liferent-escheat
                 .
                 Thirdly
                 ,
                 Of
                 Escheat
                 of
                 particular
                 Goods
                 ,
                 as
                 Shipwrack
                 ,
                 &c.
                 Fourthly
                 ,
                 of
                 Forefaulture
                 .
                 And
                 lastly
                 ,
                 of
                 things
                 Caduciary
                 ,
                 especially
                 by
                 Bastardy
                 ,
                 and
                 last
                 Heir
                 ,
                 and
                 of
                 Gifts
                 and
                 Processes
                 thereupon
                 .
              
               
                 Escheat
                 ,
                 though
                 it
                 be
                 a
                 common
                 Term
                 ,
                 signifying
                 any
                 Confiscation
                 ,
                 yet
                 it
                 is
                 restricted
                 to
                 Moveables
                 and
                 Liferents
                 ,
                 and
                 most
                 properly
                 to
                 Moveables
                 ,
                 so
                 that
                 when
                 it
                 is
                 simply
                 exprest
                 ,
                 it
                 is
                 ordinarly
                 taken
                 for
                 single-escheat
                 ,
                 or
                 Escheat
                 of
                 Moveables
                 ;
                 but
                 before
                 we
                 descend
                 thereto
                 ,
                 it
                 is
                 fit
                 to
                 consider
                 of
                 the
                 ordinary
                 Cause
                 thereof
                 ,
                 and
                 of
                 Liferent-escheat
                 ,
                 viz
                 :
                 Horning
                 .
              
               
               
                 Horning
                 proceedeth
                 thus
                 ,
                 by
                 Letters
                 Executorial
                 ,
                 giving
                 warrand
                 to
                 Messengers
                 at
                 Arms
                 ,
                 to
                 charge
                 any
                 partie
                 in
                 the
                 Kings
                 name
                 ,
                 to
                 obey
                 what
                 is
                 contained
                 in
                 the
                 Letters
                 ,
                 under
                 the
                 pain
                 of
                 Rebellion
                 ;
                 And
                 if
                 he
                 obey
                 not
                 within
                 the
                 dayes
                 of
                 the
                 charge
                 ,
                 giving
                 power
                 to
                 Denounce
                 him
                 Rebel
                 by
                 publick
                 Proclamation
                 ,
                 at
                 the
                 Mercat
                 Crosse
                 of
                 the
                 Head
                 Bargh
                 of
                 the
                 Shire
                 ,
                 Stewartry
                 ,
                 Bailliarie
                 of
                 Royalty
                 or
                 Regalitie
                 within
                 the
                 which
                 the
                 Denunced
                 dwells
                 ;
                 and
                 that
                 by
                 publickreading
                 of
                 the
                 Letters
                 of
                 Horning
                 ,
                 and
                 giving
                 three
                 blasts
                 of
                 a
                 Horn
                 ,
                 for
                 the
                 clear
                 manifestation
                 and
                 notice
                 thereof
                 ,
                 from
                 whence
                 it
                 is
                 called
                 Horning
                 :
                 And
                 because
                 of
                 the
                 Certification
                 ,
                 the
                 partie
                 Denunced
                 is
                 called
                 Rebel
                 ,
                 by
                 a
                 term
                 too
                 rough
                 ,
                 such
                 Persons
                 not
                 being
                 in
                 Hostilitie
                 against
                 the
                 King
                 ,
                 nor
                 being
                 publick
                 enemies
                 ,
                 but
                 only
                 Denunced
                 upon
                 Causes
                 Civill
                 ,
                 which
                 they
                 lye
                 under
                 frequently
                 ,
                 not
                 through
                 contempt
                 ,
                 but
                 inability
                 to
                 satisfie
                 .
                 The
                 English
                 do
                 more
                 properly
                 call
                 this
                 Execution
                 Out-lawerie
                 ,
                 whereby
                 the
                 partie
                 becumes
                 Out-law
                 ,
                 and
                 hath
                 not
                 a
                 person
                 to
                 stand
                 in
                 Judgement
                 Active
                 or
                 Passive
                 :
                 And
                 if
                 such
                 should
                 be
                 called
                 by
                 us
                 ,
                 the
                 Denunced
                 ,
                 it
                 were
                 smoother
                 ,
                 and
                 more
                 suitable
                 then
                 the
                 odious
                 term
                 of
                 Rebell
                 .
                 Seeing
                 Horning
                 is
                 the
                 ground
                 both
                 of
                 single
                 Escheat
                 ,
                 and
                 Liferent
                 Escheat
                 :
                 It
                 would
                 be
                 fit
                 to
                 go
                 through
                 the
                 several
                 Requisites
                 thereof
                 in
                 order
                 ,
                 and
                 the
                 nullities
                 arrysing
                 thereupon
                 .
              
               
                 First
                 ,
                 the
                 Letters
                 of
                 Horning
                 must
                 be
                 Signet
                 :
                 And
                 therefore
                 though
                 the
                 Bill
                 was
                 past
                 ,
                 and
                 the
                 matter
                 small
                 ,
                 and
                 the
                 parties
                 Indigent
                 ,
                 a
                 Horning
                 not
                 Signet
                 was
                 found
                 null
                 1.
                 of
                 June
                 1610.
                 
                 
                   John
                   Megill
                
                 contra
                 .
              
               
                 Secondly
                 ,
                 the
                 Executions
                 ,
                 or
                 Indorsations
                 thereof
                 must
                 bear
                 ,
                 that
                 the
                 partie
                 was
                 charged
                 personally
                 ,
                 or
                 at
                 his
                 dwelling
                 house
                 ,
                 designing
                 the
                 house
                 .
                 And
                 therefore
                 a
                 Horning
                 was
                 found
                 null
                 by
                 Exception
                 ,
                 for
                 not
                 designing
                 thereof
                 ,
                 though
                 the
                 partie
                 was
                 designed
                 to
                 be
                 Burgess
                 of
                 such
                 a
                 Burgh
                 ,
                 which
                 might
                 have
                 presumed
                 his
                 dwelling
                 place
                 to
                 be
                 there
                 ,
                 July
                 14.
                 1626
                 
                 Adam
                 contra
                 Baillies
                 of
                 Air
                 ,
                 yet
                 a
                 Horning
                 was
                 sustained
                 ,
                 though
                 not
                 designing
                 the
                 dwelling
                 house
                 nominatim
                 ;
                 but
                 by
                 discription
                 of
                 it
                 .
                 Thus
                 ,
                 the
                 Messengers
                 Execution
                 did
                 bear
                 ,
                 that
                 he
                 charged
                 the
                 partie
                 designed
                 by
                 such
                 Lands
                 ,
                 at
                 his
                 Dwelling
                 House
                 ,
                 it
                 being
                 proven
                 ,
                 that
                 he
                 then
                 dwelt
                 there
                 ,
                 November
                 9.
                 1632.
                 
                 Montgomerie
                 contra
                 Fergushall
                 .
              
               
                 3.
                 
                 If
                 the
                 Charge
                 be
                 in
                 absence
                 ,
                 at
                 the
                 parties
                 Dwelling
                 House
                 ,
                 the
                 Execution
                 must
                 bear
                 the
                 Messenger
                 to
                 have
                 craved
                 entrie
                 to
                 give
                 the
                 Charge
                 to
                 the
                 Partie
                 ,
                 or
                 his
                 Wife
                 and
                 Familie
                 and
                 not
                 getting
                 Entrie
                 ,
                 six
                 Knocks
                 to
                 have
                 been
                 given
                 by
                 the
                 Messenger
                 ,
                 at
                 the
                 most
                 patent
                 Gate
                 ,
                 or
                 Door
                 thereof
                 ,
                 yet
                 this
                 being
                 wanting
                 in
                 the
                 Extract
                 ,
                 the
                 same
                 was
                 sustained
                 ,
                 It
                 being
                 proven
                 by
                 the
                 Keeper
                 of
                 the
                 Register
                 ,
                 and
                 his
                 Servant
                 ,
                 That
                 when
                 the
                 Horning
                 was
                 offered
                 to
                 the
                 Register
                 ,
                 these
                 words
                 were
                 in
                 it
                 ,
                 and
                 by
                 the
                 Messenger
                 ,
                 and
                 Witnesses
                 insert
                 in
                 the
                 Execution
                 ,
                 that
                 the
                 Knocks
                 were
                 used
                 ,
                 the
                 intent
                 of
                 the
                 Cause
                 being
                 Alimentarie
                 and
                 Favourable
                 ,
                 March
                 28.
                 1637.
                 
                 Scot
                 contra
                 Scot.
                 But
                 this
                 is
                 not
                 to
                 be
                 drawn
                 in
                 Example
                 :
                 For
                 the
                 Register
                 of
                 Horning
                 is
                 that
                 upon
                 which
                 the
                 People
                 ought
                 to
                 rest
                 ,
                 and
                 nothing
                 ommitted
                 to
                 be
                 exprest
                 in
                 the
                 Register
                 should
                 be
                 supplied
                 by
                 the
                 principal
                 Hornings
                 ,
                 Messenger
                 ,
                 or
                 Witnesses
                 :
                 For
                 Executions
                 of
                 Hornings
                 cannot
                 be
                 proven
                 by
                 Witnesses
                 ,
                 and
                 consequently
                 no
                 matterial
                 point
                 thereof
                 ,
              
               
               
                 4.
                 
                 Knocking
                 at
                 the
                 Door
                 audiblie
                 is
                 necessary
                 ,
                 without
                 which
                 ,
                 Executions
                 might
                 be
                 Clandestine
                 ,
                 and
                 never
                 come
                 to
                 the
                 parties
                 knowledge
                 .
                 And
                 therefore
                 the
                 Messenger
                 must
                 express
                 this
                 as
                 truely
                 done
                 ,
                 wherein
                 he
                 runs
                 the
                 hazard
                 of
                 being
                 a
                 Forger
                 ,
                 if
                 the
                 Executions
                 be
                 improven
                 ,
                 that
                 either
                 the
                 Knocks
                 were
                 not
                 given
                 or
                 were
                 given
                 fraudulently
                 ,
                 that
                 these
                 within
                 might
                 not
                 hear
                 ,
                 as
                 if
                 the
                 Gate
                 had
                 been
                 but
                 Struck
                 with
                 ones
                 hand
                 ,
                 a
                 piece
                 of
                 Earth
                 ,
                 or
                 Stick
                 ,
                 which
                 could
                 not
                 reach
                 theirEars
                 that
                 were
                 within
                 ,
                 for
                 the
                 affixing
                 of
                 a
                 Coppie
                 may
                 be
                 more
                 easily
                 evaded
                 :
                 Seeing
                 the
                 partie
                 may
                 send
                 of
                 purpose
                 to
                 take
                 the
                 Coppie
                 off
                 ,
                 being
                 none
                 of
                 the
                 Witnesses
                 in
                 in
                 the
                 Execution
                 ,
                 albeit
                 sometimes
                 ,
                 even
                 the
                 Witnesses
                 carrie
                 away
                 the
                 Coppie
                 ,
                 and
                 the
                 Messenger
                 may
                 imagine
                 that
                 his
                 Executions
                 were
                 true
                 ,
                 when
                 he
                 said
                 he
                 left
                 a
                 Coppie
                 affixed
                 ,
                 because
                 it
                 was
                 affixed
                 when
                 he
                 began
                 to
                 move
                 from
                 the
                 Gate
                 ;
                 Yet
                 if
                 he
                 saw
                 it
                 carried
                 away
                 ,
                 his
                 Executions
                 would
                 be
                 found
                 false
                 ,
                 and
                 he
                 would
                 not
                 escape
                 punishment
                 .
                 A
                 Horning
                 was
                 also
                 sustained
                 ,
                 though
                 it
                 bore
                 neither
                 Personally
                 ,
                 nor
                 at
                 the
                 parties
                 Dwelling
                 House
                 ,
                 seeing
                 it
                 bore
                 a
                 Coppie
                 to
                 have
                 been
                 given
                 ,
                 which
                 necessarily
                 imported
                 to
                 have
                 been
                 personally
                 apprehended
                 ,
                 July
                 22.
                 1626.
                 
                 Stewart
                 contra
                 Hannai
                 .
              
               
                 5.
                 
                 Thirdly
                 ,
                 the
                 Executions
                 must
                 bear
                 ,
                 that
                 the
                 Messenger
                 gave
                 a
                 Coppie
                 of
                 the
                 Letters
                 to
                 the
                 partie
                 charged
                 personally
                 ,
                 or
                 in
                 his
                 absence
                 ,
                 affixed
                 it
                 upon
                 the
                 most
                 patent
                 Door
                 of
                 his
                 Dwelling
                 House
                 :
                 And
                 therefore
                 a
                 Horning
                 was
                 found
                 null
                 ,
                 because
                 it
                 bore
                 not
                 delivery
                 of
                 a
                 Coppie
                 ,
                 but
                 only
                 of
                 a
                 ticket
                 bearing
                 the
                 tenor
                 of
                 the
                 Letters
                 ,
                 
                   Hope
                   Horning
                   Monteith
                
                 contra
                 Kirkland
                 .
                 But
                 if
                 the
                 Messenger
                 get
                 enterance
                 into
                 the
                 house
                 of
                 the
                 partie
                 Charged
                 ,
                 and
                 deliver
                 a
                 Coppie
                 to
                 the
                 parties
                 Wife
                 ,
                 or
                 some
                 of
                 his
                 Family
                 ,
                 There
                 the
                 Execution
                 will
                 be
                 sustained
                 though
                 it
                 bear
                 not
                 Knocks
                 at
                 the
                 Door
                 ,
                 or
                 affixing
                 of
                 Coppies
                 thereupon
                 ,
                 these
                 being
                 only
                 required
                 where
                 entry
                 is
                 not
                 gotten
                 ,
                 December
                 11.
                 1679.
                 
                 
                   James
                   Somervail
                
                 contra
                 
                   William
                   Staines
                
                 .
              
               
                 6.
                 
                 The
                 Charge
                 must
                 also
                 be
                 upon
                 15.
                 days
                 being
                 beyond
                 the
                 water
                 of
                 Die
                 ,
                 and
                 six
                 upon
                 this
                 side
                 .
                 Par.
                 1600
                 :
                 cap.
                 25.
                 
                 Yea
                 ,
                 though
                 fewer
                 dayes
                 be
                 in
                 the
                 Claus
                 of
                 Registration
                 it
                 was
                 not
                 found
                 
                   valid
                   ,
                   February
                
                 14.
                 1625.
                 
                 Stewart
                 contra
                 Bruce
                 .
                 The
                 contrary
                 was
                 found
                 ,
                 December
                 16.
                 1664.
                 
                 Philorth
                 contra
                 Forbes
                 of
                 Asloun
                 ,
                 and
                 the
                 Lord
                 
                   Frazer
                   ,
                   Jannuary
                
                 20.
                 1675.
                 
                 Laird
                 of
                 Meldrum
                 contra
                 Tolwhoun
                 .
                 And
                 it
                 was
                 found
                 ,
                 that
                 the
                 Act
                 1600.
                 
                 Was
                 not
                 to
                 be
                 Extended
                 to
                 Hornings
                 upon
                 Clauses
                 of
                 Registration
                 of
                 consent
                 :
                 And
                 that
                 the
                 meaning
                 of
                 the
                 Statute
                 was
                 both
                 interpret
                 by
                 the
                 Narrative
                 ,
                 and
                 Subsequent
                 Consuetude
                 .
                 
                   Nam
                   Consuetudo
                   optima
                   legnm
                   interpres
                
                 .
                 And
                 that
                 the
                 Decision
                 Anno
                 1625.
                 hath
                 been
                 upon
                 this
                 Consideration
                 ,
                 that
                 the
                 Charger
                 lived
                 in
                 Fyfe
                 ,
                 and
                 the
                 Debitor
                 in
                 Orknay
                 ,
                 who
                 could
                 not
                 possible
                 ,
                 either
                 come
                 to
                 the
                 Creditor
                 and
                 pay
                 ,
                 or
                 to
                 the
                 Lords
                 and
                 Suspend
                 on
                 six
                 days
                 ,
                 and
                 so
                 was
                 not
                 contumacious
                 ,
                 but
                 free
                 by
                 the
                 Act
                 of
                 Parliament
                 1592.
                 cap.
                 138.
                 
                 Annulling
                 impossible
                 Conditions
                 in
                 Contracts
                 ,
                 whereby
                 their
                 is
                 sufficient
                 ground
                 of
                 reconciliation
                 of
                 these
                 Decisions
                 ,
                 for
                 it
                 is
                 only
                 Contumacy
                 that
                 makes
                 the
                 Escheat
                 fall
                 which
                 gave
                 the
                 rise
                 to
                 the
                 Act
                 of
                 Parliament
                 ,
                 to
                 allow
                 15
                 days
                 for
                 all
                 beyond
                 the
                 water
                 of
                 Die.
                 And
                 though
                 parties
                 consent
                 to
                 lesse
                 time
                 ,
                 yet
                 Contumacie
                 cannot
                 be
                 inferred
                 ,
                 but
                 where
                 the
                 partie
                 could
                 by
                 exact
                 diligence
                 come
                 in
                 time
                 ,
                 either
                 to
                 satisfie
                 the
                 partie
                 ,
                 or
                 to
                 Suspend
                 ,
                 which
                 some
                 beyond
                 Die
                 might
                 do
                 ,
                 if
                 the
                 Charger
                 were
                 near
                 ,
                 that
                 they
                 might
                 offer
                 him
                 just
                 satisfaction
                 ,
                 and
                 if
                 he
                 refused
                 ,
                 they
                 might
                 have
                 time
                 to
                 reach
                 Edinburgh
                 ,
                 and
                 Suspend
                 :
                 But
                 in
                 other
                 cases
                 that
                 cannot
                 be
                 ,
                 as
                 was
                 evident
                 in
                 the
                 Case
                 ,
                 in
                 Anno
                 1625.
                 
                 And
                 therefore
                 ,
                 consent
                 ,
                 in
                 that
                 Case
                 ,
                 can
                 no
                 more
                 inferr
                 Contumacie
                 ,
                 then
                 the
                 express
                 
                 Consent
                 of
                 parties
                 ,
                 that
                 Charges
                 and
                 Denunciations
                 at
                 the
                 Mercat
                 Cross
                 of
                 Edinburgh
                 ,
                 shall
                 be
                 sufficient
                 ,
                 which
                 is
                 declared
                 
                   null
                   ,
                   Par.
                
                 1532.
                 cap.
                 138.
                 
              
               
                 7.
                 
                 Fourthlie
                 ,
                 The
                 Executions
                 must
                 bear
                 ,
                 that
                 the
                 partie
                 was
                 Denunced
                 ,
                 conform
                 to
                 the
                 Charge
                 ,
                 for
                 not
                 Obedience
                 thereof
                 :
                 And
                 that
                 either
                 at
                 the
                 Mercat
                 Cross
                 of
                 the
                 Head
                 Burgh
                 of
                 the
                 Shire
                 where
                 the
                 partie
                 charged
                 dwells
                 ,
                 or
                 at
                 the
                 Head
                 Burgh
                 of
                 the
                 Stewartrie
                 ,
                 or
                 Regalitie
                 ,
                 or
                 Balliary
                 of
                 Royalty
                 ,
                 if
                 he
                 dwel
                 within
                 these
                 ,
                 Par.
                 1597.
                 cap.
                 264.
                 
                 Yea
                 ,
                 though
                 the
                 write
                 bear
                 ,
                 that
                 Letters
                 of
                 Horning
                 execute
                 at
                 Edinburgh
                 ,
                 should
                 be
                 sufficient
                 against
                 parties
                 out
                 of
                 the
                 Shire
                 ,
                 the
                 same
                 is
                 declared
                 null
                 by
                 the
                 said
                 Act.
                 When
                 there
                 was
                 no
                 Head
                 Burgh
                 of
                 the
                 Regalitie
                 known
                 ,
                 the
                 Execution
                 at
                 the
                 Head
                 Burgh
                 of
                 the
                 Shire
                 was
                 sustained
                 ,
                 Spots
                 .
                 Horning
                 ,
                 Stirling
                 contra
                 Auchinleck
                 ,
                 And
                 the
                 Head
                 Burgh
                 of
                 the
                 Shire
                 ,
                 where
                 the
                 Denunceds
                 dwelling
                 lyes
                 Locally
                 ,
                 is
                 sustained
                 by
                 the
                 Act
                 of
                 Par.
                 Though
                 his
                 dwelling
                 be
                 upon
                 Lands
                 by
                 annexation
                 ,
                 in
                 another
                 Jurisdiction
                 ,
                 unless
                 that
                 be
                 commonly
                 known
                 ,
                 and
                 in
                 use
                 :
                 Therefore
                 ,
                 Horning
                 was
                 not
                 found
                 null
                 ,
                 not
                 being
                 Execute
                 at
                 the
                 Head
                 Burgh
                 of
                 Renfrew
                 ,
                 the
                 dwelling
                 being
                 upon
                 Lands
                 annexed
                 to
                 the
                 Principalitie
                 ,
                 January
                 11.
                 1677.
                 
                 Scot
                 conra
                 Dalmahoy
                 .
                 Neither
                 ,
                 because
                 the
                 Denunced
                 dwelt
                 in
                 Temple
                 Lands
                 within
                 the
                 Regalitie
                 of
                 Torphichen
                 ,
                 unless
                 there
                 were
                 a
                 known
                 Head
                 Burgh
                 and
                 Register
                 there
                 ,
                 January
                 12.
                 1672.
                 
                 Mr.
                 
                   James
                   Scot
                
                 contra
                 Boyd
                 of
                 Temple
                 .
              
               
                 8.
                 
                 Fifthly
                 ,
                 The
                 Execution
                 should
                 bear
                 ,
                 that
                 the
                 Messenger
                 ,
                 at
                 the
                 Denunciation
                 did
                 make
                 three
                 Oyesses
                 ,
                 before
                 he
                 read
                 the
                 Letters
                 of
                 Horning
                 ,
                 that
                 the
                 People
                 might
                 thereby
                 take
                 notice
                 of
                 the
                 Intimation
                 ,
                 which
                 therefore
                 ought
                 to
                 be
                 with
                 audible
                 voice
                 ;
                 Which
                 ,
                 though
                 it
                 be
                 not
                 by
                 any
                 particular
                 Statute
                 ,
                 yet
                 is
                 requisite
                 by
                 antient
                 Custom
                 ,
                 and
                 should
                 be
                 exprest
                 in
                 the
                 Execution
                 of
                 all
                 Letters
                 ,
                 which
                 require
                 to
                 be
                 published
                 at
                 the
                 Mercat
                 Crosses
                 :
                 The
                 intent
                 thereof
                 being
                 ,
                 that
                 the
                 Publication
                 thereof
                 may
                 come
                 to
                 the
                 Ears
                 of
                 the
                 Countrey
                 ,
                 and
                 be
                 carried
                 by
                 common
                 Fame
                 ,
                 that
                 all
                 parties
                 concerned
                 may
                 look
                 to
                 their
                 Interest
                 :
                 And
                 therefore
                 ,
                 such
                 Publications
                 at
                 Mercat
                 Crosses
                 ,
                 and
                 at
                 the
                 Peir
                 of
                 Lieth
                 ,
                 have
                 by
                 Law
                 and
                 Custom
                 ,
                 as
                 expedients
                 to
                 make
                 them
                 commonly
                 known
                 .
                 3.
                 
                 Oysses
                 before
                 reading
                 of
                 the
                 Letters
                 ,
                 and
                 affixing
                 the
                 Coppie
                 of
                 the
                 Letters
                 upon
                 these
                 Publick
                 Places
                 :
                 And
                 Horning
                 hath
                 this
                 supper-added
                 ,
                 that
                 there
                 must
                 be
                 three
                 blasts
                 of
                 the
                 Horn
                 after
                 reading
                 of
                 the
                 Letters
                 ;
                 But
                 because
                 Executions
                 do
                 not
                 always
                 bear
                 3.
                 
                 Oysses
                 ,
                 But
                 generally
                 lawfull
                 Publication
                 .
                 The
                 Lords
                 did
                 declare
                 upon
                 the
                 February
                 15.
                 1681.
                 
                 That
                 they
                 would
                 sustain
                 no
                 Executions
                 of
                 Messengers
                 ,
                 done
                 in
                 time
                 coming
                 ,
                 not
                 bearing
                 three
                 Oysses
                 &
                 publick
                 readingof
                 theLetters
                 ,
                 in
                 a
                 Reduction
                 at
                 the
                 instance
                 of
                 Gordon
                 of
                 Park
                 contra
                 
                   Arthur
                   Forbes
                
                 ,
                 upon
                 the
                 want
                 of
                 3.
                 
                 Oysses
                 ,
                 which
                 came
                 not
                 to
                 be
                 decyded
                 ,
                 because
                 the
                 Executions
                 were
                 Improven
                 :
                 And
                 an
                 Inhibition
                 bearing
                 only
                 ,
                 that
                 the
                 Messenger
                 did
                 lawfully
                 inhibite
                 ,
                 and
                 not
                 bearing
                 three
                 Oysses
                 ,
                 or
                 the
                 reading
                 of
                 the
                 Letters
                 .
                 the
                 Lords
                 found
                 the
                 same
                 null
                 ,
                 and
                 would
                 not
                 Supplient
                 by
                 Witnesses
                 ,
                 that
                 these
                 were
                 truely
                 done
                 ,
                 July
                 11.
                 1676.
                 
                 
                   William
                   Stevinson
                
                 contra
                 
                   James
                   Jnnes
                
                 :
                 But
                 where
                 the
                 Executions
                 did
                 bear
                 that
                 the
                 Messengers
                 did
                 lawfully
                 publish
                 ,
                 and
                 read
                 Letters
                 of
                 Inhibition
                 ,
                 which
                 by
                 inspection
                 of
                 the
                 Registers
                 was
                 found
                 to
                 be
                 afrequent
                 Style
                 ,
                 and
                 not
                 the
                 former
                 Style
                 ,
                 which
                 was
                 meerly
                 generall
                 ,
                 The
                 Lords
                 sustained
                 that
                 the
                 three
                 Oysses
                 were
                 truly
                 given
                 ,
                 Junne
                 21.
                 1681.
                 
                 Lundie
                 contra
                 Trotter
                 .
              
               
               
                 9.
                 
                 The
                 Execution
                 must
                 also
                 bear
                 ,
                 that
                 the
                 Messenger
                 did
                 give
                 three
                 blasts
                 with
                 his
                 Horn
                 :
                 And
                 yet
                 a
                 Horning
                 was
                 not
                 found
                 null
                 ,
                 because
                 it
                 bore
                 not
                 expresly
                 the
                 partie
                 to
                 have
                 been
                 Denunced
                 ,
                 or
                 three
                 blasts
                 to
                 be
                 given
                 ,
                 but
                 only
                 generally
                 ,
                 that
                 the
                 Rebell
                 was
                 Denunced
                 by
                 open
                 Proclamation
                 ,
                 and
                 put
                 to
                 the
                 Horn
                 ,
                 January
                 19.
                 1611.
                 
                 Sr.
                 
                   Robert
                   Hepburn
                
                 contra
                 Laird
                 of
                 Nidderie
                 ,
                 and
                 an
                 Execution
                 was
                 sustained
                 ,
                 though
                 it
                 bore
                 not
                 three
                 blasts
                 ,
                 it
                 being
                 proven
                 by
                 the
                 Witnesses
                 insert
                 that
                 these
                 blasts
                 were
                 truely
                 given
                 ,
                 and
                 the
                 Execution
                 bore
                 orderly
                 Denunced
                 ,
                 March
                 4.
                 1624.
                 
                 Drysdale
                 contra
                 Sornbeg
                 ,
                 and
                 Lamingloun
                 .
              
               
                 10.
                 
                 Sixthly
                 ,
                 The
                 Execution
                 must
                 bear
                 ,
                 that
                 the
                 Messenger
                 ,
                 for
                 more
                 Verification
                 ,
                 hath
                 affixed
                 his
                 Signet
                 ,
                 or
                 Stamp
                 ,
                 and
                 the
                 Stamp
                 must
                 appear
                 ,
                 if
                 the
                 Executions
                 be
                 recent
                 ,
                 else
                 it
                 will
                 be
                 
                   null
                   ,
                   March
                
                 ,
                 6.
                 1624.
                 
                 Comissar
                 of
                 〈◊〉
                 contra
                 So
                 the
                 Execution
                 of
                 a
                 Horning
                 was
                 found
                 null
                 ,
                 because
                 it
                 mentioned
                 not
                 the
                 Stamping
                 thereof
                 ,
                 Hope
                 Horning
                 Home
                 contra
                 Pringle
                 of
                 Whitebank
                 ;
                 Yet
                 the
                 Executions
                 weresustained
                 ,
                 though
                 they
                 bore
                 not
                 these
                 Words
                 ,
                 seing
                 they
                 were
                 all
                 written
                 with
                 the
                 Messengers
                 own
                 hand
                 ,
                 and
                 were
                 Subscribed
                 and
                 Stamped
                 ,
                 as
                 Hadingtoun
                 observeth
                 ,
                 but
                 expresseth
                 not
                 the
                 partie
                 ,
                 February
                 19.
                 1611.
                 
              
               
                 11.
                 
                 Seventhly
                 ,
                 Horning
                 must
                 not
                 only
                 be
                 Execute
                 at
                 the
                 Head
                 Burgh
                 of
                 the
                 Shire
                 where
                 the
                 partie
                 dwells
                 ,
                 but
                 must
                 be
                 Registrat
                 in
                 the
                 Sheriff-Clerks
                 Register
                 of
                 that
                 Shire
                 within
                 15.
                 days
                 after
                 Denunciation
                 thereupon
                 ,
                 Otherwayes
                 the
                 same
                 is
                 
                   null
                   ,
                   Par.
                
                 1579.
                 cap.
                 75.
                 
                 Where
                 the
                 Clerk
                 is
                 ordained
                 to
                 give
                 an
                 Extract
                 ,
                 and
                 Registrat
                 it
                 within
                 24.
                 hours
                 after
                 recept
                 of
                 the
                 Letters
                 :
                 And
                 if
                 he
                 refuse
                 it
                 ,
                 the
                 Charger
                 may
                 Registrat
                 it
                 in
                 the
                 next
                 Sheriff
                 Books
                 ,
                 or
                 in
                 the
                 Clerk
                 of
                 Register
                 his
                 Books
                 ,
                 which
                 upon
                 Instruments
                 taken
                 of
                 his
                 refusall
                 ,
                 is
                 declared
                 sufficient
                 ,
                 Par.
                 1579.
                 cap.
                 75.
                 
                 Wherein
                 the
                 Registration
                 is
                 ordained
                 to
                 be
                 Judicially
                 ,
                 or
                 before
                 a
                 Notar
                 ,
                 and
                 four
                 famous
                 Witnesses
                 ,
                 besides
                 the
                 ordainry
                 Clerk
                 :
                 But
                 this
                 part
                 of
                 the
                 Act
                 is
                 rescinded
                 ,
                 and
                 it
                 is
                 declared
                 ,
                 that
                 the
                 Registration
                 in
                 the
                 Sheriffs
                 ,
                 Baillies
                 ,
                 or
                 Stewarts
                 Books
                 by
                 the
                 Clerk
                 thereof
                 ,
                 or
                 by
                 the
                 Clerk
                 Register
                 ,
                 and
                 his
                 Deputs
                 in
                 the
                 Books
                 of
                 Council
                 and
                 Session
                 shall
                 be
                 sufficient
                 in
                 it self
                 ,
                 Par.
                 1600.
                 cap.
                 13.
                 
                 And
                 for
                 this
                 effect
                 ,
                 there
                 is
                 a
                 general
                 Register
                 of
                 Hornings
                 ,
                 Relaxations
                 ,
                 Inhibition
                 &
                 Interdictions
                 keeped
                 at
                 Edinburgh
                 ,
                 and
                 a
                 particular
                 Clerk
                 Deput
                 having
                 the
                 Charge
                 thereof
                 :
                 But
                 if
                 the
                 partie
                 live
                 within
                 Stewartrie
                 ,
                 or
                 Bailliery
                 of
                 Royaltie
                 or
                 Regalitie
                 ,
                 the
                 horning
                 must
                 be
                 Registrate
                 there
                 ,
                 in
                 the
                 same
                 manner
                 as
                 other
                 Hornings
                 must
                 be
                 Registrate
                 in
                 the
                 Sheriff
                 Books
                 ,
                 else
                 it
                 is
                 declared
                 
                   null
                   ,
                   Par.
                
                 1597.
                 cap.
                 265.
                 
                 But
                 Denunciation
                 against
                 parties
                 who
                 have
                 found
                 securetie
                 to
                 underly
                 the
                 Law
                 ,
                 and
                 compears
                 not
                 at
                 the
                 day
                 appointed
                 ,
                 is
                 declored
                 sufficient
                 ,
                 being
                 at
                 the
                 Crosse
                 of
                 Edinburgh
                 ,
                 within
                 six
                 days
                 ,
                 though
                 not
                 at
                 the
                 Head
                 Burgh
                 of
                 the
                 Shire
                 ,
                 Par.
                 1592.
                 cap.
                 126.
                 
                 And
                 likewise
                 ,
                 Denunciations
                 against
                 parties
                 entring
                 in
                 the
                 place
                 of
                 the
                 Criminal
                 Court
                 ,
                 with
                 more
                 persons
                 then
                 there
                 Domestick
                 Servants
                 ,
                 and
                 Procurators
                 are
                 declared
                 valid
                 ,
                 though
                 Execute
                 only
                 at
                 the
                 Mercat
                 Crosse
                 of
                 the
                 Burgh
                 where
                 the
                 Justice
                 Court
                 sits
                 for
                 the
                 time
                 ,
                 and
                 Registrat
                 in
                 the
                 Books
                 of
                 Adjurnall
                 ,
                 Par.
                 1584.
                 cap.
                 140.
                 
                 Executions
                 of
                 Horning
                 was
                 also
                 found
                 null
                 ,
                 because
                 Execute
                 upon
                 the
                 Sabbath
                 day
                 ,
                 
                   Spots
                   Charge
                   ,
                   Ribbald
                   Frenchman
                
                 contra
                 Sr
                 
                   Lewes
                   Lauder
                
                 ,
                 but
                 were
                 not
                 found
                 null
                 ,
                 Because
                 Registrat
                 after
                 the
                 Rebells
                 death
                 ,
                 being
                 Denunced
                 before
                 December
                 20.
                 1626.
                 
                 Laird
                 of
                 Lie
                 contra
                 Executors
                 of
                 Blair
                 .
              
               
               
                 12.
                 
                 Though
                 the
                 Horning
                 be
                 orderly
                 used
                 ,
                 yet
                 if
                 the
                 Ground
                 ,
                 or
                 〈◊〉
                 whereupon
                 it
                 proceeded
                 be
                 not
                 due
                 ,
                 or
                 taken
                 away
                 before
                 the
                 Denunciation
                 ,
                 the
                 Horning
                 is
                 thereby
                 null
                 ,
                 and
                 reduceable
                 ,
                 though
                 no
                 Suspension
                 of
                 the
                 Horning
                 was
                 raised
                 before
                 .
                 but
                 in
                 this
                 the
                 Officers
                 of
                 State
                 must
                 be
                 called
                 to
                 prevent
                 Collusion
                 ,
                 Spots
                 Escheat
                 ,
                 
                   James
                   Dowglas
                
                 contra
                 Creditors
                 of
                 Wardlaw
                 .
                 So
                 a
                 Horning
                 upon
                 Lawborrows
                 was
                 found
                 null
                 by
                 exception
                 ,
                 because
                 Caution
                 in
                 obedience
                 was
                 found
                 before
                 Denunciation
                 ,
                 November
                 29.
                 1626.
                 
                 Smeitoun
                 contra
                 Spear
                 ;
                 Yea
                 Horning
                 was
                 reduced
                 ,
                 because
                 before
                 Denunciation
                 ,
                 the
                 Charger
                 had
                 accepted
                 a
                 Band
                 in
                 Satisfaction
                 of
                 the
                 ground
                 of
                 the
                 Horning
                 ,
                 which
                 was
                 found
                 probable
                 by
                 the
                 oath
                 of
                 the
                 Charger
                 against
                 the
                 Donatar
                 ,
                 Hope
                 Horning
                 Mushet
                 contra
                 Forrester
                 .
                 The
                 like
                 where
                 the
                 Charge
                 was
                 Suspended
                 before
                 the
                 Denunciation
                 ,
                 though
                 the
                 reason
                 of
                 Suspension
                 militated
                 only
                 against
                 a
                 part
                 of
                 the
                 Charge
                 ;
                 Hope
                 Horning
                 Buckie
                 contra
                 Earl
                 of
                 Erroll
                 :
                 But
                 the
                 Rebells
                 Oath
                 ,
                 or
                 holograph
                 discharges
                 before
                 Denunciation
                 ,
                 were
                 not
                 respected
                 as
                 presumed
                 Collusive
                 ,
                 February
                 10.
                 1663.
                 
                 Montgomery
                 contra
                 Montgomery
                 and
                 Lauder
                 .
                 In
                 this
                 case
                 it
                 was
                 found
                 ,
                 that
                 Reduction
                 of
                 the
                 Decreet
                 upon
                 Informality
                 ,
                 not
                 being
                 upon
                 material
                 Justice
                 ,
                 did
                 not
                 annul
                 the
                 Horning
                 ;
                 Neither
                 was
                 Horning
                 taken
                 away
                 by
                 compensation
                 ,
                 by
                 the
                 like
                 Sum
                 due
                 to
                 the
                 partie
                 Denunced
                 ,
                 equall
                 to
                 that
                 in
                 the
                 Horning
                 ,
                 not
                 having
                 been
                 actually
                 applyed
                 ,
                 by
                 Process
                 or
                 Contract
                 before
                 the
                 Denunciation
                 ;
                 Nor
                 was
                 any
                 warrand
                 required
                 for
                 using
                 the
                 Execution
                 ,
                 though
                 for
                 a
                 partie
                 living
                 in
                 England
                 ,
                 and
                 done
                 against
                 a
                 Daughter
                 and
                 her
                 Husband
                 :
                 But
                 the
                 having
                 the
                 principal
                 Band
                 ,
                 was
                 found
                 sufficient
                 warrand
                 for
                 Registration
                 of
                 it
                 ,
                 and
                 Execution
                 thereupon
                 ;
                 And
                 the
                 Denunciation
                 against
                 the
                 Husband
                 was
                 not
                 taken
                 off
                 ,
                 by
                 dissolution
                 of
                 the
                 Marriage
                 before
                 Declarator
                 ,
                 December
                 23.
                 1673.
                 
                 
                   Thomas
                   Dalmachoy
                
                 contra
                 Lord
                 Almond
                 .
              
               
                 13.
                 
                 Horning
                 though
                 orderily
                 used
                 ,
                 proceeding
                 only
                 upon
                 generall
                 Letters
                 ,
                 by
                 Supplication
                 against
                 all
                 and
                 Sundry
                 ,
                 unlesse
                 it
                 be
                 against
                 a
                 Burgh
                 ,
                 Colledge
                 or
                 Communitie
                 ,
                 proceeding
                 not
                 upon
                 a
                 Citation
                 ,
                 and
                 for
                 a
                 special
                 and
                 certain
                 Dutie
                 ,
                 the
                 Denunciation
                 thereupon
                 hath
                 no
                 effect
                 ,
                 as
                 to
                 Escheat
                 ,
                 or
                 Liferent
                 ,
                 though
                 Caption
                 usually
                 follow
                 thereupon
                 ,
                 Par.
                 1592
                 :
                 cap.
                 140.
                 
                 Which
                 Act
                 doth
                 declare
                 such
                 Executions
                 null
                 :
                 And
                 therefore
                 ,
                 such
                 a
                 Horning
                 was
                 not
                 found
                 sufficient
                 to
                 debarr
                 a
                 partie
                 ,
                 as
                 not
                 having
                 
                   personam
                   standi
                   in
                   judicio
                   January
                
                 24.
                 1674.
                 
                 Blair
                 of
                 Glascun
                 contra
                 Blair
                 of
                 Baleid
                 ,
                 much
                 lesse
                 can
                 these
                 general
                 Letters
                 make
                 Escheat
                 to
                 fall
                 ,
                 or
                 Annualrent
                 be
                 due
                 ,
                 yet
                 Caption
                 proceedeth
                 upon
                 it
                 ,
                 and
                 useth
                 not
                 to
                 be
                 quarrelled
                 .
              
               
                 14.
                 
                 Horning
                 is
                 taken
                 off
                 ,
                 and
                 ceaseth
                 by
                 Relaxation
                 ,
                 which
                 requireth
                 the
                 same
                 Solemnities
                 of
                 Publication
                 ,
                 and
                 Registration
                 as
                 Hornings
                 do
                 ;
                 As
                 is
                 clear
                 by
                 the
                 forcited
                 Acts
                 of
                 Parliament
                 thereanent
                 :
                 But
                 it
                 doth
                 only
                 operat
                 to
                 free
                 the
                 Rebel
                 relaxed
                 ,
                 as
                 to
                 his
                 goods
                 and
                 others
                 ,
                 acquired
                 after
                 Relaxation
                 ,
                 February
                 14.
                 1635.
                 
                 Lochart
                 contra
                 
                   Mosman
                   ,
                   December
                
                 23.
                 1673.
                 
                 
                   Thomas
                   Dalmachoy
                
                 contra
                 Lord
                 Almond
                 .
              
               
                 It
                 is
                 also
                 ordained
                 ,
                 that
                 all
                 Copies
                 of
                 Summonds
                 ,
                 and
                 Letters
                 delivered
                 by
                 the
                 Executer
                 thereof
                 ,
                 shall
                 be
                 subscribed
                 by
                 him
                 Par.
                 1592.
                 cap.
                 139.
                 
                 I
                 have
                 not
                 observed
                 any
                 Exception
                 founded
                 upon
                 this
                 ,
                 Act
                 ,
                 which
                 though
                 it
                 expresseth
                 not
                 a
                 nullitie
                 ,
                 yet
                 ought
                 to
                 be
                 a
                 rule
                 to
                 Messengers
                 ,
                 especially
                 in
                 Hornings
                 ,
                 and
                 Inhibitions
                 ,
                 which
                 may
                 prefer
                 any
                 other
                 more
                 orderly
                 diligence
                 .
              
               
               
                 15.
                 
                 The
                 effect
                 of
                 Horning
                 dulie
                 used
                 ,
                 and
                 Registrat
                 in
                 manner
                 foresaid
                 ,
                 is
                 that
                 thereby
                 the
                 whole
                 moveable
                 Goods
                 ,
                 and
                 Debts
                 of
                 the
                 parties
                 Denunced
                 are
                 Escheat
                 ,
                 and
                 Confiscat
                 ,
                 and
                 all
                 that
                 he
                 shal
                 acquire
                 thereafter
                 ,
                 till
                 he
                 be
                 relaxed
                 ;
                 Whereupon
                 the
                 Thesaurer
                 used
                 to
                 cause
                 raise
                 Letters
                 of
                 Intromission
                 ,
                 for
                 uptaking
                 of
                 the
                 Escheat
                 Goods
                 ,
                 direct
                 to
                 Sheriffs
                 and
                 Messengers
                 :
                 And
                 in
                 case
                 they
                 be
                 deforced
                 ,
                 or
                 the
                 Sheriff
                 not
                 able
                 ,
                 or
                 willing
                 to
                 Execute
                 the
                 same
                 ,
                 Lett
                 es
                 will
                 be
                 direct
                 to
                 Noblemen
                 ,
                 and
                 Barrons
                 within
                 the
                 Shire
                 ,
                 to
                 Convocat
                 the
                 Leidges
                 in
                 Arms
                 ,
                 and
                 to
                 make
                 effectuall
                 the
                 former
                 Letters
                 Immediately
                 ,
                 Par.
                 1579.
                 cap.
                 75.
                 
                 But
                 this
                 is
                 long
                 in
                 Desuetude
                 :
                 This
                 is
                 also
                 an
                 effect
                 of
                 Horning
                 ,
                 that
                 the
                 partie
                 Denunced
                 ,
                 hath
                 not
                 
                   personam
                   standi
                   in
                   Judicio
                
                 ;
                 either
                 as
                 Pursuer
                 or
                 as
                 Defender
                 ,
                 yet
                 the
                 Lords
                 would
                 not
                 hold
                 him
                 as
                 Confest
                 ,
                 if
                 he
                 appeared
                 ,
                 and
                 were
                 hindred
                 by
                 the
                 other
                 partie
                 ,
                 July
                 12.
                 1676.
                 
                 Sr.
                 
                   William
                   Purves
                
                 contra
                 Sharp
                 of
                 Gospetrie
                 .
                 The
                 same
                 will
                 hold
                 in
                 any
                 thing
                 requiring
                 the
                 personal
                 presence
                 of
                 the
                 Denunced
                 ,
                 as
                 byding
                 by
                 a
                 write
                 ,
                 quarrelled
                 of
                 Falshood
                 .
              
               
                 For
                 clearing
                 the
                 matter
                 of
                 Escheats
                 ,
                 it
                 will
                 be
                 necessary
                 to
                 show
                 ,
                 First
                 ,
                 what
                 falls
                 under
                 single
                 Escheat
                 .
                 2.
                 
                 How
                 farr
                 the
                 same
                 is
                 burdened
                 ,
                 or
                 affected
                 with
                 the
                 Denunceds
                 Debts
                 or
                 deeds
                 ,
                 for
                 the
                 first
                 single
                 Escheat
                 extends
                 to
                 no
                 Heritable
                 Right
                 ,
                 whether
                 of
                 Land
                 Annualrent
                 ,
                 or
                 Heritable
                 Band
                 ,
                 but
                 itcarries
                 the
                 bygones
                 of
                 all
                 these
                 ,
                 preceeding
                 the
                 Denunciation
                 :
                 And
                 there
                 after
                 till
                 year
                 and
                 day
                 ,
                 July
                 1.
                 1626.
                 
                 Halyburton
                 contra
                 
                   Stewart
                   ,
                   Hope
                
                 Horning
                 ,
                 Sr.
                 
                   Hendrie
                   Wardlaw
                
                 contra
                 
                   William
                   Dick.
                
                 What
                 Rights
                 are
                 Heritable
                 ,
                 and
                 what
                 moveable
                 ,
                 hathbeen
                 shown
                 before
                 
                   Title
                   Real
                   Rights
                
                 .
                 So
                 thatall
                 which
                 is
                 there
                 Moveable
                 ,
                 except
                 Moveable
                 Bands
                 bearing
                 annualrents
                 ,
                 falls
                 in
                 the
                 single
                 Escheat
                 ,
                 and
                 somethings
                 are
                 Moveable
                 ,
                 in
                 Relation
                 to
                 Escheats
                 ,
                 which
                 are
                 not
                 Moveable
                 in
                 Relation
                 to
                 the
                 Succession
                 of
                 Airs
                 or
                 Executors
                 :
                 As
                 Tacks
                 not
                 being
                 Lyfrent
                 Tacks
                 ,
                 Par.
                 1617.
                 chap.
                 15.
                 
                 It
                 carries
                 also
                 the
                 Office
                 of
                 a
                 Clerk-ship
                 ,
                 Hope
                 Horning
                 ,
                 Mr.
                 
                   Hendrie
                   Kinross
                
                 contra
                 
                   James
                   Drummond
                
                 :
                 And
                 likewise
                 the
                 
                   Jus
                   mariti
                
                 of
                 a
                 Husband
                 ,
                 and
                 therewith
                 
                   per
                   consequentiam
                
                 ,
                 the
                 Lyfrent
                 right
                 ,
                 or
                 other
                 right
                 of
                 the
                 Wife
                 ,
                 belonging
                 to
                 the
                 Husband
                 ,
                 
                   Jure
                   mariti
                   .
                   Spots
                
                 Escheat
                 
                   Violet
                   Dawling
                
                 contra
                 
                   William
                   Cochran
                
                 .
                 It
                 carrieth
                 also
                 all
                 casualities
                 befalling
                 to
                 a
                 Rebel
                 Denunced
                 before
                 the
                 Denunciation
                 :
                 As
                 the
                 Lifrent
                 Escheat
                 of
                 his
                 Vassals
                 ,
                 Felrury
                 13.
                 1611.
                 
                 Symson
                 contra
                 the
                 Laird
                 of
                 Moncur
                 But
                 if
                 the
                 casuality
                 had
                 fallen
                 to
                 the
                 Superior
                 ,
                 after
                 the
                 Superiours
                 own
                 Liferent
                 had
                 fallen
                 by
                 his
                 Rebellion
                 ,
                 year
                 and
                 day
                 ,
                 it
                 would
                 be
                 carried
                 with
                 the
                 Superiors
                 Liferent
                 Escheat
                 ,
                 February
                 26.
                 1623.
                 
                 Clunie
                 contra
                 Bishop
                 of
                 Dunkell
                 .
                 And
                 if
                 the
                 Liferent
                 Escheat
                 ,
                 or
                 any
                 other
                 casualitie
                 be
                 gifted
                 ,
                 the
                 gift
                 makes
                 it
                 Moveable
                 ,
                 and
                 so
                 to
                 fall
                 under
                 the
                 Donatars
                 single
                 Escheat
                 ,
                 March
                 10.
                 1631
                 
                 
                   Francis
                   Setwart
                
                 contra
                 the
                 
                   Ladie
                   Samuelstoun
                
                 :
                 And
                 the
                 single
                 Escheat
                 of
                 Husband
                 carrieth
                 their
                 
                   Jus
                   mariti
                
                 ,
                 and
                 in
                 consequence
                 ,
                 the
                 Liferent
                 of
                 their
                 Wives
                 ,
                 for
                 though
                 the
                 Wifs
                 right
                 be
                 a
                 Liferent
                 ,
                 which
                 wouldnot
                 fall
                 under
                 single
                 Escheat
                 ,
                 Yet
                 the
                 Husbands
                 Right
                 
                   Jure
                   mariti
                
                 ,
                 is
                 no
                 Liferent
                 ,
                 for
                 if
                 the
                 Wife
                 die
                 before
                 him
                 ,
                 his
                 Right
                 ceaseth
                 in
                 his
                 own
                 Life
                 .
                 Tacks
                 also
                 fall
                 under
                 single
                 Escheat
                 ,
                 unlesse
                 they
                 be
                 Life-rent
                 Tacks
                 :
                 and
                 Assignations
                 to
                 Life-rent
                 Tacks
                 ,
                 and
                 other
                 Life-rents
                 have
                 been
                 found
                 to
                 fall
                 under
                 single
                 Escheat
                 ,
                 because
                 the
                 direct
                 Right
                 is
                 incommunicahle
                 ;
                 For
                 no
                 Life-renter
                 can
                 put
                 another
                 Life-renter
                 in
                 their
                 place
                 ,
                 but
                 canonly
                 assign
                 the
                 profits
                 befalling
                 to
                 the
                 Life-renter
                 by
                 the
                 Life-rent
                 Right
                 :
                 So
                 that
                 it
                 is
                 no
                 Life-rent
                 in
                 the
                 Assigney
                 ,
                 but
                 is
                 as
                 the
                 
                   jus
                   mariti
                
                 in
                 a
                 Husband
                 ,
                 which
                 is
                 as
                 a
                 Legal
                 assignation
                 :
                 Likewise
                 ,
                 Clauses
                 of
                 Relief
                 in
                 Heritable
                 Bands
                 fall
                 under
                 single
                 Escheat
                 ,
                 because
                 there
                 is
                 no
                 Heritable
                 Clause
                 adjected
                 to
                 the
                 Clause
                 of
                 Relief
                 ,
                 but
                 Assignations
                 to
                 Heritable
                 
                 Bands
                 makes
                 them
                 not
                 fall
                 to
                 under
                 single
                 Escheat
                 ,
                 because
                 the
                 Creditors
                 right
                 is
                 directly
                 Transmitted
                 and
                 Stated
                 in
                 the
                 Assigneys
                 Person
                 .
                 The
                 single
                 Escheat
                 of
                 Ministers
                 carries
                 the
                 meliorations
                 of
                 their
                 Manses
                 ,
                 but
                 the
                 Escheat
                 of
                 an
                 Executor
                 carries
                 no
                 more
                 then
                 what
                 is
                 his
                 own
                 Interest
                 ,
                 and
                 not
                 the
                 Share
                 of
                 the
                 Wifes
                 ,
                 Bairns
                 ,
                 Creditors
                 ,
                 Legators
                 ,
                 or
                 nearest
                 of
                 Kin
                 ,
                 which
                 is
                 Escheat
                 by
                 their
                 own
                 Rebellion
                 only
                 ,
                 even
                 though
                 the
                 Testament
                 were
                 Execute
                 by
                 Decreets
                 ,
                 at
                 the
                 Executors
                 instance
                 against
                 the
                 Debitors
                 ,
                 December
                 21.
                 1671.
                 
                 Mr.
                 
                   Arthur
                   Gordon
                
                 contra
                 Laird
                 of
                 Drum.
                 
              
               
                 16.
                 
                 As
                 to
                 the
                 other
                 Question
                 ,
                 how
                 farr
                 the
                 Denunceds
                 Debts
                 or
                 Deeds
                 affect
                 his
                 Moveables
                 fallen
                 in
                 Escheat
                 ,
                 it
                 is
                 clear
                 ,
                 that
                 the
                 Debt
                 contained
                 in
                 the
                 Horning
                 affects
                 the
                 Escheat
                 ,
                 whether
                 in
                 the
                 hands
                 of
                 the
                 Thesaurer
                 ,
                 or
                 Donatare
                 ,
                 Par.
                 1551.
                 cap.
                 7.
                 
                 Par.
                 1579.
                 cap.
                 75.
                 
                 And
                 likewise
                 all
                 Intrometters
                 with
                 Escheat
                 ,
                 by
                 Gift
                 ,
                 Assignation
                 ,
                 or
                 otherways
                 ,
                 upon
                 a
                 single
                 Sum
                 monds
                 of
                 Six
                 days
                 ,
                 Par.
                 1592.
                 cap.
                 143.
                 
              
               
                 Secondly
                 ,
                 It
                 is
                 clear
                 ,
                 that
                 no
                 Assignation
                 ,
                 Disposition
                 ,
                 or
                 other
                 Deed
                 done
                 by
                 the
                 Denunced
                 ,
                 after
                 Denunciation
                 ,
                 not
                 being
                 for
                 fulfilling
                 an
                 Anterior
                 Obleigment
                 before
                 Denunciation
                 ,
                 for
                 a
                 Cause
                 onerous
                 to
                 a
                 lawful
                 Creditor
                 ,
                 can
                 affect
                 the
                 Moveable
                 Goods
                 or
                 Debts
                 of
                 the
                 Denunced
                 :
                 But
                 when
                 the
                 Denunciation
                 is
                 upon
                 a
                 Criminal
                 Cause
                 ,
                 the
                 Escheat
                 takes
                 not
                 only
                 effect
                 from
                 the
                 Denunciation
                 ,
                 but
                 from
                 the
                 committing
                 of
                 the
                 Fact
                 :
                 Therefore
                 a
                 Donatar
                 of
                 Escheat
                 recovered
                 a
                 Sum
                 due
                 to
                 the
                 Rebel
                 ,
                 though
                 Assigned
                 before
                 the
                 Fact
                 ,
                 and
                 payed
                 before
                 process
                 ,
                 Seing
                 intimation
                 was
                 not
                 before
                 the
                 Criminal
                 fact
                 ,
                 
                   Hope
                   ,
                   Chalmers
                
                 and
                 Gordoun
                 contra
                 Gordoun
                 .
              
               
                 Thirdly
                 ,
                 These
                 Debts
                 or
                 Deeds
                 of
                 the
                 Denunced
                 ,
                 do
                 not
                 simplie
                 affect
                 the
                 Escheat
                 Goods
                 ,
                 unlesse
                 they
                 be
                 Consumat
                 ,
                 or
                 lawful
                 Diligence
                 done
                 before
                 the
                 up-taking
                 of
                 the
                 Escheat
                 Goods
                 ,
                 by
                 the
                 Thesaurer
                 or
                 Donatar
                 ;
                 Yea
                 ,
                 before
                 general
                 Declarator
                 ,
                 for
                 that
                 being
                 the
                 Intimation
                 of
                 the
                 Donatars
                 Gift
                 ,
                 it
                 renders
                 it
                 to
                 him
                 to
                 be
                 a
                 compleat
                 valid
                 Right
                 ,
                 after
                 which
                 no
                 Creditor
                 not
                 having
                 a
                 real
                 Right
                 ,
                 or
                 Legal
                 diligence
                 before
                 ,
                 can
                 have
                 any
                 Access
                 ,
                 unless
                 the
                 Donatar
                 ,
                 by
                 back-band
                 to
                 the
                 Thesaurer
                 ,
                 be
                 otherwise
                 obleiged
                 :
                 And
                 therefore
                 a
                 Donatar
                 having
                 obtained
                 general
                 Declarator
                 ,
                 was
                 preferred
                 to
                 a
                 Lawful
                 Creditor
                 arresting
                 after
                 Declarator
                 ,
                 February
                 22.
                 1628.
                 
                 Anderson
                 contra
                 Gordon
                 .
              
               
                 But
                 the
                 Question
                 remains
                 ,
                 how
                 far
                 Lawful
                 Creditors
                 ,
                 whose
                 Debt
                 is
                 before
                 the
                 Denunciation
                 ,
                 or
                 Criminal
                 Fact
                 ,
                 using
                 diligence
                 thereafter
                 ,
                 but
                 before
                 Declarator
                 ,
                 or
                 obtaining
                 Assignations
                 intimat
                 ,
                 or
                 Dispositions
                 cled
                 with
                 Possession
                 before
                 Declarator
                 ,
                 may
                 thereby
                 effect
                 the
                 Escheat
                 Goods
                 ?
                 For
                 answer
                 thereunto
                 ,
                 though
                 in
                 
                   rigore
                   Juris
                
                 ,
                 the
                 goods
                 and
                 debts
                 of
                 the
                 Denunced
                 fall
                 to
                 the
                 Fisk
                 ,
                 as
                 they
                 are
                 the
                 time
                 of
                 the
                 Denunciation
                 ,
                 or
                 Criminal
                 Fact
                 :
                 And
                 the
                 Declarator
                 ,
                 according
                 to
                 the
                 nature
                 of
                 all
                 Declarators
                 ,
                 doth
                 not
                 constitute
                 the
                 Fisks
                 Right
                 ,
                 but
                 declares
                 the
                 same
                 to
                 have
                 been
                 from
                 the
                 Denunciation
                 ,
                 or
                 Criminal
                 Fact
                 (
                 albeit
                 as
                 an
                 Assignation
                 ,
                 it
                 doth
                 constitute
                 the
                 Donatars
                 Right
                 ;
                 Therefore
                 the
                 real
                 Right
                 passing
                 to
                 the
                 Fisk
                 without
                 possession
                 ,
                 or
                 at
                 least
                 the
                 priviledge
                 of
                 the
                 Fisk
                 might
                 in
                 the
                 full
                 Extent
                 thereof
                 ,
                 exclude
                 all
                 posterior
                 diligences
                 or
                 deeds
                 :
                 Yet
                 such
                 hath
                 been
                 the
                 Royal
                 benignitie
                 of
                 our
                 Kings
                 ,
                 and
                 there
                 Favour
                 to
                 Lawful
                 Creditors
                 ,
                 that
                 in
                 this
                 they
                 accompted
                 
                   id
                   solum
                   nostrum
                   quod
                   debitis
                   deductis
                   est
                   nostrum
                   .
                
                 For
                 which
                 the
                 Thesaurer
                 hath
                 been
                 accustomed
                 to
                 prefer
                 Creditors
                 ,
                 giving
                 Gifts
                 of
                 Escheat
                 
                 to
                 them
                 before
                 others
                 ,
                 and
                 in
                 taking
                 Back-bands
                 from
                 them
                 ,
                 in
                 favors
                 of
                 other
                 Creditors
                 ;
                 Yea
                 by
                 long
                 custom
                 ,
                 Creditors
                 ,
                 whose
                 debts
                 were
                 anterior
                 to
                 the
                 Denunciation
                 ,
                 or
                 Criminal
                 Fact
                 ,
                 doing
                 diligence
                 before
                 Declarator
                 ,
                 are
                 preferable
                 to
                 the
                 Donatar
                 ,
                 Spots
                 escheat
                 ,
                 
                   James
                   Nisbit
                
                 contra
                 
                   James
                   Fullarton
                   ,
                   February
                
                 24.
                 1637.
                 
                 Pilmure
                 contra
                 Geggie
                 .
                 In
                 this
                 case
                 the
                 escheat
                 belonged
                 to
                 a
                 Lord
                 of
                 Regality
                 ,
                 and
                 the
                 Arrestment
                 was
                 laid
                 on
                 before
                 the
                 gift
                 of
                 escheat
                 :
                 But
                 where
                 the
                 Donatars
                 Gift
                 was
                 in
                 payment
                 of
                 his
                 own
                 debt
                 ,
                 he
                 was
                 preferred
                 to
                 an
                 Arrester
                 ,
                 arresting
                 the
                 Rebels
                 goods
                 after
                 the
                 gift
                 ,
                 but
                 before
                 Declarator
                 ,
                 February
                 27.
                 1623.
                 
                 Thomson
                 contra
                 Laird
                 of
                 Murckil
                 ,
                 but
                 voluntary
                 deeds
                 of
                 the
                 Rebel
                 after
                 Rebellion
                 ,
                 as
                 Assignations
                 not
                 intimat
                 before
                 Declarator
                 ,
                 for
                 satisfaction
                 of
                 Debt
                 due
                 before
                 Denunciation
                 ,
                 or
                 Criminal
                 Fact
                 ,
                 are
                 not
                 preferred
                 to
                 the
                 Donatar
                 ,
                 
                   Hope
                   assig
                
                 .
                 Sr.
                 
                   James
                   Stewart
                
                 contra
                 
                   Alexander
                   Wardlaw
                   ,
                   John
                   Clerk
                
                 contra
                 
                   William
                   Naper
                
                 ,
                 and
                 
                   James
                   Cramfoord
                
                 contra
                 
                   John
                   Mcaul
                
                 .
                 And
                 though
                 an
                 Assignation
                 not
                 being
                 intimat
                 before
                 Rebellion
                 was
                 preferred
                 to
                 the
                 Donatar
                 ,
                 yet
                 it
                 was
                 in
                 consequence
                 of
                 a
                 Decret
                 of
                 Council
                 decerning
                 ,
                 that
                 Assignation
                 to
                 be
                 made
                 ,
                 and
                 so
                 not
                 voluntary
                 :
                 So
                 a
                 Donatar
                 was
                 preferred
                 to
                 an
                 assigney
                 ,
                 whose
                 assignation
                 bore
                 a
                 cause
                 Onerous
                 ,
                 and
                 was
                 before
                 Declarator
                 ,
                 but
                 after
                 Rebellion
                 ,
                 December
                 6.
                 1631.
                 and
                 February
                 26.
                 1633.
                 
                 Conheth
                 contra
                 
                   Earlston
                   .
                   Decem.
                
                 18.
                 1629.
                 
                 Laird
                 of
                 Caprington
                 contra
                 
                   Cuninghame
                   ,
                   February
                
                 2.
                 1632.
                 
                 Lindsay
                 contra
                 Nisbit
                 .
                 Where
                 the
                 Assignation
                 bore
                 not
                 a
                 cause
                 Onerous
                 ,
                 Yet
                 a
                 Lawful
                 Creditor
                 obtaining
                 Disposition
                 from
                 the
                 partie
                 denunced
                 ,
                 cled
                 with
                 possession
                 ,
                 was
                 preferred
                 ,
                 
                   ibid.
                   Johnston
                
                 of
                 Corhead
                 contra
                 Johnston
                 .
                 In
                 like
                 manner
                 a
                 disposition
                 made
                 by
                 the
                 Rebel
                 for
                 a
                 Just
                 debt
                 ,
                 before
                 the
                 Giftor
                 Declarator
                 was
                 preferred
                 to
                 the
                 Donatar
                 :
                 Here
                 it
                 was
                 not
                 exprest
                 ,
                 that
                 the
                 debt
                 was
                 before
                 the
                 Rebellion
                 ,
                 February
                 10.
                 1635.
                 
                 Mosman
                 contra
                 Lockhart
                 .
                 Where
                 there
                 seems
                 some
                 difference
                 in
                 the
                 Decisions
                 ,
                 wherein
                 these
                 points
                 seem
                 clearest
                 ,
                 1.
                 
                 Dispositions
                 and
                 delivery
                 of
                 Goods
                 ,
                 because
                 moveables
                 are
                 more
                 easily
                 transmissible
                 in
                 favours
                 of
                 Commerce
                 ,
                 and
                 so
                 have
                 always
                 a
                 presumptive
                 Title
                 upon
                 Possession
                 :
                 So
                 that
                 if
                 the
                 Goods
                 be
                 bought
                 in
                 a
                 Mercat
                 ,
                 there
                 seems
                 no
                 Question
                 ,
                 or
                 if
                 bought
                 out
                 of
                 Mercat
                 from
                 a
                 Rebel
                 ,
                 getting
                 the
                 price
                 which
                 accresseth
                 to
                 the
                 Fisk
                 ,
                 unlesse
                 the
                 Buyer
                 was
                 in
                 
                   mala
                   fide
                
                 .
                 And
                 though
                 getting
                 the
                 Goods
                 in
                 Satisfaction
                 of
                 a
                 debt
                 ,
                 before
                 the
                 Rebellion
                 ,
                 be
                 more
                 questionable
                 then
                 a
                 present
                 Exchange
                 of
                 the
                 Goods
                 and
                 Price
                 ,
                 the
                 former
                 decisious
                 favour
                 that
                 also
                 .
                 The
                 Lords
                 did
                 lately
                 find
                 ,
                 that
                 a
                 Rebel
                 selling
                 part
                 of
                 his
                 Corns
                 ,
                 to
                 provide
                 necessaries
                 for
                 Sowing
                 of
                 the
                 ground
                 ,
                 the
                 Crop
                 whereof
                 fell
                 to
                 the
                 Fisk
                 ,
                 the
                 bargain
                 was
                 valid
                 .
                 2.
                 
                 Legal
                 Diligence
                 upon
                 Arrestment
                 being
                 compleat
                 before
                 Declarator
                 ,
                 are
                 valid
                 ,
                 though
                 after
                 Rebellion
                 ;
                 Yea
                 the
                 Decisions
                 favour
                 even
                 the
                 inheat
                 diligence
                 ,
                 if
                 the
                 Arrestment
                 was
                 before
                 declarator
                 upon
                 a
                 debt
                 before
                 Rebellion
                 .
                 And
                 it
                 was
                 so
                 found
                 ,
                 February
                 19.
                 1667.
                 
                 
                   Jsobel
                   Glen
                
                 contra
                 
                   John
                   Hoome
                
                 .
                 But
                 voluntary
                 Assignations
                 seem
                 not
                 effectnal
                 ,
                 if
                 they
                 be
                 not
                 compleat
                 by
                 Intimation
                 before
                 Rebellion
                 ,
                 and
                 though
                 they
                 be
                 ,
                 if
                 Payment
                 or
                 Satisfaction
                 ,
                 either
                 in
                 Money
                 or
                 renewed
                 Bands
                 ,
                 innovating
                 the
                 Rebells
                 Band
                 ,
                 be
                 not
                 obtained
                 before
                 Rebellion
                 ,
                 the
                 Donatar
                 was
                 found
                 preferable
                 ,
                 but
                 otherwise
                 the
                 Creditor
                 ,
                 by
                 Precept
                 ,
                 Assignation
                 or
                 otherwise
                 ,
                 getting
                 payment
                 of
                 his
                 debt
                 ,
                 prior
                 to
                 the
                 Rebellion
                 ,
                 and
                 obtaining
                 payment
                 ,
                 before
                 Declarator
                 was
                 found
                 secure
                 against
                 the
                 Donatar
                 ,
                 February
                 11.
                 1675.
                 
                 
                   William
                   Veatch
                
                 contra
                 Executers
                 of
                 Ker.
                 But
                 though
                 actual
                 Payment
                 were
                 obtained
                 by
                 Assignation
                 after
                 Declarator
                 ,
                 it
                 will
                 not
                 Secure
                 the
                 Creditor
                 December
                 20.
                 1676.
                 
                   inter
                   eosdem
                
                 .
              
               
               
               
               
                 17.
                 
                 The
                 matter
                 of
                 Escheat
                 being
                 thus
                 cleared
                 ,
                 we
                 come
                 to
                 the
                 gift
                 thereof
                 ,
                 and
                 Declarator
                 thereupon
                 .
                 A
                 gift
                 first
                 Sealed
                 ,
                 was
                 preferred
                 to
                 an
                 other
                 ,
                 first
                 signed
                 in
                 Exchequer
                 ,
                 albeit
                 so
                 near
                 in
                 diligence
                 ,
                 as
                 coming
                 that
                 same
                 day
                 to
                 the
                 Seals
                 ,
                 December
                 6.
                 1662.
                 
                 Stewart
                 contra
                 Nasmith
                 .
              
               
                 Gifts
                 of
                 Escheat
                 are
                 in
                 effect
                 ,
                 the
                 Assignations
                 thereof
                 by
                 the
                 Fisk
                 ,
                 whereof
                 the
                 Intimation
                 is
                 the
                 Declarator
                 .
                 So
                 that
                 a
                 Posterior
                 gift
                 ,
                 with
                 a
                 Prior
                 general
                 Declarator
                 is
                 preferable
                 to
                 a
                 prior
                 gift
                 ,
                 with
                 a
                 posterior
                 Declarator
                 :
                 But
                 where
                 there
                 is
                 yet
                 no
                 Declarator
                 ,
                 Preference
                 is
                 by
                 the
                 first
                 Citation
                 ,
                 if
                 the
                 same
                 was
                 followed
                 with
                 Lawful
                 Diligence
                 :
                 And
                 therefore
                 a
                 Posterior
                 Gift
                 ,
                 whereupon
                 Citation
                 was
                 prior
                 ,
                 but
                 three
                 days
                 was
                 preferred
                 to
                 a
                 prior
                 Gift
                 ,
                 Jan.
                 31.
                 1635.
                 
                 Laird
                 of
                 Renton
                 contra
                 Laird
                 of
                 Lambertoun
                 .
                 If
                 there
                 be
                 no
                 Citation
                 ,
                 or
                 Declarator
                 ,
                 the
                 Donatars
                 possession
                 is
                 sufficient
                 alone
                 ,
                 and
                 will
                 ,
                 preferr
                 a
                 posterior
                 Gift
                 though
                 granted
                 to
                 the
                 Rebel
                 himself
                 ,
                 being
                 before
                 any
                 Diligence
                 upon
                 the
                 Prior
                 Gift
                 .
                 And
                 if
                 two
                 gifts
                 be
                 produced
                 as
                 enteresses
                 ,
                 without
                 any
                 Diligence
                 on
                 either
                 ,
                 the
                 first
                 gift
                 is
                 preferable
                 .
              
               
                 18.
                 
                 Gifts
                 of
                 Escheat
                 ,
                 as
                 all
                 other
                 gifts
                 by
                 the
                 King
                 are
                 null
                 ,
                 if
                 granted
                 before
                 the
                 Casuality
                 fall
                 ,
                 as
                 an
                 erection
                 of
                 Kirk-lands
                 ,
                 in
                 a
                 temporal
                 Lordship
                 was
                 found
                 null
                 ,
                 because
                 a
                 commendatar
                 stood
                 then
                 in
                 the
                 right
                 ,
                 and
                 did
                 not
                 Resign
                 or
                 Consent
                 :
                 And
                 therefore
                 a
                 posterior
                 Erection
                 to
                 that
                 Commendatar
                 ,
                 upon
                 his
                 own
                 Dimission
                 was
                 preferred
                 ,
                 February
                 24.
                 1666.
                 
                 Sr.
                 
                   Robert
                   Sinclair
                
                 contra
                 Laird
                 of
                 Waderburn
                 .
                 And
                 so
                 a
                 gift
                 of
                 escheat
                 before
                 Denunciation
                 was
                 found
                 null
                 ,
                 by
                 exception
                 ;
                 Because
                 it
                 mentioned
                 no
                 particular
                 Horning
                 whereupon
                 it
                 proceeded
                 ,
                 though
                 done
                 by
                 the
                 Kings
                 own
                 hand
                 at
                 Court
                 :
                 And
                 though
                 Anterior
                 Hornings
                 were
                 produced
                 in
                 the
                 Process
                 ,
                 and
                 no
                 other
                 Donatar
                 ,
                 nor
                 Officer
                 of
                 State
                 quarrelled
                 the
                 same
                 .
                 November
                 20.
                 1628.
                 
                 Weston
                 contra
                 Stewart
                 .
              
               
                 19.
                 
                 Gifts
                 of
                 escheat
                 not
                 bearing
                 expresly
                 goods
                 to
                 be
                 acquired
                 ,
                 extend
                 no
                 further
                 then
                 to
                 the
                 goods
                 ,
                 the
                 Denunced
                 had
                 the
                 time
                 of
                 the
                 gift
                 ,
                 February
                 27.
                 1623.
                 
                 Bruce
                 contra
                 Buckie
                 .
                 And
                 though
                 the
                 gift
                 bore
                 expresly
                 ,
                 not
                 only
                 the
                 goods
                 the
                 Rebel
                 had
                 ,
                 but
                 which
                 he
                 should
                 acquire
                 thereafter
                 ,
                 during
                 his
                 Rebellion
                 :
                 Yet
                 the
                 same
                 was
                 only
                 extended
                 to
                 what
                 he
                 had
                 the
                 time
                 of
                 the
                 Gift
                 ,
                 and
                 what
                 superveened
                 within
                 year
                 and
                 day
                 ,
                 June
                 27.
                 1622.
                 
                 
                   John
                   Jnglis
                
                 contra
                 Laird
                 of
                 Caprinton
                 .
                 It
                 was
                 so
                 decyded
                 ,
                 July
                 2.
                 1669.
                 
                 Barclay
                 contra
                 Barclay
                 .
                 Yea
                 the
                 same
                 was
                 extended
                 to
                 no
                 goods
                 acquired
                 after
                 the
                 gift
                 ,
                 seing
                 the
                 Style
                 thereof
                 bore
                 not
                 what
                 he
                 should
                 acquire
                 ,
                 February
                 2.
                 1627.
                 
                 
                   Lewis
                   Somervail
                
                 contra
                 Mr.
                 
                   William
                   Stirling
                
                 .
              
               
                 20.
                 
                 Escheats
                 of
                 Persons
                 living
                 within
                 Regality
                 ,
                 belongs
                 to
                 the
                 Lord
                 or
                 Baillie
                 of
                 Regality
                 infeft
                 with
                 that
                 priviledge
                 :
                 And
                 therefore
                 Gifts
                 by
                 the
                 King
                 ,
                 reach
                 not
                 these
                 escheats
                 ,
                 but
                 gifts
                 by
                 the
                 Lords
                 ,
                 or
                 Baillie
                 of
                 the
                 Regality
                 ,
                 which
                 was
                 found
                 to
                 comprehend
                 all
                 Moveable
                 goods
                 ,
                 and
                 sums
                 belonging
                 to
                 the
                 partie
                 Denunced
                 ,
                 as
                 well
                 within
                 the
                 Regality
                 as
                 without
                 the
                 same
                 ,
                 June
                 26.
                 1680.
                 
                 Young
                 contra
                 Laird
                 of
                 Raploch
                 .
                 But
                 these
                 gifts
                 Differ
                 from
                 the
                 Kings
                 gifts
                 ,
                 that
                 they
                 are
                 effectual
                 according
                 to
                 their
                 Tenor
                 ,
                 both
                 as
                 to
                 goods
                 before
                 and
                 after
                 the
                 gift
                 ,
                 and
                 are
                 valid
                 ,
                 though
                 granted
                 generally
                 ,
                 or
                 though
                 before
                 the
                 Casuality
                 fall
                 ,
                 if
                 a
                 special
                 gift
                 ,
                 after
                 the
                 Casuality
                 fell
                 ,
                 be
                 not
                 in
                 competition
                 ,
                 for
                 the
                 Prior
                 Limitations
                 of
                 the
                 Kings
                 gifts
                 ,
                 are
                 only
                 in
                 Favours
                 of
                 the
                 King
                 ,
                 that
                 he
                 be
                 not
                 prejudged
                 by
                 the
                 default
                 of
                 his
                 Officers
                 ;
                 But
                 private
                 parties
                 ought
                 
                   sibi
                   invigilare
                
                 :
                 And
                 albeit
                 the
                 diligence
                 of
                 Creditors
                 
                 be
                 preferred
                 to
                 the
                 Donatars
                 ,
                 chiefly
                 by
                 the
                 Kings
                 benignity
                 :
                 Yet
                 the
                 same
                 was
                 sustained
                 against
                 a
                 Donatar
                 of
                 Escheat
                 ,
                 by
                 a
                 Lord
                 of
                 Regality
                 February
                 24.
                 1637.
                 
                 Gilmore
                 contra
                 Hagie
                 .
              
               
                 21.
                 
                 The
                 main
                 difficultie
                 anent
                 Gifts
                 ,
                 is
                 ,
                 when
                 they
                 are
                 Simulat
                 ,
                 and
                 to
                 the
                 behove
                 of
                 the
                 Denunced
                 ,
                 which
                 is
                 much
                 cleared
                 by
                 that
                 excellent
                 Statute
                 ,
                 Par.
                 1592.
                 cap.
                 145.
                 
                 Declaring
                 it
                 a
                 sufficient
                 evidence
                 of
                 Simulation
                 ,
                 of
                 any
                 Assignation
                 ,
                 or
                 Gift
                 of
                 Escheat
                 ,
                 if
                 the
                 Rebel
                 himself
                 ,
                 his
                 Wife
                 ,
                 Bairns
                 ,
                 or
                 near
                 Friends
                 ,
                 remain
                 in
                 Possession
                 of
                 his
                 Tack
                 ,
                 and
                 Goods
                 ,
                 to
                 their
                 own
                 uses
                 ,
                 and
                 behove
                 ;
                 yet
                 it
                 is
                 not
                 declared
                 ,
                 how
                 long
                 their
                 possession
                 must
                 be
                 ;
                 Seing
                 the
                 Rebel
                 ordinarily
                 ,
                 for
                 some
                 time
                 is
                 in
                 possession
                 ,
                 till
                 the
                 Donatar
                 use
                 diligence
                 :
                 But
                 where
                 the
                 Rebel
                 retained
                 possession
                 till
                 his
                 death
                 ,
                 a
                 Gift
                 though
                 declared
                 was
                 found
                 null
                 by
                 exception
                 ,
                 July
                 12.
                 1628.
                 
                 Morison
                 contra
                 
                   Frendraught
                   ,
                   June
                
                 26.
                 1611.
                 
                 Gairdner
                 contra
                 Lord
                 Gray
                 :
                 Yea
                 ,
                 it
                 was
                 found
                 Simulat
                 ,
                 where
                 the
                 Rebel
                 possessed
                 ,
                 9.
                 years
                 ,
                 June
                 27.
                 1622.
                 
                 
                   John
                   Inglis
                
                 contra
                 Laird
                 of
                 Capringtoun
                 ,
                 and
                 other
                 Circumstances
                 ,
                 concurring
                 4
                 ,
                 or
                 5.
                 years
                 by
                 the
                 Rebel
                 ,
                 was
                 found
                 sufficient
                 ,
                 the
                 Donatar
                 having
                 consented
                 to
                 several
                 Tacks
                 ,
                 and
                 Wodsets
                 granted
                 by
                 the
                 Rebel
                 :
                 And
                 yet
                 the
                 same
                 Gift
                 was
                 found
                 valid
                 in
                 part
                 ,
                 in
                 so
                 far
                 as
                 concerned
                 Heritable
                 Rights
                 ,
                 acquired
                 by
                 the
                 Donatar
                 from
                 the
                 Rebel
                 ,
                 December
                 23.
                 1623.
                 
                 Ballantyn
                 contra
                 Murray
                 ,
                 four
                 or
                 five
                 years
                 Possession
                 of
                 the
                 Rebel
                 ,
                 were
                 found
                 sufficient
                 to
                 infer
                 Simulation
                 ,
                 though
                 the
                 Donatar
                 was
                 a
                 Creditor
                 ,
                 and
                 the
                 Rebels
                 Lands
                 apprysed
                 ,
                 seing
                 the
                 appryser
                 possessed
                 not
                 ,
                 but
                 the
                 Rebel
                 ,
                 6
                 ,
                 and
                 9.
                 of
                 January
                 1666.
                 
                 Sr.
                 
                   Lawrance
                   Oliphant
                
                 contra
                 Sir
                 
                   James
                   Drummond
                
                 ,
                 So
                 that
                 the
                 time
                 of
                 Possession
                 ,
                 sufficient
                 to
                 infer
                 Simulation
                 ,
                 remaineth
                 in
                 
                   arbitrio
                   Judicis
                
                 .
              
               
                 The
                 next
                 ground
                 of
                 the
                 Simulation
                 of
                 gifts
                 of
                 Escheat
                 ,
                 and
                 presuming
                 the
                 same
                 to
                 the
                 Rebels
                 behove
                 is
                 ,
                 when
                 it
                 is
                 taken
                 in
                 the
                 name
                 of
                 the
                 Children
                 in
                 his
                 Family
                 ,
                 which
                 was
                 found
                 Relevant
                 ,
                 without
                 mention
                 of
                 the
                 Rebels
                 Possession
                 ,
                 June
                 25.
                 1622.
                 
                 Lord
                 Borthwicks
                 Bairns
                 contra
                 Dickson
                 .
                 But
                 the
                 presumption
                 was
                 not
                 found
                 sufficient
                 ,
                 that
                 the
                 Gift
                 was
                 to
                 the
                 behove
                 of
                 the
                 Rebels
                 Son
                 :
                 Here
                 it
                 was
                 not
                 alleadged
                 ,
                 that
                 he
                 was
                 then
                 in
                 his
                 Fathers
                 Familie
                 ,
                 March
                 20.
                 1623.
                 
                 Keith
                 contra
                 Benholme
                 .
                 The
                 like
                 where
                 the
                 Son
                 was
                 not
                 in
                 his
                 Fathers
                 Family
                 ,
                 and
                 was
                 a
                 Creditor
                 ,
                 and
                 made
                 Faith
                 ,
                 it
                 was
                 to
                 his
                 own
                 behove
                 at
                 passing
                 the
                 Gift
                 ,
                 though
                 the
                 partie
                 Denunced
                 ,
                 did
                 remain
                 in
                 possession
                 ,
                 sometime
                 after
                 Declarator
                 ,
                 December
                 4.
                 1669.
                 
                 Jaffray
                 contra
                 Jaffray
                 .
              
               
                 The
                 third
                 Presumption
                 of
                 the
                 Simulation
                 of
                 Gifts
                 is
                 ,
                 when
                 the
                 same
                 is
                 procured
                 ,
                 and
                 past
                 by
                 the
                 Rebels
                 means
                 which
                 was
                 sustained
                 ,
                 though
                 a
                 part
                 was
                 by
                 the
                 Donatars
                 means
                 ,
                 and
                 a
                 part
                 by
                 the
                 Rebels
                 ,
                 though
                 the
                 Donatar
                 was
                 then
                 a
                 Creditor
                 .
                 June
                 26.
                 1622.
                 
                 
                   John
                   Inglis
                
                 contra
                 Laird
                 of
                 Capringtoun
                 .
                 The
                 like
                 found
                 probable
                 by
                 Members
                 of
                 the
                 Exchequer
                 ,
                 as
                 Witnesses
                 ,
                 Nov.
                 28.
                 1626.
                 
                 Earl
                 of
                 Kinghorn
                 contra
                 
                   Wood.
                   Hope
                   cessio
                   bonorum
                
                 ,
                 Laird
                 of
                 Clunie
                 contra
                 Laird
                 of
                 
                   Blandine
                   ,
                   Cant
                
                 and
                 Porterfield
                 contra
                 Sir
                 
                   James
                   Stewart
                
                 .
                 The
                 like
                 against
                 an
                 assigney
                 ,
                 constitute
                 by
                 the
                 Donatar
                 ,
                 Hope
                 Horning
                 ,
                 Sir
                 
                   Georg
                   Hamilton
                
                 contra
                 
                   Robert
                   Ramsay
                   .
                   Simulation
                
                 ,
                 of
                 a
                 Gift
                 of
                 Life-rent
                 to
                 the
                 Rebels
                 behove
                 ,
                 was
                 found
                 probable
                 by
                 the
                 Rebels
                 Oath
                 ,
                 and
                 the
                 Witnesses
                 insert
                 in
                 the
                 Gift
                 ,
                 June
                 19.
                 1669.
                 
                 Scot
                 contra
                 Langtoun
                 .
              
               
                 This
                 ground
                 of
                 Simulation
                 is
                 found
                 relevant
                 ,
                 not
                 only
                 against
                 the
                 Donatar
                 ,
                 but
                 against
                 a
                 singular
                 Succesor
                 ,
                 not
                 partaking
                 of
                 the
                 Fraud
                 ,
                 whose
                 Assignation
                 
                 was
                 after
                 the
                 Creditors
                 diligence
                 ,
                 December
                 10.
                 1623.
                 
                 Dowglas
                 contra
                 Belshes
                 .
                 And
                 though
                 there
                 was
                 no
                 diligence
                 ,
                 the
                 Gift
                 being
                 exped
                 blank
                 in
                 the
                 name
                 ,
                 and
                 filled
                 up
                 thereafter
                 ,
                 in
                 the
                 Donatars
                 name
                 ;
                 It
                 was
                 found
                 Simulat
                 ,
                 even
                 as
                 to
                 him
                 ,
                 though
                 obtaining
                 it
                 for
                 his
                 true
                 debt
                 December
                 17.
                 1670.
                 
                 
                   Nicol
                   Langton
                
                 contra
                 
                   Robison
                   .
                   Simulation
                
                 is
                 not
                 otherwise
                 valid
                 ,
                 against
                 singular
                 Successors
                 :
                 Yet
                 it
                 will
                 not
                 be
                 relevant
                 to
                 exclude
                 the
                 Donatar
                 ,
                 and
                 prefer
                 another
                 Donatar
                 ,
                 in
                 so
                 far
                 as
                 concerns
                 the
                 first
                 Donatars
                 debt
                 ,
                 truly
                 owing
                 to
                 him
                 ,
                 though
                 the
                 gift
                 was
                 given
                 at
                 the
                 Rebels
                 request
                 ,
                 and
                 past
                 at
                 his
                 own
                 Charges
                 :
                 So
                 that
                 the
                 Exclusiion
                 ,
                 by
                 this
                 presumed
                 Simulation
                 ,
                 was
                 only
                 Inferred
                 ,
                 as
                 to
                 the
                 profit
                 of
                 the
                 Gift
                 ,
                 above
                 the
                 Donatars
                 own
                 debt
                 ,
                 
                   in
                   quantum
                   Lucratus
                   est
                
                 .
                 For
                 that
                 was
                 found
                 no
                 Fault
                 in
                 the
                 debitor
                 Rebel
                 ,
                 to
                 concurr
                 in
                 desire
                 ,
                 and
                 moyen
                 to
                 get
                 a
                 gift
                 to
                 his
                 Creditor
                 ,
                 in
                 so
                 far
                 as
                 concerned
                 that
                 Creditors
                 debt
                 ,
                 March
                 11.
                 1624.
                 
                 
                   William
                   Dowglas
                
                 contra
                 Viscont
                 of
                 Air.
                 The
                 like
                 where
                 the
                 Rebel
                 concured
                 ,
                 in
                 procurring
                 the
                 gift
                 ,
                 the
                 Donatar
                 having
                 made
                 Faith
                 the
                 gift
                 was
                 to
                 his
                 own
                 behove
                 ,
                 showing
                 his
                 Debt
                 and
                 Back-band
                 ,
                 December
                 12.
                 1673.
                 
                 Mr.
                 
                   Georg
                   Dickson
                
                 contra
                 Sr.
                 
                   Alexander
                   Mcculloch
                
                 .
                 All
                 this
                 must
                 be
                 understood
                 ,
                 if
                 the
                 Rebel
                 remain
                 unrelaxed
                 ,
                 for
                 if
                 unrelaxed
                 ,
                 a
                 Gift
                 though
                 taken
                 expresly
                 in
                 his
                 name
                 ,
                 returneth
                 and
                 accresceth
                 to
                 the
                 Fisk
                 ,
                 and
                 next
                 donatar
                 ,
                 July
                 6
                 1627.
                 
                 Earl
                 of
                 Annandale
                 contra
                 Laird
                 of
                 Cockpool
                 :
                 Yea
                 ,
                 though
                 he
                 was
                 after
                 relaxed
                 before
                 any
                 other
                 gift
                 November
                 28.
                 1626.
                 
                 Earl
                 of
                 Kinghorn
                 contra
                 
                   Wood.
                   June
                
                 2.
                 1610.
                 
                 Lenuox
                 contra
                 Turnbul
                 .
                 But
                 if
                 the
                 Denunced
                 were
                 relaxed
                 ,
                 the
                 time
                 of
                 the
                 Gift
                 ,
                 as
                 it
                 would
                 be
                 sufficient
                 in
                 his
                 own
                 Person
                 expresly
                 ,
                 so
                 it
                 is
                 valid
                 in
                 another
                 person
                 ,
                 though
                 to
                 his
                 behove
                 ,
                 yet
                 it
                 will
                 exclude
                 none
                 of
                 the
                 Creditors
                 .
              
               
                 These
                 Nullities
                 are
                 not
                 only
                 competent
                 to
                 Posterior
                 Donatars
                 ,
                 but
                 also
                 the
                 Rebels
                 Creditors
                 using
                 diligence
                 .
              
               
                 To
                 come
                 now
                 to
                 the
                 Declarators
                 of
                 escheat
                 ,
                 there
                 are
                 two
                 ,
                 the
                 First
                 ,
                 general
                 ,
                 the
                 next
                 special
                 .
              
               
                 22.
                 
                 In
                 the
                 Action
                 of
                 General
                 Declarator
                 ,
                 the
                 Rebel
                 or
                 his
                 Bairns
                 ,
                 or
                 〈◊〉
                 of
                 Kin
                 (
                 if
                 he
                 be
                 dead
                 )
                 must
                 be
                 called
                 ,
                 
                   Hope
                   ,
                   cessio
                   bonorum
                   ,
                   Frazer
                
                 of
                 Tillebodie
                 contra
                 Mopherson
                 ,
                 but
                 the
                 Declarator
                 hath
                 no
                 effect
                 against
                 moveable
                 Airship
                 ,
                 unless
                 the
                 Rebels
                 Air
                 were
                 called
                 :
                 As
                 to
                 the
                 other
                 moveables
                 though
                 there
                 uses
                 seldom
                 to
                 be
                 Executors
                 ,
                 confirmed
                 to
                 defunct
                 Rebels
                 ,
                 and
                 therefore
                 the
                 Wife
                 ,
                 and
                 nearest
                 of
                 Kin
                 are
                 ordinarily
                 called
                 ;
                 Yet
                 where
                 the
                 Wife
                 was
                 only
                 called
                 ,
                 she
                 being
                 Executrix
                 confirmed
                 ,
                 it
                 was
                 sustained
                 ,
                 
                   Nicol
                   ,
                   de
                   Haereditariis
                   actionibus
                
                 .
                 contra
                 Relict
                 of
                 
                   James
                   Forrest
                
                 .
                 And
                 though
                 Summonds
                 of
                 general
                 declarator
                 bear
                 all
                 parties
                 having
                 Interest
                 ,
                 who
                 must
                 be
                 cited
                 generally
                 ,
                 at
                 the
                 Mercat
                 Cross
                 of
                 the
                 Head
                 Burgh
                 where
                 the
                 Rebels
                 residence
                 is
                 ,
                 that
                 is
                 but
                 
                   Stilus
                   Curiae
                
                 ,
                 and
                 the
                 want
                 of
                 it
                 hinders
                 nothing
                 ,
                 June
                 27.
                 1666.
                 
                 Massoun
                 contra
                 Black.
                 
              
               
                 23.
                 
                 The
                 Title
                 in
                 the
                 general
                 Declarator
                 is
                 the
                 Gift
                 ,
                 and
                 the
                 Horning
                 whereupon
                 it
                 proceeds
                 ,
                 the
                 extract
                 whereof
                 does
                 as
                 sufficiently
                 prove
                 ,
                 as
                 the
                 principal
                 ,
                 Par.
                 1579.
                 cap.
                 75.
                 
              
               
                 The
                 tenor
                 of
                 the
                 general
                 Declarator
                 is
                 ,
                 that
                 the
                 Rebel
                 was
                 duely
                 ,
                 and
                 orderly
                 Denunced
                 by
                 the
                 Horning
                 Lybelled
                 ,
                 and
                 that
                 thereby
                 the
                 whole
                 moveable
                 Goods
                 and
                 Gear
                 ,
                 &c.
                 
                 Became
                 escheat
                 ,
                 and
                 belongs
                 to
                 the
                 pursuer
                 ,
                 
                 by
                 Vertue
                 of
                 his
                 Gift
                 :
                 All
                 which
                 is
                 instantly
                 verified
                 by
                 the
                 Titles
                 :
                 And
                 therefore
                 if
                 no
                 relevant
                 exception
                 be
                 proponed
                 ,
                 Decreet
                 is
                 instantly
                 given
                 .
              
               
                 24.
                 
                 No
                 exception
                 will
                 be
                 here
                 competent
                 against
                 the
                 Horning
                 ,
                 not
                 being
                 instantly
                 verified
                 ,
                 for
                 all
                 others
                 will
                 be
                 reserved
                 to
                 Reduction
                 :
                 So
                 was
                 it
                 found
                 ,
                 it
                 being
                 alleadged
                 ,
                 that
                 the
                 Rebel
                 dwelt
                 in
                 another
                 Shire
                 then
                 where
                 he
                 was
                 Denunced
                 ,
                 June
                 12.
                 1611.
                 
                 Mr.
                 of
                 Ocheltrie
                 contra
                 Laird
                 of
                 Symonton
                 .
                 Yet
                 if
                 the
                 Reduction
                 be
                 Depending
                 ,
                 it
                 may
                 be
                 sustained
                 as
                 prejudicial
                 ,
                 and
                 be
                 first
                 discust
                 ,
                 December
                 12.
                 1622.
                 
                 Dalmahoy
                 contra
                 Scot.
                 Neither
                 will
                 any
                 Exception
                 be
                 sustained
                 against
                 the
                 ground
                 of
                 the
                 Horning
                 ,
                 as
                 not
                 due
                 ,
                 or
                 satisfied
                 ,
                 as
                 that
                 it
                 proceeded
                 upon
                 a
                 null
                 Band
                 ,
                 Subscribed
                 only
                 by
                 one
                 Notar
                 ,
                 January
                 12.
                 1610.
                 
                 Durham
                 contra
                 Clelland
                 .
                 Or
                 that
                 payment
                 was
                 made
                 before
                 Denunciation
                 ,
                 November
                 30.
                 1630.
                 
                 Dowglas
                 contra
                 
                   Wardlaw
                   ,
                   Hope
                
                 Horning
                 escheat
                 ,
                 Lord
                 Dowglas
                 contra
                 Lord
                 Carmichael
                 .
                 The
                 reason
                 is
                 not
                 only
                 ,
                 because
                 the
                 alleagence
                 is
                 not
                 instantly
                 Verified
                 ,
                 but
                 specially
                 because
                 the
                 Kings
                 Officers
                 are
                 not
                 called
                 ,
                 that
                 they
                 may
                 defend
                 the
                 Kings
                 interest
                 ,
                 and
                 obviat
                 Collusions
                 ,
                 upon
                 Forged
                 discharges
                 ,
                 or
                 otherwise
                 ;
                 For
                 oft-times
                 the
                 Donatar
                 hath
                 but
                 a
                 smal
                 Interest
                 ,
                 in
                 respect
                 of
                 his
                 Back-band
                 ,
                 and
                 so
                 may
                 readily
                 collude
                 :
                 And
                 therefore
                 ,
                 though
                 the
                 defence
                 be
                 instantly
                 verified
                 ,
                 it
                 is
                 not
                 received
                 by
                 exception
                 ,
                 though
                 it
                 might
                 justly
                 be
                 without
                 Multiplication
                 of
                 Processes
                 ,
                 Intimation
                 being
                 made
                 to
                 the
                 Thesaurer
                 ,
                 and
                 Advocat
                 ,
                 that
                 they
                 might
                 appear
                 for
                 the
                 Kings
                 Interest
                 ,
                 but
                 if
                 it
                 be
                 a
                 visible
                 nullitie
                 in
                 the
                 Horning
                 ,
                 or
                 an
                 exception
                 wherein
                 there
                 can
                 be
                 no
                 appearance
                 of
                 Collusion
                 :
                 It
                 is
                 sometimes
                 admitted
                 as
                 this
                 exception
                 ,
                 that
                 the
                 Horning
                 was
                 Suspended
                 before
                 Denunciation
                 ,
                 and
                 was
                 false
                 ,
                 was
                 sustained
                 ,
                 Hope
                 Horning
                 Sheriff
                 of
                 Murray
                 contra
                 Exceptions
                 of
                 any
                 partie
                 compearing
                 for
                 their
                 Interest
                 ,
                 and
                 alleadging
                 Assignation
                 ,
                 or
                 Disposition
                 of
                 the
                 goods
                 ,
                 or
                 diligence
                 done
                 ,
                 use
                 not
                 to
                 be
                 received
                 in
                 the
                 general
                 Declaratar
                 ,
                 but
                 reserved
                 to
                 the
                 Special
                 ,
                 because
                 the
                 general
                 is
                 but
                 an
                 Intimation
                 ,
                 and
                 so
                 proceeds
                 Summarily
                 .
              
               
                 25.
                 
                 The
                 Action
                 of
                 special
                 Declarator
                 ,
                 though
                 it
                 hath
                 the
                 name
                 of
                 Declarator
                 ,
                 yet
                 hath
                 little
                 in
                 it
                 Declaratory
                 ,
                 but
                 it
                 is
                 Petitory
                 of
                 the
                 goods
                 specially
                 Lybelled
                 in
                 it
                 .
                 There
                 is
                 no
                 necessity
                 to
                 call
                 the
                 Rebel
                 ,
                 or
                 any
                 representing
                 him
                 ,
                 but
                 the
                 haver
                 or
                 intrometter
                 with
                 the
                 escheat
                 goods
                 .
                 The
                 Title
                 in
                 this
                 Action
                 ,
                 is
                 the
                 Decreet
                 of
                 general
                 Declarator
                 ,
                 and
                 there
                 is
                 no
                 necessity
                 to
                 produce
                 the
                 gift
                 or
                 Horning
                 ,
                 Feb.
                 10.
                 1627.
                 
                 Creditors
                 of
                 
                   John
                   Stewart
                
                 ,
                 of
                 Coldinghams
                 ,
                 escheat
                 contra
                 a
                 debetor
                 to
                 the
                 Rebel
                 ,
                 November
                 20.
                 1629.
                 
                 Lundie
                 contra
                 Lundie
                 where
                 another
                 Donatar
                 was
                 admitted
                 for
                 his
                 Interest
                 ,
                 in
                 the
                 special
                 Declarator
                 though
                 he
                 had
                 no
                 general
                 Declaratar
                 :
                 Nor
                 is
                 any
                 exception
                 competent
                 against
                 the
                 same
                 ,
                 or
                 ground
                 thereof
                 ,
                 but
                 only
                 by
                 Reduction
                 .
              
               
                 Yet
                 in
                 the
                 competition
                 of
                 others
                 ,
                 Donatars
                 or
                 Creditors
                 having
                 used
                 diligence
                 ,
                 or
                 having
                 gotten
                 Assignations
                 Intimat
                 ,
                 or
                 Dispositions
                 cled
                 with
                 possession
                 ,
                 before
                 general
                 Declarator
                 upon
                 debts
                 Anterior
                 to
                 the
                 Denunciation
                 ,
                 or
                 Criminal
                 Fact
                 ,
                 or
                 otherways
                 upon
                 the
                 Simulation
                 of
                 the
                 gift
                 ,
                 are
                 here
                 competent
                 ,
                 as
                 the
                 Simulation
                 is
                 competent
                 also
                 against
                 the
                 general
                 Declarator
                 ,
                 and
                 all
                 exceptions
                 generally
                 or
                 particularlie
                 reserved
                 in
                 the
                 general
                 Declarator
                 ,
                 are
                 competent
                 in
                 the
                 Special
                 :
                 All
                 these
                 exceptions
                 being
                 held
                 forth
                 before
                 in
                 the
                 same
                 Title
                 ,
                 there
                 is
                 no
                 necessity
                 here
                 ,
                 to
                 repeat
                 them
                 .
                 In
                 aspecial
                 Declarator
                 of
                 escheat
                 ,
                 Payment
                 before
                 Denunciation
                 was
                 sustained
                 ,
                 to
                 be
                 proven
                 by
                 the
                 Creditors
                 Oath
                 ,
                 upon
                 a
                 Reduction
                 of
                 the
                 Horning
                 ,
                 and
                 general
                 Declarator
                 
                 repeated
                 by
                 way
                 of
                 Defence
                 ,
                 February
                 10.
                 1662.
                 
                 
                   William
                   Montgomerie
                
                 contra
                 
                   Theodor
                   Montgomerie
                
                 and
                 Mr.
                 
                   William
                   Lander
                
                 .
                 In
                 this
                 cause
                 a
                 Creditor
                 was
                 not
                 found
                 to
                 have
                 Interest
                 ,
                 to
                 found
                 upon
                 the
                 Donatars
                 Back-band
                 given
                 to
                 the
                 Thesaurer
                 ,
                 without
                 obtaining
                 a
                 second
                 Gift
                 .
              
               
                 Special
                 Declarators
                 may
                 be
                 persued
                 any
                 other
                 way
                 ,
                 as
                 upon
                 Arreistment
                 or
                 particular
                 Lybel
                 ,
                 for
                 restitution
                 and
                 delivery
                 of
                 the
                 escheat
                 goods
                 .
                 It
                 is
                 also
                 Consistaut
                 in
                 the
                 same
                 Lybel
                 ,
                 with
                 the
                 general
                 Declarator
                 :
                 But
                 before
                 the
                 pursuer
                 insist
                 in
                 the
                 other
                 member
                 for
                 the
                 special
                 Declarator
                 ,
                 he
                 must
                 pursue
                 that
                 member
                 for
                 the
                 general
                 Declarator
                 .
              
               
                 26.
                 
                 Liferent-escheat
                 ,
                 though
                 it
                 be
                 a
                 penaltie
                 of
                 Contumacy
                 and
                 Rebellion
                 ,
                 and
                 so
                 is
                 properly
                 a
                 Confiscation
                 :
                 Yet
                 seing
                 it
                 doth
                 not
                 befall
                 only
                 to
                 the
                 Fisk
                 but
                 is
                 a
                 common
                 Casuality
                 of
                 Superiority
                 ,
                 and
                 hath
                 been
                 handled
                 in
                 the
                 Title
                 ,
                 Superiority
                 .
                 We
                 shall
                 not
                 here
                 repeat
                 ,
                 but
                 only
                 touch
                 some
                 Differences
                 ,
                 between
                 Liferent-escheat
                 ,
                 and
                 Single-escheat
                 .
              
               
                 First
                 ,
                 Single-escheat
                 is
                 only
                 a
                 Legal
                 Penaltie
                 ,
                 and
                 therefore
                 belongs
                 alone
                 to
                 the
                 King
                 ,
                 and
                 his
                 Ministers
                 of
                 Justice
                 ,
                 who
                 are
                 comptable
                 to
                 him
                 therefore
                 as
                 Sheriffs
                 ,
                 &c.
                 
                 Or
                 to
                 there
                 own
                 behove
                 by
                 their
                 infeftments
                 ,
                 as
                 Lords
                 and
                 Baillies
                 of
                 Regalitie
                 :
                 But
                 Liferent-escheat
                 is
                 not
                 only
                 Penal
                 ,
                 but
                 is
                 a
                 Legal
                 Consequence
                 of
                 the
                 Condition
                 of
                 the
                 Rebel
                 ,
                 whereby
                 he
                 being
                 out-lawed
                 ,
                 and
                 having
                 no
                 person
                 in
                 Judgement
                 ,
                 is
                 excluded
                 from
                 the
                 Possession
                 of
                 all
                 his
                 Rights
                 ,
                 and
                 is
                 esteemed
                 as
                 
                   civiliter
                   mortuus
                
                 ,
                 whereby
                 his
                 Fies
                 become
                 open
                 ,
                 and
                 are
                 in
                 the
                 hands
                 of
                 his
                 Superior
                 ,
                 whether
                 the
                 King
                 ,
                 or
                 any
                 other
                 Superior
                 ,
                 by
                 his
                 continuing
                 unrelaxed
                 year
                 and
                 day
                 :
                 And
                 therefore
                 the
                 diligences
                 done
                 against
                 ,
                 or
                 the
                 deeds
                 done
                 by
                 the
                 Rebel
                 ,
                 for
                 satisfying
                 of
                 his
                 lawful
                 debts
                 contracted
                 before
                 Rebellion
                 ,
                 do
                 not
                 effect
                 his
                 Liferent-escheat
                 ,
                 as
                 they
                 do
                 his
                 Single-escheat
                 ,
                 though
                 they
                 be
                 done
                 before
                 year
                 and
                 day
                 expire
                 ,
                 being
                 after
                 the
                 Rebellion
                 :
                 And
                 so
                 Arrestments
                 ,
                 or
                 Assignations
                 ,
                 even
                 though
                 before
                 Rebellion
                 ,
                 have
                 no
                 effect
                 after
                 year
                 and
                 day
                 is
                 run
                 ,
                 because
                 these
                 being
                 but
                 Personal
                 ,
                 and
                 Liferent-escheat
                 a
                 reall
                 Right
                 flowing
                 from
                 the
                 Superiority
                 ,
                 whereby
                 the
                 Vassal
                 is
                 denuded
                 of
                 the
                 Liferent
                 :
                 Therefore
                 the
                 effect
                 of
                 these
                 Personal
                 rights
                 ceaseth
                 ;
                 But
                 all
                 reall
                 rights
                 flowing
                 from
                 the
                 Vassal
                 before
                 the
                 Rebellion
                 ,
                 as
                 Fews
                 ,
                 Annualrents
                 ,
                 Tacks
                 ,
                 Appryzings
                 and
                 Adjudications
                 whereupon
                 there
                 was
                 a
                 Charge
                 ,
                 are
                 effectual
                 ,
                 and
                 not
                 excluded
                 by
                 Liferent-escheat
                 ,
                 though
                 these
                 are
                 excluded
                 by
                 Ward
                 ,
                 which
                 is
                 a
                 Casuality
                 following
                 the
                 nature
                 of
                 Fewdal
                 Rights
                 ;
                 Whereas
                 Liferent-escheat
                 ariseth
                 not
                 from
                 the
                 Nature
                 of
                 Fies
                 ,
                 but
                 is
                 introduced
                 by
                 Law
                 or
                 Custom
                 ,
                 and
                 therefore
                 the
                 Fie
                 falls
                 in
                 the
                 hands
                 of
                 the
                 Superior
                 as
                 it
                 was
                 in
                 the
                 hands
                 of
                 the
                 Vassal
                 ,
                 with
                 all
                 the
                 Real
                 burdens
                 he
                 had
                 fixed
                 upon
                 it
                 :
                 Neither
                 does
                 Posterior
                 voluntary
                 Infeftments
                 ,
                 though
                 for
                 debts
                 prior
                 to
                 the
                 Rebellion
                 ,
                 and
                 granted
                 before
                 Declarator
                 ,
                 exclude
                 the
                 Liferent-escheat
                 ,
                 Jannuary
                 18.
                 1611.
                 
                 
                   Samuel
                   Ord
                
                 contra
                 the
                 Laird
                 of
                 Craigkeith
                 .
                 The
                 like
                 ,
                 where
                 the
                 Infeftment
                 was
                 granted
                 after
                 Rebellion
                 ,
                 but
                 within
                 year
                 and
                 day
                 ,
                 January
                 23.
                 1627.
                 
                 
                   James
                   Wallace
                
                 contra
                 
                   Thomas
                   Porteous
                
                 .
                 Where
                 there
                 is
                 an
                 exception
                 insinuat
                 ,
                 unless
                 there
                 had
                 been
                 an
                 prior
                 obliegment
                 before
                 the
                 Rebellion
                 ,
                 to
                 grant
                 thelnfeftment
                 ,
                 as
                 if
                 in
                 that
                 case
                 (
                 though
                 in
                 
                   cursu
                   Rebellionis
                
                 )
                 it
                 would
                 be
                 sufficient
                 to
                 exclude
                 the
                 Liferent
                 .
                 The
                 like
                 was
                 found
                 ,
                 that
                 Infeftments
                 upon
                 a
                 voluntary
                 Disposition
                 ,
                 made
                 in
                 
                   cursu
                   Rebellionis
                
                 ,
                 within
                 the
                 year
                 ,
                 and
                 for
                 a
                 debt
                 due
                 before
                 Rebellion
                 ,
                 excluded
                 not
                 the
                 Liferent-escheat
                 ,
                 March
                 19.
                 1628.
                 
                 Mr
                 
                   James
                   Rae
                
                 contra
                 
                   Buckie
                   ,
                   Hope
                
                 Horning
                 ,
                 Laird
                 of
                 Frendraught
                 
                 contra
                 
                   Meldrum
                   ,
                   Gordon
                
                 of
                 〈◊〉
                 contra
                 Gordon
                 of
                 Haddo
                 .
                 But
                 Infeftments
                 in
                 
                   cursu
                   Rebellionis
                
                 upon
                 special
                 obliegments
                 ,
                 to
                 grant
                 the
                 same
                 before
                 Denuneiation
                 ,
                 are
                 valid
                 .
                 vide
                 Tit.
                 14.
                 
                 §
                 53.
                 
              
               
                 As
                 to
                 Legal
                 Diligences
                 of
                 Creditors
                 ,
                 whither
                 Appryzing
                 and
                 Infeftment
                 thereupon
                 ,
                 being
                 after
                 Rebellion
                 ,
                 will
                 exclude
                 the
                 Liferent-escheat
                 was
                 declared
                 the
                 last
                 Title
                 in
                 the
                 second
                 effect
                 of
                 Appryzings
                 ,
                 the
                 sum
                 whereof
                 is
                 ,
                 that
                 they
                 are
                 thus
                 far
                 preferablé
                 to
                 voluntary
                 Dispositions
                 ,
                 That
                 being
                 done
                 in
                 
                   Cursu
                   Rebellionis
                
                 ,
                 for
                 a
                 debt
                 before
                 Rebellion
                 ;
                 There
                 being
                 Infeftment
                 ,
                 or
                 Charge
                 in
                 
                   cursu
                   Rebellionis
                
                 ,
                 they
                 exclude
                 the
                 Liferent
                 .
              
               
                 Secondly
                 ,
                 Single-escheats
                 require
                 general
                 and
                 special
                 Declarator
                 :
                 Liferent-escheats
                 require
                 but
                 one
                 Declarator
                 for
                 all
                 ,
                 wherein
                 the
                 Title
                 is
                 the
                 Horning
                 ,
                 the
                 Gift
                 ,
                 and
                 the
                 Superiors
                 Seasine
                 ,
                 without
                 farder
                 instructing
                 the
                 Superiors
                 Right
                 ,
                 and
                 without
                 Continuation
                 ,
                 July
                 2.
                 1622.
                 
                 Carmichael
                 contra
                 
                   Lermont
                   ,
                   March
                
                 6.
                 1624.
                 
                 Dowglas
                 contra
                 
                   Eastnesbit
                   ,
                   June
                
                 23.
                 1625.
                 
                 Viscount
                 of
                 Stormont
                 contra
                 And
                 there
                 is
                 no
                 necessity
                 to
                 instruct
                 the
                 Lands
                 holden
                 of
                 that
                 Superior
                 by
                 the
                 Defender
                 .
                 The
                 reason
                 is
                 ,
                 because
                 that
                 is
                 presumed
                 ,
                 unless
                 the
                 Defender
                 disclame
                 ,
                 or
                 that
                 the
                 Superior
                 be
                 a
                 Singlar
                 Successor
                 ,
                 never
                 acknowledged
                 by
                 the
                 Vassal
                 ,
                 or
                 his
                 Predecessors
                 .
              
               
                 27.
                 
                 Shipwrack
                 ,
                 and
                 Wath
                 Goods
                 ,
                 or
                 Treasures
                 in
                 the
                 ground
                 ,
                 whose
                 owner
                 appeareth
                 not
                 ,
                 are
                 Confiscat
                 as
                 Caduciarie
                 ,
                 whereby
                 the
                 owners
                 are
                 presumed
                 to
                 Relinquish
                 ,
                 or
                 loose
                 the
                 same
                 .
                 And
                 so
                 a
                 
                   jure
                   sup
                   cadunt
                
                 ,
                 and
                 the
                 things
                 become
                 nullius
                 ,
                 and
                 yet
                 belong
                 not
                 to
                 the
                 first
                 Possessor
                 ,
                 as
                 things
                 relinquished
                 do
                 ,
                 by
                 the
                 Common
                 Law
                 ,
                 but
                 do
                 belong
                 to
                 the
                 King
                 ,
                 by
                 his
                 Royal
                 Prerogative
                 ,
                 or
                 to
                 others
                 having
                 Right
                 from
                 him
                 .
                 We
                 have
                 spoken
                 of
                 these
                 before
                 in
                 the
                 Title
                 
                   Real
                   Rights
                
                 .
                 And
                 shall
                 only
                 add
                 this
                 ,
                 that
                 by
                 that
                 just
                 and
                 Noble
                 Statute
                 ,
                 Par.
                 1429.
                 cap.
                 124.
                 
                 It
                 is
                 declared
                 ,
                 that
                 where
                 Ships
                 break
                 in
                 this
                 Countrey
                 ,
                 the
                 Ship
                 and
                 Goods
                 shall
                 be
                 escheat
                 to
                 the
                 King
                 ,
                 if
                 they
                 belong
                 to
                 such
                 Countries
                 as
                 use
                 the
                 like
                 Law
                 anent
                 Ship-wrack
                 in
                 there
                 own
                 Land
                 ,
                 otherwayes
                 they
                 shall
                 have
                 the
                 same
                 favour
                 ,
                 as
                 they
                 keep
                 to
                 Ships
                 of
                 this
                 Land
                 broken
                 with
                 them
                 .
                 It
                 is
                 also
                 declared
                 amongst
                 the
                 Statutes
                 of
                 King
                 Alexander
                 the
                 Second
                 ,
                 cap.
                 25.
                 
                 That
                 if
                 any
                 Living
                 Man
                 or
                 Beast
                 ,
                 as
                 Dog
                 ,
                 Cat
                 ,
                 &c.
                 come
                 quick
                 out
                 of
                 the
                 Vessel
                 ,
                 the
                 same
                 shall
                 not
                 be
                 accounted
                 Ship-wrack
                 ,
                 but
                 shall
                 be
                 preserved
                 to
                 the
                 Owner
                 ,
                 claming
                 and
                 instructing
                 his
                 Right
                 within
                 year
                 and
                 day
                 ;
                 Or
                 otherwayes
                 it
                 shall
                 belong
                 to
                 the
                 King
                 :
                 So
                 was
                 it
                 found
                 ,
                 where
                 an
                 ox
                 escaped
                 alive
                 out
                 of
                 the
                 Ship
                 ,
                 and
                 the
                 Admirals
                 Decreet
                 finding
                 the
                 same
                 Escheatable
                 ,
                 as
                 Shipwrack
                 was
                 Suspended
                 Simpliciter
                 December
                 12.
                 1622.
                 
                 Hamilton
                 contra
                 Cochran
                 .
                 In
                 which
                 case
                 nothing
                 was
                 alleiged
                 ,
                 but
                 this
                 old
                 Statute
                 ,
                 the
                 genuine
                 meaning
                 whereof
                 seems
                 only
                 to
                 be
                 where
                 any
                 person
                 came
                 to
                 Land
                 the
                 Ship
                 and
                 Goods
                 should
                 not
                 be
                 confiscat
                 as
                 Wrack
                 ,
                 but
                 the
                 posterior
                 
                   Act
                   ,
                   Par.
                
                 1429.
                 cap.
                 124.
                 
                 Repeats
                 not
                 that
                 provision
                 ,
                 but
                 regulats
                 the
                 matter
                 according
                 to
                 the
                 custom
                 of
                 other
                 Nations
                 ,
                 to
                 do
                 to
                 them
                 as
                 they
                 do
                 to
                 us
                 ,
                 without
                 any
                 other
                 Limitation
                 .
                 And
                 therefore
                 where
                 some
                 Persons
                 came
                 to
                 Land
                 ,
                 the
                 Ship
                 being
                 broken
                 ,
                 the
                 same
                 with
                 the
                 Goods
                 dispersed
                 were
                 Confiscat
                 ,
                 If
                 Confiscation
                 in
                 the
                 like
                 case
                 should
                 be
                 proven
                 to
                 be
                 the
                 Law
                 ,
                 or
                 Custom
                 of
                 that
                 place
                 ,
                 to
                 which
                 the
                 Ship
                 belonged
                 ,
                 January
                 20.
                 1674.
                 
                 Jacobson
                 contra
                 Earl
                 of
                 Crawfoord
                 .
              
               
               
                 28.
                 
                 Forefaulture
                 is
                 the
                 great
                 Confiscation
                 ,
                 comprehending
                 all
                 other
                 Penal
                 Confiscations
                 .
                 It
                 is
                 extended
                 to
                 the
                 taking
                 away
                 of
                 Life
                 ,
                 Lands
                 and
                 Goods
                 ,
                 Par.
                 1424.
                 cap.
                 3.
                 
                 For
                 it
                 is
                 the
                 Penaltie
                 of
                 the
                 highest
                 Crime
                 ,
                 to
                 wit
                 Treason
                 ;
                 which
                 at
                 first
                 ,
                 and
                 by
                 its
                 native
                 Signification
                 ,
                 it
                 expresseth
                 Crymes
                 against
                 the
                 Life
                 of
                 any
                 partie
                 under
                 Trust
                 :
                 So
                 the
                 Slaughter
                 of
                 any
                 person
                 under
                 Trust
                 ,
                 Credit
                 ,
                 or
                 power
                 of
                 the
                 Slayer
                 ,
                 is
                 declared
                 Treason
                 ,
                 Par.
                 1587.
                 cap.
                 51.
                 
              
               
                 29.
                 
                 Thence
                 it
                 is
                 also
                 called
                 Treachery
                 ,
                 and
                 the
                 Committers
                 thereof
                 Traitors
                 .
                 And
                 because
                 of
                 that
                 Trust
                 betwixt
                 the
                 King
                 and
                 all
                 the
                 Leiges
                 ,
                 as
                 their
                 Superiour
                 and
                 Soveraign
                 :
                 The
                 chief
                 point
                 of
                 Treason
                 is
                 against
                 the
                 Kings
                 Person
                 ,
                 as
                 appeareth
                 by
                 the
                 Act
                 last
                 Cited
                 :
                 These
                 also
                 ,
                 who
                 without
                 cause
                 ,
                 wilfully
                 raise
                 a
                 fray
                 in
                 the
                 Kings
                 Host
                 commit
                 Treason
                 ,
                 Par.
                 1455.
                 cap.
                 54.
                 
                 Upon
                 the
                 same
                 ground
                 ,
                 because
                 of
                 the
                 Trust
                 betwixt
                 the
                 Superiour
                 and
                 his
                 Vassal
                 ,
                 such
                 Crimes
                 against
                 the
                 Superiour
                 ,
                 is
                 also
                 called
                 Treason
                 ,
                 and
                 thereby
                 the
                 committer
                 Looseth
                 for
                 ever
                 ,
                 all
                 Lands
                 and
                 Heritage
                 he
                 held
                 of
                 that
                 Sùperiour
                 ,
                 
                   quoniam
                   Atachiamenta
                   ,
                   cap.
                
                 19.
                 
                 But
                 this
                 Treason
                 infers
                 not
                 a
                 Simple
                 Forfaulture
                 ,
                 but
                 only
                 is
                 a
                 ground
                 of
                 Recognition
                 :
                 But
                 as
                 now
                 the
                 Terms
                 are
                 take
                 ,
                 Treason
                 ,
                 and
                 Forefalture
                 of
                 Life
                 ,
                 Lands
                 and
                 Goods
                 are
                 adequat
                 ,
                 and
                 wherever
                 the
                 one
                 is
                 exprest
                 in
                 any
                 Act
                 of
                 Parliament
                 the
                 other
                 is
                 understood
                 for
                 the
                 Stryking
                 or
                 Slaying
                 of
                 any
                 person
                 ,
                 within
                 the
                 Parliament
                 House
                 ,
                 during
                 the
                 time
                 of
                 Parliament
                 ,
                 within
                 the
                 Kings
                 Inner-Chamber
                 ,
                 Cabinet
                 or
                 Chamber
                 of
                 Peace
                 ,
                 the
                 King
                 being
                 within
                 his
                 Palace
                 ,
                 or
                 within
                 the
                 Inner-tolbooth
                 ,
                 the
                 time
                 of
                 Session
                 sitting
                 ,
                 or
                 within
                 the
                 Privy
                 Council-House
                 the
                 time
                 of
                 the
                 Council
                 sitting
                 ,
                 or
                 in
                 his
                 Majesties
                 Presence
                 any
                 where
                 ,
                 is
                 declared
                 Treason
                 ,
                 Par.
                 1593.
                 cap.
                 173.
                 
                 Impugning
                 the
                 Dignity
                 or
                 Authority
                 of
                 the
                 three
                 Estates
                 of
                 Parliament
                 ,
                 or
                 procuring
                 any
                 Innovation
                 ,
                 or
                 Diminution
                 of
                 there
                 Power
                 ,
                 is
                 prohibit
                 under
                 pain
                 of
                 Treason
                 ,
                 Par.
                 1584.
                 cap.
                 139.
                 
                 And
                 also
                 declyning
                 the
                 King
                 ,
                 and
                 his
                 Council
                 ,
                 in
                 any
                 matter
                 to
                 be
                 inquired
                 before
                 them
                 ,
                 Par.
                 1564.
                 cap.
                 129.
                 
                 Purchasers
                 of
                 benifices
                 at
                 the
                 Court
                 of
                 Rome
                 ,
                 are
                 ordained
                 to
                 be
                 denunced
                 as
                 Traitors
                 to
                 the
                 King
                 ,
                 Par.
                 1471.
                 cap.
                 43.
                 
                 Par.
                 1488.
                 cap.
                 4.
                 
                 Par.
                 1540.
                 cap.
                 119.
                 
                 So
                 forgers
                 of
                 the
                 Kings
                 Coin
                 ,
                 and
                 home-bringers
                 thereof
                 ,
                 incurr
                 the
                 lose
                 of
                 Life
                 ,
                 Lands
                 and
                 Goods
                 ,
                 Par.
                 1563.
                 cap.
                 70.
                 
                 Saying
                 of
                 Mass
                 ,
                 resetting
                 of
                 Jesuits
                 ,
                 Seminarie
                 Priests
                 ,
                 and
                 traffiquing
                 Papists
                 :
                 And
                 these
                 themselves
                 are
                 lyable
                 to
                 Treason
                 ,
                 Par.
                 1592.
                 cap.
                 120.
                 
                 Par.
                 1607.
                 cap.
                 1.
                 
                 Raising
                 of
                 Fire
                 wilfully
                 ,
                 or
                 burning
                 of
                 Houses
                 ,
                 or
                 corns
                 ,
                 whither
                 folk
                 be
                 therein
                 or
                 not
                 ,
                 is
                 declared
                 Treason
                 ,
                 Par.
                 1592.
                 cap.
                 146.
                 
                 Landed
                 men
                 committing
                 or
                 resetting
                 Ryot
                 or
                 Robbery
                 ,
                 incurr
                 the
                 pain
                 of
                 Treason
                 .
                 Par.
                 1587.
                 cap.
                 50.
                 
                 And
                 generally
                 ,
                 Resetters
                 ,
                 Maintainers
                 ,
                 and
                 Assisters
                 of
                 declared
                 Traitors
                 ,
                 commit
                 Treason
                 ,
                 Par.
                 1592.
                 cap.
                 144.
                 
                 Accuser
                 of
                 others
                 of
                 Treason
                 ,
                 if
                 the
                 accused
                 be
                 acquit
                 commit
                 Treason
                 ,
                 Par.
                 1587.
                 cap.
                 47.
                 
              
               
                 30.
                 
                 Forefaulture
                 confiscateth
                 the
                 forfaulted
                 persons
                 whole
                 Estate
                 ,
                 without
                 any
                 access
                 to
                 his
                 Creditors
                 ;
                 Yea
                 without
                 consideration
                 of
                 Dispositions
                 Infeftments
                 ,
                 or
                 other
                 Real
                 Rights
                 granted
                 by
                 the
                 Forfaulted
                 Person
                 ,
                 since
                 or
                 before
                 the
                 committing
                 of
                 the
                 Cryme
                 of
                 Treason
                 ,
                 for
                 which
                 he
                 was
                 forfaulted
                 ,
                 which
                 fall
                 and
                 became
                 null
                 ,
                 by
                 Exception
                 ,
                 Hope
                 ,
                 Forfaultur
                 Viscount
                 of
                 Rochester
                 contra
                 Teuents
                 of
                 
                   Callavrock
                   ,
                   July
                
                 14.
                 1610.
                 
                 Campbel
                 contra
                 
                   Lifnories
                   ,
                   Spots
                
                 Conjunctfie
                 ,
                 Crawfoord
                 contra
                 Laird
                 of
                 Murdiestoun
                 ,
                 unless
                 these
                 rights
                 have
                 been
                 confirmed
                 by
                 the
                 King
                 as
                 Superiour
                 ,
                 or
                 Consented
                 to
                 by
                 him
                 .
              
               
               
                 It
                 only
                 remains
                 dubius
                 ,
                 whether
                 Feu
                 Infeftments
                 granted
                 by
                 Forefault
                 Persons
                 ,
                 before
                 committing
                 of
                 the
                 Cryme
                 be
                 also
                 annulted
                 by
                 the
                 〈◊〉
                 .
                 And
                 the
                 Act
                 of
                 Parliament
                 anent
                 Feus
                 ,
                 Par.
                 155.
                 cap.
                 72.
                 
                 Should
                 not
                 only
                 defend
                 them
                 against
                 Recognition
                 ,
                 and
                 the
                 Casualities
                 of
                 Superioritie
                 ,
                 but
                 even
                 against
                 Forfaultur
                 it self
                 ,
                 it
                 being
                 therein
                 declared
                 ,
                 that
                 the
                 King
                 will
                 Ratifie
                 the
                 saids
                 Feus
                 .
                 The
                 like
                 is
                 to
                 be
                 understood
                 of
                 other
                 Superiors
                 .
                 So
                 that
                 though
                 
                   de
                   facto
                
                 they
                 be
                 not
                 confirmed
                 ;
                 Yet
                 the
                 Declaration
                 ,
                 and
                 Obleigment
                 of
                 the
                 Statute
                 standeth
                 as
                 a
                 Confirmation
                 thereof
                 ,
                 or
                 at
                 least
                 as
                 an
                 Obleigment
                 upon
                 all
                 Superiors
                 ,
                 against
                 which
                 ,
                 they
                 nor
                 their
                 Donators
                 cannot
                 come
                 .
                 This
                 is
                 to
                 be
                 understood
                 ,
                 while
                 〈◊〉
                 are
                 allowed
                 by
                 Law
                 ,
                 
                   vide
                   Title
                   Infefints
                
                 34.
                 
                 Sect.
                 
              
               
                 It
                 was
                 so
                 decyded
                 February
                 12.
                 1674.
                 
                 Marques
                 of
                 Huntlie
                 contra
                 
                   Gordon
                   Cairnlorrow
                   ,
                   November
                
                 16.
                 1680.
                 
                 Campbel
                 of
                 
                   Silver
                   craigs
                
                 contra
                 Land
                 of
                 Auchinbreck
                 ,
                 and
                 the
                 Earl
                 of
                 Argyl
                 ,
                 not
                 only
                 because
                 the
                 Act
                 of
                 Payliament
                 ,
                 1587.
                 
                 Imports
                 a
                 Confirmation
                 of
                 Feus
                 granted
                 thereafter
                 ,
                 but
                 also
                 because
                 Forefaulture
                 is
                 by
                 Penal
                 Statute
                 ,
                 and
                 not
                 by
                 the
                 Feudal
                 Right
                 ,
                 like
                 unto
                 Liferent
                 escheat
                 ,
                 which
                 returneth
                 the
                 Fie
                 to
                 the
                 Superiours
                 ,
                 but
                 with
                 the
                 burdens
                 put
                 thereupon
                 by
                 the
                 Vassal
                 ,
                 whether
                 Feu
                 ,
                 blensh
                 Ward
                 ,
                 or
                 by
                 Annualrent
                 or
                 Tack
                 .
                 And
                 therefore
                 when
                 any
                 Person
                 is
                 Forefault
                 ,
                 that
                 is
                 not
                 the
                 Kings
                 immediate
                 Ward
                 Vassal
                 ,
                 his
                 Estate
                 ,
                 both
                 Propertie
                 and
                 Superiority
                 falls
                 to
                 the
                 King
                 ,
                 but
                 with
                 the
                 burden
                 of
                 all
                 Real
                 Rights
                 constitute
                 by
                 the
                 Vassal
                 ;
                 Yet
                 Forefaultur
                 of
                 the
                 Kings
                 immediat
                 Ward
                 Vassal
                 ,
                 proceedeth
                 upon
                 Crimes
                 inferring
                 Recognition
                 :
                 And
                 therefore
                 returns
                 his
                 Ward
                 Lands
                 to
                 the
                 King
                 ,
                 as
                 they
                 came
                 from
                 the
                 King
                 free
                 of
                 all
                 burden
                 .
                 So
                 that
                 the
                 Act
                 of
                 Parliament
                 1457.
                 
                 Which
                 unquestionably
                 secures
                 against
                 Ward
                 ,
                 and
                 Recognition
                 must
                 also
                 secure
                 Feus
                 against
                 the
                 Forefaultur
                 of
                 the
                 Vassal
                 granter
                 of
                 the
                 Feus
                 ,
                 but
                 will
                 not
                 secure
                 any
                 other
                 Subalterne
                 Right
                 ,
                 without
                 the
                 Superiours
                 consent
                 ,
                 as
                 a
                 Blensh
                 Infeftment
                 ,
                 Jan.
                 13.
                 1677.
                 
                 Marques
                 of
                 Huntlie
                 contra
                 Laird
                 of
                 Grant.
                 
              
               
                 32.
                 
                 Tacks
                 also
                 being
                 Necessary
                 and
                 Profitable
                 ,
                 are
                 not
                 excluded
                 by
                 Forfaultur
                 ,
                 
                   Maitland
                   December
                
                 14.
                 1570.
                 
                 Home
                 of
                 Manderstoun
                 contra
                 Tenents
                 of
                 
                   Oldhamstock
                   ,
                   Leslie
                
                 of
                 Wachtcun
                 contra
                 The
                 like
                 as
                 to
                 Tacks
                 for
                 a
                 competent
                 Dutie
                 ,
                 but
                 not
                 in
                 Tacks
                 for
                 
                   grassams
                   ,
                   January
                
                 28.
                 1674.
                 
                 General
                 Dalziel
                 contra
                 Tenents
                 of
                 Caldwall
                 .
              
               
                 33.
                 
                 But
                 by
                 the
                 Act
                 of
                 Par.
                 1644.
                 
                 Forfaultur
                 was
                 declared
                 to
                 be
                 without
                 prejudice
                 to
                 all
                 Persons
                 not
                 accessary
                 to
                 the
                 Cryme
                 of
                 the
                 Superiour
                 of
                 the
                 Rights
                 of
                 Property
                 of
                 any
                 Lands
                 ,
                 Wodset
                 ,
                 or
                 others
                 holden
                 by
                 them
                 ,
                 of
                 the
                 Forefault
                 Person
                 ,
                 or
                 of
                 the
                 payment
                 of
                 their
                 Just
                 Debts
                 ,
                 or
                 relief
                 of
                 their
                 Cautionries
                 our
                 of
                 the
                 Forfaulted
                 Estates
                 ,
                 which
                 is
                 now
                 rescinded
                 by
                 the
                 general
                 Act
                 rescissary
                 ,
                 Par.
                 1661.
                 cap.
                 15.
                 
              
               
                 34.
                 
                 Forefaultur
                 could
                 not
                 be
                 pronunced
                 in
                 absence
                 of
                 the
                 Forefault
                 Person
                 ,
                 by
                 the
                 Justice
                 Gerneral
                 ,
                 but
                 only
                 by
                 the
                 Parliament
                 .
                 So
                 that
                 no
                 Certification
                 of
                 the
                 Justice
                 could
                 reach
                 Lands
                 ,
                 but
                 only
                 Moveables
                 ,
                 So
                 July
                 8.
                 1662.
                 
                 
                   William
                   Yeaman
                
                 contra
                 Mr.
                 
                   Patrick
                   Oliphant
                
                 .
                 Neither
                 could
                 it
                 extend
                 to
                 Heritable
                 Bands
                 ,
                 November
                 31.
                 1671.
                 
                 
                   Anthonie
                   Hag
                
                 contra
                 Moscrop
                 and
                 Rutherfoord
                 :
                 But
                 now
                 the
                 Justices
                 may
                 proceed
                 to
                 Forefault
                 absents
                 ,
                 in
                 case
                 of
                 open
                 Rebellion
                 ,
                 and
                 rysing
                 in
                 Arms
                 ,
                 Par.
                 1669.
                 cap.
                 11.
                 
              
               
                 35.
                 
                 Because
                 of
                 the
                 defficulty
                 the
                 King
                 or
                 his
                 Donatar
                 might
                 have
                 ,
                 in
                 knowing
                 the
                 Rights
                 of
                 Foresaulted
                 Persons
                 ,
                 by
                 Labouring
                 the
                 same
                 with
                 their
                 own
                 Goods
                 ,
                 setting
                 the
                 same
                 to
                 Tenents
                 ,
                 and
                 up-lifting
                 the
                 Mails
                 and
                 Duties
                 ,
                 as
                 
                 their
                 Heritage
                 ,
                 and
                 so
                 being
                 reput
                 Heritable
                 Possessors
                 for
                 the
                 space
                 of
                 five
                 years
                 ,
                 immediately
                 preceeding
                 the
                 process
                 of
                 Forefalture
                 ,
                 the
                 lands
                 so
                 labored
                 ,
                 or
                 possessed
                 pertain
                 to
                 the
                 King
                 ,
                 and
                 his
                 Donatar
                 ,
                 though
                 they
                 can
                 produce
                 no
                 Heritable
                 Right
                 ,
                 or
                 Title
                 thereof
                 in
                 the
                 Forefault
                 Person
                 :
                 For
                 tryal
                 whereof
                 Commssion
                 may
                 be
                 granted
                 under
                 the
                 testimonial
                 of
                 the
                 great
                 Seal
                 ,
                 to
                 such
                 persons
                 as
                 shal
                 be
                 thought
                 fit
                 by
                 the
                 advice
                 of
                 the
                 Secret
                 Council
                 ,
                 to
                 take
                 cognition
                 ,
                 by
                 an
                 Inquest
                 ,
                 what
                 Lands
                 were
                 brooked
                 by
                 the
                 Forefault
                 person
                 ,
                 as
                 Heritable
                 possessor
                 thereof
                 ,
                 so
                 commonly
                 reput
                 and
                 esteemed
                 by
                 the
                 said
                 five
                 years
                 space
                 ,
                 with
                 power
                 to
                 call
                 before
                 them
                 all
                 parties
                 pretending
                 interest
                 ,
                 which
                 being
                 retured
                 to
                 the
                 Chancelarie
                 
                   ad
                   perpetuam
                   Remanentiam
                
                 ,
                 shall
                 be
                 a
                 sufficient
                 Right
                 ,
                 Par.
                 1584.
                 cap.
                 2.
                 
              
               
                 This
                 right
                 was
                 sustained
                 to
                 a
                 Donatar
                 ,
                 though
                 nearest
                 of
                 Kin
                 to
                 the
                 Forefault
                 Person
                 ,
                 and
                 presumeable
                 to
                 have
                 his
                 Right
                 July
                 11.
                 1623.
                 
                 Maxwel
                 contra
                 Westeraw
                 .
                 But
                 here
                 the
                 Donatar
                 was
                 made
                 to
                 depone
                 ,
                 that
                 he
                 had
                 just
                 reason
                 to
                 affirm
                 ,
                 that
                 the
                 Rights
                 were
                 wanting
                 ,
                 Hope
                 possession
                 
                   inter
                   eosdem
                
                 .
                 This
                 right
                 was
                 not
                 elided
                 ,
                 though
                 it
                 was
                 offered
                 to
                 be
                 proven
                 ,
                 that
                 the
                 forefault
                 Persons
                 Right
                 was
                 reduced
                 in
                 
                   foro
                   contradictorio
                
                 upon
                 Recognition
                 before
                 his
                 Forefaulture
                 ,
                 Feb.
                 20.
                 1611.
                 
                 Hairstons
                 contra
                 Ramebel
                 .
                 So
                 the
                 said
                 5.
                 years
                 possession
                 being
                 repute
                 ,
                 Heritable
                 possessor
                 infers
                 
                   presumptionem
                   juris
                   &
                   de
                   Jure
                
                 ,
                 of
                 the
                 forefaulted
                 persons
                 Right
                 ,
                 which
                 admits
                 no
                 contrary
                 probation
                 ,
                 As
                 to
                 the
                 forefaulted
                 persons
                 Right
                 ,
                 if
                 the
                 Quinquennial
                 ,
                 Peaceable
                 and
                 Lawful
                 Possession
                 be
                 proven
                 :
                 But
                 the
                 probation
                 thereof
                 by
                 Inquest
                 ,
                 will
                 not
                 exclude
                 a
                 contrary
                 probation
                 ,
                 by
                 Reduction
                 ,
                 of
                 the
                 possession
                 of
                 others
                 ,
                 within
                 the
                 5.
                 years
                 :
                 And
                 if
                 the
                 possession
                 be
                 not
                 Lawful
                 and
                 Peaceable
                 ,
                 but
                 interrupted
                 ,
                 or
                 Vitious
                 ,
                 the
                 Statute
                 takes
                 no
                 place
                 ,
                 for
                 by
                 possession
                 ,
                 Lawful
                 peaceable
                 possession
                 of
                 the
                 forefaulted
                 Persons
                 must
                 be
                 understood
                 :
                 And
                 if
                 any
                 person
                 have
                 moved
                 Action
                 within
                 the
                 5.
                 years
                 ,
                 for
                 taking
                 away
                 the
                 Rebels
                 right
                 and
                 possession
                 ,
                 they
                 will
                 be
                 heard
                 after
                 the
                 forefaulture
                 ,
                 as
                 before
                 ;
                 Yea
                 ,
                 Citation
                 before
                 the
                 5.
                 years
                 ,
                 and
                 Inhibition
                 in
                 the
                 5.
                 years
                 ,
                 with
                 a
                 subsequent
                 Security
                 ,
                 was
                 found
                 sufficient
                 to
                 take
                 off
                 the
                 benifite
                 of
                 this
                 
                   Act
                   ,
                   July
                
                 23.
                 1666.
                 
                 Earl
                 of
                 Southesk
                 contra
                 Marques
                 of
                 Huntlie
                 .
                 This
                 priviledge
                 is
                 not
                 competent
                 by
                 Exception
                 ,
                 or
                 Reply
                 ,
                 offering
                 to
                 prove
                 5.
                 years
                 possession
                 ,
                 but
                 by
                 a
                 reture
                 upon
                 a
                 Commission
                 served
                 by
                 an
                 Inquest
                 ,
                 July
                 13.
                 1666.
                 
                 Sr.
                 
                   Henrie
                   Hoom
                
                 contra
                 Sr.
                 
                   Alexander
                   Hoom.
                
                 In
                 this
                 Statute
                 ,
                 it
                 is
                 also
                 provided
                 ,
                 that
                 where
                 there
                 were
                 Tacks
                 ,
                 or
                 possessions
                 of
                 Lands
                 ,
                 or
                 Teinds
                 possessed
                 by
                 the
                 forefault
                 Person
                 ,
                 in
                 respect
                 that
                 the
                 rights
                 thereof
                 might
                 also
                 be
                 abstracted
                 ,
                 that
                 the
                 King
                 and
                 his
                 Donatar
                 should
                 continue
                 in
                 that
                 same
                 possession
                 for
                 sive
                 years
                 ,
                 without
                 any
                 accompt
                 for
                 the
                 profits
                 thereof
                 ,
                 and
                 longer
                 ,
                 if
                 a
                 Right
                 be
                 instructed
                 of
                 the
                 forefault
                 person
                 :
                 And
                 if
                 a
                 Fewer
                 be
                 forefault
                 ,
                 the
                 Land
                 is
                 not
                 lyable
                 for
                 the
                 Feu
                 dutie
                 ,
                 preceeding
                 the
                 Forefaulture
                 ,
                 because
                 the
                 discharges
                 thereof
                 might
                 have
                 been
                 abstracted
                 ,
                 Possession
                 for
                 feuer
                 then
                 5.
                 years
                 ,
                 by
                 the
                 Forefaulted
                 person
                 ,
                 was
                 found
                 sufficient
                 to
                 continue
                 for
                 5
                 years
                 ,
                 though
                 no
                 Tack
                 was
                 instructed
                 ,
                 Jannuary
                 24.
                 1667.
                 
                 Sr.
                 
                   Henrie
                   Hoom
                
                 contra
                 Sr.
                 
                   Alexander
                   Hoom.
                
                 
              
               
                 36.
                 
                 It
                 is
                 also
                 declared
                 in
                 this
                 Statute
                 ,
                 that
                 the
                 Forefaultur
                 of
                 the
                 appearand
                 Heir
                 ,
                 carries
                 therewith
                 the
                 right
                 of
                 the
                 Lands
                 ,
                 to
                 which
                 he
                 might
                 succeed
                 ,
                 though
                 he
                 were
                 never
                 entred
                 Heir
                 ,
                 nor
                 Infeft
                 ,
                 whereof
                 Craig
                 mentions
                 a
                 case
                 ,
                 Lib.
                 2.
                 
                 Dieg.
                 8.
                 
                 That
                 the
                 Daughters
                 of
                 the
                 Laird
                 of
                 Laisindrum
                 were
                 excluded
                 from
                 their
                 Succession
                 to
                 their
                 Goodsir
                 ,
                 because
                 their
                 Father
                 was
                 forefault
                 ,
                 though
                 he
                 was
                 never
                 received
                 ,
                 nor
                 infeft
                 in
                 these
                 Lands
                 .
              
               
               
                 37.
                 
                 Craig
                 ,
                 in
                 the
                 forecited
                 place
                 moveth
                 ,
                 but
                 determineth
                 not
                 this
                 question
                 ,
                 whether
                 the
                 Forefaulture
                 inserreth
                 a
                 Corruption
                 of
                 the
                 Blood
                 ,
                 of
                 all
                 the
                 Descendents
                 of
                 the
                 Forefault
                 Persons
                 ,
                 whereby
                 ,
                 till
                 they
                 be
                 restored
                 ,
                 they
                 are
                 incapable
                 of
                 any
                 Succession
                 ,
                 though
                 descending
                 to
                 them
                 by
                 the
                 
                   Maternal
                   Lyne
                
                 .
                 This
                 Corruption
                 of
                 the
                 Blood
                 is
                 frequently
                 in
                 Fngland
                 ,
                 where
                 persons
                 are
                 specially
                 attainted
                 and
                 convict
                 of
                 Treason
                 :
                 And
                 sometimes
                 with
                 us
                 ,
                 it
                 is
                 called
                 dishabilitation
                 ,
                 and
                 is
                 a
                 part
                 of
                 the
                 Doom
                 or
                 Sentence
                 ,
                 that
                 the
                 Successors
                 of
                 the
                 Person
                 convict
                 ,
                 shall
                 be
                 incapable
                 of
                 Lands
                 ,
                 Estate
                 ,
                 Honour
                 or
                 Office
                 ;
                 Yea
                 ,
                 then
                 Fame
                 ,
                 and
                 Memorie
                 ,
                 is
                 sometimes
                 condemned
                 ,
                 and
                 their
                 Surname
                 abolished
                 ,
                 as
                 was
                 done
                 in
                 the
                 Forefalture
                 of
                 the
                 Earl
                 of
                 Gourie
                 :
                 But
                 it
                 is
                 not
                 consonant
                 to
                 our
                 Customs
                 ,
                 that
                 Forefaulture
                 in
                 other
                 cases
                 should
                 infer
                 this
                 Corruption
                 of
                 Blood
                 ;
                 First
                 ,
                 because
                 of
                 the
                 Multiplication
                 of
                 cases
                 ,
                 to
                 which
                 Forefaulture
                 is
                 now
                 extended
                 ,
                 as
                 to
                 Thest
                 on
                 〈◊〉
                 men
                 ,
                 and
                 false
                 Coyn.
                 2.
                 
                 If
                 none
                 of
                 the
                 Descendents
                 of
                 〈◊〉
                 persons
                 were
                 Capable
                 of
                 Succession
                 to
                 any
                 person
                 ,
                 that
                 could
                 not
                 be
                 ,
                 by
                 reason
                 of
                 any
                 speciality
                 in
                 the
                 matter
                 of
                 Succession
                 ,
                 but
                 of
                 something
                 in
                 their
                 person
                 ,
                 by
                 reason
                 of
                 the
                 Forefaulture
                 ,
                 excluding
                 them
                 thence
                 ,
                 which
                 would
                 not
                 only
                 take
                 place
                 in
                 Heritage
                 ,
                 but
                 in
                 Moveables
                 ;
                 Yea
                 ,
                 the
                 Oye
                 ,
                 or
                 farther
                 Off-spring
                 of
                 the
                 Forefaulted
                 person
                 could
                 not
                 succeed
                 to
                 their
                 ownimmediat
                 Parents
                 ,
                 which
                 would
                 inferr
                 ,
                 that
                 they
                 could
                 be
                 capable
                 of
                 no
                 Goods
                 ,
                 or
                 Means
                 ,
                 but
                 the
                 same
                 would
                 be
                 instantly
                 Confiscat
                 .
                 3.
                 
                 Though
                 Forefaultures
                 in
                 Scotland
                 have
                 been
                 very
                 frequent
                 ,
                 the
                 off-pring
                 of
                 such
                 have
                 ordinarily
                 acquired
                 Lands
                 ,
                 and
                 Goods
                 ,
                 and
                 their
                 Children
                 Succeeded
                 them
                 therein
                 ,
                 without
                 obtaining
                 Restitution
                 of
                 their
                 Blood
                 :
                 So
                 that
                 this
                 Corruption
                 of
                 the
                 Blood
                 is
                 rather
                 to
                 be
                 thought
                 a
                 Speciality
                 ,
                 in
                 some
                 
                   Attrocious
                   Treasons
                
                 by
                 the
                 tenor
                 of
                 the
                 Doom
                 of
                 Forefaulture
                 ,
                 then
                 a
                 general
                 consequence
                 thereof
                 .
              
               
                 38.
                 
                 But
                 whereas
                 it
                 hath
                 been
                 said
                 ,
                 that
                 the
                 appearand
                 Heir
                 being
                 Forefaulted
                 ,
                 the
                 King
                 hath
                 right
                 to
                 the
                 Heritage
                 ,
                 to
                 which
                 he
                 might
                 succeed
                 ;
                 It
                 may
                 be
                 Questioned
                 ,
                 whether
                 that
                 my
                 be
                 extended
                 to
                 the
                 appearand
                 Heir
                 ,
                 if
                 he
                 be
                 Forefaulted
                 ,
                 during
                 his
                 Predicessors
                 Life
                 :
                 Or
                 if
                 it
                 be
                 only
                 in
                 the
                 case
                 ,
                 that
                 the
                 Heir
                 apparent
                 is
                 forefaulted
                 ,
                 after
                 the
                 death
                 of
                 his
                 Predecessor
                 .
                 Where
                 
                   de
                   presenti
                
                 ,
                 he
                 may
                 be
                 Heir
                 ,
                 there
                 is
                 no
                 doubt
                 ,
                 if
                 the
                 person
                 forefaulted
                 should
                 be
                 fugitive
                 ,
                 and
                 survive
                 his
                 Predecessor
                 :
                 But
                 the
                 Heritage
                 accresing
                 to
                 him
                 ,
                 wherein
                 he
                 might
                 
                   de
                   presenti
                
                 infeft
                 ,
                 would
                 fall
                 under
                 forefaulture
                 ,
                 though
                 he
                 were
                 not
                 actually
                 infeft
                 ;
                 And
                 it
                 seems
                 no
                 less
                 clear
                 ,
                 that
                 being
                 forefaulted
                 ,
                 if
                 he
                 should
                 die
                 before
                 his
                 Predecessor
                 ,
                 that
                 his
                 brother
                 ,
                 or
                 Collaterals
                 might
                 succeed
                 to
                 their
                 Father
                 ,
                 or
                 any
                 other
                 to
                 whom
                 the
                 forefaulted
                 person
                 ,
                 if
                 he
                 had
                 survived
                 them
                 ,
                 would
                 have
                 succeeded
                 .
                 It
                 is
                 more
                 doubtfull
                 ,
                 whether
                 his
                 descendents
                 could
                 ,
                 if
                 any
                 were
                 ,
                 for
                 these
                 would
                 Exclude
                 the
                 Collateralls
                 :
                 And
                 there
                 seems
                 no
                 reason
                 to
                 exclude
                 them
                 from
                 their
                 Grandfathers
                 Heritage
                 ,
                 not
                 being
                 dishabilitat
                 :
                 And
                 seing
                 I
                 have
                 not
                 found
                 it
                 extended
                 further
                 ,
                 I
                 conceive
                 it
                 more
                 favourable
                 ,
                 that
                 the
                 Heir
                 appearand
                 dieing
                 before
                 his
                 Predecessor
                 ,
                 should
                 not
                 hinder
                 his
                 Descendents
                 to
                 succeed
                 to
                 that
                 predecessor
                 :
                 But
                 unless
                 the
                 forefaulture
                 did
                 incapacitat
                 the
                 Predecessor
                 ,
                 to
                 dispose
                 upon
                 his
                 own
                 estate
                 ,
                 the
                 forefaulture
                 in
                 that
                 case
                 ,
                 would
                 be
                 improfitable
                 ;
                 Yet
                 seing
                 we
                 have
                 no
                 complaints
                 of
                 exhaeredatione
                 in
                 Scotland
                 :
                 But
                 that
                 Parents
                 may
                 freely
                 dispose
                 of
                 their
                 Estates
                 at
                 their
                 pleasure
                 ,
                 it
                 would
                 be
                 hard
                 ,
                 to
                 bind
                 up
                 the
                 Parent
                 more
                 in
                 Relation
                 to
                 the
                 Fisk
                 ,
                 then
                 tohis
                 own
                 Child
                 ,
                 unless
                 fraud
                 to
                 prevent
                 the
                 effect
                 of
                 the
                 forefaulture
                 without
                 a
                 rationall
                 cause
                 do
                 appear
                 .
              
               
               
                 39.
                 
                 For
                 the
                 further
                 Security
                 of
                 the
                 King
                 and
                 his
                 Denatar
                 ,
                 it
                 is
                 provyded
                 ,
                 Par.
                 1594.
                 cap.
                 202.
                 
                 That
                 no
                 Letter
                 of
                 Pension
                 ,
                 Factory
                 ,
                 Band
                 or
                 Assignation
                 ,
                 granted
                 by
                 any
                 forefault
                 person
                 ,
                 shall
                 be
                 valid
                 ,
                 unless
                 it
                 be
                 confirmed
                 by
                 the
                 King
                 ,
                 or
                 authorized
                 by
                 Decreet
                 of
                 an
                 ordinary
                 Judge
                 ,
                 obtained
                 before
                 citation
                 in
                 the
                 Process
                 of
                 Forefaulture
                 ,
                 which
                 seems
                 to
                 insinuate
                 ,
                 that
                 Creditors
                 should
                 be
                 satisfied
                 out
                 of
                 the
                 forefault
                 Estate
                 ,
                 but
                 it
                 will
                 reach
                 no
                 further
                 then
                 the
                 Moveables
                 fallen
                 by
                 forefaultnre
                 ,
                 which
                 seems
                 to
                 be
                 affected
                 in
                 the
                 same
                 way
                 ,
                 as
                 falling
                 by
                 Single-escheat
                 ,
                 the
                 full
                 Dominion
                 in
                 both
                 being
                 the
                 Kings
                 ,
                 but
                 with
                 the
                 burden
                 of
                 admitting
                 the
                 diligence
                 of
                 Lawful
                 Creditors
                 before
                 Declarator
                 ,
                 but
                 I
                 have
                 not
                 observed
                 this
                 practiced
                 ,
                 in
                 moveables
                 of
                 forefault
                 persons
                 .
                 The
                 reason
                 of
                 this
                 Statute
                 appeareth
                 by
                 the
                 Act
                 immediately
                 preceeding
                 ,
                 whereby
                 a
                 former
                 Act
                 of
                 Parliament
                 in
                 favours
                 of
                 the
                 Vassal
                 of
                 forefault
                 persons
                 is
                 resoinded
                 ,
                 and
                 appointed
                 to
                 be
                 delet
                 out
                 of
                 the
                 Books
                 of
                 Parliament
                 ,
                 which
                 rescinded
                 Act
                 ,
                 though
                 it
                 be
                 not
                 Extant
                 ,
                 but
                 delet
                 as
                 aforesaid
                 hath
                 affected
                 forefault
                 Estates
                 ,
                 with
                 the
                 debts
                 of
                 the
                 forefault
                 person
                 ,
                 and
                 with
                 the
                 subaltern
                 Infeftments
                 ,
                 granted
                 by
                 forefault
                 persons
                 not
                 confirmed
                 :
                 And
                 therefore
                 such
                 Rights
                 being
                 Constitute
                 by
                 a
                 Law
                 then
                 standing
                 ,
                 could
                 not
                 be
                 derogat
                 by
                 a
                 subsequent
                 Law
                 :
                 And
                 therefore
                 it
                 was
                 〈◊〉
                 to
                 Caution
                 ,
                 by
                 the
                 foresaid
                 Act
                 202.
                 
                 That
                 Simulat
                 or
                 antedated
                 Rights
                 ,
                 might
                 not
                 affect
                 Estates
                 Forefaulted
                 ,
                 before
                 the
                 said
                 rescissory
                 Act.
                 
              
               
                 40.
                 
                 Sentence
                 of
                 Forefaulture
                 being
                 pronunced
                 ,
                 is
                 declared
                 Irreducible
                 ,
                 upon
                 any
                 nullitie
                 in
                 the
                 process
                 ,
                 upon
                 which
                 it
                 proceeded
                 ,
                 till
                 the
                 〈◊〉
                 be
                 remitted
                 by
                 the
                 King
                 ,
                 or
                 the
                 partie
                 tryed
                 and
                 acquite
                 thereof
                 :
                 But
                 restitution
                 shall
                 only
                 be
                 granted
                 by
                 way
                 of
                 Grace
                 ,
                 to
                 the
                 parties
                 forefaulted
                 ,
                 or
                 their
                 Posteritie
                 ,
                 Par.
                 1584.
                 cap.
                 135.
                 
                 Which
                 was
                 not
                 found
                 to
                 extend
                 to
                 Dishabilitation
                 of
                 the
                 Son
                 of
                 the
                 Forefaulted
                 person
                 ,
                 but
                 that
                 it
                 might
                 by
                 Act
                 of
                 Parliament
                 be
                 taken
                 off
                 ,
                 without
                 Citation
                 of
                 any
                 partie
                 ,
                 who
                 had
                 acquired
                 Right
                 upon
                 the
                 Dishabilitation
                 from
                 the
                 Donatar
                 ,
                 which
                 fell
                 in
                 consequence
                 ,
                 February
                 24.
                 1665.
                 
                 Dam
                 
                   Elizabeth
                   Douglas
                
                 ,
                 and
                 Sr.
                 
                   Robert
                   Sinclair
                
                 contra
                 Laird
                 of
                 Wedderburn
                 .
              
               
                 41.
                 
                 The
                 Doom
                 or
                 Decreet
                 of
                 Forefaulture
                 ,
                 when
                 past
                 in
                 Parliament
                 ,
                 gives
                 immediat
                 access
                 to
                 the
                 Mails
                 ,
                 and
                 Duties
                 of
                 the
                 Estate
                 possest
                 by
                 the
                 Forefault
                 person
                 ,
                 and
                 needs
                 no
                 Declaratar
                 ,
                 because
                 it
                 is
                 a
                 Decreet
                 of
                 Parliament
                 ,
                 and
                 hath
                 the
                 like
                 effect
                 as
                 Ward
                 ,
                 which
                 requireth
                 no
                 Declarator
                 ,
                 Jan.
                 6.
                 1681.
                 
                 
                   George
                   Hoom
                
                 contra
                 Mr.
                 
                   Patrick
                   Hoom.
                
                 The
                 like
                 though
                 the
                 Doom
                 of
                 Forefaulture
                 was
                 by
                 the
                 Justices
                 in
                 absence
                 .
                 seing
                 it
                 was
                 ratified
                 in
                 Parliament
                 ,
                 not
                 by
                 a
                 Ratification
                 passing
                 of
                 Course
                 ,
                 but
                 by
                 a
                 publick
                 Law
                 ,
                 ratifieing
                 that
                 Forefaultnre
                 by
                 the
                 Justices
                 ,
                 as
                 if
                 it
                 had
                 been
                 done
                 in
                 Parliament
                 :
                 And
                 all
                 such
                 Forefaultures
                 by
                 the
                 Justices
                 ,
                 being
                 for
                 open
                 Rebellion
                 ,
                 and
                 rysing
                 in
                 Arms
                 against
                 the
                 King
                 ,
                 December
                 15.
                 1680.
                 
                 Gordon
                 of
                 Troquhen
                 contra
                 a
                 Wodsetter
                 of
                 Barscow
                 .
              
               
                 42.
                 
                 Bastardrie
                 and
                 last
                 Heir
                 makes
                 things
                 befall
                 to
                 the
                 Fisk
                 ,
                 as
                 caduciary
                 ,
                 because
                 such
                 things
                 can
                 be
                 Lawfully
                 Claimed
                 by
                 none
                 .
                 And
                 therefore
                 are
                 applyed
                 to
                 the
                 Fisk.
                 
              
               
                 Ere
                 we
                 can
                 conceive
                 the
                 effects
                 of
                 Bastardrie
                 ,
                 we
                 must
                 understand
                 the
                 efficient
                 that
                 makes
                 a
                 Bastard
                 ,
                 which
                 being
                 Relative
                 and
                 Defective
                 ,
                 is
                 best
                 taken
                 up
                 by
                 the
                 opposite
                 ,
                 viz.
                 A
                 lawful
                 Child
                 begotten
                 of
                 persons
                 lawfully
                 Married
                 :
                 So
                 then
                 a
                 Bastard
                 is
                 a
                 Child
                 ,
                 whose
                 Parents
                 werenot
                 lawfully
                 Married
                 ;
                 And
                 therefore
                 such
                 are
                 Bastards
                 ,
                 First
                 ,
                 Whose
                 Parents
                 were
                 not
                 
                 at
                 all
                 Married
                 .
                 2.
                 
                 These
                 whose
                 parents
                 were
                 Married
                 ,
                 yet
                 were
                 not
                 in
                 degrees
                 capable
                 of
                 Marriage
                 ,
                 3.
                 
                 These
                 who
                 were
                 Married
                 ,
                 and
                 in
                 capable
                 degrees
                 ,
                 yet
                 the
                 Marriage
                 was
                 inconsistent
                 ,
                 because
                 of
                 some
                 impediment
                 ,
                 as
                 if
                 either
                 party
                 were
                 Married
                 before
                 ,
                 and
                 the
                 other
                 Spouse
                 on
                 life
                 ,
                 whether
                 that
                 were
                 Solemnly
                 ,
                 or
                 Privately
                 ,
                 by
                 promise
                 of
                 Marriage
                 ,
                 and
                 Copulation
                 following
                 ,
                 in
                 which
                 last
                 case
                 ,
                 if
                 the
                 impediment
                 be
                 Secret
                 ,
                 and
                 not
                 known
                 to
                 both
                 parties
                 ,
                 Craig
                 observeth
                 as
                 his
                 own
                 opinion
                 ,
                 and
                 the
                 opinion
                 of
                 the
                 〈◊〉
                 ,
                 that
                 the
                 said
                 impediment
                 ,
                 though
                 it
                 be
                 sufficient
                 to
                 anull
                 the
                 Marriage
                 ,
                 yet
                 not
                 to
                 take
                 away
                 the
                 Legitimation
                 of
                 the
                 Children
                 ,
                 procreat
                 
                   bona
                   fide
                
                 by
                 any
                 of
                 the
                 parties
                 ,
                 before
                 knowledge
                 of
                 that
                 impediment
                 .
              
               
                 But
                 ,
                 because
                 ,
                 who
                 are
                 the
                 Parents
                 ,
                 is
                 sometimes
                 dubious
                 ,
                 procreation
                 being
                 Secret
                 both
                 in
                 the
                 Act
                 and
                 Effect
                 :
                 For
                 clearing
                 thereof
                 ,
                 it
                 is
                 the
                 common
                 rule
                 in
                 the
                 Civil
                 Law.
                 And
                 with
                 us
                 ,
                 
                   Pater
                   est
                   quem
                   justae
                   Nuptiae
                   demonstrant
                   L.
                
                 5.
                 
                 
                   F.
                   de
                   in
                   jus
                   vocando
                
                 .
                 So
                 he
                 is
                 presumed
                 to
                 be
                 the
                 Father
                 ,
                 who
                 the
                 time
                 that
                 the
                 Conception
                 might
                 be
                 ,
                 was
                 Married
                 to
                 the
                 Mother
                 ;
                 But
                 in
                 this
                 case
                 ,
                 Lawful
                 Marriage
                 is
                 not
                 opposed
                 to
                 Clandestine
                 ,
                 or
                 Irregular
                 Marriage
                 ,
                 as
                 not
                 being
                 after
                 Proclamation
                 in
                 the
                 Church
                 ,
                 or
                 by
                 a
                 person
                 having
                 power
                 to
                 Marry
                 by
                 the
                 Canons
                 of
                 the
                 Church
                 ,
                 or
                 Statutes
                 of
                 the
                 Countrie
                 :
                 But
                 that
                 is
                 only
                 understood
                 ,
                 as
                 unlawful
                 Marriage
                 in
                 this
                 case
                 ,
                 which
                 materially
                 is
                 unjust
                 and
                 inconsistent
                 ,
                 where
                 Marriage
                 could
                 not
                 have
                 subsisted
                 ,
                 albeit
                 it
                 had
                 been
                 orderly
                 performed
                 ,
                 as
                 being
                 by
                 persons
                 in
                 degrees
                 prohibited
                 ,
                 by
                 Divine
                 Law
                 ,
                 or
                 where
                 either
                 partie
                 had
                 another
                 lawful
                 Spouse
                 then
                 living
                 ,
                 and
                 undivorced
                 :
                 Yea
                 ,
                 Marriage
                 betwixt
                 the
                 adulterer
                 and
                 the
                 adulteress
                 ,
                 after
                 dis
                 solution
                 of
                 the
                 former
                 Marriage
                 doth
                 not
                 inferr
                 Bastardrie
                 of
                 the
                 Children
                 of
                 the
                 subsequent
                 Marriage
                 ,
                 though
                 it
                 may
                 debarr
                 them
                 from
                 Succession
                 .
                 The
                 presumption
                 ,
                 that
                 the
                 Children
                 born
                 in
                 Marriage
                 are
                 the
                 Husbands
                 ,
                 requires
                 such
                 time
                 as
                 they
                 might
                 have
                 been
                 lawfully
                 procreat
                 ,
                 when
                 both
                 parties
                 were
                 free
                 ,
                 and
                 unmarried
                 ,
                 which
                 if
                 it
                 was
                 9
                 moneths
                 before
                 the
                 birth
                 ,
                 it
                 is
                 sufficient
                 ,
                 but
                 if
                 less
                 ,
                 the
                 presumption
                 will
                 not
                 suffice
                 ;
                 Unless
                 it
                 appear
                 the
                 Child
                 was
                 unrype
                 ,
                 and
                 born
                 before
                 the
                 time
                 ,
                 otherwise
                 the
                 Child
                 will
                 be
                 presumed
                 to
                 be
                 the
                 former
                 Husbands
                 .
                 This
                 is
                 
                   presumptio
                   juris
                
                 ,
                 and
                 admits
                 contrary
                 probation
                 .
                 As
                 first
                 ,
                 if
                 the
                 Father
                 were
                 absent
                 ,
                 or
                 impotent
                 ,
                 the
                 time
                 that
                 the
                 conception
                 could
                 be
                 ,
                 which
                 absence
                 is
                 not
                 necessarily
                 beyond
                 Sea
                 ,
                 as
                 the
                 English
                 require
                 the
                 fathers
                 absence
                 :
                 And
                 therefore
                 ,
                 if
                 he
                 be
                 within
                 the
                 four
                 Seas
                 during
                 the
                 time
                 the
                 birth
                 is
                 in
                 the
                 Womb
                 ,
                 this
                 presumption
                 prevaileth
                 against
                 his
                 absence
                 with
                 them
                 :
                 But
                 with
                 us
                 it
                 will
                 be
                 sufficient
                 ,
                 that
                 his
                 absence
                 be
                 special
                 ,
                 and
                 circumstantiat
                 ,
                 that
                 there
                 remaineth
                 no
                 doubt
                 ,
                 that
                 he
                 could
                 not
                 have
                 been
                 present
                 .
                 As
                 if
                 the
                 Father
                 were
                 in
                 prison
                 ,
                 or
                 at
                 very
                 great
                 distance
                 :
                 So
                 that
                 a
                 short
                 time
                 might
                 not
                 suffice
                 him
                 to
                 be
                 present
                 .
                 This
                 presumption
                 will
                 also
                 be
                 taken
                 off
                 ,
                 by
                 the
                 Testimony
                 of
                 both
                 Parents
                 agreeing
                 ,
                 that
                 the
                 Child
                 belongs
                 to
                 another
                 Father
                 ,
                 and
                 so
                 is
                 a
                 Bastard
                 :
                 But
                 the
                 Testimonie
                 of
                 either
                 of
                 them
                 will
                 not
                 suffice
                 ,
                 as
                 Craig
                 relates
                 ,
                 of
                 a
                 Lady
                 ,
                 that
                 having
                 controversie
                 with
                 her
                 Son
                 ,
                 she
                 was
                 accustomed
                 to
                 consesse
                 that
                 he
                 was
                 a
                 Bastard
                 :
                 And
                 of
                 a
                 Queen
                 ,
                 related
                 by
                 the
                 Doctors
                 ,
                 whose
                 name
                 they
                 forbear
                 ,
                 Who
                 ,
                 at
                 the
                 time
                 of
                 her
                 death
                 ,
                 declared
                 to
                 her
                 Son
                 ,
                 that
                 he
                 was
                 not
                 the
                 Kings
                 Son
                 ,
                 yet
                 he
                 was
                 received
                 as
                 King
                 ,
                 in
                 his
                 Fathers
                 place
                 .
                 It
                 hath
                 been
                 more
                 frequently
                 seen
                 ,
                 that
                 the
                 Father
                 hath
                 disowned
                 the
                 Child
                 born
                 of
                 his
                 Wife
                 ,
                 which
                 though
                 it
                 might
                 inferr
                 suspicion
                 and
                 reproach
                 ,
                 yet
                 not
                 Bastardrie
                 ,
                 unless
                 the
                 Mother
                 also
                 of
                 consent
                 ,
                 or
                 by
                 process
                 were
                 made
                 to
                 acknowledge
                 it
                 .
                 It
                 will
                 not
                 be
                 sufficient
                 to
                 eleid
                 the
                 foresaid
                 presumption
                 ,
                 though
                 the
                 Wifes
                 adulterie
                 should
                 be
                 proven
                 ;
                 Yea
                 ,
                 though
                 at
                 a
                 time
                 answering
                 to
                 
                 the
                 time
                 of
                 conception
                 ,
                 though
                 it
                 hath
                 an
                 ordinary
                 course
                 of
                 9
                 moneths
                 ,
                 yet
                 hath
                 had
                 such
                 variations
                 ,
                 that
                 the
                 Child
                 hath
                 been
                 accompted
                 belonging
                 to
                 the
                 Father
                 ,
                 by
                 reason
                 of
                 the
                 Marriag
                 ,
                 though
                 it
                 preceeded
                 the
                 Birth
                 of
                 the
                 Child
                 ,
                 only
                 by
                 the
                 space
                 of
                 8
                 ,
                 7
                 ,
                 or
                 the
                 beginning
                 of
                 6.
                 moneths
                 ;
                 Especially
                 if
                 by
                 the
                 judgement
                 of
                 
                   Phisicians
                   immaturity
                
                 of
                 the
                 Child
                 concurred
                 ;
                 Yea
                 ,
                 this
                 presumption
                 will
                 atribute
                 the
                 Child
                 to
                 the
                 Father
                 ,
                 though
                 the
                 Child
                 be
                 born
                 9
                 10
                 ,
                 or
                 11.
                 moneths
                 after
                 the
                 Fathers
                 Death
                 :
                 But
                 in
                 these
                 cases
                 ,
                 the
                 Probability
                 of
                 the
                 circumstances
                 may
                 make
                 the
                 Mothers
                 Testimony
                 alone
                 sufficient
                 to
                 instruct
                 the
                 Bastardie
                 of
                 the
                 Child
                 :
                 Neither
                 is
                 Marriage
                 here
                 accompted
                 ,
                 by
                 the
                 Solemnization
                 thereof
                 in
                 the
                 Church
                 ,
                 which
                 in
                 some
                 places
                 is
                 ordinarily
                 without
                 that
                 ,
                 and
                 though
                 with
                 us
                 ,
                 it
                 be
                 a
                 requisit
                 solemnity
                 ,
                 yet
                 it
                 is
                 not
                 of
                 the
                 being
                 of
                 Marriage
                 .
                 And
                 therefore
                 ,
                 Cohabitation
                 ,
                 as
                 Man
                 and
                 Wife
                 supplyeth
                 the
                 Solemnity
                 of
                 publick
                 Marriage
                 ,
                 which
                 being
                 a
                 〈◊〉
                 Act
                 ,
                 and
                 having
                 no
                 record
                 ,
                 could
                 seldom
                 be
                 proven
                 ;
                 Yea
                 ,
                 though
                 it
                 could
                 be
                 proven
                 by
                 the
                 Oath
                 of
                 both
                 parties
                 ,
                 or
                 otherwise
                 that
                 there
                 was
                 never
                 a
                 formal
                 Marriage
                 ,
                 if
                 the
                 parties
                 were
                 capable
                 of
                 Marriage
                 ,
                 Cohabitation
                 would
                 supplie
                 ,
                 for
                 after
                 Contract
                 ,
                 or
                 Promises
                 of
                 Marriage
                 ,
                 or
                 Sponsalia
                 ,
                 if
                 copulation
                 follow
                 there
                 is
                 thence
                 presumed
                 a
                 Matrimonial
                 Consent
                 
                   de
                   presenti
                
                 ,
                 which
                 therefore
                 ,
                 cannot
                 be
                 past
                 from
                 by
                 either
                 ,
                 or
                 both
                 parties
                 ,
                 as
                 having
                 the
                 essential
                 requisits
                 of
                 Marriage
                 If
                 diligence
                 be
                 used
                 for
                 performing
                 that
                 Solemnity
                 ,
                 though
                 it
                 take
                 no
                 effect
                 ,
                 the
                 Contract
                 of
                 Marriage
                 will
                 make
                 the
                 Child
                 lawful
                 ,
                 as
                 when
                 ,
                 in
                 the
                 time
                 of
                 the
                 Proclamation
                 thereof
                 ,
                 the
                 one
                 partie
                 died
                 ,
                 whereof
                 Craig
                 relateth
                 a
                 case
                 :
                 Yea
                 ,
                 in
                 the
                 case
                 of
                 
                   Edward
                   Younger
                
                 there
                 mentioned
                 ,
                 who
                 having
                 begotten
                 Children
                 under
                 promise
                 of
                 Marriage
                 ,
                 but
                 refusing
                 to
                 acknowledge
                 ,
                 or
                 perform
                 it
                 ,
                 the
                 Woman
                 having
                 obtained
                 Sentence
                 of
                 the
                 Commissars
                 (
                 who
                 are
                 Judges
                 of
                 Matrimony
                 and
                 Legitimation
                 )
                 against
                 the
                 said
                 Edward
                 ,
                 for
                 Solemnizing
                 the
                 Marriage
                 ,
                 which
                 though
                 he
                 obeyed
                 not
                 ,
                 the
                 Children
                 were
                 accompted
                 Lawful
                 ,
                 and
                 capable
                 of
                 Succession
                 .
              
               
                 Marriage
                 ,
                 as
                 is
                 before
                 shown
                 ,
                 Title
                 
                   conjugal
                   Obligations
                
                 ,
                 is
                 proven
                 by
                 Cohabitation
                 of
                 the
                 Father
                 and
                 Mother
                 as
                 married
                 persons
                 ,
                 which
                 was
                 sustained
                 upon
                 10.
                 years
                 Cohabitation
                 ,
                 as
                 Man
                 and
                 Wife
                 ,
                 though
                 it
                 was
                 offered
                 to
                 be
                 proven
                 the
                 Child
                 was
                 reput
                 Bastard
                 ,
                 July
                 7.
                 1626.
                 
                 Somervail
                 contra
                 Haltro
                 .
                 And
                 there
                 being
                 a
                 mutual
                 probation
                 ,
                 whether
                 a
                 Defunct
                 was
                 lawful
                 ,
                 or
                 a
                 Bastard
                 ,
                 and
                 six
                 Witnesses
                 being
                 examined
                 on
                 either
                 side
                 ,
                 though
                 several
                 of
                 the
                 Witnesses
                 on
                 the
                 one
                 side
                 proved
                 ,
                 that
                 the
                 Defunct
                 was
                 reput
                 Bastard
                 ,
                 and
                 that
                 his
                 Mother
                 gave
                 signes
                 of
                 Repentance
                 publickly
                 in
                 the
                 Church
                 ,
                 for
                 Fornication
                 with
                 his
                 Father
                 :
                 But
                 others
                 proving
                 that
                 they
                 were
                 in
                 there
                 house
                 ,
                 and
                 saw
                 them
                 Cohabit
                 ,
                 as
                 Man
                 and
                 Wife
                 ,
                 but
                 did
                 not
                 mention
                 how
                 long
                 ,
                 the
                 Defunct
                 was
                 found
                 to
                 be
                 no
                 Bastard
                 ,
                 but
                 a
                 lawful
                 Child
                 ,
                 Jan.
                 15.
                 1676.
                 
                 Mr.
                 
                   Robert
                   Swinton
                
                 contra
                 
                   Marion
                   Kaills
                
                 ;
                 Yet
                 this
                 was
                 eleided
                 by
                 contrary
                 probation
                 ,
                 that
                 the
                 Father
                 had
                 then
                 another
                 Wife
                 ,
                 and
                 a
                 lawful
                 Child
                 thereby
                 ,
                 and
                 that
                 the
                 person
                 in
                 Question
                 was
                 reput
                 Bastard
                 ,
                 Hope
                 Bastardrie
                 ,
                 
                   Archbald
                   Chirnside
                
                 contra
                 
                   Isobel
                   Grieve
                
                 ,
                 and
                 
                   Christian
                   Williamson
                
                 .
              
               
                 Bastardry
                 is
                 also
                 eleided
                 ,
                 by
                 proving
                 the
                 person
                 in
                 Question
                 ,
                 to
                 be
                 holden
                 and
                 reput
                 Lawful
                 ,
                 unless
                 the
                 pursuer
                 condescend
                 ,
                 and
                 instruct
                 the
                 contrary
                 ,
                 by
                 particular
                 circumstances
                 ,
                 Hope
                 Bastardry
                 ,
                 Hog
                 contra
                 
                   Hog
                   .
                   Ninian
                   Chirnside
                
                 contra
                 
                   William
                   Hoom.
                
                 The
                 like
                 where
                 the
                 person
                 in
                 question
                 was
                 50.
                 years
                 old
                 ,
                 
                   James
                   Hope
                
                 contra
                 Scot
                 :
                 The
                 like
                 being
                 80.
                 years
                 after
                 the
                 Bastards
                 death
                 ,
                 who
                 died
                 an
                 old
                 man.
                 The
                 Lords
                 would
                 not
                 grant
                 process
                 
                 de
                 statu
                 defunctorum
                 post
                 tantum
                 tempus
                 ,
                 Feb.
                 25.
                 1642.
                 
                 Malcom
                 Crawfoord
                 contra
                 Hellen
                 and
                 Bessie
                 Russels
                 .
              
               
                 43.
                 
                 Bastardrie
                 hath
                 no
                 effect
                 till
                 Declarator
                 ,
                 which
                 proceeds
                 upon
                 a
                 general
                 Citation
                 against
                 all
                 and
                 sundrie
                 ,
                 at
                 the
                 Mercat
                 Cross
                 of
                 the
                 Shire
                 where
                 the
                 Bastard
                 dwelt
                 ,
                 at
                 the
                 instance
                 of
                 the
                 Kings
                 Advocat
                 ,
                 or
                 Donatar
                 ,
                 because
                 the
                 Bastard
                 can
                 have
                 none
                 to
                 represent
                 him
                 ,
                 but
                 if
                 the
                 Bastards
                 debitors
                 be
                 called
                 specially
                 ,
                 there
                 will
                 not
                 only
                 follow
                 a
                 general
                 Declarator
                 ,
                 that
                 the
                 person
                 was
                 Bastard
                 ,
                 but
                 a
                 decernitur
                 against
                 the
                 debitors
                 ,
                 which
                 is
                 a
                 special
                 Declarator
                 ,
                 though
                 these
                 may
                 be
                 disjoyned
                 in
                 several
                 processes
                 ,
                 but
                 if
                 any
                 partie
                 appear
                 ,
                 as
                 nearest
                 agnat
                 ,
                 he
                 would
                 be
                 admitted
                 to
                 defend
                 ,
                 Decem.
                 11.
                 1679.
                 
                 
                   James
                   Somervail
                
                 contra
                 
                   William
                   Stains
                
                 .
              
               
                 It
                 was
                 found
                 that
                 a
                 Declarator
                 of
                 Bastardry
                 was
                 not
                 relevantly
                 Lybelled
                 ,
                 that
                 the
                 Father
                 and
                 Mother
                 were
                 not
                 Married
                 ,
                 unless
                 it
                 were
                 added
                 ,
                 that
                 the
                 Defunct
                 in
                 his
                 life
                 ,
                 was
                 holden
                 and
                 reput
                 Bastard
                 ,
                 which
                 was
                 found
                 and
                 instructed
                 ,
                 by
                 his
                 taking
                 Legitimation
                 from
                 the
                 King
                 ,
                 Feb.
                 19.
                 1669.
                 
                 Kings
                 Advocat
                 contra
                 
                   Craw
                   ,
                   June
                
                 15.
                 1672.
                 
                 Livingstoun
                 contra
                 
                   Burns
                   ,
                   Jan.
                
                 6.
                 1680.
                 
                 Somervail
                 contra
                 Stains
                 .
              
               
                 44.
                 
                 As
                 to
                 the
                 effects
                 of
                 Bastardrie
                 ,
                 from
                 the
                 former
                 principile
                 ,
                 
                   Pater
                   esi
                   quem
                   justa
                   matrimonia
                   monstrant
                
                 ;
                 Children
                 not
                 begotten
                 of
                 parents
                 lawfully
                 Married
                 ,
                 are
                 called
                 
                   vulgo
                   quaesiti
                
                 ,
                 And
                 are
                 compted
                 in
                 Law
                 ,
                 to
                 have
                 no
                 Father
                 agnats
                 ,
                 nor
                 Kinsmen
                 on
                 the
                 Fathers
                 side
                 ,
                 and
                 therefore
                 they
                 cannot
                 succeed
                 to
                 their
                 Father
                 ,
                 or
                 any
                 of
                 their
                 Agnats
                 :
                 Neither
                 can
                 any
                 of
                 these
                 Agnats
                 ,
                 succeed
                 to
                 them
                 ,
                 either
                 in
                 Heritable
                 or
                 Moveable
                 Rights
                 ,
                 but
                 only
                 their
                 own
                 Succession
                 ,
                 by
                 Lawful
                 Marriage
                 .
                 So
                 then
                 Bastards
                 dieing
                 without
                 Lawful
                 issue
                 ,
                 their
                 goods
                 become
                 caduciarie
                 and
                 void
                 ,
                 and
                 so
                 fall
                 to
                 the
                 Fisk
                 :
                 Yea
                 ,
                 if
                 the
                 Lawful
                 Issue
                 of
                 the
                 Bastard
                 at
                 any
                 time
                 fail
                 for
                 the
                 same
                 reason
                 ,
                 their
                 goods
                 become
                 caduciarie
                 ,
                 and
                 return
                 to
                 the
                 King
                 ,
                 either
                 by
                 reason
                 of
                 the
                 Bastardrie
                 ,
                 or
                 as
                 
                   ultimus
                   Haeres
                   ,
                   July
                
                 13.
                 1626.
                 
                 Haltro
                 contra
                 Somervail
                 .
              
               
                 Though
                 Bastards
                 can
                 have
                 no
                 Ascendent
                 or
                 Collateral
                 Heirs
                 of
                 Lyne
                 ,
                 yet
                 they
                 may
                 have
                 Heirs
                 of
                 Tailzie
                 ,
                 in
                 Lands
                 which
                 did
                 exclude
                 the
                 Fisk
                 ,
                 when
                 the
                 same
                 was
                 provided
                 to
                 the
                 Bastard
                 ,
                 and
                 the
                 Heir
                 of
                 his
                 bodie
                 .
                 Which
                 failzing
                 ,
                 to
                 any
                 other
                 person
                 and
                 his
                 Heirs
                 ,
                 Spots
                 Bastardrie
                 ,
                 Weir
                 contra
                 Kings
                 Donatar
                 .
                 They
                 may
                 also
                 be
                 Heirs
                 of
                 Tailzie
                 specially
                 nominat
                 ,
                 as
                 Craig
                 observeth
                 ,
                 in
                 the
                 case
                 of
                 the
                 Earl
                 of
                 Errol
                 contra
                 Hay
                 of
                 Cockstoun
                 ,
                 who
                 ,
                 and
                 the
                 Heirs
                 of
                 his
                 Body
                 made
                 a
                 member
                 of
                 Tailzie
                 ,
                 which
                 was
                 sustained
                 ,
                 though
                 he
                 was
                 Bastard
                 .
              
               
                 Bastardrie
                 hath
                 only
                 effect
                 against
                 Succession
                 to
                 the
                 Bastard
                 ,
                 but
                 doth
                 not
                 incapacitat
                 the
                 Bastard
                 ,
                 to
                 dispose
                 of
                 his
                 own
                 Estate
                 ,
                 Heritable
                 or
                 Moveable
                 in
                 his
                 
                   leige
                   paustie
                
                 :
                 And
                 likewise
                 the
                 Bastards
                 Wife
                 hath
                 her
                 share
                 of
                 his
                 ,
                 Moveables
                 as
                 other
                 Relicts
                 have
                 :
                 But
                 if
                 the
                 Bastard
                 have
                 no
                 Issue
                 ,
                 he
                 hath
                 no
                 power
                 of
                 Testing
                 ,
                 and
                 can
                 neither
                 nominat
                 Executors
                 nor
                 leave
                 Legacies
                 unlesse
                 he
                 obtain
                 Legitimation
                 from
                 the
                 King.
                 
              
               
               
                 45.
                 
                 Legitimation
                 ,
                 though
                 it
                 have
                 many
                 ample
                 Clauses
                 ,
                 yet
                 the
                 main
                 effect
                 of
                 it
                 is
                 that
                 the
                 Bastard
                 having
                 no
                 Lawfull
                 Children
                 ,
                 hath
                 thereby
                 power
                 to
                 Test
                 ,
                 June
                 18.
                 1678
                 
                 Commissioners
                 of
                 the
                 Shire
                 of
                 Berwick
                 contra
                 
                   John
                   Craw.
                
                 But
                 it
                 hath
                 no
                 effect
                 ,
                 as
                 to
                 his
                 Heritable
                 Rights
                 ,
                 which
                 his
                 Testament
                 cannot
                 reach
                 :
                 It
                 will
                 have
                 the
                 like
                 effect
                 ,
                 if
                 the
                 Bastard
                 obtain
                 from
                 the
                 King
                 ,
                 the
                 power
                 of
                 Testing
                 :
                 And
                 therefore
                 a
                 Bastards
                 Legatar
                 was
                 preferred
                 to
                 the
                 Donatar
                 of
                 Bastardry
                 ,
                 July
                 7.
                 1629.
                 
                 Wallace
                 contra
                 Mure.
                 In
                 which
                 case
                 it
                 was
                 found
                 ,
                 the
                 Relict
                 had
                 her
                 half
                 :
                 And
                 if
                 the
                 Bastard
                 had
                 Lawfull
                 Children
                 surviving
                 ,
                 he
                 may
                 Test
                 without
                 any
                 gift
                 ,
                 none
                 being
                 concerned
                 ,
                 but
                 his
                 Children
                 ,
                 to
                 whom
                 also
                 he
                 may
                 name
                 Tutors
                 ,
                 as
                 was
                 found
                 ,
                 March
                 8
                 1628.
                 
                 Mare
                 contra
                 Kincaid
                 ,
                 and
                 these
                 will
                 succeed
                 him
                 as
                 Heirs
                 ,
                 or
                 Executors
                 .
              
               
                 The
                 effects
                 of
                 Bastardry
                 ,
                 in
                 hindring
                 there
                 Succession
                 to
                 others
                 ,
                 falleth
                 to
                 be
                 considered
                 in
                 the
                 subsequent
                 Titles
                 ,
                 concerning
                 Succession
                 .
              
               
                 46.
                 
                 It
                 remains
                 to
                 be
                 cleared
                 ,
                 whether
                 the
                 Bastards
                 Debts
                 follow
                 his
                 Estate
                 ,
                 and
                 that
                 diligence
                 of
                 Lawfull
                 Creditors
                 will
                 exclude
                 ,
                 the
                 Donatar
                 or
                 Fisk
                 :
                 It
                 was
                 so
                 found
                 ,
                 that
                 the
                 Bastards
                 Creditor
                 ,
                 arresting
                 before
                 his
                 death
                 ,
                 had
                 access
                 ,
                 notwithstanding
                 the
                 Bastardry
                 ,
                 Feb.
                 26.
                 1611.
                 
                 Clerk
                 contra
                 Earl
                 of
                 Perth
                 .
                 The
                 difficulty
                 will
                 be
                 ,
                 of
                 the
                 diligences
                 competent
                 after
                 the
                 Bastards
                 death
                 seing
                 he
                 hath
                 none
                 to
                 represent
                 him
                 ,
                 yet
                 Bastardry
                 is
                 but
                 a
                 species
                 of
                 
                   ultimus
                   Haeres
                
                 ,
                 the
                 ground
                 in
                 both
                 being
                 the
                 same
                 ,
                 that
                 the
                 King
                 is
                 Heir
                 ,
                 because
                 there
                 can
                 be
                 no
                 other
                 Heir
                 ,
                 and
                 so
                 is
                 last
                 Heir
                 .
                 And
                 therefore
                 in
                 both
                 cases
                 ,
                 the
                 Estate
                 is
                 lyable
                 to
                 the
                 Debt
                 ,
                 which
                 may
                 affect
                 it
                 ,
                 contra
                 
                   Haereditatem
                   jacentem
                
                 by
                 Adjudication
                 ,
                 calling
                 the
                 Officers
                 of
                 State
                 ,
                 and
                 Donatar
                 ,
                 Craig
                 is
                 of
                 the
                 same
                 opinion
                 ,
                 lib.
                 2.
                 
                 Dieg.
                 17.
                 
                 It
                 was
                 so
                 found
                 ,
                 July
                 25.
                 1560.
                 
                 Kings
                 Donatar
                 contra
              
               
                 It
                 was
                 also
                 found
                 ,
                 that
                 the
                 Donatar
                 of
                 Bastardry
                 pursuing
                 for
                 payment
                 of
                 a
                 band
                 due
                 to
                 the
                 Bastard
                 ,
                 was
                 lyable
                 to
                 fulfill
                 the
                 Bastards
                 back-band
                 ,
                 June
                 20.
                 1671.
                 
                 
                   Alexander
                   Alexander
                
                 contra
                 Lord
                 Saltoun
                 .
              
               
                 47.
                 
                 
                   Ultimus
                   Haeres
                
                 may
                 seem
                 to
                 be
                 a
                 Succession
                 from
                 the
                 dead
                 ,
                 and
                 to
                 come
                 in
                 amongst
                 other
                 Heirs
                 ,
                 yet
                 though
                 it
                 hath
                 the
                 resemblance
                 of
                 an
                 Heir
                 ,
                 because
                 it
                 hath
                 effect
                 ,
                 when
                 there
                 is
                 no
                 other
                 Heir
                 ,
                 and
                 makes
                 the
                 Heritagelyable
                 to
                 pay
                 the
                 Defuncts
                 debts
                 ,
                 it
                 is
                 only
                 a
                 caduciarie
                 Confiscation
                 of
                 the
                 Defuncts-Estate
                 ,
                 with
                 the
                 burden
                 of
                 his
                 Debt
                 ,
                 but
                 no
                 proper
                 Succession
                 to
                 him
                 therein
                 ,
                 which
                 appeareth
                 ,
                 thus
                 ;
                 The
                 Heir
                 is
                 one
                 person
                 in
                 Law
                 ,
                 and
                 is
                 therefore
                 personally
                 obleiged
                 for
                 all
                 the
                 Defuncts
                 debts
                 ,
                 so
                 is
                 not
                 the
                 Fisk
                 ,
                 against
                 whom
                 ,
                 or
                 the
                 Donatar
                 ,
                 there
                 lyeth
                 no
                 Personal
                 Action
                 for
                 payment
                 ,
                 but
                 for
                 Restitution
                 ,
                 if
                 he
                 have
                 intrometted
                 ,
                 and
                 of
                 Real
                 Action
                 ,
                 
                   contra
                   Haereditatem
                   jacentem
                
                 ,
                 which
                 is
                 most
                 proper
                 by
                 Adjudication
                 ,
                 being
                 the
                 Supplement
                 of
                 ordinary
                 Actions
                 ,
                 or
                 Executions
                 competent
                 by
                 Law.
                 For
                 there
                 being
                 no
                 partie
                 to
                 represent
                 the
                 Defunct
                 debitor
                 ,
                 there
                 can
                 be
                 no
                 Decreet
                 ,
                 but
                 
                   cognitionis
                   causa
                
                 ,
                 and
                 Adjudication
                 following
                 thereupon
                 ,
                 in
                 which
                 the
                 Fisk
                 ,
                 or
                 Donatar
                 is
                 to
                 be
                 called
                 passive
                 ,
                 as
                 the
                 party
                 having
                 Interest
                 ,
                 to
                 see
                 that
                 the
                 Debt
                 be
                 due
                 ,
                 which
                 will
                 affect
                 the
                 Defuncts
                 caduciarie
                 Heritage
                 ,
                 to
                 the
                 detrement
                 of
                 the
                 Fisk
                 ,
                 or
                 Donatar
                 .
                 So
                 then
                 
                   ultimus
                   Haeres
                
                 ,
                 and
                 Bastardrie
                 ,
                 are
                 of
                 the
                 like
                 Nature
                 ,
                 which
                 being
                 caduciarie
                 Confiscations
                 ,
                 fall
                 to
                 the
                 Fisk
                 ,
                 because
                 no
                 other
                 can
                 have
                 right
                 ,
                 there
                 may
                 be
                 this
                 difference
                 betwixt
                 them
                 ;
                 That
                 in
                 the
                 case
                 of
                 the
                 last
                 Heir
                 ,
                 Creditors
                 ,
                 for
                 their
                 satisfaction
                 ,
                 may
                 confirm
                 the
                 Defuncts
                 Moveables
                 ,
                 and
                 so
                 recover
                 the
                 same
                 ,
                 for
                 their
                 own
                 Satisfaction
                 ,
                 in
                 
                 which
                 case
                 ,
                 they
                 would
                 be
                 lyable
                 ,
                 as
                 other
                 Executors
                 ,
                 to
                 the
                 remanent
                 Creditors
                 of
                 the
                 Defunct
                 ,
                 and
                 to
                 the
                 Fisk
                 ,
                 or
                 Donatar
                 ,
                 for
                 the
                 superplus
                 :
                 As
                 in
                 the
                 place
                 of
                 nearest
                 of
                 Kin
                 ,
                 &
                 to
                 the
                 Relict
                 also
                 for
                 her
                 part
                 ,
                 but
                 this
                 being
                 only
                 for
                 obtaining
                 their
                 own
                 Satisfaction
                 ,
                 and
                 for
                 shunning
                 a
                 more
                 extraordinary
                 way
                 ,
                 by
                 Adjudication
                 (
                 which
                 also
                 they
                 may
                 use
                 at
                 their
                 option
                 )
                 they
                 ought
                 not
                 in
                 prejudice
                 of
                 the
                 Fisk
                 ,
                 to
                 have
                 the
                 third
                 part
                 of
                 the
                 Defuncts
                 part
                 ,
                 as
                 other
                 Executors
                 ,
                 but
                 in
                 the
                 cases
                 of
                 Bastardry
                 ,
                 Confirmation
                 of
                 Executors
                 is
                 not
                 competent
                 ,
                 because
                 the
                 Bastard
                 ,
                 being
                 excluded
                 from
                 the
                 power
                 of
                 making
                 Testament
                 ,
                 can
                 have
                 no
                 Executor
                 .
              
               
                 Concerning
                 last
                 Heir
                 ,
                 the
                 greatest
                 doubt
                 is
                 ,
                 who
                 they
                 are
                 ,
                 and
                 in
                 what
                 Cases
                 they
                 take
                 place
                 ?
                 As
                 to
                 the
                 first
                 ,
                 
                   Craig
                   ,
                   lib.
                
                 2.
                 
                 Dieg.
                 17.
                 is
                 not
                 positive
                 ,
                 whether
                 Superiours
                 be
                 last
                 Heirs
                 of
                 the
                 Defunct
                 ,
                 in
                 the
                 Fies
                 held
                 of
                 them
                 ,
                 or
                 if
                 the
                 King
                 be
                 the
                 last
                 Heir
                 for
                 all
                 :
                 And
                 according
                 to
                 the
                 antient
                 Feudal
                 Customs
                 ,
                 there
                 is
                 no
                 doubt
                 ,
                 the
                 Feus
                 return
                 to
                 the
                 several
                 Superiours
                 ,
                 for
                 thereby
                 none
                 could
                 succeed
                 (
                 without
                 Express
                 provision
                 in
                 the
                 contrary
                 )
                 but
                 the
                 lawful
                 Issue
                 of
                 the
                 Descendent
                 of
                 the
                 first
                 Vassal
                 ,
                 whose
                 Person
                 and
                 Race
                 was
                 peculiarly
                 chosen
                 ,
                 and
                 confided
                 in
                 by
                 the
                 Superiour
                 .
              
               
                 But
                 now
                 Fies
                 not
                 being
                 gratuitous
                 ,
                 as
                 at
                 first
                 ,
                 but
                 for
                 onerous
                 causes
                 ,
                 besides
                 the
                 
                   reddendo
                   &
                   service
                
                 ,
                 and
                 ordinarly
                 granted
                 to
                 the
                 Vassal
                 ,
                 and
                 his
                 Heirs
                 whatsomever
                 :
                 Which
                 failzing
                 ,
                 the
                 King
                 ,
                 by
                 his
                 Prerogative
                 Royal
                 ,
                 excludeth
                 all
                 other
                 Superiours
                 ,
                 who
                 are
                 presumed
                 to
                 retain
                 no
                 right
                 ,
                 nor
                 expectation
                 of
                 Succession
                 ,
                 unless
                 by
                 express
                 provision
                 of
                 the
                 Investiture
                 ,
                 the
                 Fies
                 be
                 provided
                 to
                 Heirs
                 Male
                 ,
                 or
                 of
                 Tailzie
                 ,
                 which
                 failzing
                 ,
                 to
                 return
                 to
                 the
                 Superior
                 :
                 In
                 which
                 he
                 is
                 proper
                 Heir
                 of
                 Provision
                 .
              
               
                 As
                 to
                 the
                 other
                 Doubt
                 ,
                 in
                 what
                 case
                 the
                 King
                 is
                 last
                 Heir
                 ,
                 Craig
                 ,
                 in
                 the
                 forenamed
                 place
                 relateth
                 ,
                 that
                 some
                 were
                 of
                 opinion
                 ,
                 That
                 if
                 the
                 Defunct
                 had
                 no
                 Heirs
                 within
                 the
                 7th
                 degree
                 ,
                 the
                 King
                 taketh
                 place
                 as
                 last
                 Heir
                 .
                 And
                 that
                 others
                 thought
                 it
                 to
                 hold
                 in
                 Collateral
                 Successions
                 ,
                 but
                 his
                 own
                 opinion
                 is
                 in
                 the
                 contrary
                 :
                 That
                 any
                 Heir
                 ,
                 of
                 what
                 degree
                 soever
                 hath
                 Right
                 ,
                 which
                 suiteth
                 with
                 the
                 ground
                 now
                 laid
                 ,
                 that
                 the
                 King
                 hath
                 right
                 ,
                 as
                 last
                 Heir
                 to
                 the
                 Heritage
                 become
                 caduciarie
                 ;
                 Because
                 no
                 other
                 partie
                 can
                 be
                 instructed
                 lawful
                 Heir
                 .
                 So
                 he
                 reporteth
                 ,
                 it
                 was
                 found
                 in
                 the
                 case
                 of
                 the
                 Earl
                 of
                 Marr
                 ,
                 who
                 was
                 served
                 Heir
                 to
                 Lady
                 
                   Elizabeth
                   Dowglas
                
                 Countess
                 of
                 Marr
                 ,
                 beyond
                 the
                 tenth
                 degree
                 .
                 And
                 that
                 the
                 Lord
                 Seatoun
                 ,
                 that
                 he
                 might
                 have
                 a
                 Title
                 to
                 the
                 Redemption
                 of
                 the
                 Lands
                 of
                 Longnidrie
                 ,
                 against
                 Forrester
                 ,
                 served
                 himself
                 Heir
                 to
                 the
                 granter
                 of
                 the
                 Wodsett
                 ,
                 beyond
                 the
                 7th
                 degree
                 ,
                 whereof
                 several
                 degrees
                 were
                 Collateral
                 .
                 And
                 the
                 French
                 King
                 Henrie
                 the
                 4th
                 Succeeded
                 to
                 Henrie
                 the
                 3.
                 though
                 not
                 within
                 the
                 15.
                 degree
                 .
              
               
                 The
                 gift
                 ,
                 or
                 right
                 of
                 
                   ultimus
                   haeres
                
                 hath
                 no
                 effect
                 ,
                 till
                 Decreet
                 of
                 Declarator
                 be
                 obtained
                 thereupon
                 ,
                 in
                 the
                 same
                 way
                 as
                 in
                 Bastardry
                 ,
                 July
                 20.
                 1662.
                 
                 Laird
                 of
                 Balnagoun
                 contra
                 
                   Dingwal
                   .
                   July
                
                 31.
                 1666.
                 
                 
                   Thomas
                   Crawford
                
                 contra
                 Town
                 of
                 Edinburgh
                 .
              
            
             
               
               
               
               
                 TITLE
                 XXVI
                 .
                 Succession
                 .
              
               
                 
                   1.
                   
                   Whether
                   in
                   equity
                   there
                   be
                   a
                   Rule
                   in
                   Succession
                   .
                
                 
                   2.
                   
                   That
                   Rule
                   is
                   the
                   expresse
                   will
                   ,
                   or
                   presumed
                   will
                   of
                   the
                   Defunct
                   .
                
                 
                   3.
                   
                   The
                   first
                   degree
                   of
                   Succession
                   by
                   the
                   presumed
                   will
                   of
                   Defuncts
                   .
                
                 
                   4.
                   
                   Whether
                   in
                   equity
                   ,
                   there
                   be
                   right
                   of
                   representation
                   .
                
                 
                   5.
                   
                   Failing
                   descendents
                   ,
                   ascendents
                   succeed
                   in
                   equity
                   .
                
                 
                   6.
                   
                   Failing
                   both
                   brothers
                   and
                   sisters
                   succed
                   .
                
                 
                   7.
                   
                   Failing
                   these
                   the
                   nearest
                   Agnat
                   succeeds
                   .
                
                 
                   8.
                   
                   The
                   succession
                   of
                   Cognats
                   .
                
                 
                   9.
                   
                   The
                   Jewish
                   succession
                   ,
                   whereby
                   all
                   the
                   sons
                   succeed
                   ,
                   and
                   exclude
                   the
                   daughters
                   ,
                   and
                   the
                   eldest
                   son
                   hath
                   a
                   double
                   portion
                   .
                
                 
                   10.
                   
                   Fathers
                   could
                   not
                   prejudge
                   the
                   primogenitur
                   of
                   their
                   eldest
                   Sons
                   .
                
                 
                   11.
                   
                   By
                   the
                   Jewish
                   succession
                   ,
                   failing
                   descendents
                   the
                   inheritance
                   passeth
                   to
                   Brethren
                   ,
                   and
                   these
                   failing
                   ,
                   to
                   Fathers
                   Brethren
                   ,
                   and
                   failing
                   these
                   to
                   the
                   nearest
                   Kinsman
                   .
                
                 
                   12.
                   
                   Whether
                   in
                   the
                   Jewish
                   Succession
                   ,
                   there
                   be
                   right
                   of
                   representation
                   .
                
                 
                   13.
                   
                   Why
                   no
                   Femals
                   but
                   daughters
                   succeed
                   among
                   the
                   Jews
                   .
                
                 
                   14.
                   
                   Why
                   Parents
                   Succeed
                   not
                   amongst
                   the
                   Jews
                   .
                
                 
                   15.
                   
                   Succession
                   amongst
                   the
                   Romans
                   was
                   first
                   by
                   Testament
                   .
                
                 
                   16.
                   
                   If
                   there
                   was
                   no
                   Heirs
                   institute
                   by
                   Testament
                   ,
                   the
                   antient
                   Roman
                   Law
                   called
                   all
                   the
                   Children
                   of
                   the
                   Family
                   
                     unforisfamiliat
                     male
                     &
                     female
                  
                   ,
                   not
                   excepting
                   adopted
                   Children
                   to
                   Succeed
                   .
                
                 
                   17.
                   
                   These
                   failing
                   ,
                   the
                   nearest
                   Agnats
                   ,
                   but
                   no
                   Parents
                   thereby
                   Succeed
                   .
                
                 
                   18.
                   
                   The
                   Romans
                   Succession
                   be
                   the
                   pretorian
                   Law.
                   
                
                 
                   19.
                   
                   Their
                   Succession
                   ,
                   by
                   Justinians
                   novel
                   constitution
                   .
                
                 
                   20.
                   
                   In
                   Feudal
                   Succession
                   ,
                   the
                   first
                   Rule
                   is
                   the
                   expresse
                   will
                   of
                   the
                   partie
                   by
                   the
                   investitur
                   .
                
                 
                   21.
                   
                   The
                   nixt
                   Rule
                   is
                   ,
                   the
                   conjectured
                   will
                   ,
                   according
                   to
                   the
                   nature
                   of
                   the
                   Fee.
                   
                
                 
                   
                   
                     22.
                     
                     Primo-geniture
                  
                   now
                   established
                   ,
                   by
                   common
                   custom
                   in
                   Feudal
                   Rights
                   .
                
                 
                   23.
                   
                   Succession
                   in
                   Scotland
                   ,
                   is
                   wholly
                   different
                   .
                   in
                   moveables
                   and
                   immoveables
                   .
                
                 
                   24.
                   
                   The
                   several
                   degrees
                   of
                   Succession
                   in
                   moveables
                   ,
                
                 
                   25.
                   
                   Succession
                   in
                   Heritable
                   Rights
                   .
                
                 
                   26.
                   
                   The
                   difference
                   betwixt
                   the
                   two
                   successions
                   .
                
                 
                   27.
                   
                   The
                   priviledge
                   of
                   Heirs
                   ,
                   not
                   to
                   be
                   prejudged
                   by
                   their
                   predicessors
                   deedes
                   on
                   Death-bed
                   .
                
                 
                   28.
                   
                   What
                   is
                   estimate
                   Death-bed
                   .
                
                 
                   29.
                   
                   Against
                   what
                   rights
                   Death-bed
                   is
                   extended
                   .
                
                 
                   30.
                   
                   Death-bed
                   annulls
                   no
                   deeds
                   for
                   causes
                   onerous
                   .
                
                 
                   31.
                   
                   Dispositions
                   in
                   Testaments
                   ,
                   are
                   as
                   on
                   Death-bed
                   .
                
                 
                   32.
                   
                   Annus
                   deliberandi
                   .
                
                 
                   33.
                   
                   Kinds
                   if
                   Heirs
                   in
                   Scotland
                   .
                
                 
                   34.
                   
                   No
                   place
                   for
                   Adopted
                   ,
                   or
                   Cognats
                   in
                   succession
                   with
                   us
                   .
                
                 
                   35.
                   
                   Parents
                   Succeed
                   to
                   their
                   Children
                   ,
                   &
                   exclude
                   the
                   Parents
                   Collaterals
                   ,
                   or
                   these
                   representing
                   the
                   Colaterals
                
              
               
                 SUCCESSION
                 to
                 Defuncts
                 ,
                 is
                 the
                 most
                 Important
                 Title
                 in
                 Law
                 ,
                 for
                 thereby
                 the
                 Rights
                 of
                 all
                 persons
                 ,
                 do
                 necessarily
                 passe
                 once
                 ,
                 and
                 frequently
                 often
                 ,
                 in
                 every
                 generation
                 ,
                 and
                 therefore
                 the
                 Rule
                 and
                 Course
                 of
                 Succssion
                 ought
                 to
                 be
                 accurately
                 searched
                 out
                 ,
                 and
                 followed
                 ;
                 and
                 because
                 the
                 Channel
                 of
                 Succession
                 is
                 with
                 us
                 divided
                 in
                 two
                 currents
                 ,
                 by
                 the
                 one
                 whereof
                 ,
                 all
                 Heritable
                 Rights
                 ;
                 and
                 by
                 the
                 other
                 all
                 Moveable
                 Rights
                 are
                 conveyed
                 from
                 the
                 dead
                 to
                 the
                 living
                 .
                 The
                 first
                 passing
                 unto
                 Heirs
                 ,
                 the
                 second
                 unto
                 Excutors
                 :
                 We
                 shall
                 in
                 this
                 Title
                 consider
                 ,
                 that
                 which
                 is
                 common
                 to
                 Succession
                 ,
                 and
                 in
                 the
                 subsequent
                 Titles
                 ,
                 that
                 which
                 is
                 proper
                 to
                 the
                 several
                 kinds
                 thereof
                 .
              
               
                 As
                 to
                 the
                 common
                 Consideration
                 of
                 Succession
                 ,
                 we
                 must
                 severally
                 inquire
                 .
                 First
                 ,
                 what
                 Natural
                 Equity
                 holdeth
                 forth
                 of
                 Succession
                 ,
                 2.
                 
                 What
                 the
                 Judicial
                 Law.
                 3.
                 
                 What
                 the
                 Civil
                 Roman
                 Law.
                 4.
                 
                 What
                 the
                 Feudal
                 Customs
                 .
                 last
                 ,
                 What
                 our
                 own
                 Law
                 ,
                 and
                 consuetude
                 ,
                 provideth
                 concerning
                 Succesion
                 .
              
               
                 1.
                 
                 For
                 the
                 first
                 ,
                 it
                 may
                 seem
                 ,
                 that
                 Succession
                 hath
                 little
                 Foundation
                 ,
                 far
                 lesse
                 a
                 competent
                 Regulation
                 ,
                 in
                 Equity
                 ,
                 or
                 by
                 the
                 Law
                 of
                 Nature
                 ;
                 Because
                 the
                 matter
                 of
                 Succession
                 is
                 so
                 variable
                 ,
                 That
                 every
                 Nation
                 ,
                 Yea
                 ,
                 almost
                 every
                 Province
                 ,
                 and
                 many
                 Cities
                 ,
                 have
                 their
                 several
                 Constitutions
                 and
                 Customs
                 for
                 Succession
                 ,
                 arguing
                 it
                 to
                 be
                 wholly
                 in
                 the
                 Arbitriment
                 of
                 People
                 ,
                 and
                 Authority
                 over
                 them
                 .
              
               
                 Yet
                 this
                 will
                 not
                 follow
                 ,
                 that
                 Succession
                 hath
                 no
                 Rise
                 ,
                 nor
                 Rule
                 in
                 Equity
                 ;
                 For
                 ,
                 as
                 hath
                 been
                 ofttimes
                 showen
                 before
                 ,
                 most
                 of
                 the
                 Rights
                 of
                 men
                 ,
                 are
                 ordered
                 in
                 Equity
                 ;
                 Yet
                 so
                 ,
                 as
                 they
                 are
                 put
                 in
                 the
                 owners
                 power
                 ,
                 who
                 may
                 
                 alter
                 the
                 same
                 by
                 there
                 will.
                 So
                 it
                 will
                 be
                 found
                 in
                 the
                 matter
                 of
                 Succession
                 ,
                 which
                 appeareth
                 thus
                 .
              
               
                 First
                 ,
                 Succession
                 was
                 before
                 Constitutions
                 or
                 Customs
                 ,
                 of
                 Constitution
                 there
                 will
                 be
                 no
                 doubt
                 ,
                 these
                 are
                 but
                 Rare
                 to
                 this
                 day
                 ,
                 Succession
                 being
                 yet
                 ordinarily
                 by
                 Custom
                 ,
                 and
                 Custom
                 necessarily
                 implyeth
                 Antecedent
                 Acts
                 of
                 Succession
                 ,
                 Inductive
                 thereof
                 ,
                 which
                 therefore
                 ,
                 behoved
                 to
                 have
                 some
                 other
                 Rule
                 ,
                 then
                 the
                 Custom
                 thereby
                 introduced
                 .
                 2.
                 
                 Where
                 there
                 is
                 neither
                 Law
                 nor
                 Custom
                 ,
                 concerning
                 Succession
                 :
                 As
                 when
                 People
                 from
                 divers
                 Countries
                 do
                 gather
                 into
                 new
                 Plantations
                 ,
                 in
                 America
                 ,
                 and
                 live
                 not
                 severally
                 ,
                 as
                 parts
                 of
                 their
                 Mother
                 Countries
                 ,
                 but
                 joyntly
                 :
                 Such
                 have
                 goods
                 ,
                 which
                 by
                 their
                 death
                 ,
                 become
                 not
                 caduciarie
                 or
                 nullius
                 ,
                 to
                 be
                 appropriat
                 by
                 the
                 first
                 Occupant
                 .
                 If
                 therefore
                 ,
                 they
                 remain
                 in
                 the
                 Property
                 of
                 some
                 persons
                 ,
                 which
                 needs
                 must
                 be
                 by
                 some
                 Law
                 ,
                 it
                 can
                 be
                 by
                 no
                 other
                 ,
                 then
                 Natural
                 Equity
                 ,
                 or
                 the
                 Law
                 of
                 rational
                 Nature
                 .
                 3.
                 
                 It
                 is
                 not
                 to
                 be
                 thought
                 ,
                 that
                 GOD
                 ,
                 who
                 hath
                 allowed
                 Propertie
                 ,
                 would
                 leave
                 Man
                 distitute
                 of
                 a
                 Natural
                 Rule
                 ,
                 whereby
                 to
                 Regulate
                 it
                 after
                 the
                 Owners
                 Death
                 ,
                 though
                 there
                 were
                 no
                 Law
                 ,
                 nor
                 Custom
                 about
                 it
                 .
              
               
                 2.
                 
                 But
                 it
                 is
                 not
                 so
                 dubious
                 ,
                 that
                 there
                 is
                 a
                 Rule
                 of
                 Equity
                 in
                 Successions
                 ,
                 as
                 what
                 it
                 is
                 ,
                 for
                 clearing
                 thereof
                 ,
                 we
                 shall
                 parcel
                 it
                 out
                 thus
                 :
                 First
                 ,
                 every
                 Right
                 ,
                 being
                 a
                 Faculty
                 ,
                 or
                 Power
                 of
                 Exaction
                 ,
                 or
                 Disposal
                 ;
                 It
                 is
                 a
                 chief
                 interest
                 and
                 effect
                 of
                 it
                 ,
                 that
                 the
                 Owner
                 may
                 dispose
                 thereof
                 ,
                 not
                 only
                 to
                 take
                 effect
                 presently
                 ,
                 but
                 if
                 he
                 please
                 to
                 take
                 effect
                 after
                 his
                 Death
                 ,
                 and
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 the
                 sol
                 will
                 of
                 the
                 Owner
                 is
                 sufficient
                 to
                 passe
                 ,
                 or
                 transmit
                 his
                 Right
                 ,
                 if
                 communicable
                 ,
                 both
                 in
                 his
                 life
                 ,
                 and
                 after
                 his
                 Death
                 .
              
               
                 So
                 then
                 ,
                 the
                 first
                 Rule
                 of
                 Succession
                 in
                 Equity
                 ,
                 is
                 the
                 expresse
                 will
                 of
                 the
                 Owner
                 ,
                 willing
                 such
                 persons
                 to
                 Succeed
                 him
                 in
                 whole
                 ,
                 or
                 in
                 part
                 .
                 It
                 may
                 be
                 objected
                 ,
                 that
                 the
                 will
                 of
                 the
                 owner
                 is
                 not
                 the
                 Rule
                 of
                 Succession
                 ,
                 because
                 there
                 lyeth
                 upon
                 the
                 Owner
                 a
                 Natural
                 Obligation
                 ,
                 to
                 provide
                 for
                 his
                 Relations
                 ,
                 not
                 only
                 during
                 his
                 Life
                 ,
                 but
                 after
                 his
                 Death
                 ;
                 As
                 it
                 is
                 said
                 ,
                 1
                 Tim.
                 5.
                 v.
                 8.
                 
                 
                   He
                   that
                   provideth
                   not
                   for
                   his
                   own
                   ,
                   especially
                   these
                   of
                   his
                   own
                   Familie
                   ,
                   hath
                   denyed
                   the
                   Faith
                   ,
                   and
                   is
                   worse
                   then
                   an
                   infidel
                   .
                
                 Which
                 importeth
                 that
                 infidels
                 have
                 naturally
                 that
                 Principle
                 :
                 And
                 therefore
                 ,
                 the
                 first
                 member
                 of
                 Succession
                 ,
                 in
                 Equity
                 ,
                 must
                 be
                 those
                 of
                 the
                 Defuncts
                 Family
                 ,
                 and
                 not
                 those
                 of
                 his
                 Institution
                 ,
                 or
                 Choice
                 .
                 This
                 doth
                 indeed
                 well
                 conclude
                 a
                 Natural
                 Obligation
                 on
                 all
                 men
                 ,
                 to
                 provide
                 their
                 own
                 ;
                 But
                 first
                 ,
                 it
                 will
                 not
                 extend
                 so
                 far
                 ,
                 as
                 to
                 incapacitat
                 the
                 Owner
                 ,
                 to
                 dispose
                 of
                 his
                 own
                 ,
                 either
                 in
                 his
                 Life
                 ,
                 or
                 after
                 his
                 Death
                 :
                 So
                 that
                 there
                 remains
                 a
                 competent
                 provision
                 for
                 his
                 own
                 ,
                 otherwise
                 ,
                 he
                 might
                 not
                 even
                 gift
                 in
                 his
                 Life
                 ,
                 but
                 he
                 may
                 gift
                 ,
                 both
                 to
                 take
                 effect
                 in
                 his
                 Life
                 ,
                 and
                 after
                 his
                 Death
                 :
                 And
                 is
                 not
                 necessitat
                 ,
                 to
                 institute
                 his
                 own
                 as
                 Heirs
                 ,
                 but
                 to
                 provide
                 them
                 .
                 2.
                 
                 The
                 dutie
                 of
                 Provision
                 ,
                 is
                 a
                 Personal
                 Obligation
                 ,
                 but
                 the
                 power
                 of
                 Disposal
                 ,
                 and
                 Succession
                 thereby
                 ,
                 is
                 a
                 Real
                 Right
                 ,
                 which
                 are
                 
                   toto
                   genere
                
                 different
                 Rights
                 ;
                 Now
                 Real
                 Rights
                 are
                 not
                 hindred
                 ,
                 nor
                 altered
                 by
                 Personal
                 Obligations
                 ,
                 though
                 the
                 Disponer
                 hath
                 failed
                 ,
                 and
                 remains
                 Debitor
                 ,
                 as
                 an
                 obliegment
                 to
                 dispone
                 ,
                 is
                 no
                 Disposition
                 :
                 But
                 the
                 present
                 dispositive
                 Act
                 of
                 the
                 will
                 doth
                 only
                 Constitute
                 ,
                 or
                 convey
                 the
                 Right
                 :
                 Which
                 ,
                 though
                 it
                 be
                 posterior
                 to
                 an
                 obliegment
                 ,
                 in
                 favours
                 of
                 any
                 other
                 ,
                 that
                 doth
                 not
                 annull
                 the
                 Disposition
                 ,
                 though
                 it
                 oblidge
                 the
                 Disponer
                 .
                 If
                 there
                 be
                 no
                 express
                 will
                 of
                 the
                 Defunct
                 ,
                 the
                 main
                 difficulty
                 is
                 ,
                 what
                 is
                 the
                 second
                 Member
                 of
                 Natural
                 Succession
                 :
                 wherein
                 the
                 presumed
                 will
                 of
                 the
                 Defunct
                 
                 takes
                 place
                 ,
                 which
                 hath
                 this
                 Rule
                 ,
                 
                   quod
                   naturaliter
                   inesse
                   debet
                   ,
                   presumitur
                   .
                
              
               
                 And
                 therefore
                 the
                 Defuncts
                 will
                 is
                 presumed
                 to
                 institute
                 his
                 own
                 ,
                 whom
                 he
                 is
                 naturally
                 oblieged
                 to
                 ,
                 provid
                 in
                 the
                 first
                 place
                 :
                 So
                 that
                 it
                 is
                 not
                 the
                 obligment
                 to
                 provide
                 ,
                 but
                 the
                 Defuncts
                 will
                 presumed
                 thence
                 ,
                 which
                 disposeth
                 upon
                 his
                 Succession
                 ,
                 for
                 the
                 oblidgment
                 to
                 dispon
                 ,
                 and
                 the
                 actual
                 dispositon
                 ,
                 are
                 different
                 
                   toto
                   genere
                
                 :
                 And
                 if
                 the
                 oblidgement
                 to
                 provide
                 ,
                 were
                 the
                 Rule
                 ,
                 the
                 express
                 will
                 of
                 the
                 ownèr
                 could
                 not
                 over
                 rule
                 it
                 ;
                 Where
                 there
                 is
                 a
                 custom
                 of
                 Succession
                 ,
                 the
                 Defuncts
                 will
                 is
                 presumed
                 ,
                 to
                 be
                 according
                 to
                 that
                 custom
                 ;
                 But
                 that
                 hath
                 its
                 efficacie
                 ,
                 rather
                 from
                 the
                 Custom
                 ,
                 as
                 it
                 is
                 a
                 positive
                 Law
                 then
                 from
                 Equity
                 .
              
               
                 The
                 presumed
                 will
                 of
                 the
                 Defunct
                 ,
                 to
                 provide
                 his
                 own
                 ,
                 is
                 not
                 indefinit
                 of
                 all
                 his
                 own
                 ;
                 But
                 it
                 hath
                 a
                 natural
                 order
                 ,
                 or
                 substitution
                 ,
                 standing
                 in
                 the
                 nearest
                 degree
                 of
                 Consanguinity
                 :
                 For
                 natural
                 reason
                 sheweth
                 ,
                 that
                 as
                 there
                 is
                 not
                 an
                 equal
                 Relation
                 ,
                 so
                 there
                 cannot
                 be
                 an
                 equal
                 Devision
                 to
                 all
                 ,
                 and
                 there
                 being
                 no
                 Natural
                 Rule
                 of
                 proportion
                 ,
                 the
                 nearest
                 Degree
                 must
                 exclude
                 the
                 farther
                 Degrees
                 in
                 Succession
                 ,
                 which
                 is
                 clearly
                 held
                 forth
                 in
                 the
                 foresaid
                 Text
                 ;
                 Having
                 an
                 Explicatorie
                 ,
                 and
                 Applicatory
                 Term
                 ,
                 
                   especially
                   these
                   of
                   his
                   own
                   Family
                   :
                
                 And
                 as
                 the
                 proportion
                 is
                 unknown
                 ,
                 so
                 the
                 benefite
                 ,
                 being
                 extended
                 to
                 all
                 〈◊〉
                 ,
                 would
                 evanish
                 .
                 Therefore
                 ,
                 what
                 ever
                 Natural
                 Affection
                 ,
                 or
                 Charity
                 ,
                 may
                 obleige
                 the
                 Defunct
                 to
                 have
                 done
                 expresly
                 ,
                 his
                 presumed
                 will
                 hath
                 no
                 Rule
                 beyond
                 the
                 first
                 Degree
                 .
              
               
                 3.
                 
                 Fourthly
                 ,
                 Therefore
                 the
                 first
                 Degree
                 of
                 Succession
                 ,
                 by
                 the
                 conjectured
                 will
                 of
                 the
                 intestat
                 ,
                 is
                 of
                 Children
                 ,
                 according
                 to
                 that
                 ,
                 Rom.
                 8.
                 17.
                 
                 
                   If
                   children
                   ,
                   then
                   Heirs
                
                 :
                 Which
                 consequence
                 doth
                 necessarily
                 import
                 ,
                 That
                 all
                 Children
                 are
                 Heirs
                 :
                 Neither
                 can
                 this
                 be
                 an
                 allusion
                 from
                 the
                 Judicial
                 Law
                 ,
                 by
                 which
                 all
                 Children
                 were
                 〈◊〉
                 Heirs
                 ;
                 But
                 the
                 Male
                 excluded
                 the
                 Female
                 :
                 Therefore
                 it
                 must
                 needs
                 be
                 a
                 consequence
                 form
                 the
                 Law
                 of
                 Nature
                 ,
                 and
                 seing
                 there
                 is
                 no
                 different
                 proportion
                 ,
                 held
                 forth
                 by
                 this
                 Text
                 ,
                 or
                 by
                 the
                 Light
                 of
                 Nature
                 ;
                 The
                 Succession
                 of
                 all
                 Children
                 must
                 be
                 in
                 Equal
                 shares
                 ,
                 whether
                 Male
                 or
                 Female
                 ,
                 for
                 in
                 all
                 Communions
                 ,
                 and
                 Partnerships
                 ,
                 an
                 Equal
                 Division
                 takes
                 place
                 ,
                 except
                 an
                 Unequal
                 be
                 expressed
                 .
              
               
                 4.
                 
                 It
                 is
                 more
                 dark
                 ,
                 whether
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 there
                 be
                 competent
                 ,
                 the
                 Right
                 of
                 Representation
                 ,
                 whereby
                 the
                 Issue
                 of
                 the
                 Defunct
                 Children
                 represent
                 them
                 ,
                 and
                 come
                 in
                 with
                 the
                 surviving
                 Children
                 ,
                 to
                 get
                 that
                 Share
                 ,
                 which
                 their
                 Defunct
                 Parent
                 would
                 have
                 got
                 ,
                 if
                 alive
                 ;
                 whereby
                 they
                 would
                 not
                 succeed
                 in
                 capita
                 ,
                 the
                 whole
                 Successors
                 getting
                 Equal
                 Share
                 ,
                 but
                 in
                 stirpes
                 :
                 Whereby
                 the
                 Issue
                 of
                 the
                 Defunct
                 Children
                 ,
                 though
                 they
                 succeed
                 equally
                 among
                 themselves
                 ,
                 yet
                 unequally
                 with
                 the
                 surviving
                 Children
                 ,
                 because
                 the
                 whole
                 Issue
                 of
                 the
                 Defunct
                 ,
                 get
                 but
                 an
                 equal
                 share
                 with
                 each
                 of
                 the
                 surviving
                 Children
                 :
                 As
                 if
                 a
                 Father
                 having
                 three
                 Children
                 ,
                 the
                 eldest
                 dying
                 before
                 him
                 ,
                 leaves
                 one
                 Child
                 ,
                 and
                 two
                 Oyes
                 by
                 another
                 Child
                 ,
                 if
                 there
                 be
                 place
                 for
                 representation
                 ,
                 the
                 Heritage
                 would
                 divide
                 in
                 three
                 ,
                 the
                 two
                 surviving
                 Children
                 will
                 have
                 two
                 third
                 parts
                 ,
                 the
                 other
                 third
                 will
                 divide
                 in
                 two
                 ,
                 whereof
                 the
                 Child
                 of
                 the
                 Defuncts
                 will
                 get
                 one
                 half
                 ,
                 and
                 the
                 other
                 half
                 will
                 divide
                 equally
                 betwixt
                 the
                 two
                 Oyes
                 :
                 So
                 then
                 the
                 question
                 is
                 ,
                 whether
                 the
                 Descendents
                 will
                 thus
                 succeed
                 ,
                 or
                 if
                 the
                 Survivers
                 will
                 wholly
                 exclude
                 the
                 Issue
                 of
                 the
                 Deceasing
                 .
              
               
               
                 This
                 Right
                 of
                 Representation
                 ,
                 taketh
                 place
                 with
                 us
                 ,
                 and
                 most
                 other
                 Nations
                 ,
                 in
                 the
                 Right
                 of
                 Immoveables
                 ;
                 Which
                 we
                 call
                 Heritable
                 Rights
                 ,
                 whether
                 it
                 be
                 of
                 Descendents
                 ,
                 or
                 Collaterals
                 :
                 But
                 doubtless
                 in
                 that
                 the
                 Course
                 of
                 the
                 Law
                 of
                 Nature
                 is
                 altered
                 ,
                 for
                 the
                 preservation
                 of
                 the
                 Stock
                 or
                 Stem
                 of
                 the
                 Familie
                 :
                 So
                 that
                 it
                 is
                 clear
                 ,
                 that
                 there
                 is
                 no
                 Right
                 of
                 Representation
                 ,
                 in
                 Collaterals
                 ,
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 as
                 that
                 the
                 Child
                 ,
                 or
                 Grand-child
                 of
                 a
                 Brother
                 should
                 come
                 in
                 with
                 a
                 Brother
                 ,
                 because
                 the
                 Propinquitie
                 of
                 Blood
                 ,
                 Natural
                 Affection
                 ,
                 and
                 so
                 the
                 Presumed
                 Will
                 of
                 the
                 Defunct
                 is
                 diminished
                 :
                 But
                 it
                 is
                 not
                 so
                 clear
                 in
                 Descendents
                 ,
                 neither
                 shall
                 we
                 be
                 positive
                 in
                 it
                 ,
                 but
                 it
                 seems
                 most
                 suitable
                 to
                 Reason
                 ,
                 and
                 the
                 Text
                 adduced
                 ;
                 That
                 if
                 the
                 Issue
                 of
                 Defunct
                 Children
                 remain
                 in
                 the
                 Familie
                 ,
                 that
                 they
                 should
                 come
                 in
                 by
                 Representation
                 ,
                 in
                 the
                 place
                 of
                 their
                 Defunct
                 Parent
                 ,
                 for
                 ,
                 these
                 that
                 are
                 in
                 the
                 Family
                 ,
                 extendeth
                 to
                 all
                 that
                 are
                 not
                 Forisfamiliat
                 ,
                 whether
                 Children
                 or
                 Grand-children
                 ,
                 to
                 whom
                 there
                 remaineth
                 like
                 affection
                 ,
                 in
                 the
                 common
                 Parent
                 :
                 but
                 when
                 the
                 Defunct
                 Child
                 was
                 forisfamiliat
                 ,
                 and
                 so
                 presumed
                 to
                 have
                 been
                 provided
                 ,
                 and
                 to
                 have
                 gotten
                 a
                 Share
                 ,
                 and
                 therewith
                 put
                 out
                 of
                 the
                 Familie
                 ,
                 to
                 live
                 in
                 a
                 distinct
                 Familie
                 ;
                 In
                 that
                 case
                 ,
                 there
                 seems
                 no
                 ground
                 for
                 Representation
                 ,
                 which
                 doth
                 agree
                 to
                 our
                 Custom
                 ,
                 in
                 the
                 Succession
                 of
                 Moveables
                 ,
                 wherein
                 there
                 is
                 no
                 Right
                 of
                 Representation
                 ,
                 but
                 the
                 nearest
                 of
                 Kin
                 exclude
                 the
                 Issue
                 of
                 the
                 Defuncts
                 ,
                 which
                 were
                 of
                 the
                 same
                 degree
                 ,
                 which
                 Suceession
                 is
                 certainly
                 more
                 near
                 unto
                 the
                 Natural
                 Succession
                 .
              
               
                 What
                 hath
                 been
                 said
                 ,
                 may
                 sufficiently
                 clear
                 the
                 Natural
                 Succession
                 ,
                 of
                 the
                 Defuncts
                 descendents
                 ,
                 whether
                 Children
                 ,
                 or
                 Grand-children
                 ,
                 and
                 while
                 there
                 are
                 any
                 Descendents
                 ,
                 there
                 is
                 place
                 for
                 no
                 other
                 .
              
               
                 5.
                 
                 The
                 third
                 Branch
                 of
                 Natural
                 Succession
                 ,
                 failing
                 the
                 express
                 will
                 of
                 Defuncts
                 ,
                 and
                 their
                 Descendents
                 ,
                 or
                 the
                 Issue
                 of
                 their
                 Bodies
                 ,
                 is
                 of
                 Parents
                 ,
                 among
                 whom
                 ,
                 these
                 in
                 the
                 nearest
                 degree
                 are
                 preferable
                 ,
                 as
                 Father
                 and
                 Mother
                 :
                 And
                 if
                 the
                 Father
                 be
                 dead
                 ,
                 there
                 seems
                 to
                 be
                 place
                 for
                 Representation
                 to
                 his
                 Father
                 ,
                 to
                 come
                 in
                 with
                 the
                 surviving
                 Mother
                 Equally
                 ;
                 But
                 other
                 Parents
                 of
                 ,
                 or
                 by
                 the
                 Female
                 Line
                 ,
                 who
                 are
                 in
                 another
                 Family
                 ,
                 from
                 the
                 ground
                 laid
                 in
                 the
                 Text
                 ,
                 
                   of
                   providing
                   these
                   in
                   the
                   Family
                   ,
                
                 seem
                 not
                 to
                 come
                 in
                 to
                 exclude
                 Brothers
                 ,
                 and
                 Sisters
                 ,
                 and
                 other
                 Collaterals
                 in
                 that
                 Family
                 ,
                 as
                 the
                 Grand-father
                 ,
                 and
                 Grand-mother
                 ,
                 on
                 the
                 Mother
                 side
                 :
                 It
                 will
                 not
                 be
                 opposite
                 to
                 this
                 ,
                 which
                 is
                 said
                 ,
                 
                   Children
                   are
                   not
                   to
                   lay
                   up
                   for
                   Parents
                   ,
                   but
                   Parents
                   for
                   Children
                
                 ;
                 which
                 is
                 not
                 to
                 be
                 understood
                 absolutely
                 ,
                 but
                 comparatively
                 ,
                 and
                 according
                 to
                 the
                 ordinar
                 course
                 of
                 Nature
                 .
              
               
                 6.
                 
                 The
                 fourth
                 Link
                 of
                 Natural
                 Succession
                 ,
                 is
                 Brethren
                 and
                 Sisters
                 ,
                 among
                 whom
                 Brethren
                 and
                 Sisters
                 German
                 ,
                 being
                 related
                 by
                 both
                 Bloods
                 ,
                 exclude
                 these
                 who
                 are
                 only
                 of
                 one
                 Blood
                 ,
                 by
                 the
                 Fathers
                 side
                 :
                 the
                 reason
                 is
                 ,
                 because
                 the
                 presumed
                 will
                 of
                 the
                 Defunct
                 ,
                 being
                 from
                 their
                 Interest
                 and
                 Relation
                 ,
                 these
                 of
                 double
                 Relation
                 ,
                 by
                 both
                 Bloods
                 ,
                 are
                 preferable
                 to
                 these
                 of
                 single
                 Relation
                 .
              
               
                 7.
                 
                 The
                 last
                 degree
                 of
                 Natural
                 Succession
                 is
                 ,
                 of
                 Uncles
                 ,
                 Aunts
                 ,
                 Nepheus
                 ,
                 Neices
                 ,
                 all
                 which
                 being
                 in
                 equal
                 propinquity
                 to
                 the
                 Defunct
                 ,
                 come
                 in
                 together
                 ,
                 And
                 failling
                 these
                 ,
                 the
                 Succession
                 would
                 befall
                 equally
                 ,
                 to
                 the
                 nearest
                 degree
                 of
                 Cousines
                 ,
                 among
                 whom
                 the
                 nearest
                 degree
                 excludeth
                 the
                 father
                 ,
                 without
                 Right
                 of
                 Representation
                 :
                 And
                 these
                 conjoyned
                 by
                 both
                 Bloods
                 ,
                 exclude
                 these
                 onjoyned
                 by
                 one
                 .
                 Husband
                 and
                 Wife
                 ,
                 doth
                 not
                 succeed
                 properly
                 ,
                 either
                 to
                 
                 other
                 ,
                 but
                 having
                 a
                 communion
                 of
                 goods
                 ,
                 there
                 is
                 a
                 Division
                 by
                 the
                 Death
                 of
                 either
                 .
              
               
                 8.
                 
                 The
                 main
                 question
                 is
                 here
                 ,
                 whether
                 there
                 be
                 Naturally
                 ,
                 any
                 difference
                 in
                 Succession
                 ,
                 betwixt
                 the
                 Collaterals
                 on
                 the
                 Fathers
                 side
                 ,
                 who
                 are
                 called
                 Agnats
                 ,
                 and
                 the
                 Collaterals
                 on
                 the
                 Mothers
                 side
                 ,
                 who
                 are
                 called
                 Cognats
                 .
                 Justinian
                 in
                 his
                 
                   novel
                   Constitutions
                   ,
                   cap.
                
                 4.
                 127.
                 took
                 off
                 all
                 distinction
                 of
                 Agnats
                 ,
                 and
                 Cognats
                 in
                 Succession
                 :
                 For
                 which
                 he
                 is
                 generally
                 reprehended
                 by
                 Interpreters
                 ,
                 Who
                 behold
                 such
                 a
                 difference
                 ,
                 even
                 in
                 equity
                 ,
                 Cognats
                 being
                 conjoyned
                 by
                 Women
                 ,
                 who
                 ordainarily
                 ,
                 are
                 under
                 the
                 power
                 of
                 others
                 ,
                 even
                 naturally
                 by
                 Marriage
                 .
                 And
                 so
                 being
                 of
                 another
                 Family
                 ,
                 they
                 are
                 not
                 of
                 the
                 Defuncts
                 own
                 Family
                 ,
                 as
                 the
                 Agnats
                 are
                 (
                 amongst
                 these
                 ,
                 the
                 Mother
                 ,
                 Fathers
                 Mother
                 ,
                 or
                 other
                 Ascendents
                 ,
                 on
                 the
                 Fathers
                 side
                 in
                 his
                 Family
                 ,
                 are
                 not
                 hereby
                 excluded
                 )
                 and
                 so
                 neither
                 these
                 or
                 other
                 ,
                 by
                 their
                 express
                 ,
                 nor
                 presumed
                 will
                 ,
                 can
                 transmit
                 any
                 Goods
                 ,
                 or
                 Estates
                 .
                 Yet
                 this
                 point
                 remaineth
                 more
                 dark
                 :
                 And
                 I
                 conceive
                 ,
                 what
                 hath
                 come
                 by
                 the
                 Mothers
                 side
                 ,
                 or
                 by
                 the
                 Grand-mother
                 ,
                 &c.
                 therein
                 the
                 Cognats
                 of
                 her
                 Blood
                 would
                 naturally
                 succeed
                 ,
                 because
                 there
                 are
                 two
                 grounds
                 of
                 Presumption
                 joyned
                 ,
                 Propinquity
                 of
                 Blood
                 ,
                 and
                 Gratitude
                 ,
                 or
                 Remuneration
                 to
                 that
                 Linage
                 ,
                 by
                 whom
                 ,
                 such
                 things
                 by
                 Succession
                 came
                 .
                 So
                 that
                 
                   Paterna
                   Paternis
                   ,
                   Materna
                   Maternis
                
                 ,
                 ought
                 to
                 take
                 place
                 in
                 equity
                 ,
                 as
                 the
                 presumed
                 will
                 of
                 the
                 Defunct
                 ,
                 unless
                 the
                 express
                 will
                 ,
                 or
                 the
                 Law
                 ,
                 or
                 Custom
                 of
                 the
                 place
                 be
                 to
                 the
                 contrare
                 .
              
               
                 So
                 much
                 for
                 the
                 Natural
                 course
                 of
                 Succession
                 ,
                 which
                 hath
                 been
                 the
                 more
                 insisted
                 in
                 ,
                 not
                 only
                 to
                 shew
                 the
                 goodness
                 and
                 righteousness
                 of
                 GOD
                 ,
                 instructing
                 man
                 ,
                 with
                 an
                 in-bred
                 Law
                 ,
                 written
                 in
                 his
                 heart
                 ;
                 though
                 he
                 were
                 destitute
                 of
                 any
                 humane
                 constitution
                 or
                 custom
                 ,
                 so
                 that
                 he
                 might
                 walk
                 justly
                 ,
                 in
                 this
                 important
                 matter
                 of
                 Succession
                 :
                 Albeit
                 all
                 the
                 Lines
                 of
                 this
                 Divine
                 impression
                 ,
                 be
                 no
                 clear
                 ,
                 to
                 our
                 Sin-dimmed
                 eyes
                 ;
                 But
                 also
                 that
                 ,
                 where
                 positive
                 Law
                 ,
                 or
                 Custom
                 is
                 dubious
                 ,
                 in
                 the
                 matter
                 of
                 Succession
                 ,
                 or
                 is
                 defective
                 therein
                 ,
                 Emendation
                 ,
                 and
                 Extention
                 may
                 be
                 fetched
                 thereto
                 ,
                 from
                 the
                 Law
                 of
                 Nature
                 ,
                 we
                 shall
                 now
                 proceed
                 to
                 the
                 positive
                 Law
                 of
                 God
                 ,
                 given
                 to
                 Israel
                 ,
                 concerning
                 Succession
                 .
              
               
                 9.
                 
                 The
                 Judicial
                 Law
                 ,
                 in
                 the
                 case
                 of
                 the
                 Daughters
                 of
                 
                   Zelophehad
                   ,
                   Num.
                
                 6.
                 27.
                 
                 Determineth
                 the
                 order
                 of
                 Succession
                 ,
                 in
                 Lands
                 or
                 Immoveables
                 ,
                 to
                 stand
                 as
                 a
                 perpetual
                 Statute
                 to
                 the
                 Children
                 of
                 Israel
                 .
                 Thus
                 the
                 first
                 degree
                 of
                 Succession
                 is
                 ,
                 of
                 all
                 the
                 Sons
                 ,
                 whereby
                 the
                 Daughters
                 ,
                 and
                 their
                 Descendents
                 are
                 excluded
                 ,
                 but
                 the
                 Sons
                 do
                 not
                 Succeed
                 equally
                 :
                 For
                 the
                 first
                 born
                 had
                 a
                 double
                 Portion
                 ,
                 of
                 all
                 that
                 the
                 Father
                 had
                 ,
                 Deut.
                 21.
                 17.
                 
                 By
                 which
                 the
                 eldest
                 Son
                 had
                 twice
                 as
                 much
                 as
                 the
                 other
                 Sons
                 :
                 So
                 that
                 the
                 Heritage
                 being
                 divided
                 in
                 one
                 Portion
                 more
                 then
                 there
                 were
                 Sons
                 ,
                 of
                 these
                 the
                 eldest
                 had
                 two
                 ,
                 and
                 each
                 of
                 the
                 rest
                 one
                 ;
                 As
                 if
                 there
                 be
                 two
                 Sons
                 ,
                 it
                 divides
                 in
                 three
                 ,
                 whereof
                 the
                 elder
                 hath
                 two
                 third
                 parts
                 ,
                 and
                 the
                 younger
                 one
                 third
                 part
                 ;
                 If
                 there
                 be
                 three
                 ,
                 the
                 Heritage
                 divides
                 in
                 four
                 parts
                 ,
                 whereof
                 the
                 eldest
                 hath
                 two
                 fourth
                 parts
                 ,
                 which
                 is
                 the
                 half
                 ,
                 and
                 each
                 of
                 the
                 rest
                 hath
                 one
                 fourth
                 part
                 .
              
               
                 10.
                 
                 This
                 Right
                 of
                 primogeniture
                 ,
                 was
                 so
                 secured
                 ,
                 that
                 the
                 Father
                 could
                 not
                 preser
                 any
                 other
                 Son
                 thereto
                 ,
                 Deut.
                 24.
                 v.
                 16.
                 
                 Failling
                 Sons
                 ,
                 the
                 inheritance
                 passes
                 to
                 the
                 Daughters
                 equally
                 ;
                 For
                 though
                 the
                 Text
                 expresseth
                 it
                 to
                 
                 passe
                 to
                 the
                 Daughter
                 ,
                 in
                 the
                 singular
                 number
                 ;
                 Yet
                 it
                 is
                 cleared
                 by
                 the
                 context
                 ,
                 that
                 all
                 the
                 Daughters
                 are
                 therein
                 included
                 ,
                 for
                 the
                 Daughters
                 of
                 Zelophehad
                 ,
                 though
                 more
                 in
                 number
                 ,
                 are
                 found
                 to
                 have
                 the
                 said
                 Right
                 ,
                 and
                 to
                 get
                 an
                 Inheritance
                 among
                 their
                 Fathers
                 Brethren
                 ,
                 by
                 which
                 it
                 appeareth
                 that
                 the
                 Right
                 of
                 Representation
                 had
                 place
                 there
                 ,
                 for
                 all
                 the
                 Daughters
                 of
                 Zelophehad
                 were
                 but
                 to
                 have
                 that
                 share
                 which
                 their
                 Father
                 would
                 have
                 had
                 ,
                 if
                 he
                 had
                 been
                 alive
                 among
                 his
                 Brethren
                 ,
                 for
                 they
                 claiming
                 the
                 Right
                 of
                 their
                 Father
                 ,
                 whom
                 they
                 show
                 not
                 to
                 have
                 been
                 in
                 the
                 company
                 of
                 Corah
                 ,
                 thereby
                 forefaulting
                 his
                 right
                 :
                 So
                 then
                 ,
                 right
                 of
                 Representation
                 must
                 take
                 place
                 amongst
                 all
                 descendents
                 :
                 So
                 that
                 the
                 Children
                 of
                 the
                 Sons
                 ,
                 though
                 these
                 Sons
                 survive
                 not
                 their
                 Father
                 ,
                 would
                 exclude
                 the
                 surviving
                 Daughters
                 ,
                 or
                 would
                 come
                 in
                 with
                 the
                 surviving
                 Sons
                 ,
                 not
                 equally
                 ,
                 and
                 in
                 capita
                 ,
                 but
                 in
                 stirpes
                 ,
                 whereby
                 they
                 would
                 succeed
                 to
                 the
                 shares
                 of
                 their
                 pre-deceased
                 Fathers
                 ,
                 by
                 Right
                 of
                 Representation
                 .
              
               
                 11.
                 
                 The
                 third
                 degree
                 of
                 Jewish
                 Succession
                 ,
                 is
                 failing
                 Descendents
                 ,
                 the
                 inheritance
                 passeth
                 to
                 the
                 Defuncts
                 Brethren
                 ,
                 and
                 these
                 failing
                 ,
                 to
                 his
                 Fathers
                 Brethren
                 ,
                 and
                 these
                 failing
                 ,
                 to
                 the
                 nearest
                 Kinsman
                 of
                 his
                 Familie
                 ,
                 that
                 is
                 ,
                 the
                 nearest
                 Agnats
                 on
                 his
                 Fathers
                 side
                 ,
                 where
                 all
                 the
                 male
                 Agnats
                 ,
                 of
                 the
                 same
                 degree
                 are
                 understood
                 .
                 It
                 doth
                 not
                 appear
                 whether
                 in
                 this
                 Collateral
                 〈◊〉
                 ,
                 there
                 be
                 place
                 for
                 Representation
                 ;
                 and
                 though
                 there
                 be
                 no
                 mention
                 of
                 the
                 Succession
                 of
                 Women
                 ,
                 or
                 their
                 Issue
                 ,
                 but
                 only
                 of
                 Daughters
                 ,
                 Some
                 have
                 thought
                 ,
                 from
                 the
                 paritie
                 of
                 Reason
                 ,
                 in
                 everie
                 degree
                 ,
                 failing
                 the
                 Males
                 ,
                 the
                 Females
                 are
                 to
                 Succeed
                 ,
                 and
                 to
                 exclude
                 further
                 degrees
                 of
                 Males
                 ,
                 as
                 if
                 there
                 be
                 no
                 Brothers
                 ,
                 but
                 Sisters
                 ,
                 these
                 should
                 exclude
                 the
                 Fathers
                 Brother
                 :
                 It
                 may
                 be
                 also
                 thought
                 strange
                 ,
                 that
                 in
                 all
                 this
                 course
                 of
                 Succession
                 ,
                 there
                 is
                 no
                 mention
                 of
                 the
                 Succession
                 of
                 Parents
                 .
              
               
                 12.
                 
                 In
                 answer
                 to
                 these
                 doubts
                 ,
                 as
                 to
                 the
                 first
                 ,
                 I
                 conceive
                 ,
                 that
                 in
                 Collateral
                 Succession
                 ,
                 there
                 is
                 also
                 place
                 for
                 Representation
                 ,
                 so
                 that
                 the
                 Brothers
                 Sons
                 as
                 representing
                 the
                 Defunct
                 Brother
                 ,
                 their
                 Father
                 would
                 exclude
                 the
                 Fathers
                 Brethren
                 .
                 And
                 so
                 of
                 the
                 rest
                 ,
                 because
                 it
                 is
                 said
                 ,
                 if
                 there
                 be
                 no
                 Brethren
                 ,
                 the
                 Inheritance
                 shall
                 passe
                 unto
                 the
                 Fathers
                 Brethren
                 ,
                 which
                 〈◊〉
                 ,
                 unto
                 the
                 nearest
                 Kins-man
                 ,
                 and
                 if
                 there
                 be
                 no
                 Right
                 of
                 Representation
                 ,
                 the
                 Cousin-german
                 ,
                 or
                 Father
                 Brothers
                 Son
                 would
                 exclude
                 the
                 Nephew
                 ,
                 or
                 Brothers
                 Son
                 ,
                 for
                 Uncle
                 and
                 Nephew
                 are
                 never
                 understood
                 by
                 the
                 name
                 of
                 Cousins
                 or
                 Kinsmen
                 ,
                 but
                 have
                 that
                 special
                 nominate
                 relation
                 of
                 Uncle
                 and
                 Nephew
                 ,
                 or
                 Father
                 ,
                 and
                 Brother
                 Son
                 ,
                 and
                 therefore
                 the
                 Brothers
                 Son
                 ,
                 as
                 representing
                 the
                 Brother
                 ,
                 must
                 succeed
                 ,
                 and
                 exclude
                 the
                 Fathers
                 Brother
                 .
                 2.
                 
                 
                   Cateris
                   paribus
                
                 ,
                 Succession
                 will
                 certainly
                 descend
                 to
                 the
                 Brothers
                 Son
                 ,
                 and
                 not
                 ascend
                 to
                 the
                 Fathers
                 Brother
                 .
              
               
                 13.
                 
                 As
                 to
                 the
                 second
                 doubt
                 ,
                 Ihold
                 ,
                 that
                 only
                 Daughters
                 and
                 their
                 Issue
                 do
                 succeed
                 ,
                 and
                 no
                 other
                 Females
                 ,
                 or
                 their
                 Issue
                 ;
                 the
                 reason
                 is
                 ,
                 First
                 ,
                 from
                 the
                 Text
                 ,
                 where
                 failling
                 Sons
                 ,
                 Daughters
                 are
                 exprest
                 ,
                 but
                 failling
                 Brothers
                 Sisters
                 are
                 not
                 substitute
                 ,
                 but
                 Uncles
                 .
                 2.
                 
                 The
                 Division
                 and
                 Succession
                 ,
                 and
                 the
                 Land
                 of
                 Canaan
                 was
                 Typical
                 ,
                 and
                 was
                 not
                 to
                 passe
                 from
                 
                   Tribe
                   to
                   Tribe
                
                 ,
                 and
                 therefore
                 ,
                 Daughters
                 succeeding
                 ,
                 are
                 appointed
                 to
                 Marry
                 in
                 their
                 own
                 Tribe
                 ;
                 because
                 ordinarily
                 they
                 were
                 to
                 be
                 Married
                 ,
                 when
                 their
                 Fathers
                 succession
                 did
                 probably
                 appear
                 ;
                 but
                 this
                 could
                 not
                 have
                 been
                 ,
                 if
                 Fathers
                 Sisters
                 ,
                 and
                 these
                 of
                 further
                 degree
                 had
                 succeeded
                 .
              
               
               
                 14.
                 
                 As
                 to
                 the
                 third
                 ,
                 concerning
                 Succession
                 of
                 Parents
                 ,
                 it
                 is
                 sure
                 ,
                 Mothers
                 ,
                 and
                 all
                 Cognats
                 ,
                 by
                 the
                 Mother
                 side
                 ,
                 being
                 ordinarily
                 of
                 other
                 Tribes
                 ,
                 and
                 Families
                 ,
                 were
                 for
                 the
                 reason
                 now
                 adduced
                 ,
                 excluded
                 from
                 the
                 Succession
                 .
                 The
                 Text
                 is
                 clear
                 ,
                 that
                 only
                 Kins-men
                 in
                 the
                 Family
                 ,
                 that
                 is
                 on
                 the
                 Fathers
                 side
                 succeed
                 ;
                 But
                 the
                 reason
                 why
                 there
                 is
                 no
                 mention
                 of
                 Fathers
                 ,
                 &c.
                 
                 May
                 be
                 ,
                 because
                 the
                 Land
                 of
                 Canaan
                 ,
                 being
                 Typical
                 ,
                 is
                 fixed
                 to
                 Tribes
                 and
                 Families
                 ,
                 it
                 uses
                 not
                 to
                 passe
                 by
                 Testament
                 ,
                 or
                 provision
                 ,
                 or
                 to
                 be
                 acquired
                 further
                 then
                 by
                 Wodset
                 ,
                 to
                 return
                 at
                 the
                 Jubile
                 ;
                 Therefore
                 among
                 the
                 Jewes
                 ,
                 Lands
                 passed
                 by
                 the
                 ordinar
                 course
                 of
                 Legittime
                 Succession
                 ,
                 and
                 so
                 came
                 from
                 the
                 Fathers
                 to
                 the
                 Children
                 ,
                 which
                 presupposes
                 the
                 Father
                 to
                 have
                 been
                 pre-deceased
                 ,
                 and
                 could
                 not
                 succeed
                 .
              
               
                 By
                 this
                 Tract
                 of
                 the
                 Jewish
                 Succession
                 ,
                 it
                 is
                 clear
                 ,
                 that
                 GOD
                 ,
                 by
                 his
                 Positive
                 Law
                 ,
                 altered
                 the
                 effect
                 of
                 Equitie
                 ,
                 and
                 of
                 his
                 Moral
                 Law
                 ,
                 in
                 succession
                 :
                 For
                 ,
                 it
                 hath
                 been
                 now
                 shown
                 from
                 that
                 place
                 (
                 
                   if
                   Children
                   ,
                   then
                   Heirs
                
                 ,
                 )
                 That
                 all
                 Children
                 must
                 needs
                 be
                 Heirs
                 ,
                 not
                 by
                 the
                 Judicial
                 Law
                 ,
                 but
                 by
                 Equity
                 ;
                 And
                 yet
                 by
                 the
                 Judicial
                 Law
                 ,
                 not
                 all
                 Children
                 are
                 Heirs
                 ,
                 but
                 Sons
                 exclude
                 Daughters
                 ,
                 and
                 Females
                 are
                 excluded
                 by
                 Males
                 of
                 a
                 far
                 distant
                 degree
                 ,
                 which
                 necessarily
                 infers
                 ,
                 that
                 for
                 expedience
                 ,
                 the
                 course
                 of
                 Succession
                 may
                 be
                 altered
                 .
                 The
                 like
                 must
                 also
                 be
                 in
                 other
                 effects
                 of
                 Equity
                 ,
                 which
                 are
                 in
                 our
                 power
                 .
              
               
                 15.
                 
                 The
                 order
                 of
                 Succession
                 in
                 the
                 Civil
                 Law
                 ,
                 did
                 exceedingly
                 varie
                 ,
                 being
                 in
                 many
                 points
                 different
                 ,
                 in
                 the
                 Ancient
                 Law
                 of
                 the
                 twelve
                 Tables
                 ,
                 in
                 Honorarie
                 Law
                 ,
                 introduced
                 by
                 the
                 Edicts
                 and
                 Customs
                 of
                 the
                 Pretors
                 ,
                 who
                 had
                 Authority
                 to
                 Supply
                 ,
                 and
                 Correct
                 the
                 Ancient
                 Law
                 ;
                 and
                 in
                 the
                 Imperial
                 Constitutions
                 ,
                 especially
                 in
                 the
                 Novel
                 Constitutions
                 of
                 Justinian
                 ,
                 they
                 did
                 all
                 agree
                 in
                 this
                 ,
                 that
                 the
                 chief
                 mean
                 of
                 Succession
                 ,
                 is
                 the
                 Will
                 ,
                 or
                 Testament
                 of
                 the
                 Defunct
                 ,
                 which
                 they
                 held
                 so
                 Sacred
                 ,
                 That
                 all
                 Pactions
                 ,
                 or
                 Provisio
                 s
                 ,
                 which
                 might
                 any
                 way
                 hinder
                 the
                 Free
                 Liberty
                 of
                 Testing
                 ,
                 or
                 any
                 Act
                 ,
                 whereby
                 Defuncts
                 might
                 be
                 Restrained
                 ,
                 or
                 Constrained
                 in
                 the
                 free
                 Disposal
                 of
                 their
                 Estates
                 ,
                 were
                 not
                 only
                 null
                 ,
                 but
                 exclusive
                 of
                 such
                 Persons
                 ,
                 from
                 having
                 any
                 interest
                 in
                 the
                 Defuncts
                 Inheritance
                 ;
                 Yet
                 were
                 the
                 Romans
                 so
                 sensible
                 of
                 the
                 Natural
                 Obligation
                 of
                 Parents
                 to
                 provide
                 their
                 Children
                 ,
                 that
                 their
                 midle
                 Laws
                 ,
                 necessitat
                 Fathers
                 either
                 to
                 institute
                 ther
                 Children
                 ,
                 or
                 expresly
                 to
                 exhaeridat
                 ,
                 or
                 disherish
                 them
                 ,
                 expressing
                 their
                 delinquencie
                 of
                 Ingratitude
                 ,
                 the
                 kinds
                 and
                 measures
                 whereof
                 ,
                 the
                 Law
                 did
                 determine
                 :
                 So
                 that
                 if
                 the
                 Children
                 were
                 past
                 by
                 in
                 silence
                 ,
                 and
                 neither
                 Institute
                 nor
                 exhaeridat
                 ,
                 the
                 Law
                 declared
                 the
                 Testament
                 void
                 ,
                 and
                 if
                 they
                 were
                 exhaeridat
                 without
                 a
                 due
                 and
                 true
                 offence
                 ,
                 it
                 did
                 allow
                 the
                 Children
                 
                   querelam
                   inofficiosi
                   Testamenti
                
                 ,
                 that
                 is
                 ,
                 complaint
                 against
                 the
                 Testament
                 made
                 
                   contra
                   officium
                
                 ,
                 which
                 is
                 the
                 Natural
                 Obligation
                 ,
                 or
                 duty
                 of
                 Parents
                 to
                 provide
                 their
                 Children
                 ;
                 For
                 the
                 like
                 Reason
                 ,
                 the
                 same
                 Complaint
                 was
                 competent
                 to
                 the
                 Fathers
                 ,
                 against
                 the
                 Testament
                 of
                 their
                 Children
                 ,
                 but
                 because
                 that
                 remeid
                 might
                 have
                 been
                 eleided
                 ,
                 by
                 exhausting
                 the
                 Heritage
                 by
                 Legacies
                 ,
                 whereby
                 the
                 institution
                 of
                 the
                 Children
                 might
                 prove
                 ineffectual
                 ,
                 for
                 their
                 provision
                 :
                 Therefore
                 ,
                 the
                 Law
                 allowed
                 Children
                 a
                 Legittime
                 Portion
                 ,
                 being
                 the
                 sourth
                 part
                 of
                 the
                 Heritage
                 ;
                 which
                 that
                 ,
                 it
                 might
                 extend
                 to
                 all
                 Heirs
                 .
                 Falcidius
                 was
                 the
                 Author
                 of
                 that
                 Noble
                 Law
                 ,
                 restraining
                 Legacies
                 ,
                 so
                 that
                 there
                 might
                 remain
                 a
                 Portion
                 to
                 the
                 Defuncts
                 Heirs
                 ,
                 which
                 Law
                 and
                 Portion
                 ,
                 in
                 Honour
                 of
                 his
                 Name
                 ,
                 was
                 called
                 the
                 Falcidian
                 Law
                 ,
                 and
                 
                   Portio
                   Falcidia
                
                 ,
                 whereby
                 the
                 fourth
                 part
                 of
                 the
                 free
                 Goods
                 of
                 the
                 Testator
                 ,
                 remained
                 
                 always
                 Secure
                 against
                 Legacies
                 ,
                 and
                 when
                 a
                 new
                 Subtilty
                 was
                 invented
                 ,
                 to
                 frustrat
                 the
                 Falcidian
                 Law
                 :
                 By
                 taking
                 away
                 the
                 Heritage
                 ,
                 not
                 Directly
                 by
                 Legacies
                 ;
                 but
                 Indirectly
                 by
                 Trust
                 or
                 
                   Fidei-comisses
                   .
                   Trebellianus
                
                 procured
                 that
                 Ordinance
                 of
                 the
                 Senate
                 ,
                 called
                 
                   Senatus-Consultum
                   Trebellianum
                
                 ,
                 whereby
                 that
                 Portion
                 called
                 also
                 Trebelliarica
                 ,
                 should
                 remain
                 safe
                 against
                 FideiCommissarie
                 Trusts
                 :
                 And
                 though
                 it
                 be
                 the
                 Common
                 Opinion
                 of
                 the
                 Doctors
                 :
                 That
                 if
                 the
                 Defunct
                 Expressly
                 Prohibit
                 the
                 Heir
                 ,
                 to
                 take
                 the
                 benefit
                 of
                 his
                 Falcidia
                 or
                 Trebellianica
                 ,
                 they
                 will
                 be
                 thereby
                 excluded
                 ,
                 yet
                 the
                 Common
                 opinion
                 ,
                 is
                 that
                 it
                 cannot
                 be
                 extended
                 to
                 Children
                 ,
                 as
                 to
                 their
                 Legittime
                 ,
                 whom
                 the
                 Law
                 hath
                 fullie
                 secured
                 ,
                 either
                 by
                 Ordaining
                 them
                 to
                 be
                 institute
                 Heirs
                 in
                 Whole
                 ,
                 or
                 at
                 least
                 in
                 a
                 fourth
                 Part
                 ;
                 which
                 is
                 their
                 Natural
                 ,
                 or
                 Legittime
                 Portion
                 :
                 And
                 if
                 they
                 be
                 Institute
                 in
                 less
                 ,
                 they
                 have
                 Right
                 to
                 the
                 Supplement
                 of
                 their
                 Legittime
                 Portion
                 ,
                 or
                 otherwise
                 they
                 must
                 be
                 Expressly
                 ,
                 and
                 Justly
                 Exheredat
                 ,
                 and
                 they
                 have
                 the
                 Common
                 benefit
                 of
                 other
                 Heirs
                 ,
                 of
                 their
                 Falcidia
                 ,
                 or
                 Trebellian
                 ,
                 which
                 the
                 Testator
                 cannot
                 Frustrate
                 ,
                 with
                 out
                 express
                 Prohibition
                 .
              
               
                 16.
                 
                 If
                 there
                 be
                 no
                 lawfull
                 Testament
                 by
                 theLaw
                 of
                 the
                 twelve
                 Tables
                 (
                 which
                 is
                 the
                 Ancient
                 
                   Roman
                   Law
                
                 ,
                 and
                 in
                 comparison
                 of
                 the
                 Pretorian
                 ,
                 or
                 
                   Imperial
                   Law
                
                 ,
                 is
                 only
                 called
                 the
                 Law
                 ,
                 or
                 the
                 Civil
                 Law
                 )
                 the
                 Succession
                 of
                 Defunct
                 ,
                 falleth
                 in
                 the
                 first
                 place
                 to
                 the
                 defuncts
                 Children
                 ,
                 or
                 nearest
                 descendents
                 without
                 Distinction
                 of
                 any
                 lawful
                 Children
                 ,
                 though
                 Adopted
                 ,
                 or
                 Posthumus
                 ,
                 or
                 though
                 of
                 diverse
                 lawful
                 Marriages
                 ;
                 whether
                 Male
                 or
                 Female
                 :
                 So
                 that
                 they
                 remain
                 in
                 the
                 Defuncts
                 familie
                 ,
                 and
                 in
                 his
                 Paternall
                 power
                 ,
                 for
                 these
                 who
                 are
                 emancipat
                 ,
                 and
                 demitted
                 from
                 the
                 familie
                 ,
                 and
                 from
                 under
                 the
                 Paternall
                 power
                 ,
                 they
                 are
                 either
                 really
                 or
                 presumptively
                 provided
                 ,
                 and
                 so
                 have
                 no
                 share
                 of
                 the
                 Succession
                 (
                 of
                 this
                 Paternal
                 Power
                 ,
                 and
                 Emancipation
                 ,
                 see
                 before
                 ,
                 Tit.
                 Obligations
                 of
                 Parents
                 )
                 These
                 in
                 the
                 familie
                 were
                 called
                 
                   Haredes
                   Sui
                   &
                   necessarij
                
                 ;
                 because
                 they
                 were
                 
                   ipso
                   facto
                
                 Heirs
                 without
                 solemnity
                 or
                 entrie
                 ;
                 Among
                 these
                 ,
                 the
                 Right
                 of
                 Representation
                 had
                 place
                 ,
                 so
                 that
                 for
                 example
                 ,
                 the
                 Grand
                 Children
                 succeeded
                 with
                 theChildren
                 but
                 not
                 equally
                 ,
                 
                   et
                   per
                   capita
                
                 ;
                 but
                 
                   per
                   stirpes
                
                 :
                 For
                 theGrand
                 Children
                 had
                 but
                 the
                 share
                 of
                 their
                 defunct
                 Parent
                 equally
                 among
                 them
                 ,
                 and
                 so
                 of
                 all
                 other
                 descendents
                 being
                 in
                 the
                 Familie
                 .
                 The
                 Pretors
                 did
                 in
                 a
                 part
                 alter
                 this
                 ,
                 and
                 brought
                 in
                 the
                 Children
                 or
                 Issue
                 emancipat
                 with
                 those
                 in
                 the
                 family
                 ,
                 without
                 distinction
                 ,
                 providing
                 the
                 emancipat
                 brought
                 in
                 their
                 goods
                 ,
                 and
                 adjected
                 the
                 same
                 to
                 the
                 Inheritance
                 ,
                 
                   per
                   collationem
                   bonorum
                
                 ;
                 yet
                 because
                 only
                 the
                 Law
                 ,
                 that
                 is
                 ,
                 the
                 
                   Ancient
                   Law
                
                 ,
                 could
                 make
                 Heirs
                 :
                 The
                 Emancipat
                 were
                 not
                 called
                 Heirs
                 ,
                 but
                 
                   bonorum
                   possessores
                
                 .
                 The
                 Pretorian
                 Law
                 did
                 also
                 take
                 off
                 the
                 necessitie
                 ,
                 and
                 dammage
                 of
                 the
                 Succession
                 ,
                 that
                 none
                 might
                 be
                 necessitate
                 to
                 be
                 Heirs
                 ,
                 yea
                 all
                 Heirs
                 had
                 the
                 benefite
                 of
                 an
                 Inventar
                 ,
                 being
                 timeouslyand
                 duelie
                 ,
                 made
                 beyond
                 which
                 they
                 were
                 not
                 lyable
                 for
                 the
                 defuncts
                 Debts
                 .
              
               
                 17.
                 
                 The
                 next
                 degree
                 of
                 Succession
                 ,
                 by
                 the
                 ancient
                 
                   Roman
                   Law
                
                 ,
                 was
                 failing
                 Descendents
                 in
                 the
                 Familie
                 ,
                 the
                 nearest
                 Agnats
                 of
                 the
                 same
                 degree
                 succeeded
                 ;
                 But
                 there
                 was
                 no
                 Succession
                 ofParents
                 ,
                 nor
                 of
                 Cognats
                 related
                 by
                 the
                 Mothers
                 side
                 (
                 here
                 Mother
                 comprehends
                 Grand-mother
                 and
                 all
                 other
                 Ascendentsof
                 that
                 kind
                 )
                 So
                 the
                 next
                 Degree
                 was
                 of
                 Brethren
                 and
                 Sisters
                 ,
                 &c.
                 
              
               
                 18.
                 
                 The
                 Pretorian
                 Law
                 did
                 also
                 emendat
                 this
                 ,
                 and
                 first
                 brought
                 in
                 the
                 Fathers
                 ,
                 with
                 the
                 Brothers
                 and
                 SistersGerman
                 ,
                 or
                 of
                 both
                 Bloods
                 :
                 And
                 thereafter
                 
                 the
                 
                   Tertullian
                   Senatus-consult
                
                 ,
                 failling
                 the
                 Fathers
                 ,
                 brought
                 in
                 the
                 Mother
                 with
                 the
                 Sisters
                 in
                 their
                 share
                 ,
                 but
                 not
                 with
                 the
                 Brothers
                 German
                 ,
                 who
                 if
                 there
                 were
                 no
                 Sisters
                 German
                 ,
                 excluded
                 their
                 Mothers
                 totally
                 ,
                 and
                 ,
                 if
                 for
                 example
                 there
                 were
                 a
                 Brother
                 German
                 ,
                 and
                 a
                 Sister
                 German
                 ,
                 the
                 Father
                 being
                 dead
                 ,
                 the
                 Brother
                 had
                 the
                 half
                 ,
                 and
                 the
                 Sisters
                 half
                 ,
                 was
                 devided
                 equally
                 betwixt
                 her
                 and
                 her
                 Mother
                 ,
                 and
                 so
                 the
                 Mother
                 is
                 preferred
                 to
                 the
                 Fathers
                 Father
                 ,
                 and
                 to
                 the
                 Defuncts
                 Brethren
                 ,
                 and
                 Sisters
                 of
                 one
                 blood
                 .
                 Failling
                 those
                 of
                 this
                 degree
                 ,
                 the
                 Brothers
                 ,
                 and
                 Sisters
                 by
                 the
                 Fathers
                 side
                 ,
                 and
                 these
                 failling
                 the
                 nearest
                 Degree
                 of
                 Agnats
                 ,
                 in
                 which
                 the
                 paritie
                 of
                 reason
                 inferreth
                 ,
                 that
                 as
                 in
                 Brothers
                 and
                 Sisters
                 ,
                 so
                 in
                 other
                 Collateralls
                 ,
                 these
                 of
                 both
                 blood
                 make
                 a
                 nearer
                 Degree
                 ,
                 then
                 these
                 of
                 one
                 blood
                 .
                 Failling
                 all
                 these
                 ,
                 the
                 Pretorian
                 Law
                 admitts
                 Spouses
                 to
                 be
                 Heirs
                 ,
                 each
                 to
                 other
                 ,
                 the
                 Husband
                 to
                 the
                 Wife
                 ,
                 and
                 the
                 Wife
                 to
                 the
                 Husband
                 ,
                 and
                 last
                 ,
                 the
                 Fisk
                 takes
                 place
                 as
                 last
                 Heir
                 .
              
               
                 19.
                 
                 But
                 the.
                 Emperor
                 Justinian
                 ,
                 by
                 the
                 Novel
                 Constitution
                 ,
                 118.
                 cap.
                 4.
                 
                 Took
                 off
                 all
                 destinction
                 of
                 Agnats
                 ,
                 and
                 Cognats
                 ,
                 and
                 brought
                 in
                 the
                 Mother
                 ,
                 equally
                 with
                 the
                 Father
                 :
                 with
                 what
                 reason
                 or
                 approbation
                 ,
                 we
                 have
                 touched
                 before
                 .
              
               
                 This
                 is
                 the
                 sum
                 of
                 Succession
                 ,
                 by
                 the
                 
                   Roman
                   Law
                
                 ,
                 wherein
                 there
                 is
                 no
                 〈◊〉
                 〈◊〉
                 〈◊〉
                 ,
                 oveables
                 ,
                 or
                 Immoveables
                 ,
                 and
                 which
                 takes
                 up
                 no
                 small
                 part
                 of
                 the
                 bodie
                 of
                 the
                 Law
                 ,
                 and
                 writings
                 of
                 the
                 Lawyers
                 ;
                 wherein
                 to
                 insist
                 particularlie
                 ,
                 would
                 raise
                 a
                 great
                 bulk
                 ,
                 unnecessar
                 for
                 our
                 purpose
                 :
                 Whereunto
                 ,
                 we
                 conceive
                 this
                 Summarie
                 may
                 suffice
                 .
                 But
                 while
                 the
                 Roman
                 Empire
                 ,
                 and
                 Laws
                 were
                 trampled
                 down
                 ,
                 by
                 the
                 Northern
                 Nations
                 ,
                 the
                 Feudal
                 Law
                 arose
                 ,
                 and
                 doth
                 yet
                 continue
                 with
                 the
                 Civil
                 Law
                 of
                 the
                 Romans
                 ,
                 and
                 other
                 Nations
                 ,
                 by
                 which
                 there
                 is
                 a
                 great
                 distinction
                 introduced
                 ,
                 in
                 the
                 Succession
                 in
                 Moveables
                 ,
                 and
                 in
                 Lands
                 ,
                 or
                 Immoveables
                 ;
                 which
                 are
                 now
                 of
                 a
                 feudal
                 nature
                 :
                 We
                 shall
                 therefore
                 go
                 on
                 to
                 the
                 Common
                 Feudal
                 Customes
                 .
              
               
                 20.
                 
                 The
                 Feudal
                 Customs
                 are
                 locall
                 ,
                 and
                 it
                 is
                 hard
                 to
                 find
                 a
                 common
                 rule
                 therein
                 ,
                 for
                 Succession
                 ,
                 which
                 is
                 variable
                 ,
                 according
                 to
                 the
                 diversity
                 of
                 place
                 only
                 ,
                 if
                 we
                 call
                 to
                 mind
                 what
                 was
                 formerly
                 said
                 ,
                 Title
                 ,
                 Infeftments
                 of
                 the
                 Distinction
                 of
                 Ancient
                 and
                 Proper
                 Fees
                 and
                 of
                 Declining
                 ,
                 and
                 Improper
                 Fees
                 :
                 The
                 nature
                 of
                 Proper
                 Fees
                 ,
                 wil
                 hold
                 forth
                 the
                 matter
                 of
                 succession
                 therein
                 for
                 a
                 Proper
                 Fee
                 being
                 freely
                 granted
                 by
                 the
                 Superior
                 to
                 his
                 Vassall
                 for
                 Military
                 service
                 ,
                 the
                 Vassalls
                 person
                 being
                 chosen
                 by
                 the
                 Superior
                 ,
                 and
                 a
                 speciall
                 trust
                 reposed
                 in
                 him
                 ,
                 and
                 the
                 like
                 hope
                 of
                 his
                 Issue
                 ;
                 
                   Patrene
                   sequitur
                   sua
                   proles
                
                 :
                 It
                 was
                 at
                 first
                 so
                 simplie
                 done
                 ,
                 that
                 the
                 entering
                 of
                 the
                 Vassall
                 in
                 Possession
                 ,
                 in
                 〈◊〉
                 of
                 his
                 Peers
                 ,
                 was
                 a
                 sufficient
                 Constitution
                 of
                 his
                 Right
                 ,
                 and
                 the
                 Investiture
                 signified
                 ,
                 then
                 not
                 so
                 much
                 the
                 Act
                 constituting
                 ,
                 as
                 the
                 Write
                 evidencing
                 the
                 Fee
                 ,
                 in
                 the
                 which
                 case
                 from
                 the
                 nature
                 of
                 the
                 right
                 ,
                 it
                 is
                 consequent
                 ,
                 first
                 that
                 none
                 should
                 succeed
                 in
                 the
                 Fee
                 ,
                 but
                 such
                 as
                 were
                 fit
                 for
                 the
                 Militarie
                 Services
                 ,
                 and
                 so
                 Women
                 ,
                 and
                 their
                 Issue
                 were
                 utterlie
                 excluded
                 ;
                 and
                 all
                 the
                 Males
                 Succeeded
                 equally
                 .
                 2.
                 
                 In
                 Proper
                 Fees
                 ,
                 none
                 could
                 Succeed
                 but
                 the
                 Lawful
                 Issue
                 of
                 the
                 first
                 Vassall
                 ,
                 whose
                 Person
                 and
                 Issue
                 was
                 specially
                 chosen
                 ,
                 among
                 which
                 ,
                 first
                 the
                 Male
                 Issue
                 of
                 the
                 Vassall
                 who
                 dyed
                 last
                 infeft
                 ,
                 according
                 to
                 their
                 nearness
                 ,
                 do
                 succeed
                 with
                 the
                 right
                 of
                 Representation
                 ,
                 and
                 so
                 not
                 
                   per
                   capita
                
                 ,
                 but
                 
                   per
                   〈◊〉
                
                 ;
                 next
                 unto
                 the
                 Descendents
                 among
                 the
                 Collateralls
                 ,
                 Brothers
                 and
                 their
                 Male
                 Issue
                 :
                 and
                 among
                 these
                 ,
                 the
                 Brothers
                 German
                 ,
                 and
                 their
                 Issue
                 ,
                 exclude
                 the
                 Brothers
                 by
                 one
                 blood
                 ;
                 and
                 after
                 Brothers
                 ,
                 Father
                 Brothers
                 and
                 their
                 Male
                 Issue
                 ;
                 And
                 so
                 other
                 Agnats
                 of
                 the
                 last
                 deceased
                 being
                 ,
                 alwayes
                 of
                 the
                 Male
                 Issue
                 of
                 the
                 first
                 Vassall
                 ,
                 which
                 being
                 extinct
                 the
                 Fee
                 ceaseth
                 ,
                 and
                 returneth
                 
                 to
                 the
                 Superior
                 not
                 as
                 the
                 Vassalls
                 ,
                 but
                 by
                 vertue
                 of
                 that
                 
                   Directum
                   Dominium
                
                 ,
                 which
                 still
                 remained
                 in
                 the
                 Superior
                 ,
                 In
                 this
                 course
                 of
                 Feudall
                 Succession
                 ,
                 there
                 could
                 be
                 no
                 place
                 to
                 the
                 Vassalls
                 Father
                 ,
                 or
                 other
                 Ascendents
                 ,
                 because
                 if
                 the
                 Fee
                 were
                 a
                 new
                 Fee
                 ,
                 or
                 Conquest
                 by
                 the
                 Son
                 ,
                 his
                 Father
                 nor
                 his
                 Brethren
                 could
                 not
                 Succeed
                 ,
                 as
                 not
                 being
                 of
                 the
                 Issue
                 of
                 the
                 first
                 Vassall
                 :
                 and
                 if
                 it
                 were
                 an
                 old
                 Fee
                 ,
                 not
                 purchased
                 by
                 the
                 Son
                 ,
                 but
                 whereunto
                 he
                 did
                 succeed
                 ,
                 it
                 doth
                 necessarly
                 presuppose
                 the
                 Death
                 of
                 the
                 Father
                 ,
                 and
                 other
                 Ascendents
                 ,
                 to
                 whom
                 the
                 Son
                 could
                 not
                 be
                 Heir
                 ,
                 nor
                 succeed
                 ,
                 till
                 they
                 were
                 Dead
                 .
              
               
                 But
                 when
                 by
                 the
                 course
                 of
                 time
                 ,
                 Fees
                 declined
                 from
                 the
                 proper
                 nature
                 of
                 Ancient
                 Fees
                 ,
                 and
                 the
                 Investiture
                 did
                 express
                 the
                 Tenor
                 ,
                 and
                 speciall
                 nature
                 thereof
                 ,
                 the
                 Tenor
                 of
                 the
                 Investiture
                 became
                 the
                 first
                 rule
                 of
                 Succession
                 in
                 such
                 Fees
                 ,
                 and
                 came
                 in
                 place
                 of
                 the
                 Testament
                 or
                 Will
                 of
                 the
                 Defunct
                 ;
                 for
                 seing
                 the
                 Vassall
                 could
                 not
                 alter
                 the
                 Succession
                 ,
                 without
                 consent
                 of
                 the
                 Superior
                 ,
                 he
                 could
                 not
                 effectually
                 Test
                 thereupon
                 .
              
               
                 21.
                 
                 In
                 the
                 next
                 place
                 ,
                 what
                 is
                 not
                 the
                 Express
                 Will
                 of
                 the
                 Vassall
                 ,
                 and
                 Superior
                 by
                 the
                 Tenor
                 of
                 the
                 Investiture
                 ,
                 is
                 regulate
                 by
                 their
                 Conjectured
                 Will
                 ,
                 from
                 the
                 nature
                 of
                 the
                 Fee
                 ,
                 and
                 Propinquity
                 of
                 Blood
                 :
                 So
                 if
                 the
                 Fee
                 be
                 Originally
                 granted
                 to
                 a
                 Woman
                 ,
                 her
                 Issue
                 〈◊〉
                 succeed
                 ,
                 as
                 well
                 as
                 the
                 Male
                 :
                 or
                 if
                 the
                 Reddendo
                 be
                 not
                 Militarie
                 Service
                 ,
                 but
                 Money
                 ,
                 Grain
                 ,
                 or
                 Services
                 competent
                 to
                 a
                 Woman
                 ,
                 or
                 Manual
                 Services
                 ,
                 wherein
                 there
                 is
                 no
                 choise
                 of
                 Persons
                 ,
                 as
                 Tilling
                 ,
                 &c.
                 
                 And
                 so
                 generallie
                 Fees
                 holden
                 Blench
                 or
                 Feu
                 :
                 In
                 all
                 these
                 Woman
                 may
                 Succeed
                 ,
                 because
                 they
                 are
                 not
                 excluded
                 by
                 the
                 Nature
                 of
                 the
                 Service
                 .
                 2.
                 
                 If
                 the
                 Fee
                 be
                 Granted
                 to
                 Heirs
                 whatsomever
                 ,
                 not
                 only
                 doth
                 the
                 Issue
                 of
                 the
                 first
                 Vassall
                 ,
                 but
                 all
                 other
                 his
                 Lawfull
                 Heirs
                 ,
                 or
                 the
                 Lawfull
                 Heirs
                 of
                 the
                 last
                 Deceassing
                 ,
                 Vassall
                 ,
                 whether
                 of
                 the
                 Issue
                 of
                 the
                 first
                 Vassall
                 ,
                 or
                 not
                 ,
                 do
                 succeed
                 :
                 And
                 now
                 Fees
                 being
                 ordinarily
                 acquired
                 by
                 Sale
                 ,
                 Excambion
                 ,
                 or
                 the
                 like
                 Onerous
                 Title
                 ,
                 
                   Feuda
                   ad
                   instar
                   〈◊〉
                   sunt
                   reducta
                
                 ;
                 Heirs
                 whatsomever
                 are
                 commonly
                 exprest
                 ,
                 and
                 if
                 they
                 were
                 not
                 ,
                 they
                 would
                 be
                 understood
                 ,
                 for
                 that
                 which
                 is
                 Ordinar
                 is
                 Presumed
                 .
              
               
                 22.
                 
                 But
                 now
                 Custome
                 hath
                 altered
                 the
                 Course
                 of
                 Feudall
                 Succession
                 ,
                 and
                 given
                 the
                 Prerogative
                 of
                 Primogeniture
                 ,
                 to
                 the
                 eldest
                 Male
                 of
                 the
                 nearest
                 Degree
                 to
                 the
                 Defunct
                 Vassall
                 ;
                 who
                 excludes
                 not
                 only
                 the
                 Females
                 of
                 that
                 Degree
                 ,
                 but
                 the
                 Males
                 also
                 ,
                 and
                 their
                 Issue
                 ;
                 not
                 only
                 among
                 us
                 ,
                 but
                 in
                 
                   England
                   ,
                   France
                
                 and
                 most
                 other
                 Nations
                 ,
                 and
                 therefore
                 before
                 we
                 descend
                 to
                 our
                 own
                 Customes
                 ,
                 it
                 will
                 be
                 fit
                 to
                 consider
                 the
                 Justice
                 ,
                 and
                 Expediency
                 of
                 this
                 common
                 Custome
                 in
                 Feudall
                 Succession
                 .
              
               
                 The
                 Lawfulness
                 of
                 Primogeniture
                 ,
                 will
                 be
                 easily
                 evinced
                 from
                 what
                 hath
                 been
                 said
                 already
                 upon
                 Succession
                 ,
                 wherein
                 the
                 will
                 of
                 the
                 Proprietar
                 is
                 the
                 Rule
                 even
                 in
                 Equity
                 :
                 and
                 though
                 he
                 be
                 Naturally
                 oblidged
                 to
                 provide
                 for
                 his
                 own
                 ,
                 that
                 Personal
                 Obligation
                 reatcheth
                 him
                 ,
                 but
                 not
                 the
                 Inheritance
                 ,
                 nor
                 doth
                 it
                 Oblidge
                 him
                 to
                 make
                 these
                 to
                 Succeed
                 ,
                 but
                 to
                 give
                 them
                 Competent
                 Provisions
                 ,
                 and
                 therefore
                 the
                 Judicial
                 Law
                 which
                 is
                 the
                 Positive
                 Law
                 of
                 God
                 ;
                 evidenceth
                 sufficiently
                 ,
                 the
                 Lawfulness
                 ,
                 and
                 in
                 some
                 Cases
                 the
                 Expediency
                 of
                 altering
                 the
                 Natural
                 Course
                 of
                 Succession
                 ,
                 and
                 therefore
                 not
                 only
                 the
                 Male
                 Issue
                 ,
                 is
                 thereby
                 preferred
                 to
                 the
                 Female
                 ;
                 All
                 the
                 Females
                 are
                 utterly
                 excluded
                 ,
                 but
                 only
                 Daughters
                 ,
                 that
                 the
                 Inheritance
                 may
                 remain
                 within
                 the
                 Tribe
                 ,
                 and
                 the
                 Preference
                 of
                 Males
                 ,
                 is
                 because
                 Femoles
                 are
                 less
                 fitted
                 for
                 
                 Management
                 of
                 Lands
                 ,
                 and
                 therefore
                 are
                 to
                 have
                 a
                 Portion
                 ,
                 which
                 the
                 Judiciall
                 Law
                 calleth
                 the
                 Dowry
                 of
                 Virgins
                 .
              
               
                 The
                 Expediency
                 of
                 Primogeniture
                 ,
                 is
                 partly
                 Publick
                 ,
                 and
                 partly
                 Private
                 :
                 The
                 Publick
                 Expediency
                 ,
                 is
                 that
                 the
                 Estate
                 of
                 Great
                 Familyes
                 ,
                 remaining
                 intire
                 and
                 undivided
                 ;
                 They
                 with
                 their
                 Vassals
                 and
                 followers
                 may
                 be
                 able
                 to
                 defend
                 their
                 Country
                 ,
                 especially
                 against
                 Sudden
                 invasions
                 ,
                 for
                 with
                 us
                 in
                 
                   France
                   Polland
                
                 ,
                 and
                 many
                 other
                 Places
                 ,
                 the
                 Great
                 Families
                 are
                 the
                 Bullwarks
                 of
                 their
                 Countrey
                 :
                 Having
                 〈◊〉
                 to
                 Maintain
                 them selves
                 ,
                 and
                 their
                 Followers
                 ,
                 for
                 some
                 time
                 without
                 Standing
                 Armies
                 ,
                 Constant
                 Pay
                 ,
                 and
                 Subsidies
                 .
              
               
                 The
                 Private
                 Expediency
                 ,
                 is
                 for
                 the
                 Preservation
                 of
                 the
                 Memorie
                 ,
                 and
                 Dignitie
                 of
                 Families
                 ,
                 which
                 by
                 frequent
                 Division
                 of
                 the
                 Inheritance
                 ,
                 would
                 become
                 despicable
                 ,
                 or
                 forgotten
                 .
                 Primogeniture
                 taketh
                 Place
                 in
                 Germanie
                 ,
                 and
                 France
                 ,
                 in
                 proper
                 Fees
                 like
                 unto
                 Our
                 Ward-holdings
                 ,
                 but
                 not
                 in
                 Allodialls
                 and
                 Lands
                 holden
                 Freely
                 ,
                 or
                 for
                 Cane
                 or
                 Rent
                 ,
                 
                   Gudelinus
                   ,
                   de
                   Jure
                   novissimo
                   ,
                   lib.
                
                 2
                 :
                 cap.
                 13.
                 relateth
                 ,
                 that
                 in
                 many
                 of
                 the
                 German
                 and
                 French
                 Provinces
                 ;
                 the
                 Male
                 gets
                 two
                 third
                 parts
                 ,
                 and
                 the
                 Females
                 one
                 ,
                 in
                 the
                 other
                 Provinces
                 the
                 Children
                 of
                 the
                 first
                 Marriage
                 ,
                 succeed
                 in
                 all
                 the
                 Lands
                 the
                 Parents
                 had
                 ,
                 during
                 that
                 Marriage
                 ,
                 and
                 so
                 in
                 order
                 ,
                 the
                 Children
                 of
                 after
                 Marriages
                 ;
                 And
                 in
                 other
                 Provinces
                 and
                 Cities
                 ,
                 the
                 Youngest
                 Son
                 Succeedeth
                 in
                 all
                 ,
                 Excluding
                 the
                 rest
                 ,
                 and
                 Generally
                 ,
                 Bastards
                 are
                 not
                 admitted
                 ,
                 even
                 to
                 the
                 Succession
                 of
                 their
                 Mothers
                 ,
                 and
                 in
                 England
                 ,
                 though
                 Primogeniture
                 ,
                 have
                 the
                 Prerogative
                 by
                 the
                 Common
                 Law
                 ,
                 yet
                 it
                 hath
                 an
                 Exception
                 of
                 the
                 Custom
                 of
                 Kent
                 ,
                 where
                 Primogeniture
                 hath
                 no
                 Prerogative
                 ;
                 And
                 therefore
                 that
                 Custom
                 is
                 called
                 the
                 Gaball
                 kind
                 of
                 Kent
                 ,
                 which
                 is
                 as
                 much
                 as
                 to
                 give
                 to
                 all
                 the
                 kind
                 .
              
               
                 The
                 Customs
                 of
                 England
                 ,
                 and
                 Germany
                 ,
                 are
                 contrary
                 in
                 this
                 ;
                 That
                 in
                 Germany
                 ,
                 Parents
                 come
                 in
                 the
                 next
                 place
                 after
                 Descendents
                 ,
                 and
                 exclude
                 Brothers
                 ,
                 and
                 Sisters
                 ,
                 and
                 all
                 other
                 Collateralls
                 ;
                 but
                 in
                 England
                 ,
                 Parents
                 do
                 never
                 Succeed
                 ;
                 so
                 if
                 the
                 Defunct
                 have
                 no
                 Issue
                 ,
                 Brothers
                 nor
                 Sisters
                 ,
                 nor
                 their
                 Issue
                 ,
                 the
                 Fathers
                 Brother
                 Succeeds
                 ,
                 and
                 excluds
                 the
                 Father
                 ,
                 though
                 his
                 Relation
                 be
                 by
                 the
                 Father
                 ,
                 and
                 much
                 further
                 distant
                 then
                 the
                 Father
                 :
                 And
                 it
                 sometimes
                 falls
                 out
                 ,
                 that
                 the
                 Uncle
                 Succeeding
                 ,
                 dying
                 without
                 Issue
                 ,
                 the
                 Father
                 Succeeds
                 his
                 Brother
                 ,
                 and
                 so
                 Accidentally
                 ,
                 and
                 Mediatly
                 to
                 his
                 own
                 Son.
                 
              
               
                 23.
                 
                 To
                 return
                 to
                 our
                 Customs
                 in
                 Succession
                 ,
                 in
                 respect
                 of
                 the
                 Matter
                 ,
                 it
                 is
                 divided
                 in
                 two
                 Branches
                 ,
                 the
                 one
                 is
                 of
                 Moveables
                 ,
                 the
                 other
                 of
                 Immoveables
                 ,
                 which
                 do
                 as
                 much
                 differ
                 ,
                 astheCustomes
                 of
                 diverseNations
                 ;
                 The
                 Successor
                 in
                 Immoveables
                 doth
                 only
                 retain
                 the
                 Name
                 of
                 Heir
                 ,
                 and
                 therefore
                 Immoveables
                 are
                 called
                 Heritable
                 Rights
                 ,
                 and
                 that
                 part
                 of
                 the
                 Moveables
                 ,
                 which
                 belongs
                 to
                 the
                 Heir
                 ,
                 is
                 called
                 Heirship-moveable
                 .
              
               
                 The
                 Successor
                 in
                 Moveables
                 ,
                 from
                 the
                 Office
                 of
                 executing
                 the
                 Defuncts
                 Will
                 ,
                 express
                 ,
                 or
                 presumed
                 ,
                 is
                 called
                 Executor
                 .
              
               
                 We
                 shall
                 here
                 Summarily
                 ,
                 at
                 one
                 view
                 ,
                 set
                 forth
                 the
                 whole
                 matter
                 of
                 Succession
                 with
                 us
                 ,
                 which
                 we
                 shall
                 more
                 fully
                 ,
                 and
                 distinctly
                 follow
                 ,
                 in
                 the
                 ensuing
                 Titles
                 .
              
               
                 Heirs
                 in
                 Law
                 are
                 called
                 Universal
                 Successors
                 ,
                 
                   quia
                   succedunt
                   in
                   universum
                   
                   
                   
                   jus
                   ,
                   quod
                   Defunctus
                   habuit
                   ,
                
                 they
                 do
                 wholly
                 represent
                 the
                 Defunct
                 ,
                 and
                 are
                 as
                 one
                 Person
                 with
                 him
                 ,
                 and
                 so
                 they
                 do
                 both
                 Succeed
                 to
                 him
                 active
                 ,
                 in
                 all
                 the
                 Rights
                 belonging
                 to
                 him
                 ,
                 and
                 passive
                 ,
                 in
                 all
                 the
                 Obligations
                 and
                 Debts
                 due
                 by
                 him
                 ;
                 and
                 when
                 they
                 do
                 not
                 orderly
                 enter
                 ,
                 they
                 become
                 Successors
                 passive
                 ,
                 lyable
                 to
                 the
                 Defuncts
                 Debt
                 ,
                 but
                 not
                 Heirs
                 active
                 ,
                 having
                 power
                 to
                 claim
                 his
                 Right
                 ,
                 till
                 they
                 be
                 entered
                 according
                 to
                 Law
                 :
                 Other
                 Successors
                 are
                 called
                 singular
                 Successors
                 ,
                 as
                 Assigneys
                 ,
                 Purchasers
                 ,
                 but
                 Heirs
                 only
                 are
                 universal
                 Successors
                 :
                 And
                 now
                 ,
                 when
                 Heirs
                 are
                 of
                 divers
                 kinds
                 ,
                 as
                 some
                 in
                 Moveables
                 ,
                 some
                 in
                 Lands
                 ,
                 and
                 other
                 Heritable
                 Rights
                 ,
                 and
                 of
                 these
                 ac
                 cording
                 to
                 the
                 Investiture
                 ,
                 some
                 succeed
                 to
                 Lands
                 provided
                 to
                 Heirs
                 of
                 Line
                 ,
                 some
                 to
                 Lands
                 provided
                 to
                 Heirs
                 Male
                 ,
                 some
                 to
                 Lands
                 otherways
                 Tailzied
                 ,
                 in
                 all
                 which
                 some
                 Heirs
                 Succeed
                 alone
                 ,
                 and
                 in
                 solidum
                 ,
                 some
                 Succeed
                 in
                 
                   parte
                   &
                   pro
                   rata
                
                 ,
                 yet
                 all
                 may
                 be
                 said
                 to
                 Succeed
                 in
                 
                   universum
                   jus
                   quod
                   Defunctus
                   habuit
                
                 ,
                 by
                 
                   universum
                   jus
                
                 ,
                 the
                 whole
                 Right
                 ,
                 not
                 simply
                 ,
                 &
                 
                   in
                   solidunt
                
                 ,
                 but
                 the
                 whole
                 Rights
                 of
                 such
                 a
                 kind
                 ,
                 either
                 in
                 solidum
                 ,
                 or
                 at
                 least
                 
                   pro
                   rata
                   parte
                
                 ,
                 as
                 he
                 who
                 Succeeds
                 in
                 a
                 half
                 ,
                 or
                 third
                 part
                 of
                 all
                 the
                 Defuncts
                 Rights
                 
                   active
                   &
                   passive
                
                 ,
                 Succeedeth
                 in
                 
                   universa
                   &
                   singula
                   jura
                
                 ,
                 in
                 all
                 and
                 every
                 right
                 ,
                 thought
                 not
                 in
                 
                   totum
                   &
                   solidum
                
                 ,
                 the
                 whole
                 or
                 every
                 part
                 of
                 every
                 Right
                 .
              
               
                 As
                 to
                 Moveables
                 ,
                 we
                 shall
                 not
                 repeat
                 ,
                 what
                 hath
                 been
                 said
                 ,
                 Title
                 
                   Real
                   Rights
                
                 ,
                 of
                 the
                 distinction
                 of
                 Heritable
                 ,
                 and
                 Moveable
                 Rights
                 ,
                 whether
                 Goods
                 ,
                 or
                 Moveable
                 Debts
                 ;
                 but
                 shall
                 only
                 hold
                 forth
                 ,
                 what
                 becometh
                 of
                 Moveable
                 Rights
                 ,
                 after
                 the
                 Owners
                 decease
                 .
                 And
                 first
                 ,
                 if
                 the
                 Defunct
                 be
                 Married
                 ,
                 there
                 was
                 thereby
                 acommunion
                 of
                 Goods
                 ,
                 betwixt
                 the
                 Defunct
                 and
                 the
                 other
                 Spouse
                 ,
                 which
                 being
                 disolved
                 by
                 Death
                 ,
                 the
                 surviver
                 may
                 withdraw
                 their
                 share
                 ,
                 which
                 share
                 is
                 estimate
                 by
                 the
                 condition
                 of
                 the
                 Familie
                 at
                 that
                 time
                 ;
                 for
                 if
                 in
                 the
                 Family
                 there
                 were
                 a
                 Husband
                 ,
                 a
                 Wife
                 and
                 Children
                 ,
                 not
                 forisfamiliat
                 ,
                 the
                 Wife
                 her
                 share
                 is
                 the
                 third
                 ;
                 but
                 if
                 there
                 were
                 no
                 Children
                 unforisfamiliat
                 ,
                 the
                 Wifes
                 share
                 is
                 the
                 half
                 ,
                 which
                 is
                 not
                 properly
                 a
                 Succession
                 but
                 a
                 Division
                 .
              
               
                 24.
                 
                 The
                 first
                 degree
                 of
                 Succession
                 ,
                 in
                 Moveables
                 with
                 us
                 ,
                 is
                 by
                 the
                 will
                 of
                 the
                 Defunct
                 ,
                 by
                 his
                 Testament
                 ,
                 or
                 Codicil
                 ,
                 whereby
                 the
                 Defunct
                 may
                 name
                 Executors
                 ,
                 and
                 dispose
                 of
                 his
                 Moveables
                 ,
                 either
                 in
                 part
                 by
                 particular
                 Legacies
                 ,
                 or
                 in
                 whole
                 ,
                 by
                 an
                 universal
                 Legacie
                 ,
                 whereby
                 ,
                 in
                 effect
                 the
                 universal
                 Legatar
                 is
                 institute
                 Heir
                 in
                 the
                 Moveables
                 ,
                 and
                 if
                 the
                 Executor
                 nominat
                 ,
                 be
                 not
                 also
                 universal
                 Legatar
                 ,
                 he
                 hath
                 but
                 one
                 office
                 ,
                 and
                 is
                 not
                 Heir
                 for
                 himself
                 ,
                 but
                 in
                 name
                 ,
                 and
                 to
                 the
                 behove
                 of
                 the
                 Legatar
                 ,
                 and
                 hath
                 but
                 fidei-comissum
                 of
                 the
                 Moveables
                 .
              
               
                 These
                 Legacies
                 ,
                 whether
                 Particular
                 or
                 Universal
                 ,
                 doth
                 immediately
                 transmit
                 the
                 Right
                 to
                 the
                 Legatars
                 ,
                 and
                 their
                 Successors
                 :
                 The
                 Solemnities
                 of
                 Testaments
                 ,
                 or
                 Legacies
                 are
                 very
                 plain
                 with
                 us
                 ,
                 but
                 we
                 shall
                 leave
                 them
                 to
                 the
                 Title
                 Executrie
                 .
              
               
                 The
                 will
                 of
                 the
                 Defunct
                 is
                 restrained
                 with
                 us
                 ,
                 in
                 three
                 cases
                 ,
                 the
                 First
                 is
                 ,
                 Bastards
                 cannot
                 at
                 all
                 Test
                 ,
                 or
                 leave
                 Legacies
                 ,
                 unless
                 they
                 be
                 Legittimat
                 or
                 have
                 power
                 from
                 the
                 King
                 of
                 making
                 Testament
                 ,
                 or
                 have
                 lawful
                 Children
                 .
                 2.
                 
                 A
                 Father
                 is
                 bound
                 up
                 in
                 respect
                 of
                 his
                 Children
                 in
                 his
                 Family
                 ,
                 which
                 are
                 not
                 forisfamiliat
                 ,
                 and
                 provided
                 for
                 ,
                 these
                 have
                 necessarily
                 their
                 Portion
                 Natural
                 ,
                 and
                 Bairns
                 part
                 of
                 Gear
                 ,
                 wherefrom
                 their
                 Father
                 cannot
                 exclude
                 〈◊〉
                 by
                 〈◊〉
                 or
                 otherways
                 ,
                 as
                 by
                 Donations
                 ,
                 in
                 contemplation
                 of
                 
                 
                 tion
                 to
                 a
                 Moveable
                 Band
                 granted
                 on
                 Death-bed
                 ,
                 was
                 found
                 null
                 ,
                 as
                 to
                 the
                 relict
                 ,
                 and
                 Bairns
                 part
                 ,
                 Spots
                 .
                 Assignations
                 ,
                 
                   Margaret
                   Pyrie
                
                 contra
                 Ramsay
                 .
                 Yea
                 ,
                 it
                 was
                 found
                 ,
                 that
                 the
                 Gift
                 of
                 Money
                 by
                 the
                 Defunct
                 ,
                 out
                 of
                 his
                 own
                 hand
                 ,
                 on
                 Death-bed
                 was
                 null
                 as
                 to
                 them
                 .
                 ibid
                 ,
                 Mr.
                 
                   Andrew
                   Moncrieff
                
                 contra
                 Mr.
                 
                   Archibald
                   Moncrieff
                
                 .
                 The
                 like
                 of
                 an
                 Assignation
                 ,
                 to
                 a
                 confident
                 Person
                 ,
                 to
                 the
                 behove
                 of
                 the
                 Defuncts
                 Bairns
                 ,
                 which
                 was
                 found
                 not
                 to
                 prejudge
                 the
                 Relicts
                 third
                 ,
                 
                   Durie
                   ,
                   July
                
                 ,
                 10.
                 1628.
                 
                 Cant
                 contra
                 Edgar
                 .
                 And
                 therefore
                 ,
                 a
                 Father
                 hath
                 only
                 power
                 to
                 dispose
                 upon
                 such
                 a
                 part
                 of
                 his
                 Goods
                 ,
                 which
                 are
                 thence
                 called
                 Deads
                 part
                 ,
                 which
                 if
                 he
                 have
                 a
                 Relict
                 ,
                 and
                 Bairns
                 in
                 the
                 Family
                 ,
                 the
                 Bairns
                 part
                 is
                 the
                 third
                 ,
                 the
                 Relicts
                 part
                 is
                 also
                 a
                 third
                 ,
                 and
                 so
                 the
                 Defuncts
                 part
                 is
                 only
                 a
                 third
                 ,
                 but
                 if
                 there
                 be
                 no
                 Relict
                 ,
                 then
                 the
                 Bairns
                 part
                 is
                 the
                 half
                 ,
                 and
                 the
                 Deads
                 part
                 is
                 the
                 other
                 half
                 ;
                 But
                 if
                 there
                 be
                 neither
                 Wife
                 nor
                 Bairns
                 ,
                 the
                 Defunct
                 may
                 dispose
                 of
                 the
                 whole
                 ,
                 as
                 Persons
                 never
                 married
                 ,
                 or
                 Wives
                 upon
                 whom
                 there
                 is
                 no
                 Restriction
                 ,
                 though
                 they
                 have
                 Husband
                 or
                 Children
                 ,
                 for
                 they
                 may
                 dispose
                 of
                 their
                 share
                 of
                 the
                 Husbands
                 moveables
                 ,
                 or
                 if
                 they
                 acquired
                 ,
                 or
                 succeed
                 to
                 any
                 moveables
                 ,
                 in
                 Viduity
                 they
                 may
                 iniurley
                 Dispose
                 thereof
                 ,
                 though
                 they
                 have
                 Children
                 .
              
               
                 If
                 his
                 Legacies
                 exceed
                 his
                 own
                 part
                 ,
                 then
                 they
                 abate
                 proportionally
                 ,
                 unles
                 there
                 be
                 a
                 preference
                 granted
                 by
                 the
                 Testator
                 ,
                 or
                 a
                 priviledge
                 ,
                 whereof
                 I
                 know
                 none
                 with
                 us
                 ,
                 for
                 even
                 a
                 Legacie
                 ,
                 
                   ob
                   pias
                   causas
                
                 ,
                 viz.
                 A
                 mortification
                 to
                 a
                 Kirk
                 ,
                 was
                 found
                 to
                 have
                 no
                 priviledge
                 ,
                 but
                 it
                 ,
                 and
                 other
                 Legacies
                 suffered
                 proportional
                 deduction
                 ,
                 seing
                 they
                 exceeded
                 Deads
                 part
                 ,
                 
                   Durie
                   ,
                   July
                
                 6.
                 1630.
                 
                 
                   Doctor
                   Monro
                
                 contra
                 Scots
                 Executors
                 :
                 The
                 reason
                 of
                 this
                 Restriction
                 is
                 ,
                 that
                 Natural
                 Obliegment
                 for
                 provision
                 of
                 Children
                 ,
                 of
                 which
                 before
                 ,
                 it
                 is
                 extended
                 only
                 to
                 the
                 immediate
                 Children
                 ,
                 and
                 not
                 to
                 Grand-children
                 ,
                 neither
                 doth
                 it
                 Restrict
                 the
                 Mother
                 ,
                 but
                 only
                 the
                 Father
                 .
              
               
                 3.
                 
                 The
                 third
                 Restriction
                 of
                 the
                 Defuncts
                 will
                 ,
                 is
                 in
                 favours
                 of
                 their
                 Heirs
                 of
                 Line
                 ,
                 for
                 Heirs
                 having
                 the
                 sole
                 interest
                 in
                 Heritable
                 Rights
                 ,
                 are
                 by
                 our
                 custome
                 justly
                 excluded
                 ,
                 from
                 coming
                 in
                 with
                 other
                 Children
                 ,
                 in
                 moveables
                 ,
                 except
                 that
                 which
                 is
                 called
                 Heirship-moveable
                 ,
                 which
                 is
                 the
                 best
                 of
                 every
                 kind
                 of
                 moveable
                 ,
                 wherein
                 the
                 Defuncts
                 will
                 cannot
                 prejudge
                 the
                 Heir
                 .
              
               
                 The
                 second
                 member
                 os
                 Succession
                 in
                 moveables
                 is
                 ,
                 from
                 the
                 Intestat
                 ;
                 So
                 that
                 failing
                 the
                 Defuncts
                 will
                 ,
                 with
                 the
                 Restrictions
                 aforesaid
                 ,
                 the
                 nearest
                 of
                 Kin
                 have
                 interest
                 ,
                 both
                 in
                 the
                 Defuncts
                 moveables
                 ,
                 and
                 office
                 of
                 Executrie
                 ,
                 and
                 though
                 they
                 claim
                 not
                 the
                 office
                 ,
                 yet
                 have
                 they
                 〈◊〉
                 Right
                 to
                 the
                 Goods
                 ,
                 leaving
                 a
                 third
                 of
                 Deads
                 part
                 to
                 the
                 Executors
                 ,
                 〈◊〉
                 administration
                 of
                 the
                 office
                 .
              
               
                 These
                 nearest
                 of
                 Kin
                 ,
                 take
                 place
                 all
                 in
                 〈◊〉
                 all
                 the
                 nearest
                 degree
                 ,
                 Male
                 or
                 Female
                 ,
                 come
                 in
                 equally
                 ,
                 and
                 there
                 is
                 no
                 Right
                 of
                 Representation
                 in
                 moveables
                 .
                 The
                 first
                 Degree
                 is
                 Children
                 ,
                 Male
                 or
                 Female
                 ,
                 with
                 whom
                 Grand-children
                 come
                 not
                 in
                 by
                 Right
                 of
                 Representation
                 ,
                 in
                 place
                 of
                 their
                 Defunct
                 Parents
                 :
                 So
                 Children
                 have
                 an
                 interest
                 in
                 their
                 Fathers
                 Moveables
                 ,
                 viz.
                 their
                 Bairns
                 part
                 ,
                 wherein
                 their
                 Father
                 cannot
                 prejudge
                 them
                 ,
                 and
                 their
                 interest
                 ,
                 as
                 nearest
                 of
                 Kin
                 ;
                 Whereby
                 they
                 succeed
                 to
                 the
                 deads
                 part
                 ,
                 in
                 so
                 far
                 as
                 intestat
                 ,
                 next
                 unto
                 Children
                 ,
                 are
                 Grand-children
                 ,
                 or
                 any
                 Descendents
                 of
                 the
                 nearest
                 degree
                 .
                 Next
                 unto
                 these
                 ,
                 are
                 Brethren
                 and
                 Sisters
                 ,
                 wherein
                 ,
                 Brethren
                 and
                 Sisters
                 German
                 ,
                 or
                 by
                 both
                 Bloods
                 ,
                 exclude
                 these
                 by
                 one
                 Blood.
                 Next
                 unto
                 Brethren
                 and
                 Sisters
                 ,
                 are
                 there
                 Descendents
                 ,
                 in
                 the
                 nearest
                 degree
                 ,
                 without
                 Representation
                 .
                 And
                 last
                 ,
                 are
                 the
                 nearest
                 degree
                 of
                 
                 Agnats
                 ,
                 Male
                 and
                 Female
                 joyntly
                 ,
                 without
                 Representation
                 :
                 If
                 there
                 be
                 no
                 Descendents
                 ,
                 or
                 Agnats
                 ,
                 in
                 the
                 case
                 of
                 Bastards
                 ,
                 who
                 can
                 have
                 none
                 ,
                 or
                 others
                 ,
                 who
                 happen
                 
                   de
                   facto
                
                 ,
                 to
                 have
                 no
                 Children
                 ,
                 or
                 Agnats
                 ,
                 their
                 goods
                 become
                 caduciary
                 ,
                 and
                 are
                 Confiscat
                 to
                 the
                 King
                 ,
                 as
                 last
                 Heir
                 or
                 by
                 reason
                 of
                 Bastardry
                 ,
                 of
                 which
                 before
                 ,
                 Title
                 Confiscation
                 .
              
               
                 In
                 the
                 Succession
                 of
                 Moveables
                 ,
                 the
                 same
                 Goods
                 ,
                 or
                 Debts
                 ,
                 are
                 not
                 in
                 all
                 cases
                 accompted
                 Moveable
                 ,
                 since
                 the
                 Act
                 of
                 Parliament
                 1641.
                 cap.
                 32.
                 
                 Whereby
                 Bands
                 ,
                 bearing
                 Annualrent
                 ,
                 which
                 before
                 in
                 all
                 respects
                 ,
                 were
                 Heritable
                 ,
                 by
                 the
                 Destination
                 of
                 the
                 Annualrent
                 ,
                 (
                 Which
                 ,
                 being
                 perfected
                 by
                 Infeftment
                 ,
                 is
                 an
                 Immoveable
                 ,
                 and
                 Heritable
                 Right
                 )
                 are
                 declared
                 to
                 fall
                 under
                 Executrie
                 ,
                 and
                 so
                 to
                 be
                 Moveable
                 .
                 And
                 yet
                 by
                 the
                 said
                 Statute
                 ,
                 the
                 Relict
                 ,
                 and
                 Fisk
                 ,
                 are
                 Excluded
                 .
                 The
                 Reason
                 exprest
                 in
                 the
                 Statute
                 ,
                 is
                 ,
                 because
                 the
                 Obliegment
                 upon
                 the
                 Debitor
                 ,
                 to
                 pay
                 Annualrent
                 ,
                 is
                 ,
                 for
                 the
                 Profit
                 of
                 the
                 Creditor
                 ;
                 and
                 not
                 a
                 Destination
                 of
                 Infeftment
                 of
                 Annualrent
                 ,
                 in
                 Favours
                 of
                 the
                 Heir
                 ,
                 to
                 exclude
                 the
                 Bairns
                 :
                 And
                 therefore
                 such
                 Clauses
                 make
                 not
                 such
                 Sums
                 Heritable
                 ,
                 as
                 to
                 the
                 Bairns
                 ,
                 and
                 nearest
                 of
                 Kin
                 :
                 unlesse
                 they
                 bear
                 an
                 Obliegment
                 to
                 Infeft
                 the
                 Creditor
                 in
                 Land
                 ,
                 or
                 Annualrent
                 :
                 In
                 which
                 case
                 ,
                 they
                 are
                 properly
                 Heritable
                 ,
                 and
                 belong
                 only
                 to
                 the
                 Heir
                 ;
                 but
                 if
                 not
                 ,
                 the
                 same
                 belongs
                 to
                 the
                 Bairns
                 ,
                 and
                 nearest
                 of
                 Kin
                 ,
                 
                   Excludendo
                   Fiscum
                   &
                   Relictam
                
                 :
                 Whereby
                 there
                 〈◊〉
                 a
                 Different
                 Division
                 of
                 Moveable
                 Sums
                 ,
                 falling
                 under
                 Executrie
                 :
                 One
                 of
                 such
                 as
                 were
                 Moveable
                 before
                 the
                 said
                 Act
                 ,
                 which
                 ,
                 if
                 there
                 be
                 a
                 Wife
                 and
                 Children
                 ,
                 are
                 divided
                 in
                 three
                 :
                 Whereof
                 the
                 Bairns
                 ,
                 is
                 a
                 third
                 part
                 ,
                 and
                 the
                 Deads
                 part
                 a
                 third
                 .
                 Another
                 in
                 the
                 Testament
                 ,
                 of
                 Bands
                 bearing
                 Annualrent
                 ,
                 which
                 if
                 their
                 be
                 Bairns
                 ,
                 is
                 Devisible
                 in
                 two
                 parts
                 whereof
                 the
                 one
                 half
                 is
                 the
                 Bairns
                 part
                 ,
                 and
                 the
                 other
                 half
                 the
                 Deads
                 part
                 ,
                 and
                 the
                 Relict
                 hath
                 no
                 part
                 ,
                 being
                 Excluded
                 .
                 So
                 that
                 in
                 case
                 of
                 Escheat
                 ,
                 such
                 Sums
                 are
                 not
                 Moveable
                 ,
                 nor
                 fall
                 not
                 under
                 Escheat
                 .
              
               
                 Yet
                 ,
                 if
                 such
                 Debts
                 become
                 Simply
                 Moveable
                 ,
                 by
                 a
                 Requisition
                 or
                 Charge
                 ,
                 or
                 by
                 the
                 Death
                 of
                 the
                 Debitor
                 ,
                 or
                 Creditor
                 ,
                 before
                 the
                 Term
                 of
                 Payment
                 of
                 Annualrent
                 :
                 Or
                 ,
                 otherways
                 they
                 remain
                 in
                 the
                 Ancient
                 Condition
                 .
                 And
                 the
                 Statute
                 doth
                 not
                 Exclude
                 the
                 Fisk
                 and
                 Relict
                 .
                 But
                 where
                 a
                 Charge
                 could
                 not
                 be
                 given
                 through
                 the
                 Debitor
                 ,
                 or
                 Creditors
                 Death
                 ,
                 and
                 there
                 was
                 no
                 Requisition
                 provided
                 ,
                 and
                 Decreet
                 for
                 Payment
                 ,
                 was
                 not
                 found
                 to
                 make
                 the
                 samine
                 Meveable
                 ,
                 as
                 it
                 would
                 have
                 been
                 ,
                 if
                 the
                 Band
                 had
                 been
                 Heritable
                 ,
                 by
                 a
                 Clause
                 of
                 Infeftment
                 .
                 And
                 that
                 because
                 ,
                 by
                 a
                 Posterior
                 Band
                 of
                 Corroboration
                 ,
                 for
                 the
                 same
                 Sum
                 ,
                 Executors
                 were
                 Excluded
                 ,
                 which
                 no
                 Charge
                 nor
                 Requisition
                 doth
                 alter
                 ;
                 but
                 it
                 is
                 still
                 presumed
                 ,
                 that
                 the
                 Debitor
                 would
                 re-imploy
                 the
                 Sum
                 ,
                 in
                 the
                 same
                 way
                 ,
                 to
                 his
                 Heirs
                 ,
                 Excluding
                 Executors
                 .
                 And
                 therefore
                 ,
                 a
                 Process
                 and
                 Decreet
                 for
                 payment
                 ,
                 was
                 not
                 found
                 to
                 make
                 it
                 Moveable
                 ,
                 though
                 these
                 would
                 make
                 it
                 Moveable
                 ,
                 as
                 well
                 as
                 a
                 Requisition
                 or
                 Charge
                 ,
                 if
                 it
                 had
                 been
                 Heritable
                 ,
                 by
                 a
                 Clause
                 of
                 Infeftment
                 ,
                 July
                 12.
                 1676.
                 
                 Crystie
                 contra
                 Crystie
                 .
              
               
                 It
                 is
                 also
                 consequent
                 from
                 the
                 said
                 Statute
                 ,
                 1.
                 
                 That
                 such
                 Bands
                 ,
                 bearing
                 Clauses
                 of
                 Annualrent
                 ,
                 may
                 be
                 Exhausted
                 by
                 the
                 Debts
                 ,
                 due
                 by
                 the
                 Defunct
                 ,
                 bearing
                 Clause
                 of
                 Annualrent
                 .
                 2.
                 
                 It
                 is
                 Consequent
                 ,
                 that
                 the
                 Executor
                 ,
                 will
                 get
                 no
                 Relief
                 against
                 the
                 Heir
                 ,
                 of
                 Debts
                 ,
                 bearing
                 Clause
                 of
                 Annualrent
                 ,
                 without
                 Clause
                 of
                 Infeftment
                 ;
                 in
                 so
                 far
                 ,
                 as
                 there
                 are
                 such
                 Debts
                 in
                 the
                 Executry
                 ,
                 but
                 the
                 Heir
                 will
                 have
                 relief
                 thereof
                 ,
                 against
                 the
                 
                 Executor
                 .
                 3.
                 
                 It
                 followeth
                 ,
                 that
                 Debts
                 ,
                 bearing
                 Clause
                 of
                 Annualrent
                 ,
                 and
                 no
                 Clause
                 of
                 Infeftment
                 ,
                 will
                 not
                 Exhaust
                 the
                 Relicts
                 part
                 ;
                 Because
                 ,
                 as
                 she
                 is
                 Excluded
                 from
                 any
                 Share
                 of
                 such
                 Debts
                 ,
                 due
                 to
                 her
                 Husband
                 ;
                 So
                 she
                 must
                 be
                 free
                 of
                 any
                 such
                 Debts
                 due
                 by
                 him
                 ,
                 as
                 was
                 found
                 ,
                 December
                 23.
                 1668.
                 
                 
                   Magaret
                   Mckenzie
                
                 contra
                 Robertsons
                 .
              
               
                 25.
                 
                 Succession
                 ,
                 in
                 Immoveable
                 ,
                 and
                 Heritables
                 Rights
                 ,
                 proceed
                 wholly
                 in
                 a
                 different
                 manner
                 .
                 For
                 Succession
                 ,
                 in
                 Moveables
                 ,
                 is
                 more
                 near
                 to
                 the
                 Course
                 of
                 Natural
                 Succession
                 ,
                 and
                 to
                 the
                 Civil
                 Law
                 of
                 the
                 Romans
                 ,
                 especially
                 their
                 Ancient
                 and
                 Midle
                 Law
                 ;
                 but
                 the
                 Sccession
                 in
                 Heritable
                 Rights
                 ,
                 aggreeth
                 more
                 to
                 the
                 Recent
                 Feudal
                 Customs
                 ,
                 of
                 most
                 Nations
                 ,
                 whereby
                 Primogeniture
                 is
                 established
                 ,
                 for
                 the
                 Honour
                 and
                 Preservation
                 of
                 Noble
                 Families
                 ,
                 and
                 in
                 them
                 ,
                 for
                 the
                 good
                 and
                 safetie
                 of
                 their
                 Kings
                 and
                 Countryes
                 .
              
               
                 26.
                 
                 Succession
                 ,
                 in
                 Immoveables
                 and
                 Heritables
                 ,
                 do
                 mainly
                 differ
                 ,
                 First
                 ,
                 that
                 in
                 Moveables
                 ,
                 the
                 expresse
                 will
                 of
                 the
                 Defunct
                 ,
                 by
                 his
                 Testament
                 and
                 Legacies
                 ,
                 and
                 Donations
                 ,
                 in
                 Contemplation
                 of
                 Death
                 ,
                 have
                 the
                 first
                 place
                 ,
                 but
                 in
                 Heritable
                 Rights
                 ,
                 they
                 have
                 no
                 place
                 at
                 all
                 ;
                 Yea
                 ,
                 no
                 Personal
                 Contract
                 ,
                 or
                 Obliegment
                 of
                 the
                 Fiar
                 ,
                 can
                 have
                 any
                 effect
                 in
                 prejudice
                 of
                 his
                 Heir
                 ,
                 to
                 take
                 from
                 him
                 any
                 part
                 of
                 the
                 Heritage
                 ,
                 directly
                 or
                 indirectly
                 ,
                 by
                 Legal
                 Pursuits
                 thereupon
                 ,
                 if
                 the
                 foresaid
                 Personal
                 Right
                 ,
                 or
                 Contract
                 was
                 done
                 in
                 
                   lecto
                   aegretudinis
                
                 upon
                 the
                 Fiars
                 Death-bed
                 :
                 And
                 though
                 the
                 same
                 Disposition
                 ,
                 or
                 Contract
                 ,
                 were
                 made
                 in
                 the
                 Fiars
                 Health
                 ,
                 or
                 
                   Liege
                   pouste
                
                 ,
                 it
                 doth
                 not
                 alter
                 the
                 Succession
                 ,
                 unless
                 it
                 be
                 in
                 the
                 investiture
                 ,
                 though
                 ,
                 as
                 being
                 of
                 it self
                 ,
                 or
                 having
                 in
                 it
                 virtuallie
                 ,
                 a
                 Personal
                 Obligation
                 ,
                 it
                 may
                 by
                 Process
                 compell
                 the
                 Fiar
                 or
                 his
                 Heir
                 ,
                 to
                 denude
                 themselves
                 ,
                 and
                 to
                 obtain
                 new
                 Infeftments
                 ,
                 conform
                 thereto
                 ,
                 as
                 if
                 by
                 Contract
                 ,
                 any
                 partie
                 may
                 be
                 provided
                 ,
                 to
                 be
                 the
                 Contracters
                 Heir
                 ,
                 in
                 whole
                 ,
                 or
                 in
                 part
                 ;
                 his
                 provision
                 doth
                 not
                 make
                 that
                 partie
                 Heir
                 ,
                 in
                 any
                 Right
                 ,
                 whereupon
                 Infeftment
                 hath
                 followed
                 ,
                 which
                 only
                 properly
                 are
                 Heritable
                 Rights
                 :
                 Neither
                 can
                 that
                 partie
                 be
                 served
                 Heir
                 of
                 provision
                 ,
                 to
                 the
                 Contracter
                 thereupon
                 ,
                 yet
                 the
                 Contracter
                 may
                 be
                 compelled
                 to
                 take
                 his
                 Right
                 accordingly
                 to
                 himself
                 :
                 And
                 these
                 Heirs
                 of
                 Provision
                 ,
                 which
                 if
                 he
                 have
                 not
                 done
                 ,
                 his
                 other
                 Heirs
                 may
                 be
                 compelled
                 to
                 enter
                 ,
                 and
                 to
                 denude
                 themselves
                 ,
                 in
                 favours
                 of
                 that
                 partie
                 provided
                 to
                 be
                 Heir
                 ,
                 conform
                 to
                 the
                 Contract
                 ;
                 but
                 Dispositions
                 ,
                 Obligations
                 ,
                 or
                 Contracts
                 of
                 any
                 Heritable
                 Right
                 ,
                 on
                 Death-bed
                 ,
                 are
                 null
                 ,
                 and
                 reduceable
                 ,
                 in
                 so
                 far
                 as
                 may
                 prejudge
                 the
                 Heir
                 .
              
               
                 27.
                 
                 The
                 priviledge
                 of
                 Heirs
                 ,
                 not
                 being
                 prejudged
                 ,
                 by
                 their
                 Predicessors
                 Deeds
                 ,
                 done
                 on
                 Death-bed
                 ,
                 is
                 ,
                 as
                 most
                 of
                 our
                 Laws
                 ,
                 by
                 Ancient
                 Custom
                 ,
                 time
                 out
                 of
                 mind
                 ,
                 and
                 not
                 by
                 statute
                 ,
                 or
                 written
                 Law
                 ,
                 for
                 ,
                 though
                 the
                 Books
                 ,
                 called
                 
                   Regiam
                   Majestatem
                
                 ,
                 treat
                 thereof
                 ,
                 yet
                 these
                 are
                 no
                 part
                 of
                 our
                 Law
                 ,
                 but
                 have
                 been
                 compylled
                 by
                 some
                 Stranger
                 ,
                 who
                 hath
                 not
                 fully
                 known
                 our
                 Law
                 ,
                 but
                 by
                 mistake
                 ,
                 hath
                 resolved
                 most
                 Cases
                 ,
                 by
                 the
                 Customs
                 of
                 other
                 Nations
                 ,
                 especially
                 of
                 England
                 .
                 The
                 reason
                 of
                 this
                 Custom
                 ,
                 may
                 be
                 conjectured
                 not
                 only
                 from
                 the
                 Nature
                 of
                 Feudal
                 Rights
                 not
                 disposable
                 by
                 Testament
                 ,
                 but
                 only
                 by
                 investiture
                 ,
                 but
                 also
                 for
                 publick
                 utility
                 ,
                 because
                 persons
                 on
                 Death-bed
                 are
                 weak
                 ,
                 the
                 mind
                 being
                 easily
                 affected
                 with
                 the
                 trouble
                 of
                 the
                 bodie
                 ,
                 and
                 so
                 is
                 easie
                 to
                 be
                 wrought
                 upon
                 by
                 insinuations
                 ,
                 or
                 importunities
                 ,
                 to
                 do
                 deeds
                 contrary
                 their
                 Interest
                 ,
                 and
                 former
                 Resolutions
                 ,
                 Especially
                 by
                 the
                 
                   Popish
                   Clergie
                
                 ,
                 who
                 ,
                 having
                 ,
                 for
                 their
                 own
                 corrupt
                 ends
                 ,
                 Forged
                 Puragatory
                 ,
                 and
                 Prayers
                 for
                 the
                 Dead
                 ,
                 their
                 power
                 of
                 Indulgence
                 ,
                 
                 and
                 Prayers
                 for
                 the
                 Dead
                 ,
                 their
                 power
                 of
                 Indulgence
                 and
                 Pardon
                 of
                 Sins
                 ,
                 did
                 thereby
                 deceive
                 the
                 Christian
                 World
                 ,
                 and
                 obtained
                 upon
                 Death-bed
                 so
                 large
                 Donations
                 to
                 their
                 Clergie
                 ,
                 to
                 the
                 prejudice
                 of
                 the
                 Donators
                 lawfull
                 Heirs
                 which
                 therefore
                 Our
                 Ancient
                 Custom
                 hath
                 wisely
                 provided
                 against
                 .
              
               
                 28.
                 
                 The
                 main
                 Difficulty
                 is
                 ,
                 in
                 what
                 cases
                 the
                 Law
                 accounteth
                 Parties
                 to
                 be
                 on
                 Death-Bed
                 ,
                 or
                 when
                 they
                 are
                 in
                 Health
                 ,
                 and
                 
                   Liege
                   poustie
                
                 ,
                 for
                 these
                 are
                 the
                 two
                 opposite
                 Terms
                 of
                 Law
                 ,
                 
                   Liege
                   poustie
                
                 or
                 Death-bed
                 ;
                 for
                 clearing
                 whereof
                 ,
                 these
                 Points
                 must
                 be
                 considered
                 .
                 First
                 whether
                 it
                 be
                 necessar
                 to
                 Prove
                 that
                 the
                 Defunct
                 before
                 the
                 Deed
                 in
                 question
                 ,
                 had
                 contracted
                 disease
                 ,
                 or
                 become
                 sick
                 ,
                 and
                 whether
                 it
                 be
                 necessar
                 to
                 condescend
                 and
                 instruct
                 the
                 speciall
                 kind
                 of
                 Sickness
                 ,
                 or
                 that
                 it
                 was
                 
                   Morbus
                   Sonticus
                
                 ,
                 or
                 a
                 disease
                 affecting
                 the
                 whole
                 Bodie
                 and
                 Brain
                 ,
                 or
                 if
                 the
                 keeping
                 the
                 House
                 ,
                 and
                 the
                 Parties
                 Dying
                 before
                 he
                 went
                 abroad
                 ,
                 be
                 sufficient
                 to
                 infer
                 Presumptive
                 ,
                 that
                 he
                 had
                 Contracted
                 the
                 disease
                 whereof
                 he
                 Dyed
                 ,
                 so
                 soon
                 as
                 he
                 keeped
                 the
                 house
                 .
                 2.
                 
                 Whether
                 a
                 contrair
                 Probation
                 of
                 the
                 Parties
                 being
                 in
                 health
                 ,
                 be
                 sufficient
                 ,
                 in
                 that
                 he
                 was
                 of
                 a
                 sound
                 Judgement
                 ,
                 and
                 Memorie
                 ,
                 and
                 kept
                 the
                 Ordinar
                 time
                 of
                 putting
                 off
                 ,
                 and
                 on
                 his
                 cloaths
                 ,
                 and
                 of
                 eating
                 and
                 drinking
                 ,
                 as
                 when
                 he
                 was
                 in
                 health
                 ,
                 or
                 Writing
                 Securityes
                 ,
                 that
                 require
                 clearness
                 and
                 distinctness
                 of
                 Mind
                 ,
                 be
                 sufficient
                 ,
                 or
                 if
                 doing
                 his
                 ordinar
                 Affairs
                 ,
                 making
                 Bargains
                 ,
                 and
                 Accoumpts
                 ,
                 Trysting
                 for
                 others
                 ,
                 or
                 himself
                 ,
                 playing
                 at
                 Cards
                 ,
                 or
                 other
                 Games
                 within
                 Doors
                 ,
                 giving
                 Evidence
                 of
                 being
                 Merrie
                 ,
                 be
                 sufficient
                 to
                 instruct
                 Health
                 ,
                 and
                 
                   Liedge
                   Poustie
                
                 .
                 3.
                 
                 If
                 Sickness
                 contracted
                 ,
                 be
                 presumed
                 or
                 proven
                 ,
                 whether
                 there
                 be
                 necessity
                 to
                 prove
                 the
                 Continuance
                 of
                 the
                 Sickness
                 till
                 Death
                 ,
                 or
                 that
                 the
                 Defunct
                 died
                 of
                 that
                 Sickness
                 ,
                 or
                 if
                 the
                 Sickness
                 once
                 contracted
                 be
                 presumed
                 to
                 continue
                 ,
                 unless
                 Convalescence
                 ,
                 and
                 Recoverie
                 of
                 Health
                 be
                 proven
                 .
                 4.
                 
                 Whether
                 
                   Liedge
                   poustie
                
                 ,
                 by
                 Convalescence
                 ,
                 be
                 sufficiently
                 proven
                 by
                 the
                 Defuncts
                 going
                 to
                 Kirk
                 and
                 Marcat
                 freely
                 ,
                 without
                 help
                 :
                 And
                 whether
                 it
                 be
                 sufficient
                 to
                 go
                 to
                 the
                 Marcat
                 place
                 ,
                 or
                 to
                 the
                 Kirk
                 ,
                 though
                 there
                 be
                 no
                 Convention
                 ,
                 nor
                 Congregation
                 there
                 ;
                 or
                 whether
                 it
                 be
                 requisite
                 ,
                 that
                 going
                 to
                 Kirk
                 and
                 Marcat
                 ,
                 be
                 when
                 the
                 Congregation
                 is
                 conveened
                 ,
                 or
                 in
                 Mercat
                 time
                 .
                 5.
                 
                 Whether
                 in
                 that
                 case
                 Supportation
                 being
                 proven
                 ,
                 it
                 is
                 more
                 pregnant
                 and
                 preferable
                 to
                 the
                 Probation
                 of
                 walking
                 freely
                 ,
                 and
                 be
                 what
                 Acts
                 Supportation
                 is
                 inferred
                 ;
                 whether
                 by
                 helping
                 the
                 Defunct
                 by
                 his
                 Oxter
                 ,
                 by
                 his
                 Elbow
                 ,
                 or
                 by
                 his
                 Hand
                 ,
                 be
                 sufficient
                 ,
                 or
                 if
                 helping
                 him
                 up
                 Stairs
                 ,
                 or
                 down
                 Stairs
                 ,
                 to
                 and
                 from
                 his
                 Horse
                 ,
                 or
                 upon
                 a
                 Ragged
                 way
                 ,
                 or
                 whether
                 being
                 helped
                 by
                 a
                 Staffe
                 ,
                 will
                 inferr
                 Supportation
                 .
                 6.
                 
                 Whether
                 going
                 freely
                 to
                 Kirk
                 and
                 Marcat
                 unsupported
                 ,
                 may
                 be
                 taken
                 off
                 by
                 any
                 probation
                 ,
                 that
                 notwithstanding
                 thereof
                 the
                 Sickness
                 did
                 continue
                 ,
                 whereof
                 the
                 Defunct
                 dyed
                 .
                 7.
                 
                 Whether
                 Convalescence
                 and
                 
                   Liege
                   poustie
                
                 ,
                 may
                 be
                 proven
                 by
                 any
                 other
                 Acts
                 ,
                 then
                 going
                 unsupported
                 to
                 Kirk
                 and
                 Mercat
                 ,
                 or
                 if
                 equivalent
                 Acts
                 may
                 be
                 sufficient
                 ,
                 and
                 if
                 going
                 abroad
                 about
                 the
                 House
                 unsupported
                 be
                 sufficient
                 .
              
               
                 Death-bed
                 is
                 of
                 so
                 great
                 Importance
                 with
                 us
                 ,
                 as
                 reaching
                 the
                 Estate
                 ,
                 and
                 Heritage
                 of
                 Parties
                 ,
                 that
                 the
                 Lords
                 have
                 been
                 very
                 careful
                 for
                 clearing
                 and
                 fixing
                 the
                 same
                 ,
                 that
                 it
                 may
                 not
                 be
                 under
                 uncertain
                 conjecture
                 or
                 probation
                 ,
                 and
                 whereas
                 by
                 an
                 ordinar
                 Act
                 of
                 Litiscontestation
                 ,
                 the
                 Pursuer
                 might
                 prove
                 his
                 reason
                 of
                 Death-bed
                 ,
                 by
                 any
                 two
                 Habile
                 Witnesses
                 ,
                 or
                 the
                 Defender
                 might
                 in
                 the
                 same
                 manner
                 prove
                 ,
                 the
                 going
                 Abroad
                 to
                 Kirk
                 and
                 Mercat
                 ,
                 or
                 Acts
                 equivalent
                 in
                 Defence
                 ,
                 or
                 the
                 Persuer
                 might
                 prove
                 Supportation
                 ,
                 by
                 way
                 of
                 reply
                 ,
                 and
                 all
                 by
                 any
                 two
                 Habile
                 witnesses
                 :
                 The
                 Lords
                 have
                 
                 taken
                 a
                 farr
                 more
                 secure
                 sway
                 ,
                 to
                 allow
                 probation
                 to
                 be
                 Adduced
                 for
                 either
                 Party
                 ,
                 concerning
                 the
                 condition
                 of
                 the
                 Defunct
                 ,
                 as
                 to
                 Sickness
                 or
                 Health
                 ,
                 and
                 concerning
                 his
                 going
                 abroad
                 thereafter
                 ,
                 and
                 the
                 manner
                 thereof
                 ,
                 whereby
                 neither
                 Partie
                 hath
                 the
                 choise
                 of
                 the
                 Witnesses
                 ,
                 to
                 be
                 in
                 a
                 Capacity
                 to
                 influence
                 them
                 ,
                 but
                 either
                 Partie
                 adducing
                 Witnesses
                 ,
                 there
                 is
                 scarce
                 any
                 one
                 unexamined
                 ,
                 who
                 knew
                 any
                 thing
                 of
                 the
                 Matter
                 ,
                 and
                 so
                 the
                 Truth
                 comes
                 to
                 clear
                 and
                 evident
                 Light
                 ,
                 and
                 which
                 probation
                 stands
                 in
                 place
                 of
                 Litiscontestation
                 ;
                 for
                 albeit
                 it
                 bear
                 to
                 be
                 before
                 Answer
                 to
                 the
                 Relevancie
                 ,
                 and
                 that
                 after
                 the
                 probation
                 is
                 closed
                 ,
                 they
                 are
                 permitted
                 to
                 resume
                 the
                 Debate
                 ,
                 as
                 to
                 the
                 Relevancie
                 ,
                 as
                 to
                 such
                 Points
                 as
                 they
                 desire
                 chiefly
                 to
                 be
                 noticed
                 ,
                 and
                 wherein
                 they
                 do
                 believe
                 ,
                 that
                 sufficient
                 Probation
                 is
                 adduced
                 ;
                 which
                 probation
                 is
                 closed
                 ,
                 and
                 may
                 not
                 particularly
                 be
                 debated
                 upon
                 ,
                 how
                 farr
                 any
                 point
                 is
                 proven
                 ,
                 which
                 is
                 only
                 proper
                 to
                 the
                 Lords
                 ,
                 to
                 consider
                 with
                 closs
                 Doors
                 yet
                 ,
                 no
                 new
                 Litiscontestation
                 can
                 be
                 made
                 ,
                 or
                 any
                 new
                 Fact
                 admitted
                 to
                 be
                 proven
                 ,
                 after
                 the
                 Probation
                 ,
                 before
                 Answer
                 is
                 concluded
                 and
                 advised
                 ,
                 or
                 renounced
                 ,
                 unless
                 the
                 Lords
                 ,
                 
                   ex
                   officio
                   &
                   proprio
                   motu
                
                 ,
                 for
                 clearing
                 of
                 any
                 part
                 of
                 the
                 probation
                 that
                 remains
                 Dubrous
                 ,
                 require
                 further
                 ,
                 as
                 they
                 may
                 do
                 at
                 the
                 advising
                 of
                 any
                 cause
                 ,
                 even
                 upon
                 Litiscontestation
                 ;
                 as
                 was
                 found
                 upon
                 Decem.
                 5
                 ,
                 and
                 6.
                 1672.
                 
                 
                   Clellands
                   contra
                   Clelland
                
                 ,
                 of
                 Falskin
                 .
              
               
                 To
                 come
                 then
                 to
                 the
                 Points
                 proposed
                 to
                 be
                 cleared
                 ,
                 for
                 the
                 first
                 Point
                 ,
                 whether
                 keeping
                 the
                 House
                 presumeth
                 Sickness
                 contracted
                 ,
                 or
                 if
                 Sickness
                 must
                 be
                 proven
                 ,
                 and
                 what
                 kind
                 of
                 Sickness
                 .
                 Albeit
                 ,
                 the
                 ordinar
                 Stile
                 of
                 the
                 reason
                 of
                 Reduction
                 bear
                 ,
                 thatbefore
                 the
                 Deed
                 in
                 question
                 ,
                 the
                 Defunct
                 contracted
                 the
                 Mortall
                 Disease
                 ,
                 whereof
                 he
                 Died
                 ;
                 yet
                 it
                 is
                 not
                 necessar
                 to
                 alledge
                 or
                 instruct
                 ,
                 that
                 it
                 was
                 
                   Morbus
                   sonticus
                   ,
                   January
                
                 7.
                 1624.
                 
                 
                   Schaw
                   contra
                   Gray
                
                 .
                 Neither
                 that
                 the
                 Defunct
                 was
                 Bed-fast
                 when
                 the
                 Deed
                 was
                 done
                 ,
                 Feb.
                 1.
                 1622.
                 
                 
                   Robertson
                   contra
                   Fleeming
                
                 .
                 And
                 albeit
                 ,
                 the
                 Presumption
                 of
                 the
                 contracting
                 of
                 Sickness
                 ,
                 from
                 his
                 keeping
                 
                   ofthe
                   
                     of
                     the
                  
                
                 House
                 ,
                 be
                 not
                 alwayes
                 sufficient
                 alone
                 ,
                 yet
                 it
                 is
                 of
                 great
                 Importance
                 ,
                 and
                 a
                 small
                 probation
                 of
                 Sickness
                 with
                 it
                 ,
                 will
                 suffice
                 ;
                 otherways
                 ,
                 it
                 were
                 easie
                 to
                 keep
                 all
                 access
                 from
                 the
                 Defunct
                 of
                 indifferent
                 Persons
                 ,
                 that
                 might
                 prove
                 his
                 Condition
                 ,
                 and
                 none
                 be
                 admitted
                 ,
                 but
                 Contrivers
                 ,
                 and
                 Concurrers
                 in
                 the
                 Deed
                 :
                 And
                 therefore
                 a
                 Deed
                 done
                 be
                 a
                 Man
                 inclosed
                 for
                 the
                 Plague
                 ,
                 was
                 found
                 reduceable
                 as
                 done
                 on
                 Death-bed
                 ,
                 as
                 being
                 done
                 after
                 the
                 Defunct
                 was
                 inclosed
                 on
                 suspition
                 of
                 the
                 Plague
                 ;
                 and
                 Dying
                 before
                 he
                 came
                 out
                 ,
                 without
                 necessity
                 to
                 prove
                 he
                 was
                 Sick
                 or
                 Infected
                 when
                 ,
                 theDeed
                 was
                 done
                 ,
                 seing
                 there
                 was
                 no
                 further
                 access
                 for
                 fuller
                 Probation
                 ,
                 February
                 23.
                 1665.
                 
                 
                   Jack
                   contra
                   Pollock
                
                 and
                 Rutherfoord
                 .
                 This
                 Presumption
                 doth
                 withstand
                 a
                 far
                 stranger
                 opposite
                 probation
                 of
                 Health
                 ,
                 when
                 the
                 Defunct
                 went
                 not
                 abroad
                 as
                 was
                 found
                 in
                 the
                 said
                 ease
                 ,
                 
                   Robertson
                   contra
                   Fleeming
                
                 .
                 That
                 it
                 was
                 not
                 Relevant
                 to
                 eleid
                 Death-bed
                 ,
                 that
                 the
                 Defunct
                 was
                 in
                 Strength
                 and
                 Ability
                 ,
                 to
                 have
                 come
                 to
                 Kirk
                 and
                 Marcat
                 ,
                 nor
                 that
                 the
                 Defunct
                 put
                 on
                 his
                 Cloaths
                 daily
                 ,
                 and
                 that
                 any
                 Disease
                 he
                 had
                 was
                 but
                 Lent
                 ,
                 and
                 not
                 
                   Impedimentum
                   rebus
                   agendis
                
                 ;
                 as
                 was
                 found
                 in
                 the
                 said
                 case
                 ,
                 
                   Schaw
                   contra
                   Gray
                
                 .
                 Neither
                 that
                 the
                 Defunct
                 lived
                 a
                 year
                 and
                 a
                 half
                 after
                 the
                 Deed
                 in
                 question
                 ,
                 and
                 was
                 only
                 hindered
                 to
                 come
                 abroad
                 by
                 a
                 Palsie
                 ,
                 which
                 troubled
                 his
                 walking
                 ,
                 and
                 made
                 him
                 not
                 come
                 abroad
                 ;
                 albeit
                 he
                 did
                 all
                 his
                 Affairs
                 within
                 Doors
                 ,
                 as
                 formerly
                 ,
                 July
                 1.
                 1637.
                 
                 
                   Cranston
                   Riddell
                   contra
                   Richardson
                
                 .
                 And
                 albeit
                 ,
                 there
                 be
                 remembered
                 a
                 case
                 of
                 a
                 Disposition
                 made
                 be
                 
                   David
                   Graham
                
                 Merchant
                 in
                 Edinburgh
                 for
                 a
                 Pious
                 use
                 to
                 the
                 〈◊〉
                 that
                 his
                 having
                 on
                 his
                 Cloath
                 the
                 Contriving
                 and
                 Writing
                 the
                 whole
                 Disposition
                 himself
                 ,
                 was
                 sufficient
                 to
                 eleid
                 Death-bed
                 and
                 to
                 instruct
                 Health
                 ;
                 yet
                 the
                 Circumstances
                 of
                 that
                 case
                 are
                 not
                 fully
                 known
                 ,
                 not
                 
                 being
                 observed
                 by
                 any
                 of
                 the
                 Lords
                 ,
                 and
                 the
                 Decision
                 hath
                 ever
                 been
                 decryed
                 since
                 .
                 But
                 in
                 the
                 case
                 of
                 the
                 creditors
                 of
                 the
                 Lord
                 Balmerino
                 ,
                 against
                 the
                 Lady
                 Couper
                 ,
                 for
                 reducing
                 of
                 the
                 Disposition
                 of
                 his
                 Estate
                 to
                 her
                 ,
                 which
                 was
                 Decyded
                 June
                 25.
                 1671.
                 
                 It
                 was
                 not
                 found
                 Relevant
                 to
                 instruct
                 
                   Liege
                   poustie
                
                 ,
                 that
                 after
                 the
                 Disposition
                 ,
                 my
                 Lord
                 made
                 Bargains
                 and
                 Counts
                 ,
                 seemed
                 to
                 be
                 Merry
                 and
                 Laughed
                 ,
                 keeped
                 on
                 his
                 Cloaths
                 ,
                 kept
                 the
                 Table
                 ,
                 came
                 from
                 his
                 Chamber
                 to
                 the
                 
                   Hall
                   ,
                   Whisled
                
                 to
                 himself
                 ,
                 and
                 Danced
                 ,
                 Albeit
                 ,
                 no
                 particular
                 Disease
                 ,
                 but
                 only
                 Sickness
                 was
                 proven
                 .
                 And
                 in
                 the
                 foresaid
                 case
                 ,
                 
                   Clelland
                   contra
                   Clelland
                
                 ,
                 Health
                 was
                 not
                 found
                 proven
                 ,
                 albeit
                 ,
                 soundness
                 of
                 Judgement
                 and
                 Memory
                 was
                 proven
                 :
                 And
                 that
                 the
                 Defunct
                 did
                 not
                 only
                 all
                 his
                 own
                 affairs
                 ,
                 but
                 Trysted
                 for
                 others
                 ,
                 and
                 that
                 he
                 lived
                 two
                 years
                 and
                 a
                 half
                 ,
                 after
                 the
                 Disposition
                 ,
                 and
                 was
                 in
                 like
                 condition
                 ,
                 as
                 he
                 had
                 been
                 seven
                 year
                 before
                 ;
                 so
                 that
                 it
                 seems
                 ,
                 that
                 if
                 the
                 contracting
                 of
                 Sickness
                 be
                 proven
                 ,
                 no
                 contrary
                 probation
                 of
                 any
                 Acts
                 within
                 doors
                 ,
                 will
                 be
                 sufficient
                 to
                 eleid
                 the
                 Reason
                 of
                 Death-bed
                 ;
                 By
                 all
                 with
                 decisions
                 ,
                 the
                 second
                 Point
                 proposed
                 is
                 sufficiently
                 cleared
                 .
              
               
                 As
                 to
                 the
                 third
                 Point
                 proposed
                 ,
                 whether
                 Sickness
                 being
                 proven
                 once
                 Contracted
                 ,
                 the
                 Countinance
                 thereof
                 till
                 Death
                 must
                 be
                 proven
                 .
                 It
                 is
                 commonly
                 held
                 that
                 if
                 it
                 be
                 proven
                 Sickness
                 was
                 contracted
                 ,
                 and
                 that
                 Death
                 followed
                 ,
                 
                   probatis
                   extremis
                   presumuntur
                   media
                
                 ;
                 And
                 Sickness
                 once
                 being
                 proven
                 is
                 presumed
                 to
                 continue
                 ,
                 otherways
                 it
                 were
                 scarce
                 possible
                 by
                 a
                 positive
                 Probation
                 to
                 instruct
                 the
                 Continuance
                 of
                 the
                 Sickness
                 till
                 Death
                 ,
                 and
                 this
                 is
                 only
                 
                   Presumptio
                   juris
                
                 :
                 Laying
                 the
                 Burden
                 of
                 probation
                 upon
                 the
                 Party
                 that
                 alledges
                 Convalescence
                 .
              
               
                 The
                 fourth
                 Point
                 for
                 proving
                 
                   Liege
                   poustie
                
                 ,
                 either
                 that
                 there
                 was
                 no
                 Disease
                 ,
                 or
                 by
                 Convalescence
                 ,
                 if
                 there
                 had
                 been
                 a
                 Desease
                 ;
                 by
                 going
                 freely
                 to
                 Kirk
                 and
                 Mercat
                 unsupported
                 ,
                 is
                 the
                 ordinar
                 and
                 unquestionable
                 defence
                 against
                 Death-bed
                 ,
                 upon
                 which
                 Law
                 and
                 Custom
                 hath
                 pitched
                 ,
                 as
                 the
                 most
                 publick
                 ,
                 and
                 sure
                 evidence
                 of
                 Health
                 andConvalescence
                 :
                 So
                 that
                 albeit
                 ,
                 the
                 going
                 to
                 Kirk
                 and
                 Mercat
                 ,
                 were
                 but
                 of
                 design
                 to
                 Validat
                 theDeed
                 ,
                 yet
                 if
                 the
                 attempt
                 ,
                 be
                 perfectly
                 made
                 out
                 ,
                 it
                 would
                 be
                 sufficient
                 ;
                 and
                 much
                 more
                 will
                 be
                 allowed
                 ,
                 when
                 the
                 going
                 abroad
                 is
                 Principally
                 to
                 hear
                 Sermon
                 or
                 for
                 Devotion
                 ,
                 or
                 about
                 affairs
                 to
                 the
                 Mercat
                 :
                 In
                 which
                 case
                 ,
                 taking
                 the
                 Party
                 by
                 the
                 Hand
                 ,
                 or
                 helping
                 him
                 at
                 a
                 ragged
                 Ground
                 ,
                 would
                 not
                 inferr
                 Supportation
                 ,
                 there
                 being
                 no
                 design
                 of
                 Cautiousness
                 in
                 the
                 Partie
                 ,
                 but
                 useing
                 his
                 ordinar
                 way
                 ;
                 as
                 if
                 a
                 Gentlewoman
                 accustomed
                 to
                 by
                 led
                 be
                 the
                 hand
                 ,
                 should
                 go
                 so
                 led
                 to
                 the
                 Kirk
                 or
                 Mercat
                 :
                 By
                 reiterated
                 Acts
                 it
                 might
                 be
                 sufficient
                 for
                 inferring
                 Health
                 or
                 Convalescence
                 ,
                 but
                 if
                 it
                 did
                 appear
                 to
                 be
                 upon
                 design
                 ,
                 she
                 behoved
                 to
                 forbear
                 the
                 prerogatives
                 of
                 herQuality
                 ,
                 and
                 go
                 freely
                 alone
                 without
                 being
                 led
                 ,
                 or
                 if
                 an
                 old
                 man
                 ,
                 infirm
                 by
                 age
                 ,
                 or
                 any
                 defect
                 in
                 his
                 Legs
                 or
                 Feet
                 ,
                 not
                 arising
                 from
                 inward
                 Sickness
                 ,
                 should
                 be
                 helped
                 in
                 difficult
                 places
                 ,
                 in
                 reiterated
                 Acts
                 in
                 going
                 to
                 Kirk
                 and
                 Mercat
                 :
                 without
                 design
                 .
                 And
                 as
                 to
                 that
                 qualification
                 ,
                 whether
                 it
                 be
                 sufficient
                 to
                 go
                 the
                 Kirk
                 or
                 Mercat
                 Place
                 ,
                 or
                 at
                 the
                 Congregation
                 orGathering
                 at
                 the
                 Mercat
                 ,
                 I
                 have
                 not
                 observed
                 it
                 perticularly
                 debated
                 or
                 decided
                 ,
                 but
                 that
                 Parties
                 when
                 they
                 went
                 to
                 the
                 Kirk
                 ,
                 ordinarly
                 went
                 to
                 the
                 Prayers
                 ,
                 and
                 certainly
                 it
                 is
                 the
                 most
                 secure
                 way
                 ,
                 that
                 the
                 going
                 be
                 to
                 the
                 Congregation
                 ,
                 or
                 Meeting
                 at
                 the
                 Mercat
                 ,
                 otherwayes
                 pick't
                 out
                 witnesses
                 ,
                 may
                 be
                 Chosen
                 to
                 wait
                 upon
                 the
                 Party
                 to
                 the
                 Kirk
                 or
                 Mercat-place
                 ,
                 which
                 in
                 many
                 cases
                 will
                 be
                 very
                 private
                 ,
                 and
                 will
                 not
                 expose
                 the
                 Party
                 to
                 publick
                 View
                 .
              
               
               
                 The
                 fifth
                 point
                 concerning
                 Supportation
                 ,
                 is
                 the
                 ordinary
                 reply
                 against
                 going
                 abroad
                 ,
                 and
                 as
                 hath
                 been
                 said
                 ,
                 it
                 is
                 ever
                 to
                 be
                 considered
                 ,
                 whether
                 the
                 Act
                 appear
                 to
                 be
                 of
                 design
                 or
                 not
                 ,
                 and
                 that
                 if
                 the
                 Acts
                 be
                 reiterat
                 ,
                 and
                 of
                 course
                 nothing
                 that
                 was
                 ordinar
                 for
                 the
                 Defunct
                 in
                 taking
                 of
                 help
                 ,
                 when
                 he
                 was
                 in
                 unquestionable
                 Health
                 ,
                 will
                 import
                 Supportation
                 ;
                 and
                 therefore
                 in
                 the
                 case
                 ,
                 
                   Pargilleis
                   contra
                   Pargilleis
                
                 ,
                 decided
                 Febr.
                 26.
                 1669.
                 
                 It
                 having
                 been
                 proven
                 that
                 the
                 Defunct
                 was
                 a
                 very
                 old
                 Man
                 ,
                 and
                 that
                 after
                 the
                 Disposition
                 quarelled
                 ,
                 he
                 had
                 severall
                 times
                 come
                 to
                 Calder
                 ,
                 and
                 done
                 Affaires
                 there
                 :
                 And
                 that
                 he
                 went
                 up
                 from
                 the
                 Merca-place
                 ,
                 in
                 the
                 Mercat
                 time
                 ,
                 to
                 the
                 place
                 of
                 Calder
                 ,
                 being
                 a
                 Steep
                 way
                 ,
                 borrowed
                 Money
                 from
                 the
                 Lord
                 Torphichen
                 ,
                 told
                 and
                 received
                 the
                 same
                 ,
                 which
                 was
                 found
                 sufficient
                 ;
                 Albeit
                 ,
                 he
                 was
                 helped
                 up
                 Stairs
                 ,
                 and
                 down
                 Stairs
                 :
                 and
                 was
                 helped
                 to
                 his
                 Horse
                 ,
                 and
                 from
                 his
                 Horse
                 ,
                 and
                 his
                 Man
                 led
                 his
                 Bridle
                 ,
                 and
                 that
                 he
                 had
                 a
                 Staffe
                 in
                 his
                 hand
                 .
              
               
                 But
                 when
                 the
                 going
                 to
                 Kirk
                 and
                 Mercat
                 ,
                 is
                 upon
                 design
                 ,
                 the
                 least
                 defect
                 in
                 the
                 exact
                 Performance
                 will
                 render
                 it
                 Inefectuall
                 ,
                 and
                 so
                 in
                 the
                 case
                 of
                 the
                 Disposition
                 made
                 by
                 the
                 Lord
                 Couper
                 ,
                 it
                 having
                 been
                 evident
                 that
                 it
                 was
                 ,
                 of
                 design
                 to
                 Validat
                 the
                 Disposition
                 ,
                 that
                 the
                 next
                 day
                 after
                 the
                 Disposition
                 ,
                 my
                 Lord
                 went
                 to
                 the
                 Mercat
                 at
                 Couper
                 ,
                 the
                 laying
                 hisHand
                 upon
                 
                   Thomas
                   Ogilbies
                
                 Hand
                 ,
                 who
                 walked
                 by
                 him
                 ,
                 and
                 that
                 only
                 at
                 someimes
                 ,
                 and
                 in
                 Ragged
                 places
                 where
                 he
                 was
                 accustomed
                 to
                 take
                 any
                 walking
                 by
                 him
                 ,
                 by
                 the
                 Hand
                 before
                 :
                 Yet
                 seeing
                 he
                 put
                 nature
                 to
                 the
                 outmost
                 reach
                 ,
                 to
                 manifest
                 Health
                 by
                 that
                 Act
                 ,
                 and
                 could
                 not
                 fully
                 perform
                 it
                 ,
                 it
                 was
                 not
                 found
                 Sufficient
                 ;
                 but
                 he
                 was
                 found
                 to
                 be
                 Supported
                 ,
                 and
                 in
                 the
                 case
                 ,
                 
                   Clellands
                   contra
                   Clelland
                
                 of
                 Faskin
                 ,
                 the
                 Defunct
                 finding
                 that
                 his
                 Disposition
                 was
                 quarrelld
                 and
                 stopped
                 at
                 the
                 Exchequer
                 :
                 As
                 being
                 done
                 in
                 Lecto
                 ;
                 Immediatly
                 after
                 he
                 caused
                 make
                 a
                 Chair
                 ,
                 with
                 a
                 Fixed
                 〈◊〉
                 to
                 bear
                 his
                 Feet
                 ,
                 in
                 which
                 he
                 was
                 carried
                 with
                 Men
                 till
                 he
                 came
                 within
                 two
                 pair
                 or
                 thereby
                 to
                 the
                 Kirk
                 ,
                 and
                 thence
                 he
                 walked
                 to
                 the
                 Kirk
                 ,
                 but
                 there
                 was
                 no
                 Congregation
                 :
                 And
                 returned
                 back
                 to
                 the
                 Chair
                 ,
                 and
                 so
                 was
                 carried
                 Home
                 ,
                 and
                 the
                 Witnesses
                 that
                 were
                 about
                 him
                 ,
                 being
                 examined
                 ,
                 whether
                 he
                 Walked
                 freely
                 ,
                 or
                 with
                 help
                 ,
                 many
                 deponed
                 that
                 severall
                 Persons
                 having
                 walked
                 close
                 about
                 him
                 ,
                 they
                 could
                 not
                 Distinctly
                 know
                 ;
                 and
                 severall
                 Witnesses
                 having
                 Deponed
                 ,
                 that
                 he
                 Walked
                 Freely
                 without
                 Help
                 ,
                 and
                 two
                 having
                 Deponed
                 that
                 he
                 was
                 Helped
                 by
                 themselves
                 ,
                 his
                 so
                 going
                 Abroad
                 was
                 not
                 found
                 Sufficient
                 ,
                 neither
                 was
                 his
                 being
                 carried
                 in
                 the
                 Chair
                 found
                 equivalent
                 ,
                 as
                 if
                 he
                 had
                 Ridden
                 upon
                 his
                 Horse
                 ;
                 because
                 a
                 Sick-man
                 might
                 have
                 required
                 help
                 even
                 upon
                 Horse-back
                 ,
                 and
                 would
                 not
                 have
                 been
                 able
                 to
                 have
                 Ridden
                 Freely
                 without
                 Help
                 ,
                 and
                 yet
                 might
                 have
                 been
                 Able
                 to
                 sit
                 in
                 a
                 Chair
                 :
                 In
                 this
                 case
                 a
                 lso
                 it
                 was
                 found
                 that
                 Supportation
                 was
                 more
                 positively
                 Proven
                 ;
                 Albeit
                 ,
                 be
                 fewer
                 Witnesses
                 :
                 The
                 Witnesses
                 themselves
                 being
                 Supporters
                 .
              
               
                 As
                 to
                 the
                 sixth
                 point
                 proposed
                 ,
                 whether
                 going
                 to
                 Kirk
                 and
                 Mercat
                 unsupported
                 ,
                 inferreth
                 Health
                 ,
                 or
                 Convalescence
                 ,
                 
                   presumptione
                   juris
                   ,
                   &
                   de
                   jure
                   ,
                
                 So
                 that
                 a
                 contrary
                 Probation
                 ,
                 that
                 even
                 then
                 he
                 was
                 Sick
                 ,
                 and
                 so
                 continued
                 tiil
                 IDeath
                 ,
                 hath
                 not
                 yet
                 been
                 destinctly
                 decided
                 :
                 Albeit
                 ,
                 in
                 Pargilleis
                 case
                 ,
                 it
                 was
                 not
                 regarded
                 ,
                 that
                 the
                 Witnesses
                 deponed
                 ,
                 that
                 Pargilleis
                 ,
                 when
                 he
                 came
                 to
                 the
                 Mercat
                 ,
                 appeared
                 Sick
                 ,
                 and
                 continued
                 Sick
                 thereafter
                 ;
                 Neither
                 can
                 any
                 Conjectural
                 Probation
                 ,
                 in
                 such
                 case
                 be
                 Respected
                 ;
                 Because
                 
                   Squalor
                   morbi
                
                 ,
                 doth
                 ordainarily
                 remain
                 ,
                 afterConvalescence
                 ,
                 which
                 ,
                 if
                 it
                 were
                 〈◊〉
                 ,
                 would
                 render
                 that
                 Defence
                 uncertain
                 ,
                 and
                 conjectural
                 ;
                 So
                 that
                 there
                 can
                 be
                 no
                 question
                 ,
                 unlesse
                 the
                 Probation
                 of
                 the
                 being
                 then
                 Sick
                 ,
                 were
                 positive
                 ,
                 
                 and
                 pregnant
                 ,
                 as
                 if
                 a
                 Person
                 in
                 a
                 hot
                 Fever
                 ,
                 wherein
                 there
                 is
                 ordinarily
                 strength
                 enough
                 ,
                 should
                 come
                 abroad
                 to
                 a
                 Mercat
                 ,
                 the
                 Foam
                 ,
                 and
                 Furie
                 of
                 the
                 Fever
                 continuing
                 in
                 his
                 Face
                 ,
                 or
                 if
                 the
                 Partie
                 did
                 Groan
                 ,
                 and
                 Bemoan
                 himself
                 ,
                 as
                 Sick
                 Persons
                 use
                 to
                 do
                 .
              
               
                 For
                 the
                 last
                 point
                 offered
                 to
                 consideration
                 ,
                 whether
                 Convalescence
                 ,
                 can
                 be
                 proven
                 otherways
                 ,
                 then
                 by
                 going
                 un-supported
                 to
                 Kirk
                 and
                 Mercat
                 .
                 I
                 have
                 seen
                 no
                 decision
                 ,
                 whereby
                 Death-bed
                 hath
                 been
                 elided
                 ,
                 upon
                 such
                 equivalent
                 Acts
                 ;
                 But
                 on
                 the
                 contrare
                 ,
                 it
                 was
                 found
                 ,
                 in
                 the
                 Case
                 of
                 the
                 Lord
                 Salton
                 ,
                 that
                 his
                 coming
                 to
                 a
                 Green
                 ,
                 near
                 his
                 House
                 un-supported
                 ,
                 and
                 standing
                 there
                 ,
                 till
                 he
                 saw
                 men
                 play
                 at
                 Foot-ball
                 ,
                 was
                 not
                 sufficient
                 :
                 And
                 in
                 Coupers
                 case
                 ,
                 his
                 coming
                 frequently
                 with
                 Strangers
                 to
                 their
                 Horse
                 ,
                 and
                 sometimes
                 going
                 up
                 and
                 down
                 Stairs
                 un-supported
                 ,
                 and
                 oftimes
                 going
                 out
                 ,
                 and
                 walking
                 in
                 his
                 Garden
                 ,
                 and
                 once
                 to
                 a
                 House
                 ,
                 a
                 quarter
                 of
                 a
                 myle
                 off
                 ,
                 and
                 all
                 un-supported
                 ,
                 were
                 not
                 found
                 equivalent
                 ,
                 to
                 going
                 unsupported
                 to
                 Kirk
                 and
                 Mercat
                 .
                 And
                 in
                 Clellands
                 Case
                 ,
                 his
                 going
                 several
                 times
                 to
                 his
                 Barn
                 ,
                 and
                 to
                 some
                 Trees
                 ,
                 a
                 pair
                 from
                 his
                 Gate
                 un-supported
                 ,
                 were
                 not
                 found
                 equivalent
                 to
                 going
                 to
                 Kirk
                 and
                 Mercat
                 .
                 Yet
                 it
                 cannot
                 be
                 doubted
                 ,
                 but
                 there
                 may
                 be
                 Acts
                 equivalent
                 :
                 As
                 if
                 any
                 Person
                 should
                 go
                 a
                 far
                 Journey
                 ,
                 but
                 the
                 equivalence
                 must
                 not
                 stand
                 in
                 this
                 ,
                 that
                 the
                 Defunct
                 did
                 Acts
                 ,
                 requiring
                 as
                 much
                 strengh
                 ,
                 as
                 going
                 to
                 Kirk
                 and
                 Mercat
                 .
                 In
                 respect
                 of
                 this
                 Difference
                 ,
                 that
                 going
                 to
                 Kirk
                 and
                 Mercat
                 ,
                 exposes
                 the
                 Partie
                 to
                 publick
                 view
                 :
                 Whereas
                 other
                 private
                 Acts
                 about
                 his
                 House
                 ,
                 may
                 be
                 proven
                 by
                 a
                 few
                 Persons
                 ,
                 prompted
                 for
                 that
                 purpose
                 :
                 Which
                 probation
                 cannot
                 be
                 ballanced
                 with
                 any
                 other
                 ;
                 for
                 clearing
                 ,
                 that
                 there
                 was
                 support
                 ,
                 or
                 help
                 ,
                 as
                 in
                 the
                 Case
                 of
                 going
                 to
                 Kirk
                 or
                 Mercat
                 ,
                 or
                 going
                 a
                 long
                 Journey
                 ,
                 where
                 they
                 may
                 be
                 had
                 many
                 un-prepossessed
                 Witnesses
                 .
              
               
                 Death-bed
                 was
                 not
                 found
                 elided
                 ,
                 by
                 ryding
                 on
                 Horse-back
                 ,
                 a
                 Journey
                 ,
                 of
                 about
                 sixteen
                 myles
                 ,
                 Seing
                 the
                 party
                 had
                 a
                 man
                 ,
                 who
                 rode
                 behind
                 him
                 ,
                 and
                 for
                 some
                 part
                 of
                 the
                 way
                 ,
                 was
                 tyed
                 to
                 the
                 man
                 ,
                 which
                 was
                 found
                 to
                 be
                 Supportation
                 .
                 Nor
                 was
                 it
                 respected
                 ,
                 that
                 long
                 before
                 his
                 Sicknesse
                 ,
                 he
                 had
                 in
                 his
                 Testament
                 left
                 the
                 same
                 things
                 in
                 Legacie
                 :
                 And
                 therefore
                 was
                 not
                 prevailled
                 upon
                 ,
                 with
                 Importunity
                 ;
                 Seing
                 his
                 purpose
                 might
                 have
                 altered
                 ,
                 after
                 that
                 Testament
                 ,
                 December
                 11.
                 1677.
                 
                 
                   William
                   Lockhart
                
                 contra
                 
                   Cromuel
                   Lockhart
                
                 of
                 Lie.
                 
              
               
                 29.
                 
                 As
                 to
                 the
                 extent
                 ofDeath-bed
                 ,
                 it
                 doth
                 not
                 only
                 annul
                 Dispositions
                 ofLands
                 ,
                 but
                 Assignations
                 to
                 Heritable
                 Bands
                 ,
                 Feb.
                 24.
                 1624.
                 
                 Donaldson
                 contra
                 Donaldson
                 .
                 Or
                 to
                 a
                 Band
                 ,
                 Moveable
                 in
                 it self
                 ,
                 becoming
                 Heritable
                 ,
                 by
                 a
                 Posterior
                 obliegment
                 ,
                 to
                 imploy
                 it
                 for
                 Annualrent
                 ,
                 
                   Spots
                   ,
                   Juramentum
                   calumniae
                   ,
                   Margaret
                   Arthur
                
                 contra
                 
                   James
                   Watson
                
                 .
                 Yea
                 ,
                 it
                 will
                 annull
                 any
                 Band
                 ,
                 though
                 Moveable
                 ,
                 in
                 so
                 far
                 ,
                 as
                 thereupon
                 the
                 Heritage
                 may
                 be
                 Appryzed
                 ,
                 or
                 Adjudged
                 ,
                 Jan.
                 7.
                 1624.
                 
                 Schaw
                 contra
                 Gray
                 .
                 But
                 an
                 Heritable
                 Sum
                 being
                 payed
                 to
                 the
                 Defunct
                 ,
                 on
                 Death-bed
                 ,
                 his
                 discharge
                 thereof
                 was
                 not
                 Reduced
                 ,
                 
                   ex
                   capite
                   lecti
                
                 ,
                 though
                 the
                 money
                 was
                 instantly
                 given
                 away
                 ,
                 after
                 it
                 was
                 received
                 ,
                 which
                 was
                 found
                 valid
                 ,
                 as
                 a
                 Legacie
                 ,
                 out
                 of
                 the
                 Deads
                 part
                 ,
                 March
                 15.
                 1634.
                 
                 
                   Margaret
                   Broun
                
                 contra
                 Thomson
                 ;
                 but
                 such
                 Deeds
                 on
                 Death-bed
                 ,
                 will
                 not
                 prejudge
                 the
                 Relict
                 ,
                 or
                 Bairns
                 part
                 ,
                 but
                 is
                 null
                 as
                 to
                 them
                 ,
                 as
                 well
                 as
                 to
                 the
                 Heir
                 ;
                 As
                 hath
                 been
                 now
                 shown
                 .
              
               
               
                 Death-bed
                 was
                 extended
                 aganist
                 Bands
                 ,
                 though
                 granted
                 by
                 a
                 Father
                 to
                 a
                 Son
                 ,
                 having
                 no
                 other
                 Provision
                 ,
                 which
                 were
                 not
                 sustained
                 ,
                 though
                 ossered
                 to
                 be
                 restricted
                 to
                 a
                 competent
                 Portion
                 ,
                 due
                 Naturally
                 by
                 Parents
                 ,
                 to
                 Children
                 ,
                 July
                 1.
                 1637.
                 
                 
                   Cranston
                   Riddel
                
                 contra
                 Richardson
                 ;
                 Yea
                 ,
                 Death-bed
                 was
                 found
                 relevant
                 ,
                 to
                 Reduce
                 a
                 Disposition
                 ,
                 in
                 Favours
                 of
                 the
                 Disponers
                 only
                 Daughter
                 ,
                 in
                 prejudice
                 of
                 the
                 Brother
                 ,
                 and
                 Heir
                 Male
                 :
                 Though
                 the
                 Disposition
                 contained
                 a
                 power
                 ,
                 to
                 alter
                 the
                 Tailzie
                 ,
                 or
                 dispone
                 at
                 any
                 time
                 in
                 his
                 Life
                 ,
                 but
                 bore
                 not
                 
                   etiam
                   in
                   articulo
                   mortis
                   ,
                   Feb.
                
                 25.
                 1663.
                 
                 
                   Adam
                   Hepburn
                
                 of
                 Humbie
                 contra
                 
                   Hellen
                   Hepburn
                
                 .
                 But
                 where
                 the
                 Disposition
                 was
                 neither
                 to
                 an
                 Heir
                 Male
                 ,
                 nor
                 of
                 Line
                 ;
                 That
                 clause
                 was
                 sufficient
                 ,
                 to
                 〈◊〉
                 the
                 Disponer
                 ,
                 on
                 these
                 Terms
                 ,
                 to
                 burden
                 ,
                 though
                 it
                 mentioned
                 not
                 Death-bed
                 ,
                 or
                 in
                 
                   articulo
                   mortis
                   ,
                   June
                
                 22.
                 1670.
                 
                 Douglas
                 of
                 〈◊〉
                 contra
                 Douglas
                 .
                 And
                 Death-bed
                 was
                 not
                 sustained
                 ,
                 to
                 Reduce
                 a
                 Disposition
                 ,
                 by
                 a
                 Father
                 to
                 his
                 Son
                 ;
                 Seing
                 the
                 Father
                 reserved
                 such
                 a
                 Sum
                 ,
                 to
                 be
                 at
                 his
                 disposal
                 in
                 his
                 Disposition
                 to
                 his
                 appearand
                 Heir
                 ,
                 though
                 it
                 mentioned
                 not
                 ,
                 at
                 any
                 time
                 in
                 his
                 Life
                 ,
                 June
                 28.
                 1662.
                 
                 
                   George
                   Seaton
                
                 of
                 Barns
                 contra
                 
                   Charles
                   Seaton
                
                 .
                 And
                 now
                 ,
                 since
                 the
                 Lords
                 have
                 frequently
                 decerned
                 Aliment
                 to
                 Bairns
                 ,
                 against
                 the
                 Fathers
                 Heirs
                 ,
                 having
                 competent
                 Estates
                 ,
                 it
                 is
                 like
                 the
                 Lords
                 will
                 allow
                 ,
                 all
                 provisions
                 on
                 Death-bed
                 ,
                 in
                 so
                 far
                 as
                 they
                 may
                 be
                 competentAliments
                 .
              
               
                 Holograph
                 writs
                 without
                 Witnesses
                 ,
                 prove
                 not
                 their
                 own
                 dates
                 to
                 have
                 been
                 Prior
                 to
                 the
                 Subseribers
                 Death-bed
                 ,
                 and
                 therefore
                 ,
                 they
                 are
                 presumed
                 to
                 be
                 on
                 Death-bed
                 ,
                 withoutwhich
                 ,
                 that
                 priviledge
                 would
                 be
                 evacuat
                 ;
                 it
                 being
                 as
                 easie
                 to
                 induce
                 a
                 Sick
                 Person
                 to
                 Antidate
                 a
                 writ
                 ,
                 as
                 to
                 Prejudge
                 his
                 Heir
                 :
                 But
                 if
                 it
                 be
                 proven
                 by
                 Witnesses
                 ,
                 that
                 the
                 writ
                 was
                 seen
                 ,
                 and
                 delivered
                 ,
                 before
                 the
                 granter
                 contracted
                 the
                 Sickness
                 ,
                 whereof
                 he
                 died
                 ;
                 Or
                 if
                 it
                 was
                 Subscribed
                 before
                 his
                 Sickness
                 ,
                 though
                 not
                 delivered
                 ;
                 if
                 it
                 was
                 in
                 favours
                 of
                 his
                 Children
                 ,
                 or
                 had
                 a
                 Clause
                 dispensing
                 with
                 delivery
                 ,
                 or
                 did
                 reserve
                 his
                 Liferent
                 :
                 The
                 presumption
                 to
                 have
                 been
                 done
                 on
                 Death-bed
                 ,
                 will
                 be
                 thereby
                 elided
                 .
                 But
                 a
                 Disposition
                 to
                 Neices
                 ,
                 having
                 been
                 proven
                 ,
                 to
                 be
                 Subscribed
                 ,
                 before
                 the
                 Subscribers
                 Sickness
                 ;
                 but
                 blank
                 in
                 the
                 Name
                 ,
                 was
                 reduced
                 ,
                 as
                 upon
                 Death-bed
                 ,
                 because
                 the
                 name
                 was
                 not
                 filled
                 up
                 :
                 〈◊〉
                 the
                 Writter
                 did
                 depone
                 ,
                 that
                 it
                 was
                 delivered
                 to
                 him
                 to
                 fill
                 it
                 up
                 ,
                 with
                 the
                 Neices
                 name
                 ,
                 seing
                 he
                 filled
                 it
                 not
                 up
                 ,
                 till
                 the
                 granters
                 Sicknesse
                 ,
                 July
                 22.
                 1678.
                 
                 Birnies
                 contra
                 Polmais
                 and
                 Brouns
                 .
                 But
                 Death-bed
                 ,
                 was
                 not
                 found
                 to
                 hinder
                 the
                 recalling
                 of
                 a
                 Disposition
                 ,
                 made
                 by
                 a
                 Grand-father
                 to
                 his
                 Oye
                 ,
                 and
                 delivered
                 to
                 a
                 third
                 Party
                 in
                 
                   Leige
                   poustie
                
                 ;
                 if
                 it
                 should
                 appear
                 ,
                 that
                 the
                 delivery
                 was
                 not
                 Simply
                 ,
                 to
                 the
                 behove
                 of
                 the
                 Oye
                 ,
                 whereby
                 it
                 became
                 Irrevocable
                 ;
                 but
                 Conditionally
                 ,
                 that
                 the
                 Disponer
                 might
                 recal
                 it
                 ;
                 for
                 eviden
                 ce
                 whereof
                 ,
                 it
                 was
                 proven
                 ,
                 by
                 that
                 third
                 Parties
                 Oath
                 ,
                 That
                 the
                 Defunct
                 ,
                 on
                 Death-bed
                 ,
                 called
                 for
                 it
                 ,
                 and
                 he
                 delivered
                 it
                 ;
                 and
                 that
                 the
                 Defunct
                 ,
                 on
                 Death-bed
                 ,
                 delivered
                 two
                 Blanks
                 ,
                 for
                 dividing
                 the
                 Right
                 ,
                 in
                 the
                 first
                 Disposition
                 ,
                 which
                 he
                 delivered
                 ,
                 with
                 his
                 said
                 first
                 Disposition
                 ,
                 to
                 a
                 Nottar
                 :
                 And
                 ordered
                 the
                 filling
                 up
                 of
                 the
                 one
                 half
                 to
                 the
                 Heir
                 ,
                 the
                 other
                 half
                 to
                 a
                 second
                 Son
                 ,
                 but
                 for
                 further
                 clearing
                 the
                 Partie
                 ,
                 to
                 whom
                 the
                 first
                 Disposition
                 was
                 first
                 delivered
                 ,
                 was
                 appointed
                 to
                 be
                 examined
                 ,
                 what
                 the
                 Defunct
                 exprest
                 ,
                 when
                 he
                 delivered
                 the
                 first
                 Disposition
                 to
                 him
                 ,
                 Decem.
                 9.
                 1676.
                 
                 
                   Janet
                   Ker
                
                 contra
                 
                   Ninian
                   Ker.
                
                 But
                 thereafter
                 ,
                 the
                 third
                 Partie
                 not
                 being
                 found
                 to
                 be
                 examined
                 ,
                 The
                 Lords
                 found
                 ,
                 that
                 there
                 being
                 nothing
                 proven
                 ,
                 exprest
                 at
                 the
                 delivery
                 ,
                 The
                 recalling
                 ,
                 and
                 the
                 re-delivery
                 did
                 import
                 ,
                 that
                 the
                 delivery
                 was
                 not
                 Simple
                 ,
                 to
                 the
                 behove
                 of
                 the
                 Oye
                 ,
                 making
                 it
                 Irrevocable
                 ;
                 But
                 that
                 it
                 was
                 
                 Conditional
                 ,
                 to
                 be
                 delivered
                 to
                 the
                 Oye
                 ,
                 if
                 the
                 Disponer
                 did
                 not
                 recall
                 it
                 ,
                 and
                 that
                 his
                 recalling
                 of
                 it
                 for
                 a
                 special
                 effect
                 ,
                 to
                 divide
                 the
                 same
                 betwixt
                 his
                 Heir
                 and
                 the
                 second
                 Son
                 ,
                 was
                 effectual
                 ,
                 both
                 against
                 his
                 Oye
                 ,
                 to
                 whom
                 he
                 first
                 Disponed
                 ;
                 and
                 as
                 effectual
                 against
                 his
                 Heir
                 ,
                 as
                 to
                 the
                 one
                 half
                 ,
                 albeit
                 the
                 Revocation
                 was
                 onDeath-bed
                 :
                 Seing
                 thereby
                 ,
                 the
                 Heir
                 had
                 no
                 prejudice
                 ,
                 but
                 benefit
                 ,
                 being
                 formerly
                 Excluded
                 ,
                 by
                 the
                 Disposition
                 to
                 the
                 Oye
                 ,
                 delivered
                 in
                 
                   Liege
                   Poustie
                   ,
                   January
                
                 25.
                 1677.
                 
                   inter
                   eosdem
                
                 .
              
               
                 30.
                 
                 But
                 onlyFree
                 deeds
                 onDeath-bed
                 ,
                 are
                 thusReduceable
                 ,
                 for
                 if
                 there
                 were
                 an
                 equivalent
                 Cause
                 Onerous
                 ,
                 which
                 was
                 truly
                 Imploy'd
                 upon
                 the
                 Defunct
                 ,
                 or
                 might
                 affect
                 the
                 Heir
                 ,
                 it
                 is
                 not
                 to
                 the
                 Heirs
                 Prejudice
                 ,
                 and
                 so
                 not
                 Reduceable
                 ;
                 thus
                 the
                 Reason
                 of
                 Death-bed
                 was
                 eleided
                 ,
                 because
                 the
                 Band
                 quareled
                 ,
                 was
                 offered
                 to
                 be
                 proven
                 for
                 Furnishing
                 ,
                 truly
                 Delivered
                 to
                 the
                 Defunct
                 ,
                 July
                 13.
                 1632.
                 
                 
                   Pollock
                   contra
                   Fairholme
                
                 .
              
               
                 The
                 like
                 of
                 a
                 Discharge
                 ,
                 granted
                 by
                 a
                 Bastard
                 ,
                 after
                 he
                 was
                 Infected
                 of
                 the
                 Plague
                 ,
                 against
                 the
                 Donatar
                 of
                 the
                 Bastardry
                 ,
                 November
                 23.
                 1609.
                 
                 
                   Marr
                   contra
                   Auchinleck
                
                 .
                 In
                 all
                 these
                 Witnesses
                 are
                 Sustained
                 to
                 prove
                 the
                 Cause
                 Onerous
                 in
                 the
                 write
                 .
                 And
                 likewise
                 a
                 Band
                 granted
                 on
                 Death-bed
                 ,
                 being
                 proven
                 for
                 a
                 Cause
                 Onerous
                 in
                 part
                 ,
                 viz.
                 Droggs
                 ,
                 and
                 Service
                 to
                 the
                 Defunct
                 on
                 his
                 Death-bed
                 ,
                 was
                 sustained
                 
                   pro
                   tanto
                
                 ,
                 and
                 Reduced
                 for
                 the
                 rest
                 ,
                 January
                 7.
                 1624.
                 
                 
                   Schaw
                   contra
                   Gray
                
                 .
                 But
                 a
                 Liferent
                 granted
                 to
                 a
                 Wife
                 on
                 Death-bed
                 ,
                 and
                 a
                 Liferent-Tack
                 of
                 Teinds
                 ,
                 of
                 the
                 Lands
                 Liferented
                 ,
                 were
                 not
                 reduced
                 ,
                 Hope
                 Teinds
                 Lady
                 
                   Dunlap
                   contra
                
                 Laird
                 Dunlap
                 .
                 The
                 reason
                 whereof
                 is
                 observed
                 to
                 have
                 been
                 ,
                 because
                 the
                 Husband
                 before
                 Sickness
                 ,
                 was
                 bound
                 to
                 Infeft
                 his
                 Wife
                 in
                 Lands
                 ,
                 or
                 Anualrent
                 equivalent
                 
                   Nicol.
                   de
                   haereditarijs
                   actionibus
                   inter
                   eosdem
                   .
                
              
               
                 31.
                 
                 AsDeeds
                 on
                 Death-bed
                 ,
                 prejudge
                 not
                 the
                 Heir
                 :
                 So
                 deeds
                 in
                 Testaments
                 ,
                 though
                 done
                 in
                 
                   Leige
                   Poustie
                
                 ,
                 have
                 no
                 more
                 Effect
                 ,
                 then
                 on
                 Death-bed
                 And
                 it
                 is
                 not
                 
                   habilis
                   modus
                
                 ,
                 by
                 Testament
                 to
                 dispone
                 any
                 Heritable
                 Right
                 ,
                 December
                 14.
                 1664.
                 
                 
                   Colvin
                   contra
                   Colvin
                
                 :
                 Death-bed
                 is
                 not
                 competent
                 by
                 Exception
                 ,
                 but
                 by
                 Reduction
                 ,
                 January
                 11.
                 1666.
                 
                 
                   Grizell
                   Seatown
                   contra
                   Dundas
                
                 ;
                 But
                 in
                 Declaratorie
                 or
                 Petitory
                 Actions
                 ,
                 as
                 Recognition
                 ,
                 it
                 is
                 receivable
                 by
                 Exception
                 ,
                 July
                 20.
                 1669.
                 
                 
                   Barcley
                   contra
                   Barcley
                
                 ;
                 Or
                 in
                 a
                 Reduction
                 it
                 is
                 competent
                 by
                 Exception
                 or
                 Reply
                 ,
                 February
                 3.
                 1672.
                 
                 
                   Barbara
                   Hoom
                   contra
                   Bryson
                
                 .
              
               
                 A
                 third
                 difference
                 is
                 ,
                 that
                 Successors
                 in
                 Moveables
                 ,
                 or
                 Executors
                 are
                 not
                 lyable
                 Passive
                 ,
                 for
                 the
                 Defuncts
                 Debts
                 ,
                 in
                 Solidum
                 ,
                 but
                 Heirs
                 are
                 ;
                 Though
                 they
                 farr
                 exceed
                 the
                 Value
                 of
                 the
                 Inheritance
                 ,
                 without
                 the
                 benefit
                 of
                 an
                 Inventar
                 .
                 And
                 though
                 Craigs
                 Opinion
                 is
                 ,
                 that
                 Heirs
                 may
                 Renounce
                 ,
                 even
                 after
                 their
                 Entry
                 ,
                 if
                 the
                 Heritage
                 appear
                 overburdened
                 .
                 The
                 course
                 of
                 Decision
                 since
                 his
                 time
                 hath
                 cleared
                 the
                 Contrary
                 .
              
               
                 32.
                 
                 Because
                 Heirs
                 entring
                 cannot
                 Renounce
                 ,
                 there
                 is
                 
                   Annus
                   deliberandi
                
                 ,
                 allowed
                 to
                 them
                 by
                 Law
                 ,
                 in
                 which
                 they
                 may
                 abstain
                 from
                 entering
                 ,
                 and
                 Immixing
                 themselves
                 with
                 the
                 Heritage
                 ,
                 and
                 then
                 they
                 are
                 not
                 conveenable
                 for
                 the
                 Defuncts
                 debt
                 ,
                 upon
                 charges
                 to
                 enter
                 Heir
                 or
                 otherwise
                 ,
                 but
                 if
                 they
                 enter
                 ,
                 or
                 meddle
                 sooner
                 ,
                 they
                 are
                 lyable
                 :
                 This
                 
                   Annus
                   deliberandi
                
                 ,
                 is
                 ordinarily
                 accounted
                 ,
                 a
                 year
                 from
                 the
                 Defuncts
                 Death
                 ,
                 which
                 was
                 so
                 accounted
                 though
                 during
                 a
                 great
                 part
                 thereof
                 ,
                 the
                 Heir
                 remained
                 unborn
                 ;
                 February
                 7.
                 1610.
                 
                 
                   Knows
                   contra
                   Menzies
                
                 .
                 But
                 the
                 Contrary
                 was
                 found
                 thereafter
                 ,
                 that
                 the
                 year
                 was
                 accounted
                 from
                 the
                 Birth
                 of
                 the
                 Posthumus
                 Heir
                 
                 that
                 the
                 benefit
                 of
                 Deliberation
                 ,
                 might
                 be
                 profitable
                 to
                 his
                 Tutor
                 in
                 his
                 Name
                 ,
                 Spots
                 ,
                 Heirs
                 ,
                 
                   Livingstown
                   contra
                   Fullertown
                
                 ;
                 If
                 the
                 Day
                 of
                 Compearance
                 be
                 after
                 the
                 Charge
                 to
                 enter
                 Heir
                 ,
                 and
                 after
                 the
                 year
                 ,
                 it
                 will
                 be
                 Susrained
                 ,
                 June
                 27.
                 1667.
                 
                 
                   Dewar
                   contra
                   Paterson
                
                 :
                 In
                 which
                 case
                 it
                 was
                 found
                 ,
                 that
                 even
                 Actions
                 Real
                 ,
                 as
                 Reductions
                 ,
                 〈◊〉
                 ,
                 &c.
                 which
                 require
                 no
                 Charge
                 to
                 enter
                 Heir
                 ,
                 are
                 not
                 Competent
                 within
                 the
                 year
                 of
                 Deliberation
                 ,
                 because
                 in
                 these
                 the
                 Heir
                 cannot
                 Defend
                 ,
                 without
                 the
                 Hazard
                 of
                 behaving
                 as
                 Heir
                 .
              
               
                 33.
                 
                 Succession
                 in
                 Heritable
                 Rights
                 in
                 Scotland
                 ,
                 are
                 either
                 by
                 the
                 will
                 of
                 the
                 Fiar
                 ,
                 or
                 by
                 Law
                 ,
                 
                   Provistone
                   Hominis
                
                 or
                 Legis
                 .
                 Heirs
                 by
                 the
                 〈◊〉
                 of
                 Law
                 ,
                 are
                 called
                 Heirs
                 of
                 Line
                 ,
                 as
                 befalling
                 by
                 the
                 Line
                 of
                 Succession
                 appointed
                 ,
                 and
                 known
                 in
                 Law
                 ,
                 all
                 other
                 Heirs
                 do
                 Cross
                 or
                 Cut
                 that
                 Line
                 :
                 and
                 therefore
                 are
                 called
                 Heirs
                 of
                 Tailzie
                 ,
                 from
                 the
                 French
                 word
                 〈◊〉
                 ,
                 to
                 Cut
                 ;
                 whence
                 Craig
                 conceiveth
                 this
                 Tailzied
                 Succession
                 ,
                 hath
                 been
                 first
                 denominat
                 amongst
                 the
                 French
                 and
                 Normands
                 ,
                 and
                 thence
                 being
                 brought
                 into
                 England
                 ,
                 by
                 the
                 Normand
                 Conquest
                 ,
                 both
                 in
                 Custom
                 and
                 Name
                 ,
                 hath
                 been
                 Derived
                 to
                 Us
                 ;
                 Yet
                 it
                 is
                 liker
                 to
                 have
                 come
                 to
                 us
                 Immediatly
                 from
                 France
                 ,
                 with
                 which
                 we
                 keeped
                 greater
                 Intercourse
                 ,
                 then
                 with
                 England
                 of
                 Old
                 ;
                 And
                 our
                 Tailzies
                 ,
                 at
                 least
                 to
                 Heirs
                 Male
                 ,
                 are
                 Ancienter
                 than
                 the
                 English
                 ,
                 which
                 begun
                 but
                 from
                 the
                 Famous
                 Law
                 ,
                 called
                 the
                 Second
                 Statute
                 of
                 Westminster
                 ,
                 in
                 the
                 Reign
                 of
                 Edward
                 the
                 First
                 ,
                 of
                 that
                 Name
                 of
                 the
                 Normand
                 Line
                 .
              
               
                 Heirs
                 of
                 Tailzie
                 are
                 also
                 called
                 Heirs
                 of
                 Provision
                 ,
                 which
                 terms
                 are
                 Equiparat
                 ,
                 both
                 comprehending
                 all
                 Heirs
                 ,
                 which
                 are
                 not
                 according
                 to
                 the
                 Line
                 or
                 Course
                 of
                 Law
                 ;
                 and
                 among
                 others
                 ,
                 Heirs
                 Male
                 ,
                 and
                 Heirs
                 of
                 Marriage
                 :
                 Yet
                 our
                 Stile
                 doth
                 ordinarily
                 distinguish
                 them
                 so
                 ,
                 that
                 where
                 there
                 is
                 no
                 alteration
                 from
                 the
                 Lineall
                 Heirs
                 Male
                 ,
                 and
                 where
                 there
                 are
                 severall
                 Substitutions
                 of
                 certain
                 Persons
                 ,
                 or
                 Lines
                 ,
                 failling
                 others
                 by
                 the
                 tenor
                 of
                 the
                 Infeftment
                 ,
                 they
                 are
                 Specially
                 called
                 Heirs
                 of
                 Tailzie
                 ;
                 but
                 when
                 there
                 is
                 an
                 Alteration
                 of
                 the
                 Lineal
                 Succession
                 ,
                 yet
                 not
                 Simply
                 to
                 Heirs
                 Male
                 ,
                 nor
                 to
                 divers
                 Members
                 of
                 Tailzie
                 they
                 retain
                 the
                 common
                 Name
                 of
                 Heirs
                 ,
                 of
                 Provision
                 ,
                 as
                 is
                 most
                 ordinar
                 by
                 Contracts
                 of
                 Marriage
                 ,
                 providing
                 Lands
                 to
                 the
                 Heirs
                 of
                 the
                 Marriage
                 ,
                 whereby
                 the
                 Heirs
                 Lawfully
                 Procreat
                 betwixt
                 the
                 Married
                 Persons
                 whether
                 Male
                 or
                 Female
                 do
                 succeed
                 ;
                 So
                 that
                 Daughters
                 of
                 that
                 Marriage
                 will
                 exclude
                 Sons
                 of
                 another
                 Marriage
                 ,
                 or
                 Heirs
                 of
                 the
                 Bodie
                 of
                 the
                 Members
                 of
                 the
                 Tailzie
                 ,
                 whereby
                 there
                 Collateralls
                 ,
                 or
                 Ascendants
                 are
                 excluded
                 :
                 And
                 in
                 proper
                 Tailzies
                 ,
                 there
                 are
                 always
                 divers
                 Lines
                 and
                 Persons
                 ,
                 Male
                 and
                 Female
                 ,
                 substitute
                 as
                 Members
                 of
                 the
                 Tailzie
                 ,
                 as
                 when
                 Infeftment
                 beareth
                 Lands
                 to
                 be
                 granted
                 to
                 the
                 Fiar
                 ,
                 and
                 to
                 the
                 Heirs
                 of
                 his
                 Body
                 ,
                 or
                 to
                 the
                 Heirs
                 Male
                 of
                 his
                 Body
                 ,
                 or
                 to
                 his
                 Heirs
                 of
                 such
                 a
                 Marriage
                 ,
                 which
                 Failling
                 to
                 such
                 an
                 other
                 Person
                 Named
                 ,
                 and
                 to
                 the
                 Heirs
                 of
                 his
                 Body
                 ,
                 or
                 to
                 the
                 Heirs
                 Male
                 of
                 his
                 Body
                 ,
                 &c.
                 
                 And
                 so
                 to
                 a
                 Third
                 or
                 Fourth
                 ,
                 which
                 all
                 Failling
                 to
                 the
                 first
                 Fiar
                 ,
                 and
                 his
                 Heirs
                 whatsomever
                 ;
                 or
                 to
                 return
                 to
                 the
                 Superior
                 ,
                 or
                 to
                 any
                 other
                 Person
                 ,
                 and
                 to
                 their
                 Heirs
                 whatsomever
                 :
                 And
                 where
                 such
                 Persons
                 and
                 Lines
                 are
                 not
                 Substitute
                 ,
                 it
                 is
                 not
                 properly
                 called
                 a
                 Tailzie
                 ,
                 but
                 if
                 it
                 be
                 simply
                 to
                 Heirs
                 Male
                 ,
                 it
                 is
                 so
                 specially
                 Denominate
                 ;
                 all
                 other
                 Heirs
                 which
                 are
                 not
                 Heirs
                 of
                 Line
                 ,
                 or
                 Heirs
                 whatsomever
                 ,
                 retain
                 the
                 Name
                 of
                 Heirs
                 of
                 Provision
                 ,
                 the
                 Chief
                 whereof
                 ,
                 are
                 Heirs
                 of
                 a
                 Marriage
                 ,
                 which
                 Failling
                 the
                 Husbands
                 ,
                 or
                 Wifes
                 Heirs
                 whatsomever
                 ,
                 in
                 which
                 there
                 is
                 but
                 one
                 Blood
                 or
                 Line
                 ,
                 and
                 not
                 divers
                 Persons
                 ,
                 and
                 different
                 Lines
                 Substitute
                 in
                 these
                 Tailzies
                 ,
                 the
                 Person
                 Nominat
                 may
                 Succeed
                 ,
                 and
                 be
                 served
                 Heir
                 of
                 Tailzie
                 ,
                 though
                 otherwise
                 Incapable
                 
                 of
                 Succession
                 as
                 Bastards
                 ,
                 as
                 hath
                 been
                 shown
                 in
                 the
                 former
                 Title
                 ;
                 But
                 the
                 Persons
                 Nominate
                 are
                 never
                 the
                 Immediat
                 and
                 fast
                 Heirs
                 in
                 Lands
                 ,
                 but
                 always
                 the
                 Fiars
                 Heirs
                 of
                 his
                 Body
                 ,
                 which
                 Failling
                 ,
                 the
                 Persons
                 Nominate
                 ;
                 for
                 if
                 the
                 Heritage
                 should
                 be
                 granted
                 for
                 example
                 to
                 John
                 ,
                 and
                 after
                 his
                 Decease
                 to
                 William
                 and
                 his
                 Heirs
                 :
                 John
                 would
                 be
                 thereby
                 Naked
                 Liferenter
                 ,
                 and
                 William
                 Fiar
                 ,
                 who
                 could
                 not
                 be
                 served
                 as
                 Heir
                 to
                 John
                 :
                 But
                 if
                 it
                 were
                 Granted
                 to
                 John
                 ,
                 and
                 the
                 Heirs
                 of
                 his
                 Body
                 ,
                 which
                 failing
                 ,
                 to
                 William
                 ;
                 These
                 failing
                 ,
                 William
                 would
                 be
                 served
                 Heir
                 of
                 Tailzie
                 to
                 John
                 :
                 But
                 this
                 holds
                 not
                 in
                 Bands
                 ,
                 or
                 Securityes
                 for
                 Sums
                 of
                 Money
                 ,
                 for
                 Parents
                 do
                 srequently
                 take
                 thier
                 Bands
                 and
                 Infeftments
                 for
                 Security
                 thereof
                 ,
                 to
                 themselves
                 ,
                 they
                 being
                 on
                 Life
                 ,
                 and
                 after
                 their
                 Decease
                 ,
                 to
                 such
                 Children
                 Nominat
                 ,
                 yet
                 the
                 Parents
                 are
                 Fiars
                 ,
                 and
                 the
                 Children
                 are
                 but
                 Heirs
                 Substitute
                 .
                 So
                 then
                 ,
                 all
                 Succession
                 with
                 Us
                 ,
                 is
                 either
                 of
                 Heirs
                 of
                 Line
                 ,
                 Male
                 ,
                 Tailzie
                 or
                 Provision
                 ,
                 Heirs
                 of
                 Line
                 are
                 also
                 called
                 Heirs
                 General
                 ,
                 so
                 also
                 are
                 Heirs
                 Male
                 ,
                 and
                 of
                 Conquest
                 ,
                 and
                 these
                 may
                 be
                 served
                 Heirs
                 by
                 a
                 generall
                 Service
                 :
                 But
                 other
                 Heirs
                 of
                 Tailzie
                 or
                 Provision
                 ,
                 by
                 Investiture
                 ,
                 cannot
                 be
                 served
                 Heirs
                 ,
                 but
                 by
                 a
                 Speciall
                 Service
                 ,
                 serving
                 them
                 to
                 such
                 Particulars
                 ,
                 whereunto
                 they
                 Succeed
                 ,
                 by
                 Infeftment
                 or
                 Provision
                 ;
                 Heirs
                 of
                 Line
                 are
                 also
                 Called
                 Heirs
                 whatsomever
                 ,
                 because
                 they
                 are
                 absolute
                 without
                 Limitation
                 ,
                 and
                 in
                 all
                 cases
                 where
                 Heirs
                 whatsomever
                 ,
                 is
                 not
                 specially
                 altered
                 by
                 the
                 Infeftment
                 rights
                 follow
                 the
                 Lineall
                 Succession
                 ,
                 as
                 among
                 Heirs
                 Male
                 ,
                 the
                 same
                 course
                 taketh
                 Preference
                 ,
                 except
                 that
                 Female
                 Heirs
                 are
                 excluded
                 ,
                 as
                 that
                 first
                 Descendents
                 ,
                 then
                 Brothers
                 ,
                 &c.
                 do
                 Succeed
                 ,
                 and
                 Amongst
                 Heirs
                 of
                 Marriages
                 ,
                 the
                 Eldest
                 Son
                 doth
                 exclude
                 the
                 rest
                 ,
                 and
                 so
                 in
                 the
                 Members
                 of
                 Tailzies
                 .
              
               
                 We
                 shall
                 not
                 need
                 here
                 to
                 debate
                 the
                 Lawfulness
                 ,
                 or
                 Expediency
                 of
                 constituting
                 Heirs
                 Male
                 ,
                 or
                 of
                 Tailzie
                 ,
                 or
                 of
                 Provision
                 ;
                 having
                 now
                 cleared
                 ,
                 that
                 the
                 first
                 Ground
                 and
                 Rule
                 in
                 Equity
                 ,
                 is
                 the
                 Will
                 of
                 the
                 Propriatar
                 ,
                 though
                 he
                 be
                 Personally
                 Oblieged
                 to
                 provide
                 Competently
                 for
                 his
                 own
                 ,
                 especially
                 those
                 of
                 his
                 Family
                 ;
                 And
                 therefore
                 ,
                 though
                 severall
                 of
                 our
                 KINGS
                 ,
                 in
                 their
                 generall
                 Revocations
                 ,
                 have
                 Revocked
                 Tailzies
                 ,
                 it
                 can
                 inferr
                 no
                 more
                 ,
                 but
                 a
                 Scruple
                 in
                 them
                 ,
                 and
                 a
                 Preserving
                 of
                 their
                 Power
                 ,
                 against
                 the
                 course
                 of
                 Prescription
                 :
                 But
                 doth
                 not
                 infringe
                 such
                 Rights
                 being
                 Lawful
                 in
                 themselves
                 .
                 The
                 Expediency
                 of
                 Tailzies
                 ,
                 is
                 the
                 same
                 with
                 
                   Primo
                   .
                   geniture
                
                 ,
                 to
                 preserve
                 the
                 memory
                 ,
                 and
                 Dignitie
                 of
                 Families
                 :
                 But
                 as
                 Primo-geniture
                 ,
                 for
                 that
                 end
                 ,
                 excludeth
                 Females
                 of
                 nearest
                 Degree
                 ,
                 Heirs
                 Male
                 excludeth
                 them
                 Simply
                 and
                 Heirs
                 of
                 Tailzie
                 ,
                 have
                 had
                 their
                 Rise
                 from
                 Dissatisfaction
                 ,
                 with
                 some
                 of
                 the
                 Fiars
                 Race
                 ,
                 or
                 preference
                 of
                 them
                 ,
                 otherwayes
                 then
                 by
                 the
                 Propinquity
                 of
                 Blood
                 ;
                 Some
                 have
                 also
                 Tailzied
                 their
                 Lands
                 ,
                 so
                 as
                 by
                 Infeftments
                 ,
                 to
                 Introduce
                 a
                 Primo-geniture
                 among
                 Familyes
                 ,
                 as
                 the
                 Law
                 hath
                 done
                 among
                 Males
                 ;
                 as
                 if
                 the
                 Land
                 were
                 granted
                 to
                 the
                 Fiar
                 ,
                 and
                 the
                 Heirs
                 Male
                 of
                 his
                 Bodie
                 ,
                 which
                 Failling
                 ,
                 to
                 the
                 Eldest
                 Heir
                 Female
                 of
                 the
                 Bodie
                 ,
                 without
                 division
                 ,
                 and
                 their
                 Heirs
                 carrying
                 the
                 Arms
                 ,
                 and
                 Name
                 of
                 the
                 Family
                 :
                 The
                 intent
                 of
                 these
                 Heirs
                 of
                 Provision
                 ,
                 is
                 also
                 to
                 preserve
                 the
                 Unity
                 and
                 memorie
                 of
                 the
                 Family
                 .
              
               
                 To
                 come
                 now
                 to
                 the
                 Heirs
                 of
                 Line
                 ,
                 the
                 Law
                 hath
                 ordred
                 them
                 thus
                 ;
                 first
                 the
                 Eldest
                 lawfull
                 Son
                 ,
                 and
                 his
                 Descendents
                 in
                 order
                 ,
                 by
                 Right
                 of
                 Primo-geneture
                 ,
                 excludeth
                 all
                 other
                 Descendents
                 ,
                 Male
                 or
                 Female
                 ;
                 Failling
                 Sons
                 ,
                 the
                 Daughters
                 ,
                 and
                 their
                 Descendents
                 do
                 all
                 succeed
                 Equally
                 ,
                 except
                 in
                 Rights
                 Indivisible
                 ,
                 which
                 fall
                 to
                 the
                 Eldest
                 ;
                 Failling
                 Desendents
                 ,
                 the
                 next
                 Degree
                 is
                 of
                 the
                 next
                 immediat
                 Brother
                 German
                 ,
                 and
                 his
                 Descendents
                 ,
                 and
                 among
                 Middle
                 Brethern
                 ,
                 the
                 immediat
                 Elder
                 Brother
                 succeedeth
                 in
                 Conquest
                 ,
                 whereunto
                 the
                 Defunct
                 
                 did
                 not
                 ,
                 nor
                 could
                 not
                 succeed
                 as
                 Heir
                 ,
                 but
                 in
                 all
                 others
                 ,
                 the
                 immediate
                 Younger
                 Brother
                 succeedeth
                 ,
                 and
                 therefore
                 is
                 called
                 the
                 Heir
                 of
                 Line
                 ;
                 and
                 the
                 other
                 the
                 Heir
                 of
                 Conquest
                 :
                 If
                 the
                 Fiar
                 be
                 a
                 Woman
                 ,
                 her
                 Brother
                 German
                 excludeth
                 Sisters
                 German
                 ,
                 and
                 of
                 her
                 Brothers
                 ,
                 the
                 immediate
                 Elder
                 Brother
                 succeedeth
                 inConquest
                 ,
                 and
                 the
                 immediat
                 Younger
                 in
                 heritage
                 ;
                 Failing
                 ,
                 Brothers
                 German
                 ,
                 Sisters
                 German
                 ,
                 and
                 their
                 Descendents
                 exclude
                 both
                 Brethren
                 and
                 Sisters
                 ,
                 by
                 the
                 Fathers
                 side
                 only
                 ,
                 
                   June
                   ult
                
                 .
                 1629.
                 
                 Mr.
                 
                   Robert
                   Cuningham
                   contra
                   Multray
                
                 .
                 Failling
                 Brothers
                 ,
                 or
                 Sisters
                 German
                 ,
                 Brothers
                 by
                 the
                 Fathers
                 side
                 ,
                 succeed
                 to
                 the
                 Defunct
                 ,
                 whether
                 Male
                 or
                 Female
                 ,
                 the
                 immediat
                 Elder
                 in
                 Conquest
                 ,
                 and
                 the
                 immediat
                 Younger
                 in
                 Heritage
                 .
                 Failing
                 all
                 Brothers
                 and
                 Sisters
                 ,
                 the
                 Father
                 or
                 other
                 Masculine
                 Ascendent
                 of
                 his
                 Line
                 ,
                 succeed
                 to
                 the
                 Defunct
                 ,
                 whether
                 Male
                 or
                 Female
                 ,
                 and
                 exclude
                 the
                 Brothers
                 ,
                 or
                 Sisters
                 of
                 that
                 Ascendent
                 ,
                 as
                 a
                 Grand-grandfather
                 excludes
                 his
                 Brethren
                 :
                 Fathers
                 Brethren
                 to
                 the
                 Defunct
                 :
                 Failling
                 Ascendents
                 ,
                 the
                 Fathers
                 Brothers
                 ,
                 and
                 Fathers
                 Sisters
                 ,
                 and
                 their
                 Descendents
                 ,
                 succeed
                 in
                 all
                 points
                 as
                 Brothers
                 and
                 Sisters
                 ,
                 the
                 double
                 Blood
                 excluding
                 the
                 single
                 Blood
                 ,
                 and
                 the
                 immediat
                 Elder
                 Brother
                 succeeding
                 in
                 Conquest
                 ,
                 and
                 the
                 immediat
                 Younger
                 in
                 heritage
                 ,
                 and
                 all
                 Failling
                 the
                 Grandfather
                 ;
                 and
                 Failling
                 him
                 ,
                 his
                 Brothers
                 and
                 Sisters
                 the
                 same
                 way
                 :
                 And
                 so
                 upward
                 ,
                 till
                 there
                 can
                 be
                 any
                 Propinquity
                 of
                 Blood
                 proven
                 ,
                 which
                 all
                 Failling
                 ,
                 the
                 King
                 taketh
                 place
                 as
                 Last
                 Heir
                 .
              
               
                 34.
                 
                 In
                 this
                 Line
                 of
                 Succession
                 ,
                 observe
                 ,
                 First
                 ,
                 that
                 there
                 is
                 no
                 place
                 for
                 Adopted
                 Children
                 ,
                 or
                 their
                 Issue
                 ,
                 but
                 only
                 for
                 the
                 Naturall
                 Issue
                 of
                 the
                 Vassal
                 ;
                 Which
                 cannot
                 be
                 changed
                 by
                 a
                 Voluntar
                 Act
                 of
                 Adoption
                 ,
                 without
                 consent
                 of
                 the
                 Superior
                 ,
                 in
                 the
                 Investiture
                 ,
                 neither
                 is
                 Adoption
                 in
                 use
                 with
                 us
                 in
                 any
                 case
                 .
                 2.
                 
                 These
                 Naturall
                 Heirs
                 ,
                 must
                 also
                 be
                 Lawfull
                 ,
                 whereby
                 Bastards
                 are
                 excluded
                 ;
                 who
                 are
                 such
                 ,
                 appeareth
                 by
                 the
                 former
                 Title
                 .
                 3.
                 
                 There
                 is
                 no
                 place
                 for
                 Cognats
                 ,
                 as
                 to
                 the
                 Mother
                 ,
                 Grandmother
                 ,
                 or
                 other
                 Feminine
                 Ascendent
                 ,
                 or
                 these
                 of
                 their
                 side
                 ,
                 but
                 only
                 to
                 Agnats
                 conjoined
                 by
                 the
                 Father
                 ,
                 Grandfather
                 ,
                 &c.
                 
                 Which
                 holdeth
                 ,
                 even
                 though
                 the
                 heritage
                 descended
                 from
                 the
                 Mother
                 ,
                 or
                 these
                 of
                 her
                 side
                 ,
                 for
                 in
                 the
                 service
                 of
                 Heirs
                 ,
                 the
                 nearest
                 lawfull
                 Heirs
                 are
                 only
                 inquired
                 ,
                 and
                 retoured
                 either
                 by
                 the
                 Lineall
                 Succession
                 aforesaid
                 ,
                 or
                 by
                 express
                 Tailzie
                 ,
                 or
                 provision
                 in
                 the
                 Infeftment
                 ,
                 without
                 respect
                 from
                 whence
                 the
                 Inheritance
                 flowed
                 ;
                 for
                 which
                 we
                 have
                 no
                 Satute
                 nor
                 Custom
                 ;
                 But
                 in
                 England
                 ,
                 it
                 is
                 otherwayes
                 for
                 
                   Paterna
                   paternis
                
                 ,
                 and
                 
                   Materna
                   Maternis
                
                 takes
                 place
                 ,
                 but
                 with
                 us
                 the
                 contrare
                 was
                 found
                 in
                 the
                 case
                 of
                 
                   John
                   Gilbert
                
                 ,
                 as
                 Craig
                 observeth
                 ,
                 Lib.
                 2.
                 
                 Dieg
                 17.
                 
                 And
                 he
                 there
                 relateth
                 that
                 many
                 afterward
                 changed
                 their
                 opinion
                 therein
                 ,
                 and
                 though
                 there
                 be
                 equity
                 in
                 it
                 ,
                 yet
                 no
                 Law
                 nor
                 Practique
                 since
                 ,
                 hath
                 favoured
                 the
                 Maternal
                 Line
                 ,
                 but
                 the
                 Father
                 was
                 found
                 Heir
                 to
                 his
                 Son
                 ,
                 even
                 in
                 the
                 Lands
                 where
                 the
                 Son
                 was
                 Infeft
                 ,
                 as
                 Heir
                 to
                 his
                 Mother
                 ,
                 and
                 did
                 exclude
                 his
                 Brother
                 Uterin
                 ,
                 by
                 that
                 Mother
                 ,
                 February
                 5.
                 1663.
                 
                 
                   Lenox
                   contra
                   Lintoun
                
                 .
                 4.
                 
                 In
                 all
                 this
                 Line
                 of
                 Succession
                 ,
                 there
                 is
                 place
                 for
                 Representation
                 of
                 Descendents
                 ,
                 in
                 place
                 of
                 their
                 Defunct
                 Parents
                 :
                 So
                 that
                 Females
                 of
                 a
                 further
                 degree
                 ,
                 by
                 the
                 Right
                 ofrepresentation
                 ,
                 exclude
                 Males
                 of
                 a
                 nearer
                 degree
                 ,
                 as
                 the
                 eldest
                 Sons
                 Daughter
                 will
                 be
                 preferred
                 in
                 theGrandfathers
                 Inheritance
                 ,
                 to
                 his
                 other
                 Sons
                 in
                 private
                 Rights
                 ,
                 though
                 that
                 be
                 contraverse
                 ,
                 by
                 the
                 more
                 comon
                 Feudall
                 Customs
                 ,
                 as
                 is
                 largely
                 and
                 learnedly
                 dispute
                 by
                 Tiraquellus
                 .
              
               
               
                 35.
                 
                 In
                 this
                 Lineall
                 Succession
                 ,
                 the
                 Father
                 ,
                 Grandfather
                 ,
                 or
                 other
                 Ascendents
                 of
                 the
                 Paternall
                 Line
                 ,
                 succeed
                 in
                 heritable
                 Right
                 ,
                 next
                 unto
                 Brothers
                 and
                 Sisters
                 ,
                 and
                 before
                 all
                 other
                 Collateralls
                 ,
                 or
                 Agnats
                 .
                 We
                 have
                 shown
                 before
                 ,
                 why
                 ,
                 there
                 is
                 no
                 mention
                 of
                 Ascendents
                 in
                 the
                 Jewish
                 Succession
                 ,
                 because
                 such
                 a
                 case
                 could
                 hardly
                 occurr
                 among
                 them
                 .
                 
                   Craig
                   ,
                   Lib.
                
                 2.
                 
                 Deig
                 .
                 13.
                 affirmeth
                 that
                 it
                 was
                 doubtfull
                 in
                 his
                 time
                 ,
                 whether
                 Ascendants
                 could
                 succeed
                 in
                 heritable
                 Rights
                 ,
                 and
                 that
                 he
                 heard
                 the
                 opinion
                 of
                 some
                 learned
                 men
                 in
                 the
                 contrary
                 ,
                 and
                 that
                 he
                 had
                 not
                 found
                 the
                 Lords
                 decide
                 in
                 it
                 ,
                 and
                 that
                 it
                 is
                 contrare
                 to
                 the
                 Feudal
                 Law
                 ,
                 and
                 also
                 to
                 his
                 own
                 opinion
                 ;
                 yet
                 he
                 brings
                 both
                 evident
                 reason
                 and
                 example
                 in
                 the
                 contrary
                 ,
                 the
                 reason
                 is
                 ,
                 that
                 no
                 Inquest
                 can
                 justly
                 Retoure
                 ,
                 that
                 the
                 Father
                 Brother
                 ,
                 is
                 nearer
                 then
                 the
                 Father
                 :
                 He
                 bringeth
                 also
                 the
                 Example
                 of
                 the
                 Earl
                 of
                 Angus
                 ,
                 served
                 Heir
                 in
                 the
                 Earldom
                 of
                 Angus
                 ,
                 to
                 his
                 ownSon
                 ,
                 whom
                 he
                 had
                 infeft
                 therein
                 :
                 And
                 the
                 Lord
                 Colvill
                 in
                 likemanner
                 ,
                 having
                 infeft
                 his
                 Son
                 in
                 all
                 his
                 estate
                 ,
                 though
                 sum
                 affirmed
                 that
                 this
                 was
                 by
                 provision
                 ,
                 in
                 the
                 infeftment
                 ;
                 yet
                 that
                 the
                 Service
                 was
                 ,
                 is
                 sure
                 ,
                 but
                 that
                 provision
                 is
                 uncertain
                 ,
                 and
                 though
                 some
                 also
                 were
                 doubtful
                 ,
                 whether
                 the
                 Earl
                 of
                 Angus
                 was
                 served
                 ,
                 and
                 infeft
                 as
                 Heir
                 to
                 that
                 same
                 Son
                 ,
                 which
                 well
                 inferreth
                 that
                 the
                 Father
                 was
                 not
                 infeft
                 as
                 Heir
                 to
                 his
                 Son
                 ,
                 but
                 not
                 that
                 he
                 was
                 not
                 served
                 Heir
                 to
                 him
                 therein
                 ,
                 for
                 he
                 might
                 have
                 been
                 served
                 ,
                 and
                 not
                 infeft
                 ;
                 Whereby
                 ,
                 the
                 service
                 as
                 incompleat
                 ,
                 became
                 void
                 ,
                 and
                 the
                 next
                 Earl
                 behoved
                 to
                 serve
                 of
                 new
                 to
                 the
                 Son
                 ,
                 who
                 died
                 last
                 vest
                 ,
                 and
                 seased
                 as
                 of
                 Fee
                 :
                 The
                 Custom
                 .
                 and
                 common
                 opinion
                 since
                 ,
                 is
                 for
                 the
                 Ascendants
                 ,
                 and
                 so
                 the
                 Earl
                 of
                 Roxburgh
                 was
                 served
                 as
                 Heir
                 Male
                 to
                 his
                 Son
                 ;
                 The
                 Lord
                 Ker
                 ,
                 and
                 many
                 others
                 which
                 ought
                 to
                 be
                 the
                 more
                 favoured
                 ,
                 as
                 more
                 conform
                 to
                 equity
                 ,
                 and
                 the
                 Law
                 of
                 nature
                 ,
                 which
                 in
                 Dubio
                 ought
                 to
                 take
                 place
                 ,
                 where
                 there
                 is
                 no
                 Law
                 ,
                 nor
                 custom
                 to
                 the
                 contrary
                 ,
                 as
                 with
                 us
                 there
                 is
                 none
                 ;
                 Neither
                 did
                 I
                 ever
                 hear
                 of
                 one
                 who
                 attempted
                 to
                 exclude
                 a
                 father
                 ,
                 by
                 the
                 Fathers
                 Collaterails
                 :
                 And
                 though
                 there
                 had
                 been
                 no
                 Decision
                 upon
                 it
                 ,
                 neither
                 have
                 there
                 been
                 upon
                 many
                 other
                 uncontroverted
                 Customs
                 ,
                 especially
                 in
                 Succession
                 ,
                 but
                 the
                 acquiescence
                 of
                 all
                 Parties
                 ,
                 having
                 interest
                 in
                 matters
                 of
                 so
                 great
                 moment
                 ,
                 is
                 a
                 strong
                 Evidence
                 of
                 the
                 Nationall
                 consent
                 by
                 Custom
                 :
                 But
                 it
                 hath
                 aho
                 been
                 so
                 decided
                 by
                 the
                 Lords
                 ,
                 Hope
                 ,
                 Succession
                 ,
                 Mr.
                 
                   Robert
                   Burnet
                   contra
                   Mauld
                
                 ;
                 Yea
                 a
                 Son
                 ,
                 being
                 infeft
                 as
                 Heir
                 to
                 hisMother
                 dying
                 without
                 Issue
                 ,
                 his
                 Brother
                 uterin
                 by
                 the
                 Mother
                 was
                 not
                 found
                 Heir
                 to
                 him
                 ,
                 but
                 his
                 Father
                 ,
                 February
                 5.
                 1663.
                 
                 
                   Lenox
                   contra
                   Lintoun
                
                 .
              
               
                 As
                 to
                 the
                 alledged
                 opposition
                 of
                 the
                 Feudall
                 Law
                 ,
                 as
                 hath
                 been
                 oft
                 times
                 said
                 ,
                 it
                 is
                 Local
                 ;
                 And
                 therefore
                 ,
                 as
                 in
                 England
                 ,
                 all
                 Ascendents
                 are
                 excluded
                 ,
                 so
                 in
                 Germany
                 they
                 succeed
                 in
                 the
                 next
                 place
                 after
                 descendents
                 ,
                 and
                 are
                 preferred
                 to
                 Brothers
                 and
                 sisters
                 ,
                 according
                 to
                 theNaturall
                 course
                 ofSuccession
                 .
                 The
                 reason
                 why
                 Brothers
                 and
                 Sisters
                 of
                 the
                 Defunct
                 ,
                 are
                 preferred
                 to
                 the
                 Fathers
                 with
                 us
                 ,
                 may
                 be
                 ,
                 because
                 such
                 Fees
                 do
                 commonly
                 proceed
                 from
                 the
                 Father
                 :
                 And
                 therefore
                 by
                 the
                 continuance
                 of
                 that
                 sameFatherly
                 affection
                 ,
                 are
                 derived
                 to
                 the
                 Brothers
                 and
                 Sisters
                 ,
                 and
                 because
                 they
                 are
                 in
                 more
                 need
                 of
                 Provision
                 then
                 the
                 Father
                 .
              
            
             
               
               
                 TITLE
                 XXVII
                 .
                 Heirs
                 .
              
               
                 
                   1.
                   
                   Appearand
                   Heirs
                   may
                   pursue
                   exhibition
                   ,
                   
                     ad
                     deliberandum
                  
                   .
                
                 
                   2.
                   
                   They
                   may
                   defend
                   their
                   predecessors
                   Rights
                   and
                   Possessions
                   ,
                   being
                   called
                   ,
                   or
                   compearing
                   for
                   their
                   interest
                   ;
                   and
                   their
                   executors
                   have
                   right
                   to
                   the
                   Rents
                   of
                   these
                   years
                   ,
                   they
                   were
                   appear
                   and
                   Heirs
                   .
                
                 
                   3.
                   
                   The
                   Aliment
                   of
                   Heirs
                   from
                   the
                   Donatars
                   ,
                   and
                   Life-rentars
                   .
                
                 
                   4.
                   
                   Heirs
                   not
                   entred
                   ,
                   have
                   the
                   benefit
                   of
                   Clauses
                   ,
                   which
                   by
                   Nature
                   import
                   ,
                   they
                   should
                   not
                   be
                   actual
                   Heir
                   .
                
                 
                   5.
                   
                   Heirs
                   have
                   interest
                   in
                   all
                   Rights
                   granted
                   to
                   their
                   Predecessors
                   ,
                   though
                   not
                   mentioning
                   Heirs
                   ,
                   who
                   are
                   not
                   exclusive
                   of
                   Heirs
                   ,
                   by
                   their
                   Tenor
                   and
                   Nature
                   .
                
                 
                   6.
                   
                   Heirs
                   have
                   the
                   benefit
                   of
                   all
                   Rights
                   heritable
                   ,
                   by
                   Destination
                   ,
                   or
                   having
                   a
                   future
                   Tract
                   of
                   time
                   ,
                   after
                   the
                   Defuncts
                   Death
                   .
                
                 
                   7.
                   
                   Heirs
                   have
                   Right
                   to
                   Moveable
                   heirship
                   ,
                   or
                   obleigment
                   for
                   Sums
                   wherein
                   Executors
                   are
                   excluded
                   .
                
                 
                   8.
                   
                   Heirs
                   of
                   Lyne
                   ,
                   are
                   heirs
                   generally
                   ;
                   their
                   interest
                   .
                
                 
                   9.
                   
                   Hirship
                   Moveables
                   .
                
                 
                   10.
                   
                   Heirs
                   of
                   Conquest
                   their
                   interest
                   .
                
                 
                   11.
                   
                   Heirs
                   Portioners
                   their
                   Interest
                   .
                
                 
                   12.
                   
                   Heirs
                   Male
                   ,
                   Tailzie
                   ,
                   and
                   Provision
                   ,
                   their
                   interest
                   .
                
                 
                   13.
                   
                   All
                   Heirs
                   are
                   lyable
                   pasivè
                   for
                   the
                   Defuncts
                   debt
                   ,
                   but
                   not
                   in
                   the
                   same
                   way
                   .
                
                 
                   14.
                   
                   Heirs
                   Portioners
                   how
                   far
                   lyable
                   .
                
                 
                   15.
                   
                   The
                   effects
                   of
                   different
                   Provisions
                   ,
                   or
                   Obligations
                   by
                   Defuncts
                   ,
                   in
                   Favours
                   of
                   Divers
                   heirs
                   Portioners
                   .
                
                 
                   16.
                   
                   Heirs
                   not
                   being
                   Portioners
                   ,
                   no
                   substitute
                   in
                   Bands
                   are
                   lyable
                   in
                   solidum
                   .
                
                 
                   17.
                   
                   The
                   order
                   ,
                   by
                   which
                   heris
                   are
                   lyable
                   passivè
                   ,
                   and
                   may
                   be
                   discust
                   .
                
                 
                   
                   18.
                   
                   Heirs
                   of
                   Tailzie
                   ripresent
                   not
                   the
                   Defunct
                   ,
                   in
                   obligations
                   contrary
                   to
                   the
                   Terms
                   of
                   the
                   Tailzie
                   .
                
                 
                   19.
                   
                   Heirs
                   of
                   Marriage
                   ,
                   may
                   quarrel
                   their
                   Predecessors
                   Deeds
                   ,
                   being
                   meerlygratouitus
                   in
                   their
                   prejudice
                   ,
                   but
                   not
                   such
                   as
                   are
                   onerous
                   ,
                   or
                   rational
                   Deeds
                   .
                
                 
                   20.
                   
                   Heirs
                   having
                   the
                   benefit
                   of
                   discussing
                   ,
                   may
                   propone
                   the
                   Exception
                   ,
                   that
                   all
                   parties
                   having
                   interest
                   ,
                   are
                   not
                   called
                   ,
                   without
                   instructiug
                   the
                   Right
                   whereto
                   they
                   may
                   succeed
                   .
                
                 
                   21.
                   
                   The
                   exception
                   of
                   the
                   order
                   of
                   discusing
                   ,
                   is
                   not
                   sustained
                   without
                   condescending
                   on
                   the
                   heritage
                   ,
                   whereunto
                   the
                   anterior
                   heir
                   may
                   sueceed
                   ,
                   and
                   what
                   is
                   discusing
                   .
                
                 
                   22.
                   
                   The
                   order
                   and
                   effect
                   of
                   a
                   Genral
                   Charge
                   to
                   enter
                   heir
                   .
                
                 
                   23.
                   
                   The
                   order
                   ,
                   and
                   effect
                   of
                   a
                   special
                   charge
                   to
                   enter
                   heir
                   .
                
                 
                   24.
                   
                   Renounciation
                   to
                   be
                   heir
                   ,
                   its
                   order
                   and
                   effect
                   .
                
                 
                   25.
                   
                   The
                   entrie
                   of
                   heirs
                   general
                   ,
                   and
                   effects
                   thereof
                   .
                
                 
                   26.
                   
                   The
                   entrie
                   of
                   heirs
                   upon
                   precept
                   of
                   
                     Clare
                     Constat
                  
                   .
                
                 
                   27.
                   
                   The
                   entrie
                   of
                   heirs
                   by
                   hesp
                   and
                   steeple
                   within
                   Burgh
                   .
                
                 
                   28.
                   
                   Entrie
                   of
                   heirs
                   by
                   Brievcs
                   out
                   of
                   the
                   Chancellarie
                   .
                
                 
                   29.
                   
                   To
                   whom
                   these
                   Brieves
                   are
                   directed
                   .
                
                 
                   30.
                   
                   The
                   manner
                   of
                   citting
                   the
                   Inquist
                   ,
                   and
                   Proclaming
                   the
                   Brieve
                   .
                
                 
                   31.
                   
                   Exceptions
                   competent
                   against
                   members
                   of
                   Inquist
                   .
                
                 
                   32.
                   
                   The
                   appearand
                   heirs
                   claim
                   .
                
                 
                   33.
                   
                   Exceptions
                   against
                   the
                   Claim
                   .
                
                 
                   34.
                   
                   First
                   head
                   of
                   the
                   Brieve
                   .
                
                 
                   35.
                   
                   The
                   2.
                   head
                   of
                   the
                   Brieve
                   .
                
                 
                   36.
                   3.
                   head
                   of
                   the
                   Brieve
                   .
                
                 
                   37.
                   
                   The
                   4.
                   head
                   〈◊〉
                   of
                   Brieve
                   .
                
                 
                   38.
                   
                   The
                   5.
                   head
                   of
                   the
                   Brieve
                   .
                
                 
                   39.
                   
                   The
                   6.
                   head
                   of
                   the
                   Brieve
                   .
                
                 
                   40.
                   
                   The
                   7.
                   head
                   of
                   the
                   Brieve
                   .
                
                 
                   41.
                   
                   The
                   Service
                   .
                
                 
                   42.
                   
                   The
                   Reture
                   .
                
                 
                   43.
                   
                   Reduction
                   of
                   Retures
                   by
                   a
                   great
                   inquist
                   .
                
                 
                   44.
                   
                   Reduction
                   thereof
                   otherways
                   .
                
                 
                   45.
                   
                   Reduction
                   of
                   Retures
                   how
                   competent
                   .
                
                 
                   46.
                   
                   Precepts
                   out
                   of
                   the
                   Chancellarie
                   ,
                   to
                   Superiours
                   to
                   Infeft
                   .
                
                 
                   47.
                   
                   Suspensions
                   of
                   the
                   precepts
                   ,
                   and
                   the
                   reasons
                   competent
                   therein
                   .
                
                 
                   48.
                   
                   The
                   certification
                   of
                   the
                   loss
                   of
                   the
                   Superiority
                   ,
                   during
                   the
                   life
                   of
                   the
                   Superiors
                   disobeying
                   .
                
                 
                   49.
                   
                   Further
                   reasons
                   of
                   Suspension
                   of
                   these
                   precepts
                   .
                
                 
                   50.
                   
                   Whether
                   the
                   Persons
                   nearest
                   at
                   the
                   Defuncts
                   decease
                   ,
                   may
                   be
                   entred
                   where
                   a
                   nearer
                   is
                   in
                   spe
                   .
                
                 
                   51.
                   
                   Who
                   are
                   Fiars
                   of
                   Conjuct-fees
                   ,
                   or
                   Provisions
                   substitute
                   .
                
                 
                   52.
                   
                   The
                   entreast
                   of
                   heirs
                   of
                   Provision
                   ,
                   and
                   import
                   of
                   Clauses
                   of
                   Conquiest
                   ,
                   in
                   Contracts
                   of
                   Marriage
                   .
                
              
               
               
                 BY
                 the
                 former
                 Title
                 ,
                 it
                 appeareth
                 who
                 are
                 Heirs
                 ;
                 let
                 us
                 now
                 Consider
                 what
                 their
                 Interests
                 are
                 by
                 being
                 Heirs
                 :
                 And
                 that
                 is
                 either
                 Active
                 by
                 the
                 benefit
                 ,
                 or
                 Passive
                 by
                 the
                 Burden
                 whereunto
                 they
                 do
                 succeed
                 ;
                 For
                 Heirs
                 being
                 successors
                 in
                 
                   Universum
                   jus
                   quod
                   Defunctus
                   Habuit
                
                 ,
                 they
                 do
                 fully
                 represent
                 the
                 Defunct
                 both
                 in
                 the
                 Rights
                 ,
                 belongiug
                 to
                 him
                 ,
                 and
                 in
                 the
                 Debts
                 due
                 by
                 him
                 .
                 First
                 ,
                 then
                 of
                 the
                 Interest
                 ,
                 common
                 to
                 all
                 Heirs
                 ;
                 And
                 next
                 of
                 the
                 interest
                 ,
                 speciall
                 to
                 the
                 severall
                 Heirs
                 .
              
               
                 1.
                 
                 The
                 interest
                 of
                 Heirs
                 are
                 most
                 properly
                 Competent
                 ,
                 when
                 they
                 are
                 entered
                 Heirs
                 ,
                 according
                 to
                 the
                 due
                 Course
                 of
                 Law
                 ,
                 of
                 which
                 afterward
                 ;
                 Yet
                 somethings
                 are
                 competent
                 ,
                 not
                 only
                 to
                 heirs
                 entred
                 ,
                 but
                 to
                 appear
                 and
                 Heirs
                 ,
                 as
                 first
                 ,
                 they
                 have
                 interest
                 to
                 prusue
                 Exhibition
                 of
                 all
                 writs
                 made
                 by
                 their
                 Predecessors
                 to
                 their
                 Wives
                 ,
                 Children
                 ,
                 and
                 others
                 in
                 Familia
                 ,
                 but
                 not
                 of
                 writes
                 made
                 by
                 them
                 
                   extra
                   Familiam
                   ,
                   December
                
                 6.
                 1661.
                 
                 
                   Margaret
                   Forrester
                
                 ,
                 and
                 Schaw
                 of
                 
                   Sor
                   nebeg
                
                 her
                 Spouse
                 ,
                 
                   Contra
                   Tailzefere
                
                 .
                 Or
                 to
                 their
                 Predecessors
                 Simply
                 ,
                 to
                 the
                 effect
                 ,
                 they
                 may
                 know
                 the
                 condition
                 of
                 the
                 heritage
                 :
                 And
                 may
                 desiberat
                 whether
                 they
                 would
                 Enter
                 Heirs
                 ,
                 or
                 not
                 ;
                 Seing
                 if
                 they
                 do
                 Enter
                 ,
                 they
                 are
                 lyable
                 for
                 all
                 the
                 Defuncts
                 Debts
                 ,
                 though
                 they
                 farr
                 exceed
                 his
                 Estate
                 ,
                 and
                 have
                 no
                 benefit
                 of
                 Inventary
                 ,
                 as
                 in
                 moveables
                 :
                 And
                 therefore
                 they
                 are
                 allowed
                 to
                 pursue
                 for
                 inspection
                 of
                 all
                 Writes
                 ,
                 Importing
                 a
                 debt
                 of
                 the
                 Defunct
                 ;
                 Yet
                 not
                 so
                 as
                 to
                 open
                 the
                 Charter
                 Chists
                 of
                 Strangers
                 ,
                 who
                 have
                 purchased
                 Lands
                 from
                 the
                 Defunct
                 ,
                 on
                 pretence
                 of
                 the
                 Burden
                 ,
                 by
                 the
                 Warrandice
                 ;
                 for
                 in
                 that
                 case
                 the
                 Strangers
                 Infeftment
                 will
                 exclude
                 them
                 ,
                 and
                 only
                 dispositions
                 made
                 to
                 these
                 in
                 the
                 Family
                 ,
                 hinder
                 not
                 inspection
                 of
                 the
                 Heirs
                 whole
                 Rights
                 Flowing
                 from
                 the
                 Defunct
                 ,
                 or
                 his
                 Predecessors
                 :
                 But
                 I
                 doubt
                 not
                 ,
                 but
                 all
                 will
                 be
                 oblieged
                 to
                 produce
                 Bands
                 ,
                 or
                 Personal
                 obleigements
                 ,
                 which
                 might
                 burden
                 the
                 appearand
                 Heir
                 ,
                 if
                 he
                 enter
                 .
                 As
                 was
                 found
                 in
                 the
                 Case
                 of
                 Dispositions
                 ,
                 and
                 Bandsgranted
                 by
                 the
                 Defunct
                 ,
                 to
                 Strangers
                 ,
                 Feb.
                 26.
                 1633
                 
                 Laird
                 of
                 Swynton
                 contra
                 Laird
                 of
                 Westnisbit
                 .
                 But
                 if
                 Infeftment
                 had
                 followed
                 upon
                 the
                 Disposition
                 ,
                 the
                 Defender
                 would
                 not
                 be
                 oblieged
                 to
                 produce
                 the
                 Disposition
                 ,
                 because
                 the
                 appearand
                 Heir
                 might
                 ,
                 by
                 the
                 Registers
                 ,
                 find
                 his
                 Predecessors
                 denuded
                 .
                 This
                 inspection
                 is
                 competent
                 ,
                 during
                 their
                 
                   Annus
                   deliberandi
                
                 .
                 It
                 was
                 so
                 found
                 ,
                 in
                 Favours
                 of
                 the
                 appearand
                 Heir
                 ,
                 pursuing
                 Exhibition
                 within
                 the
                 Year
                 ,
                 Feb.
                 26.
                 1633.
                 
                 Laird
                 of
                 Swinton
                 contra
                 Laird
                 of
                 Westnisbit
                 ,
                 where
                 the
                 Writs
                 pursued
                 for
                 ,
                 were
                 likely
                 to
                 be
                 the
                 ground
                 of
                 a
                 Plea
                 ,
                 against
                 the
                 Defender
                 himself
                 .
                 This
                 Exhibition
                 ,
                 
                   ad
                   deliberandum
                
                 ,
                 is
                 competent
                 at
                 any
                 time
                 ,
                 before
                 the
                 Heir
                 enter
                 ,
                 even
                 after
                 the
                 
                   Annus
                   deliberandi
                
                 ,
                 which
                 is
                 granted
                 to
                 appearand
                 Heirs
                 ,
                 that
                 they
                 may
                 be
                 free
                 of
                 all
                 Actions
                 on
                 Chargesto
                 enter
                 Heir
                 ,
                 Reductions
                 ,
                 or
                 Declarators
                 during
                 that
                 time
                 ,
                 if
                 they
                 do
                 not
                 enter
                 ,
                 or
                 behave
                 as
                 Heirs
                 :
                 But
                 on
                 this
                 accompt
                 ,
                 the
                 appearand
                 Heir
                 hath
                 no
                 Interest
                 to
                 put
                 parties
                 to
                 Compt
                 and
                 Reckon
                 ,
                 
                   ad
                   deliberandum
                   ,
                   June
                
                 22.
                 1671.
                 
                 Lessies
                 contra
                 
                   Alexander
                   Jeffray
                
                 .
                 In
                 these
                 Exhibitions
                 ,
                 the
                 Relations
                 ,
                 or
                 Propinquity
                 of
                 Blood
                 ,
                 of
                 the
                 appearand
                 Heir
                 ,
                 passeth
                 ,
                 without
                 probation
                 ,
                 
                 as
                 Notorium
                 :
                 So
                 ,
                 as
                 if
                 the
                 Defender
                 be
                 absent
                 ,
                 the
                 Decrcet
                 will
                 not
                 be
                 null
                 ,
                 for
                 want
                 of
                 Probation
                 of
                 the
                 Title
                 .
                 Yet
                 a
                 Scots
                 man
                 born
                 of
                 Parents
                 ,
                 residing
                 in
                 Holland
                 ,
                 was
                 found
                 to
                 have
                 no
                 Interest
                 ,
                 to
                 pursue
                 Exhibition
                 ,
                 as
                 appearand
                 Heir
                 to
                 his
                 Father
                 ,
                 till
                 he
                 produced
                 an
                 Authentick
                 Declaration
                 ,
                 and
                 Tryal
                 ,
                 by
                 the
                 Magistrants
                 in
                 that
                 place
                 ;
                 that
                 he
                 was
                 the
                 eldest
                 lawful
                 Son
                 of
                 his
                 Father
                 ,
                 December
                 17.
                 1627.
                 
                 Fleming
                 contra
                 Broun
                 .
              
               
                 2.
                 
                 Appearand
                 Heirs
                 ,
                 may
                 defend
                 all
                 Rights
                 competent
                 to
                 them
                 ,
                 upon
                 Production
                 of
                 their
                 Predicessors
                 Infeftments
                 ,
                 whether
                 they
                 be
                 called
                 ,
                 or
                 compear
                 for
                 their
                 Interest
                 ,
                 January
                 19.
                 1627.
                 
                 Laird
                 of
                 Rosline
                 contra
                 his
                 Tenents
                 and
                 
                   George
                   Fairbairn
                
                 for
                 his
                 interest
                 .
                 They
                 may
                 also
                 continue
                 their
                 Predecessors
                 Possession
                 ,
                 and
                 pursue
                 for
                 Mails
                 and
                 Duties
                 of
                 there
                 Lands
                 ,
                 finding
                 Caution
                 ,
                 in
                 case
                 of
                 doubtfulnesse
                 ,
                 to
                 make
                 these
                 forth-coming
                 to
                 any
                 other
                 ,
                 having
                 Interest
                 ,
                 
                   Spots
                   Heirs
                   ,
                   James
                   Oliphant
                
                 contra
                 his
                 Tenents
                 .
              
               
                 Yea
                 ,
                 the
                 Rents
                 of
                 Lands
                 ,
                 were
                 so
                 far
                 found
                 ,
                 to
                 belong
                 to
                 an
                 appearand
                 Heir
                 ,
                 That
                 though
                 he
                 died
                 un-entered
                 ,
                 the
                 next
                 Heirs
                 not
                 entering
                 to
                 him
                 ,
                 was
                 found
                 obleiged
                 to
                 pay
                 the
                 former
                 appearand
                 Heirs
                 Aliment
                 ,
                 in
                 so
                 far
                 as
                 he
                 intromitted
                 with
                 the
                 Rents
                 of
                 the
                 Years
                 ,
                 during
                 which
                 the
                 former
                 appearand
                 Heir
                 lived
                 ,
                 December
                 20.
                 1662.
                 
                 Ladie
                 Tarsapie
                 contra
                 Laird
                 of
                 Trasapie
                 .
                 And
                 consequently
                 ,
                 the
                 Rents
                 might
                 be
                 confirmed
                 by
                 his
                 Executors
                 ,
                 or
                 arrested
                 for
                 his
                 debt
                 .
                 The
                 like
                 was
                 found
                 of
                 moveable
                 heirship
                 ,
                 wherewith
                 the
                 appearand
                 Heir
                 was
                 intertained
                 by
                 his
                 Mother
                 ,
                 June
                 29.
                 1629.
                 
                 Robertson
                 contra
                 Dalntahoy
                 .
                 They
                 may
                 also
                 pursue
                 the
                 Life-renters
                 of
                 their
                 Estate
                 ,
                 for
                 Aliment
                 ,
                 Feb.
                 12.
                 1635.
                 
                 
                   James
                   Hepburn
                
                 contra
                 Dam
                 
                   Margaret
                   Preston
                
                 and
                 
                   Isobel
                   Seatoun
                
                 .
              
               
                 3.
                 
                 The
                 Aliment
                 of
                 Heirs
                 ,
                 out
                 of
                 there
                 Lands
                 ,
                 being
                 Life-rented
                 ,
                 or
                 in
                 Ward
                 ,
                 is
                 constitute
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 1491.
                 cap.
                 25.
                 
                 Bearing
                 a
                 reasonable
                 Living
                 to
                 be
                 given
                 ,
                 to
                 the
                 Sustentation
                 of
                 the
                 Heir
                 ,
                 after
                 the
                 Quantitie
                 of
                 Heritage
                 ;
                 if
                 the
                 said
                 Heir
                 have
                 no
                 Blensh
                 ,
                 or
                 Feu
                 ferm
                 to
                 sustain
                 him
                 ,
                 as
                 well
                 of
                 Ward
                 Lands
                 fallen
                 in
                 the
                 Kings
                 hands
                 ,
                 as
                 in
                 the
                 hands
                 of
                 any
                 Barron
                 ,
                 Spiritual
                 or
                 Temporal
                 ,
                 whereby
                 ,
                 it
                 is
                 clear
                 .
                 1.
                 
                 That
                 the
                 Quantity
                 of
                 the
                 Aliment
                 is
                 indeterminat
                 :
                 And
                 therefore
                 is
                 modified
                 by
                 the
                 Lords
                 ,
                 according
                 to
                 the
                 Quality
                 of
                 the
                 Heir
                 ,
                 and
                 his
                 Estate
                 ,
                 2.
                 
                 It
                 takes
                 no
                 place
                 ,
                 if
                 the
                 Heir
                 have
                 Blensh
                 ,
                 or
                 Feu
                 Lands
                 ,
                 sufficient
                 to
                 sustain
                 him
                 ;
                 but
                 if
                 these
                 be
                 not
                 sufficient
                 ,
                 the
                 same
                 will
                 be
                 made
                 up
                 by
                 the
                 Life-renters
                 and
                 Wardatars
                 proportionally
                 ,
                 March
                 16.
                 1622.
                 
                 Heir
                 of
                 Milioun
                 contra
                 Calderwood
                 .
                 Yea
                 ,
                 where
                 the
                 Minor
                 had
                 any
                 other
                 means
                 ,
                 sufficient
                 to
                 intertain
                 himself
                 ,
                 as
                 the
                 Heir
                 ,
                 being
                 a
                 Writer
                 ,
                 and
                 thereby
                 able
                 to
                 Aliment
                 himself
                 ,
                 he
                 was
                 found
                 to
                 have
                 no
                 Aliment
                 from
                 his
                 Mothers
                 Life-rent
                 ,
                 who
                 brought
                 8000.
                 
                 Merks
                 of
                 Tocher
                 ,
                 and
                 had
                 but
                 10.
                 
                 Chalders
                 of
                 Victual
                 in
                 Life-rent
                 ,
                 July
                 21.
                 1626.
                 
                 Laird
                 of
                 Ramorny
                 contra
                 Law.
                 The
                 like
                 ,
                 where
                 the
                 Heir
                 was
                 not
                 Minor
                 ,
                 but
                 designed
                 himself
                 Preacher
                 ,
                 and
                 so
                 having
                 a
                 calling
                 ,
                 Feb.
                 11.
                 1636.
                 
                 Sibbald
                 contra
                 Wallace
                 .
                 Here
                 the
                 Relict
                 was
                 Infeft
                 in
                 no
                 Land
                 ,
                 but
                 had
                 an
                 Annualrent
                 of
                 400.
                 
                 Merks
                 ,
                 out
                 of
                 Land
                 ,
                 and
                 the
                 Heir
                 was
                 not
                 Minor
                 :
                 Whereas
                 ,
                 the
                 Lords
                 thought
                 the
                 Act
                 of
                 Parliament
                 ,
                 was
                 not
                 in
                 favours
                 of
                 Majors
                 ,
                 who
                 ought
                 to
                 do
                 for
                 themselves
                 ,
                 but
                 all
                 must
                 be
                 considered
                 complexly
                 ,
                 in
                 this
                 Decision
                 :
                 Some
                 Heirs
                 ,
                 by
                 their
                 Quality
                 ,
                 not
                 being
                 bound
                 to
                 follow
                 Callings
                 ,
                 but
                 the
                 Life-rent
                 was
                 a
                 mean
                 Annualrent
                 ,
                 no
                 more
                 then
                 an
                 Aliment
                 to
                 the
                 Relict
                 ,
                 the
                 Pursuer
                 Major
                 ,
                 and
                 having
                 a
                 calling
                 :
                 And
                 certainly
                 ,
                 where
                 the
                 Life-rent
                 is
                 but
                 an
                 Aliment
                 ,
                 the
                 appearand
                 Heir
                 must
                 rather
                 want
                 then
                 the
                 Person
                 provided
                 for
                 a
                 cause
                 onerous
                 .
              
               
               
                 Though
                 the
                 Act
                 mention
                 only
                 Ward
                 Lands
                 ,
                 yet
                 it
                 was
                 extended
                 to
                 a
                 Minor
                 ,
                 having
                 no
                 Ward
                 Lands
                 ,
                 against
                 a
                 Life-renter
                 of
                 all
                 his
                 Fstate
                 ,
                 being
                 Houses
                 ,
                 and
                 Annualrent
                 of
                 Money
                 ,
                 Feb.
                 22.
                 1631.
                 
                 Fiinnie
                 contra
                 Oliphant
                 .
                 In
                 this
                 case
                 ,
                 it
                 was
                 not
                 found
                 sufficient
                 ,
                 that
                 the
                 Life-renter
                 offered
                 to
                 maintain
                 the
                 Minor
                 ,
                 her
                 own
                 Child
                 ,
                 upon
                 her
                 own
                 charges
                 ,
                 she
                 being
                 married
                 to
                 a
                 second
                 Husband
                 :
                 But
                 the
                 Tutor
                 obtained
                 modisication
                 ,
                 with
                 consideration
                 of
                 the
                 moveable
                 Heirship
                 ,
                 on
                 the
                 contrary
                 ,
                 where
                 the
                 Mother
                 was
                 not
                 married
                 ,
                 her
                 offer
                 of
                 Intertainment
                 was
                 received
                 ,
                 July
                 14.
                 
                 〈◊〉
                 .
                 
                   Alexander
                   Noble
                
                 and
                 his
                 Tutors
                 contra
                 his
                 Mother
                 :
                 Neither
                 was
                 the
                 modifi
                 cation
                 excluded
                 ,
                 because
                 there
                 were
                 free
                 Lands
                 ,
                 at
                 the
                 Defuncft
                 Death
                 ,
                 seing
                 they
                 were
                 appryzed
                 thereafter
                 ,
                 for
                 the
                 Defuncts
                 debt
                 ,
                 
                   Hope
                   de
                   haered
                
                 .
                 White
                 contra
                 Caldwall
                 .
                 The
                 like
                 ,
                 the
                 debt
                 being
                 great
                 ,
                 and
                 the
                 Annualrent
                 thereof
                 ,
                 equivalent
                 to
                 the
                 rent
                 of
                 the
                 Lands
                 not
                 Liferented
                 ,
                 Feb.
                 13.
                 1662.
                 
                 
                   Antonia
                   Broun
                
                 contra
                 her
                 Mother
                 :
                 But
                 Aliment
                 was
                 not
                 found
                 due
                 by
                 a
                 Father
                 Life-renter
                 to
                 his
                 Son
                 ,
                 on
                 this
                 Act
                 ,
                 but
                 only
                 ,
                 
                   super
                   Jure
                   Naturae
                   ,
                   July
                
                 21.
                 1636.
                 
                 Laird
                 of
                 Rumorney
                 contra
                 Law.
                 Nor
                 by
                 a
                 Grand-father
                 to
                 his
                 Oye
                 ,
                 who
                 had
                 disponed
                 his
                 Estate
                 to
                 his
                 Son
                 ,
                 reserving
                 his
                 Life-rent
                 ,
                 of
                 a
                 part
                 ,
                 the
                 rest
                 unsold
                 by
                 his
                 Son
                 ,
                 being
                 Life-rented
                 by
                 his
                 Wife
                 ,
                 July
                 7.
                 1629.
                 
                 Hamilton
                 contra
                 his
                 Goodsir
                 :
                 But
                 where
                 the
                 Heirs
                 Mother
                 brought
                 a
                 great
                 Tougher
                 ,
                 and
                 the
                 Grand-father
                 fell
                 to
                 a
                 plentiful
                 Estate
                 by
                 his
                 Brother
                 ,
                 the
                 Heir
                 was
                 found
                 to
                 have
                 Aliment
                 of
                 his
                 Goodsir
                 ,
                 though
                 he
                 disponed
                 the
                 Land
                 to
                 the
                 Heirs
                 Father
                 ,
                 burdened
                 with
                 his
                 Mothers
                 Life-rent
                 ,
                 June
                 27.
                 1662.
                 
                 Heir
                 of
                 Gairn
                 contra
                 Laird
                 of
                 Gairn
                 .
                 This
                 behoved
                 not
                 to
                 be
                 from
                 the
                 Statute
                 ,
                 but
                 
                   ex
                   debito
                   naturali
                
                 .
                 Aliment
                 was
                 found
                 due
                 by
                 a
                 Liferenter
                 to
                 her
                 daughter
                 ,
                 the
                 appearand
                 Heir
                 ,
                 though
                 she
                 renounced
                 to
                 be
                 Heir
                 ,
                 July
                 16.
                 1667.
                 
                 Hamilton
                 contra
                 Symonton
                 .
                 But
                 ,
                 where
                 a
                 Father
                 disponed
                 to
                 his
                 Son
                 a
                 part
                 of
                 his
                 Estate
                 ,
                 reserving
                 his
                 Life-rent
                 ,
                 and
                 another
                 to
                 his
                 Son
                 ,
                 and
                 his
                 Wife
                 in
                 Conjunctfie
                 ,
                 after
                 his
                 Sons
                 Death
                 ,
                 his
                 appearand
                 Heir
                 got
                 no
                 part
                 of
                 his
                 Aliment
                 from
                 his
                 Goodsir
                 ,
                 but
                 only
                 from
                 his
                 Mother
                 ,
                 Feb.
                 26.
                 1675.
                 
                 Sr.
                 
                   John
                   Whitfoord
                
                 contra
                 Laird
                 of
                 Lamington
                 .
                 Aliment
                 was
                 found
                 due
                 to
                 the
                 Heir
                 ,
                 by
                 an
                 Asigney
                 to
                 a
                 Gift
                 of
                 Ward
                 ,
                 without
                 necessity
                 to
                 prove
                 ,
                 that
                 he
                 intromitted
                 with
                 the
                 Ward
                 Lands
                 ;
                 unlesse
                 he
                 had
                 been
                 Legally
                 excluded
                 ,
                 which
                 was
                 Modified
                 by
                 the
                 Lords
                 :
                 And
                 it
                 was
                 not
                 found
                 sufficient
                 to
                 intertain
                 him
                 in
                 the
                 Assignyes
                 Family
                 ,
                 but
                 nothing
                 was
                 Modified
                 for
                 that
                 time
                 ,
                 that
                 the
                 Minors
                 Mother
                 Alimented
                 him
                 
                   gratis
                   ,
                   Feb.
                
                 19.
                 1679.
                 
                 Sibbald
                 of
                 Cair
                 contra
                 Sr.
                 
                   Alexander
                   Ealconer
                
                 .
              
               
                 4.
                 
                 Heirs
                 also
                 not
                 entered
                 ,
                 have
                 the
                 benifite
                 of
                 such
                 obliegments
                 ,
                 or
                 provisions
                 conceived
                 in
                 Favours
                 of
                 Heirs
                 ,
                 which
                 by
                 their
                 Nature
                 ,
                 or
                 Meaning
                 ,
                 require
                 to
                 be
                 fulfilled
                 before
                 the
                 Heirs
                 entry
                 .
                 As
                 when
                 a
                 Party
                 was
                 obleiged
                 to
                 imploy
                 a
                 Sum
                 upon
                 Land
                 ,
                 and
                 to
                 procure
                 himself
                 ,
                 and
                 his
                 Umquhil
                 Spouse
                 Infeft
                 therein
                 ,
                 in
                 Life-rent
                 ,
                 and
                 the
                 Heirs
                 Procreat
                 betwixt
                 them
                 in
                 Fee
                 ,
                 the
                 Bairn
                 of
                 the
                 Marriage
                 ,
                 who
                 would
                 fall
                 Heir
                 ,
                 was
                 thereby
                 found
                 to
                 have
                 Right
                 to
                 crave
                 his
                 Father
                 ,
                 to
                 imploy
                 the
                 Money
                 accordingly
                 ,
                 though
                 he
                 never
                 was
                 ,
                 nor
                 actually
                 could
                 be
                 Heir
                 ,
                 his
                 Father
                 being
                 alive
                 ,
                 December
                 16.
                 1628.
                 
                 Laird
                 of
                 Collington
                 contra
                 Granton
                 .
                 In
                 this
                 case
                 ,
                 the
                 Lords
                 inclined
                 ,
                 so
                 to
                 decide
                 ,
                 but
                 decided
                 not
                 ;
                 But
                 that
                 day
                 ,
                 Durie
                 observes
                 a
                 like
                 case
                 decided
                 ,
                 July
                 7.
                 1632.
                 
                 Young
                 contra
                 Young.
                 The
                 like
                 was
                 decided
                 ,
                 Feb.
                 13.
                 1677.
                 
                 
                   Alexander
                   Frazer
                
                 contra
                 
                   John
                   Frazer
                
                 .
                 In
                 which
                 case
                 ,
                 a
                 Father
                 ,
                 by
                 his
                 Contract
                 of
                 Marriage
                 ,
                 being
                 obleiged
                 to
                 imploy
                 a
                 certain
                 Sum
                 ,
                 upon
                 security
                 to
                 Him
                 and
                 his
                 Wife
                 in
                 Conjunct-fee
                 ,
                 and
                 to
                 the
                 Heirs
                 of
                 the
                 Marriage
                 ,
                 and
                 likewise
                 to
                 take
                 all
                 Conquest
                 during
                 the
                 Marriage
                 ,
                 the
                 one
                 half
                 to
                 the
                 Wife
                 in
                 Life-rent
                 ,
                 and
                 the
                 other
                 to
                 the
                 Heir
                 of
                 the
                 Marriage
                 in
                 Fee
                 ,
                 after
                 
                 the
                 Wifes
                 Death
                 .
                 Process
                 was
                 sustained
                 ,
                 at
                 the
                 instance
                 of
                 the
                 apparent
                 Heir
                 of
                 the
                 Marriage
                 ,
                 against
                 his
                 Father
                 ,
                 who
                 was
                 decerned
                 to
                 imploy
                 the
                 special
                 Sum
                 to
                 himself
                 ,
                 and
                 after
                 his
                 decease
                 ,
                 to
                 the
                 Heir
                 apparent
                 of
                 the
                 Marriage
                 albeit
                 ,
                 therby
                 ,
                 the
                 Father
                 would
                 remain
                 Fiar
                 ,
                 and
                 might
                 dispone
                 ,
                 or
                 burden
                 the
                 Sum
                 so
                 imployed
                 ,
                 for
                 reasonable
                 Considerations
                 ,
                 but
                 not
                 by
                 Deeds
                 ,
                 meerly
                 gratuitous
                 ,
                 to
                 evacuat
                 the
                 obleigment
                 :
                 And
                 if
                 he
                 did
                 Deeds
                 prejudicial
                 ,
                 he
                 would
                 be
                 obleiged
                 to
                 purge
                 the
                 same
                 ,
                 or
                 re-imploy
                 〈◊〉
                 :
                 But
                 it
                 was
                 not
                 so
                 found
                 ,
                 as
                 to
                 the
                 Conquest
                 ,
                 before
                 the
                 Marriage
                 ,
                 which
                 might
                 be
                 altered
                 during
                 his
                 Life
                 ,
                 for
                 that
                 only
                 could
                 be
                 accounted
                 Conquest
                 ,
                 that
                 he
                 had
                 more
                 at
                 his
                 Death
                 ,
                 then
                 at
                 his
                 Marriage
                 .
                 And
                 so
                 Heirs
                 of
                 a
                 Marriage
                 ,
                 in
                 an
                 obleigment
                 ,
                 in
                 case
                 a
                 Wife
                 deceased
                 ,
                 without
                 surviving
                 Heirs
                 of
                 the
                 Marriage
                 ,
                 these
                 were
                 Interpret
                 Bairns
                 of
                 the
                 Marriage
                 ,
                 who
                 survived
                 their
                 Mother
                 ,
                 but
                 died
                 before
                 their
                 Father
                 ;
                 and
                 so
                 could
                 never
                 be
                 served
                 Heir
                 to
                 him
                 ,
                 January
                 26.
                 1630.
                 
                 Turnbul
                 contra
                 Colinshlie
                 .
                 The
                 like
                 ,
                 where
                 a
                 Father
                 was
                 obleiged
                 to
                 Infeft
                 himself
                 and
                 his
                 Spouse
                 in
                 Conjunct-fee
                 ,
                 and
                 the
                 Heirs
                 procreat
                 betwixt
                 them
                 ,
                 &c.
                 
                 The
                 apparent
                 Heir
                 was
                 found
                 ,
                 to
                 have
                 interest
                 ,
                 to
                 pursue
                 the
                 Father
                 for
                 fulfilling
                 thereof
                 ,
                 and
                 of
                 the
                 obleigment
                 adjoyned
                 ,
                 not
                 to
                 dispone
                 in
                 their
                 prejudice
                 ,
                 
                   Hope
                   de
                   haeredibus
                   ,
                   Hamilton
                
                 contra
                 Silvertonhil
                 .
                 Tacks
                 set
                 to
                 Heirs
                 ,
                 require
                 no
                 service
                 ,
                 but
                 being
                 Notour
                 ,
                 to
                 be
                 the
                 Person
                 ,
                 who
                 might
                 be
                 served
                 Heir
                 ,
                 they
                 have
                 right
                 without
                 service
                 ,
                 June
                 9.
                 1675.
                 
                 Hoom
                 contra
                 Johnston
                 of
                 Oldwells
                 .
              
               
                 5.
                 
                 As
                 to
                 the
                 benifit
                 of
                 Heirs
                 ,
                 they
                 have
                 Right
                 ,
                 not
                 only
                 to
                 Obleigments
                 conceived
                 in
                 favours
                 of
                 the
                 Defunct
                 ,
                 and
                 his
                 Heirs
                 ;
                 But
                 though
                 there
                 be
                 no
                 mention
                 of
                 Heirs
                 ,
                 unlesse
                 by
                 the
                 nature
                 of
                 the
                 obleigment
                 ,
                 there
                 be
                 a
                 speciallity
                 ,
                 appropriating
                 the
                 same
                 to
                 the
                 Person
                 of
                 the
                 Defunct
                 only
                 ,
                 as
                 in
                 Commissions
                 ,
                 Trusts
                 ,
                 &c.
                 
                 So
                 Heirs
                 were
                 found
                 to
                 have
                 the
                 benifit
                 of
                 a
                 promise
                 .
                 made
                 to
                 their
                 Predicessors
                 ,
                 for
                 disponing
                 of
                 Lands
                 to
                 him
                 ,
                 acquired
                 for
                 his
                 use
                 ,
                 though
                 it
                 mentioned
                 not
                 Heirs
                 ,
                 Feb.
                 22.
                 1610.
                 
                 Heir
                 of
                 
                   Jean
                   〈◊〉
                
                 contra
                 Livingston
                 .
                 The
                 like
                 of
                 a
                 Reversion
                 ,
                 not
                 mentioning
                 Heirs
                 ,
                 which
                 was
                 thought
                 to
                 be
                 omitted
                 by
                 neglect
                 ,
                 seing
                 it
                 bore
                 not
                 Redeemable
                 to
                 that
                 Partie
                 during
                 his
                 Life
                 ,
                 as
                 it
                 is
                 ordinarily
                 adjected
                 ,
                 when
                 that
                 is
                 meaned
                 ,
                 January
                 9.
                 1662.
                 
                 Earl
                 of
                 Murray
                 contra
                 Laird
                 of
                 Grant.
                 The
                 like
                 of
                 an
                 Annualrent
                 ,
                 though
                 it
                 bore
                 only
                 to
                 be
                 payed
                 yearly
                 ,
                 and
                 not
                 perpetually
                 ,
                 or
                 heritably
                 ,
                 or
                 to
                 heirs
                 ,
                 Feb.
                 2.
                 1667.
                 pourie
                 contra
                 Dykes
                 .
                 And
                 a
                 Substitution
                 ,
                 mentioning
                 only
                 a
                 Person
                 substitute
                 ,
                 without
                 mention
                 of
                 Heirs
                 ,
                 was
                 found
                 competent
                 to
                 that
                 Persons
                 Heirs
                 ,
                 January
                 7.
                 1670.
                 
                 Innis
                 contra
                 Innis
                 .
              
               
                 6.
                 
                 Heirs
                 have
                 the
                 benefit
                 of
                 heritable
                 Rights
                 ,
                 not
                 only
                 whereupon
                 Infeftment
                 hath
                 followed
                 ,
                 or
                 which
                 ,
                 by
                 Destination
                 are
                 heritable
                 ,
                 or
                 requiring
                 Infeftment
                 to
                 their
                 accomplishment
                 ,
                 as
                 heritable
                 Bands
                 ,
                 bearing
                 Clause
                 of
                 Infeftment
                 ,
                 for
                 these
                 bearing
                 only
                 Clause
                 of
                 Annualrent
                 ,
                 are
                 declared
                 Moveable
                 ,
                 by
                 ,
                 and
                 since
                 the
                 Act
                 of
                 Parliament
                 ,
                 1641.
                 cap.
                 57.
                 
                 Revived
                 ,
                 Par.
                 1661.
                 cap.
                 32.
                 
                 Of
                 which
                 ,
                 in
                 the
                 last
                 Title
                 .
                 So
                 also
                 ,
                 are
                 Reversions
                 ,
                 Pensions
                 ,
                 Tacks
                 ,
                 without
                 necessity
                 of
                 being
                 entered
                 Heir
                 ,
                 June
                 17.
                 1671.
                 
                 
                   John
                   Boyd
                
                 contra
                 
                   Hugh
                   Sinclair
                   ,
                   July
                
                 9.
                 1675.
                 
                 Hoom
                 contra
                 Johnston
                 of
                 Oldwells
                 .
                 And
                 all
                 Rights
                 ,
                 having
                 a
                 Tract
                 or
                 Course
                 of
                 time
                 ,
                 after
                 the
                 Defuncts
                 Death
                 .
                 In
                 these
                 Cases
                 ,
                 where
                 the
                 Defuncts
                 Right
                 is
                 Temporary
                 ,
                 and
                 runneth
                 out
                 by
                 a
                 certain
                 Course
                 of
                 Time
                 ,
                 that
                 time
                 runneth
                 ,
                 whether
                 the
                 Defuncts
                 Heir
                 be
                 entered
                 ,
                 or
                 do
                 Possesse
                 ,
                 or
                 not
                 ,
                 as
                 Tacks
                 ,
                 Pensions
                 ,
                 or
                 Annuell
                 Prestations
                 ,
                 during
                 so
                 many
                 Years
                 :
                 And
                 therefore
                 ,
                 these
                 require
                 not
                 Service
                 ,
                 or
                 Solemnitie
                 ;
                 but
                 that
                 Person
                 ,
                 who
                 might
                 be
                 Served
                 ,
                 may
                 continue
                 ,
                 
                 or
                 recover
                 the
                 Defuncts
                 Possession
                 ,
                 and
                 his
                 Possessing
                 makes
                 him
                 lyable
                 passive
                 ,
                 as
                 Representing
                 the
                 Defunct
                 .
                 Neither
                 needs
                 there
                 any
                 Service
                 of
                 Children
                 nominatim
                 ,
                 substitute
                 immediately
                 to
                 their
                 Parents
                 ,
                 but
                 if
                 they
                 be
                 Substitute
                 in
                 the
                 Second
                 place
                 ,
                 a
                 Service
                 must
                 be
                 used
                 to
                 instruct
                 ,
                 that
                 the
                 Heirs
                 appointed
                 in
                 the
                 first
                 place
                 did
                 fail
                 ,
                 July
                 21.
                 1676.
                 
                 〈◊〉
                 of
                 Drumelzier
                 contra
                 the
                 Earl
                 of
                 Tweddel
                 .
                 What
                 Rights
                 are
                 heritable
                 ,
                 and
                 what
                 moveable
                 ,
                 vide
                 Title
                 
                   Real
                   Rights
                
                 .
              
               
                 7.
                 
                 Heirs
                 ,
                 have
                 also
                 Right
                 to
                 Moveable
                 Heirships
                 ,
                 and
                 to
                 all
                 Obleigments
                 ,
                 though
                 the
                 matter
                 be
                 in
                 moveable
                 Rights
                 ,
                 if
                 Executors
                 be
                 expresly
                 secluded
                 ,
                 otherways
                 ,
                 if
                 the
                 matter
                 be
                 moveable
                 ,
                 and
                 Heirs
                 only
                 be
                 exprest
                 ,
                 but
                 not
                 Executors
                 ,
                 yet
                 Executors
                 will
                 not
                 be
                 Excluded
                 ,
                 because
                 Heir
                 is
                 a
                 General
                 Term
                 ,
                 comprehending
                 Exectors
                 ,
                 Hope
                 Ejection
                 ,
                 
                   Sr.
                   Lewis
                   〈◊〉
                
                 contra
                 Tenents
                 .
              
               
                 The
                 special
                 Interest
                 of
                 Heirs
                 ,
                 are
                 according
                 to
                 their
                 several
                 kinds
                 ,
                 viz.
                 Heirs
                 of
                 Line
                 ,
                 and
                 of
                 Conquest
                 ,
                 heirs
                 Portioners
                 ,
                 heirs
                 Male
                 ,
                 and
                 heirs
                 of
                 Tailzie
                 ,
                 and
                 Provision
                 .
              
               
                 8.
                 
                 The
                 Interest
                 of
                 heirs
                 of
                 Line
                 ,
                 is
                 ,
                 that
                 they
                 are
                 heirs
                 Generally
                 ,
                 not
                 only
                 ,
                 because
                 they
                 may
                 be
                 Served
                 by
                 a
                 General
                 Service
                 ,
                 but
                 chiefly
                 ,
                 because
                 they
                 must
                 Generally
                 represent
                 the
                 Defunct
                 .
                 So
                 ,
                 that
                 what
                 cannot
                 be
                 claimed
                 by
                 a
                 special
                 Title
                 ;
                 either
                 as
                 being
                 Conquest
                 ,
                 or
                 Specially
                 provided
                 ,
                 by
                 the
                 Tenor
                 of
                 the
                 Infeftment
                 ,
                 befalleth
                 to
                 the
                 heirs
                 of
                 Lyne
                 :
                 And
                 therefore
                 ,
                 in
                 
                   dubious
                   cases
                
                 ,
                 what
                 doth
                 not
                 appear
                 to
                 belong
                 to
                 other
                 ,
                 Heirs
                 appertaineth
                 to
                 these
                 ,
                 in
                 respect
                 of
                 whom
                 ,
                 heirs
                 Male
                 ,
                 and
                 of
                 Tailzie
                 ,
                 and
                 provision
                 ,
                 are
                 accounted
                 as
                 Strangers
                 ,
                 and
                 may
                 come
                 against
                 the
                 Defuncts
                 Deeds
                 ,
                 in
                 favours
                 of
                 the
                 Heirs
                 of
                 Line
                 ;
                 But
                 the
                 Heirs
                 of
                 Lyne
                 ,
                 cannot
                 come
                 against
                 such
                 Deeds
                 ,
                 in
                 favours
                 of
                 others
                 ,
                 because
                 ,
                 as
                 heirs
                 of
                 Line
                 ,
                 they
                 are
                 reputed
                 as
                 one
                 Person
                 ,
                 with
                 the
                 Defunct
                 ;
                 and
                 so
                 are
                 obleiged
                 to
                 maintain
                 ,
                 and
                 fulfil
                 his
                 Deeds
                 ,
                 not
                 done
                 on
                 Death-bed
                 .
                 It
                 was
                 so
                 found
                 in
                 the
                 Case
                 of
                 an
                 heir
                 of
                 Tailzie
                 ,
                 against
                 an
                 heir
                 of
                 Line
                 .
                 Spots
                 Earl
                 of
                 Hoom
                 contra
                 And
                 as
                 heirs
                 of
                 Line
                 have
                 generally
                 the
                 Benefit
                 ,
                 so
                 they
                 have
                 more
                 effectually
                 the
                 Burden
                 of
                 the
                 Defuncts
                 debts
                 ,
                 which
                 ordinarily
                 reach
                 them
                 in
                 the
                 first
                 place
                 :
                 So
                 that
                 oft-times
                 the
                 heirs
                 of
                 Line
                 ,
                 have
                 little
                 or
                 nothing
                 free
                 .
                 We
                 shall
                 not
                 need
                 to
                 be
                 Special
                 ,
                 what
                 befalleth
                 the
                 heirs
                 of
                 Line
                 ;
                 being
                 to
                 show
                 particularly
                 ,
                 what
                 befalleth
                 to
                 the
                 other
                 heirs
                 :
                 For
                 what
                 remaineth
                 ,
                 belongeth
                 to
                 the
                 heirs
                 of
                 Line
                 only
                 .
                 Heirships
                 moveable
                 belong
                 only
                 to
                 heir
                 of
                 Line
                 ,
                 and
                 not
                 to
                 heirs
                 of
                 Tailzie
                 ,
                 January
                 27.
                 1668.
                 
                 Collonel
                 Montgomrie
                 contra
                 Stewart
                 .
              
               
                 9.
                 
                 Heirship
                 moveable
                 ,
                 is
                 the
                 best
                 of
                 every
                 kind
                 of
                 moveables
                 ,
                 belonging
                 to
                 the
                 Defunct
                 ,
                 which
                 the
                 heirs
                 of
                 Line
                 may
                 draw
                 from
                 the
                 Executors
                 ,
                 whereof
                 there
                 is
                 an
                 ordinary
                 list
                 :
                 The
                 reason
                 of
                 this
                 Heirship
                 moveable
                 ,
                 is
                 ,
                 because
                 ,
                 by
                 our
                 Law
                 ,
                 by
                 
                   primo
                   geniture
                
                 excludeth
                 the
                 Defnncts
                 other
                 nearest
                 of
                 Kin
                 in
                 Heritage
                 ,
                 wherethe
                 nearest
                 of
                 Kin
                 Succeeds
                 alone
                 in
                 moveables
                 ;
                 and
                 as
                 they
                 have
                 no
                 share
                 with
                 the
                 heir
                 in
                 heritable
                 Rights
                 ,
                 so
                 most
                 sitly
                 the
                 heir
                 hath
                 no
                 share
                 with
                 them
                 in
                 moveables
                 ,
                 but
                 hath
                 only
                 the
                 best
                 of
                 every
                 kind
                 ,
                 which
                 therefore
                 is
                 called
                 heirship
                 moveable
                 .
                 In
                 which
                 the
                 Defunct
                 cannot
                 ,
                 in
                 his
                 Testament
                 ,
                 or
                 any
                 other
                 Deed
                 done
                 on
                 Death-bed
                 ,
                 prejudge
                 his
                 heir
                 ,
                 as
                 was
                 shown
                 last
                 Title
                 ;
                 but
                 if
                 the
                 nearest
                 of
                 Kin
                 be
                 all
                 Femals
                 ,
                 they
                 are
                 both
                 heirs
                 〈◊〉
                 Executors
                 ,
                 or
                 ,
                 if
                 but
                 one
                 Male
                 ,
                 he
                 is
                 both
                 heir
                 and
                 Executor
                 :
                 in
                 which
                 cases
                 .
                 there
                 is
                 no
                 heirship
                 moveable
                 drawn
                 .
              
               
               
                 Heirship
                 Moveable
                 is
                 established
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 1474.
                 cap.
                 53.
                 
                 Ordaining
                 the
                 Heirs
                 of
                 Prelats
                 ,
                 Barons
                 and
                 Burgesses
                 ,
                 to
                 have
                 the
                 best
                 of
                 every
                 kind
                 ,
                 according
                 to
                 the
                 Burrow
                 Lands
                 ,
                 and
                 so
                 was
                 found
                 not
                 to
                 belong
                 to
                 the
                 Heir
                 of
                 a
                 Defunct
                 ,
                 who
                 had
                 only
                 heritable
                 Bands
                 ,
                 being
                 neither
                 Prelat
                 ,
                 Baron
                 ,
                 nor
                 Burgess
                 .
                 
                   Hope
                   de
                   haered
                   .
                   Todorig
                
                 contra
                 〈◊〉
                 .
                 But
                 the
                 heirs
                 of
                 Prelats
                 was
                 Extended
                 to
                 other
                 Beneficed
                 Persons
                 ,
                 as
                 was
                 found
                 in
                 the
                 heirs
                 of
                 the
                 of
                 Person
                 of
                 
                   Dingwal
                   ,
                   Novem.
                
                 28.
                 1623.
                 
                 
                   William
                   Rig
                
                 contra
                 Mckenzie
                 .
                 And
                 likewise
                 ,
                 the
                 heirs
                 of
                 Barons
                 was
                 extended
                 to
                 any
                 Persons
                 heirs
                 ,
                 dying
                 in
                 Fee
                 of
                 Lands
                 ,
                 though
                 not
                 erected
                 in
                 a
                 Barrony
                 ,
                 
                   Hope
                   de
                   haered
                   .
                   Keith
                
                 contra
                 
                   Mckenzie
                   ,
                   Todoirg
                
                 contra
                 Purdie
                 .
                 heirship
                 Moveable
                 was
                 found
                 competent
                 to
                 the
                 heir
                 of
                 a
                 Person
                 ,
                 who
                 died
                 only
                 Infeft
                 in
                 an
                 Annualrent
                 ,
                 July
                 19.
                 1664.
                 
                 
                   Elizabeth
                   Scrimzeor
                
                 contra
                 Executors
                 of
                 Mr.
                 
                   John
                   Murray
                
                 .
                 But
                 heirs
                 of
                 a
                 Burgess
                 was
                 found
                 not
                 to
                 extend
                 to
                 an
                 honorarie
                 Burgess
                 ,
                 who
                 died
                 not
                 Trading
                 ,
                 or
                 Working
                 in
                 the
                 Burgh
                 ,
                 
                   Spots
                   heirs
                   ,
                   James
                   Leslie
                
                 contra
                 
                   Hugh
                   Dumbar
                
                 .
              
               
                 Heirship
                 Moveable
                 ,
                 is
                 not
                 always
                 a
                 single
                 thing
                 ,
                 but
                 goeth
                 sometimes
                 by
                 Pairs
                 ,
                 and
                 sometimes
                 by
                 Dozens
                 ,
                 as
                 in
                 Spoons
                 :
                 So
                 the
                 heirship
                 of
                 Oxen
                 was
                 found
                 to
                 be
                 a
                 Yoke
                 ,
                 and
                 not
                 a
                 single
                 Ox
                 ,
                 
                   Nicol.
                   de
                   haereditatis
                   petitione
                   ,
                   July
                
                 20.
                 1610.
                 
                 Black
                 contra
                 Kincaid
                 .
                 And
                 heirship
                 taketh
                 place
                 ,
                 only
                 in
                 corporibus
                 ,
                 but
                 not
                 in
                 quantitatibus
                 ,
                 as
                 in
                 Money
                 ,
                 Cloath
                 ,
                 Mettal
                 ,
                 &c.
                 
                 And
                 so
                 the
                 Shell
                 of
                 a
                 Salt-pan
                 ,
                 which
                 was
                 out
                 of
                 use
                 ,
                 was
                 accounted
                 but
                 Iron
                 ,
                 and
                 not
                 to
                 fall
                 under
                 heirship
                 Moveable
                 ,
                 
                   Had.
                   January
                
                 19.
                 1611.
                 
                 Reid
                 contra
                 Thomson
                 .
              
               
                 10.
                 
                 Heirs
                 of
                 Conquest
                 ,
                 though
                 they
                 be
                 also
                 heirs
                 of
                 Line
                 ,
                 as
                 befalling
                 by
                 the
                 Course
                 of
                 Law
                 ,
                 and
                 not
                 by
                 the
                 tenor
                 of
                 the
                 Infeftment
                 ,
                 and
                 therefore
                 were
                 set
                 down
                 as
                 Lineal
                 Successors
                 ,
                 in
                 the
                 preceeding
                 Title
                 ;
                 Yet
                 because
                 heirs
                 of
                 Conquest
                 have
                 only
                 place
                 ,
                 where
                 there
                 is
                 an
                 Elder
                 and
                 Younger
                 Brother
                 ,
                 or
                 an
                 Elder
                 and
                 Younger
                 Father
                 Brother
                 ,
                 &c.
                 and
                 their
                 Issue
                 to
                 succeed
                 :
                 In
                 which
                 case
                 ,
                 the
                 Law
                 alloweth
                 two
                 heirs
                 ,
                 the
                 immediat
                 Elder
                 succeedeth
                 in
                 Conquest
                 ,
                 and
                 the
                 immediat
                 Younger
                 in
                 the
                 heritage
                 :
                 Therefore
                 ,
                 the
                 one
                 is
                 specially
                 called
                 the
                 heir
                 of
                 Conquest
                 ,
                 and
                 the
                 other
                 retaineth
                 the
                 common
                 name
                 of
                 the
                 heir
                 of
                 Line
                 .
              
               
                 Conquest
                 is
                 
                   feudum
                   novum
                
                 ,
                 whereunto
                 the
                 Defunct
                 did
                 not
                 succeed
                 as
                 heir
                 to
                 any
                 Person
                 ,
                 or
                 whereunto
                 the
                 Defunct
                 could
                 not
                 succeed
                 as
                 heir
                 ,
                 for
                 if
                 that
                 were
                 disponed
                 to
                 him
                 by
                 the
                 Defunct
                 ,
                 whereunto
                 he
                 would
                 have
                 succeeded
                 ,
                 it
                 were
                 but
                 
                   Preceptio
                   haereditatis
                
                 ,
                 and
                 so
                 remained
                 to
                 be
                 repute
                 as
                 heritage
                 to
                 descend
                 to
                 the
                 Younger
                 ,
                 and
                 not
                 to
                 ascend
                 to
                 the
                 Elder
                 ,
                 as
                 Craig
                 observeth
                 ,
                 lib.
                 2.
                 dieg
                 .
                 15.
                 
                 Such
                 heritages
                 are
                 rare
                 ,
                 and
                 befall
                 only
                 by
                 Tailzie
                 ,
                 or
                 Provision
                 amongst
                 midle
                 Brethren
                 :
                 Because
                 the
                 eldest
                 ,
                 by
                 primogeniture
                 ,
                 excludeth
                 the
                 rest
                 from
                 being
                 heirs
                 of
                 Line
                 ,
                 but
                 it
                 may
                 befall
                 ,
                 in
                 case
                 of
                 the
                 heirs
                 of
                 Lyne
                 ,
                 when
                 the
                 nearest
                 Successor
                 ,
                 is
                 the
                 Fathers
                 ,
                 or
                 Grand-fathers
                 Brothers
                 ,
                 or
                 their
                 Issue
                 ,
                 there
                 being
                 Elder
                 and
                 Younger
                 Brothers
                 ;
                 but
                 Conquest
                 is
                 frequent
                 ,
                 because
                 ,
                 not
                 only
                 that
                 which
                 is
                 acquired
                 properly
                 ,
                 by
                 the
                 means
                 and
                 industry
                 of
                 the
                 Defunct
                 :
                 But
                 that
                 which
                 is
                 by
                 Gift
                 of
                 the
                 Defuncts
                 Parents
                 ,
                 or
                 any
                 other
                 ,
                 or
                 ,
                 whatsoever
                 the
                 Defunct
                 could
                 not
                 succeed
                 to
                 ,
                 is
                 Conquest
                 .
                 Yet
                 ,
                 if
                 the
                 heir
                 of
                 Conquest
                 succeed
                 ,
                 that
                 which
                 was
                 Conquest
                 becomes
                 heritage
                 ,
                 and
                 descends
                 :
                 As
                 if
                 there
                 were
                 four
                 Brothers
                 ,
                 and
                 the
                 third
                 acquiring
                 Lands
                 ,
                 Died
                 without
                 Issue
                 ,
                 the
                 second
                 would
                 be
                 his
                 heir
                 therein
                 ,
                 who
                 ,
                 if
                 he
                 Died
                 also
                 Infeft
                 ,
                 the
                 Lands
                 would
                 fall
                 downward
                 to
                 the
                 Youngest
                 Brother
                 ,
                 and
                 not
                 upward
                 ,
                 to
                 the
                 Eldest
                 Brother
                 .
                 The
                 custom
                 of
                 
                 England
                 is
                 contrary
                 ,
                 for
                 thereby
                 ,
                 the
                 eldest
                 Brother
                 succeedeth
                 to
                 all
                 his
                 Brothers
                 ,
                 failling
                 the
                 Issue
                 ;
                 But
                 with
                 us
                 ,
                 the
                 Immediat
                 elder
                 or
                 younger
                 doth
                 always
                 succeed
                 ,
                 though
                 of
                 different
                 Marriages
                 ,
                 none
                 of
                 them
                 being
                 Brothersgerman
                 :
                 And
                 therefore
                 ,
                 in
                 the
                 case
                 proposed
                 by
                 
                   Craig
                   ,
                   lib.
                
                 2.
                 
                 〈◊〉
                 .
                 15.
                 
                 In
                 fine
                 of
                 a
                 Brother
                 ,
                 by
                 a
                 second
                 Marriage
                 ,
                 dying
                 without
                 Issue
                 ,
                 and
                 having
                 three
                 Brothers
                 of
                 a
                 former
                 Marriage
                 ,
                 no
                 doubt
                 the
                 youngest
                 would
                 succeed
                 :
                 according
                 to
                 the
                 Opinion
                 of
                 Oliphant
                 and
                 King
                 ,
                 there
                 related
                 :
                 Albeit
                 ,
                 that
                 Craigs
                 opinion
                 be
                 ,
                 that
                 the
                 eldest
                 would
                 succeed
                 .
                 It
                 was
                 so
                 decyded
                 ,
                 contrary
                 Craigs
                 opinion
                 ,
                 July
                 20.
                 1664.
                 
                 Laird
                 of
                 Clerkington
                 contra
                 Stewart
                 .
              
               
                 Heirs
                 of
                 Conquest
                 succeed
                 ,
                 not
                 only
                 to
                 Lands
                 Conquest
                 by
                 their
                 immediat
                 Predicessors
                 ,
                 but
                 in
                 other
                 heritable
                 Rights
                 ,
                 passing
                 by
                 Infeftments
                 ,
                 as
                 Annualrent
                 ,
                 or
                 such
                 as
                 are
                 heritable
                 by
                 distination
                 ,
                 and
                 which
                 are
                 accomplished
                 by
                 Infeftment
                 ,
                 as
                 Despositions
                 of
                 Lands
                 ,
                 or
                 Annualrents
                 ,
                 Appryzings
                 ,
                 or
                 Adjudications
                 ,
                 &c.
                 
                 The
                 like
                 ,
                 where
                 an
                 Annualrent
                 was
                 first
                 Disponed
                 ,
                 and
                 a
                 Clause
                 of
                 Requisition
                 ,
                 and
                 Reversion
                 subjoyned
                 ,
                 July
                 7.
                 1675.
                 
                 Robertson
                 contra
                 Lord
                 Halkertoun
                 ,
                 and
                 in
                 Reversions
                 ,
                 
                   Hope
                   de
                   Successionibus
                
                 ,
                 heirs
                 of
                 Pitcairne
                 .
                 But
                 in
                 this
                 case
                 ,
                 it
                 is
                 not
                 cleared
                 ,
                 whether
                 the
                 Lands
                 given
                 in
                 Wodset
                 ,
                 were
                 heritage
                 or
                 conquest
                 ;
                 but
                 it
                 seems
                 ,
                 if
                 the
                 Lands
                 had
                 been
                 heritage
                 ,
                 as
                 they
                 were
                 Wodset
                 ,
                 the
                 Reversion
                 would
                 also
                 belong
                 to
                 the
                 heir
                 of
                 Lyne
                 ,
                 as
                 the
                 Lands
                 whereto
                 it
                 was
                 accessory
                 would
                 ;
                 Yea
                 ,
                 heirs
                 of
                 Conquest
                 succeed
                 in
                 heritable
                 Bands
                 ,
                 bearing
                 Clause
                 of
                 Annualrent
                 :
                 As
                 was
                 found
                 amongst
                 the
                 heirs
                 of
                 Doctor
                 Craig
                 .
                 But
                 the
                 heirs
                 of
                 Lyne
                 ,
                 and
                 not
                 the
                 heirs
                 of
                 Conquest
                 succeed
                 in
                 Tacks
                 ,
                 acquired
                 by
                 the
                 Defunct
                 ,
                 Hope
                 Succession
                 ,
                 Earl
                 of
                 
                   Dumbars
                   heirs
                   ,
                   June
                
                 23.
                 1663.
                 
                 Ferguson
                 contra
                 Ferguson
                 .
                 The
                 heirs
                 of
                 Lyne
                 do
                 also
                 succeed
                 in
                 Pensions
                 ,
                 or
                 any
                 other
                 Right
                 ,
                 not
                 requiring
                 Infeftment
                 ,
                 as
                 in
                 these
                 which
                 having
                 a
                 tract
                 of
                 time
                 ,
                 after
                 the
                 Defuncts
                 Death
                 ,
                 do
                 thereby
                 exclude
                 Executors
                 ,
                 and
                 do
                 belong
                 to
                 the
                 heir
                 of
                 Lyne
                 ,
                 and
                 not
                 of
                 Conquest
                 ,
                 though
                 they
                 be
                 acquired
                 .
              
               
                 The
                 heir
                 of
                 Lyne
                 ,
                 and
                 not
                 the
                 heir
                 of
                 Conquest
                 falleth
                 to
                 be
                 Tutor
                 ,
                 or
                 nearest
                 Agnat
                 to
                 the
                 Pupil
                 ,
                 to
                 whom
                 the
                 heir
                 of
                 Lyne
                 might
                 Succeed
                 .
                 The
                 heir
                 of
                 Lyne
                 hath
                 right
                 to
                 the
                 heirship
                 Moveable
                 ,
                 and
                 not
                 the
                 heir
                 of
                 Conquest
                 .
              
               
                 11.
                 
                 Heirs-portioners
                 are
                 amongst
                 Heirs
                 of
                 Line
                 ,
                 for
                 when
                 more
                 Women
                 or
                 their
                 Issue
                 succeed
                 ,
                 failing
                 Males
                 of
                 that
                 degree
                 ,
                 it
                 is
                 by
                 the
                 course
                 of
                 Law
                 that
                 they
                 succeed
                 ;
                 and
                 because
                 they
                 succeeed
                 not
                 in
                 solidum
                 ,
                 but
                 in
                 equal
                 Portions
                 ,
                 they
                 are
                 called
                 Heirs-portioners
                 ;
                 and
                 though
                 they
                 succeed
                 equally
                 ,
                 yet
                 Rights
                 indivisible
                 fall
                 to
                 the
                 eldest
                 alone
                 ,
                 without
                 any
                 thing
                 in
                 Lieu
                 thereof
                 to
                 the
                 rest
                 .
                 As
                 first
                 ,
                 Dignity
                 of
                 Lord
                 ,
                 Earl
                 ,
                 &c.
                 2.
                 
                 The
                 principal
                 Manse
                 being
                 Tower
                 ,
                 Fortalice
                 ,
                 &c.
                 which
                 doeth
                 not
                 extend
                 to
                 houses
                 in
                 Burghs
                 ,
                 nor
                 to
                 ordinary
                 Country-houses
                 ,
                 the
                 former
                 being
                 divisible
                 ,
                 the
                 latter
                 falls
                 under
                 division
                 ,
                 as
                 pertinents
                 of
                 the
                 Land
                 whereupon
                 they
                 stand
                 ,
                 and
                 are
                 not
                 as
                 
                   separata
                   jura
                
                 ,
                 or
                 distinct
                 Rights
                 .
                 3.
                 
                 Superiorities
                 are
                 accounted
                 indivisible
                 ,
                 and
                 befal
                 only
                 to
                 the
                 eldest
                 Daughter
                 and
                 her
                 Issue
                 ,
                 and
                 thereby
                 all
                 the
                 Casualities
                 of
                 the
                 Superiority
                 ,
                 either
                 preceeding
                 or
                 following
                 the
                 Defuncts
                 death
                 ,
                 as
                 Ward
                 ,
                 Relief
                 ,
                 Marriage
                 of
                 the
                 Vassals
                 Heirs
                 ,
                 Nonentry
                 ,
                 Liferent
                 ,
                 Escheat
                 ,
                 &c.
                 
                 The
                 reason
                 is
                 ,
                 because
                 the
                 Vassals
                 condition
                 ought
                 not
                 to
                 be
                 worsted
                 and
                 made
                 subject
                 to
                 many
                 Superiors
                 by
                 such
                 Successions
                 ,
                 
                   Craig
                   lib.
                
                 2.
                 dieg
                 .
                 14.
                 excepteth
                 the
                 Superiority
                 of
                 Feu
                 Lands
                 ,
                 the
                 Feu
                 Duties
                 whereof
                 are
                 divisible
                 amongst
                 all
                 the
                 Heirs-portioners
                 ,
                 yet
                 the
                 former
                 reason
                 of
                 the
                 indivisibility
                 of
                 the
                 Superiority
                 in
                 respect
                 of
                 the
                 Vassals
                 Interest
                 ,
                 reacheth
                 Feu
                 Superiorities
                 as
                 
                 well
                 as
                 others
                 ;
                 and
                 it
                 is
                 hardly
                 conceivable
                 how
                 Superiorities
                 should
                 belong
                 to
                 the
                 eldest
                 ,
                 and
                 yet
                 the
                 Feu
                 Duties
                 divide
                 to
                 the
                 rest
                 ,
                 seing
                 the
                 Superiority
                 as
                 being
                 
                   Dominium
                   directum
                
                 ,
                 is
                 the
                 only
                 Title
                 for
                 poynding
                 the
                 Ground
                 ,
                 or
                 pursuing
                 the
                 Possessors
                 or
                 Intrometters
                 with
                 the
                 fruits
                 thereof
                 .
                 It
                 seems
                 for
                 the
                 reason
                 adduced
                 ,
                 the
                 Superiority
                 ,
                 and
                 therewith
                 the
                 Feu
                 Duty
                 befalleth
                 to
                 the
                 eldest
                 ;
                 yet
                 so
                 ,
                 because
                 the
                 Feu
                 Dutie
                 is
                 constant
                 and
                 liquid
                 ,
                 and
                 is
                 not
                 like
                 the
                 other
                 Casualities
                 of
                 Superiority
                 ,
                 which
                 are
                 illiquid
                 and
                 accidental
                 ;
                 therefore
                 the
                 other
                 Heirs-portioners
                 ought
                 to
                 have
                 Compensation
                 for
                 their
                 parts
                 of
                 the
                 Feu
                 Duty
                 ,
                 in
                 or
                 off
                 other
                 proper
                 Lands
                 :
                 Or
                 if
                 there
                 were
                 moe
                 Superiorities
                 of
                 Feu
                 Lands
                 ,
                 so
                 that
                 some
                 of
                 the
                 Superiorities
                 might
                 befal
                 one
                 Heir
                 ,
                 and
                 others
                 to
                 other
                 Heirs
                 ,
                 no
                 particular
                 Superiority
                 being
                 divided
                 ,
                 or
                 the
                 Vassal
                 made
                 Vassal
                 to
                 many
                 Superiors
                 ,
                 I
                 conceive
                 it
                 would
                 be
                 allowed
                 ;
                 or
                 otherways
                 the
                 eldest
                 Co-heir
                 would
                 be
                 dicerned
                 to
                 infeft
                 the
                 rest
                 in
                 Annualrents
                 out
                 of
                 the
                 Fee
                 correspondent
                 to
                 their
                 share
                 of
                 the
                 Feu
                 Duty
                 .
                 A
                 Vassals
                 Heir
                 ,
                 though
                 the
                 Defunct
                 had
                 taken
                 Infeftment
                 of
                 more
                 Heirs-portioners
                 ,
                 was
                 not
                 found
                 oblieged
                 to
                 take
                 Infeftment
                 of
                 some
                 of
                 them
                 severally
                 ,
                 but
                 either
                 of
                 all
                 jointly
                 ,
                 or
                 the
                 eldest
                 ,
                 July
                 30.
                 1678.
                 
                 Lady
                 Luss
                 contra
                 Inglis
                 .
              
               
                 How
                 far
                 Heirs-portioners
                 succeed
                 passive
                 ,
                 and
                 are
                 lyable
                 for
                 the
                 Defuncts
                 Debt
                 ,
                 shall
                 forthwith
                 appear
                 .
              
               
                 12.
                 
                 Heirs
                 Male
                 ,
                 and
                 of
                 Tailzie
                 ,
                 and
                 Provision
                 ,
                 succeed
                 not
                 by
                 Law
                 ,
                 but
                 by
                 the
                 tenor
                 of
                 the
                 Infeftment
                 or
                 Provision
                 ,
                 and
                 therefore
                 have
                 that
                 benefit
                 and
                 no
                 more
                 ,
                 which
                 is
                 so
                 provided
                 to
                 them
                 ,
                 or
                 which
                 is
                 accessory
                 thereto
                 ,
                 whereby
                 any
                 Right
                 or
                 Security
                 of
                 Lands
                 ,
                 or
                 others
                 befalling
                 to
                 these
                 Heirs
                 ,
                 which
                 is
                 thereafter
                 acquired
                 by
                 their
                 Predecessors
                 ,
                 though
                 the
                 same
                 be
                 acquired
                 to
                 him
                 and
                 his
                 Heirs
                 whatsover
                 ,
                 yet
                 the
                 same
                 will
                 befall
                 with
                 the
                 principal
                 Right
                 ,
                 to
                 which
                 it
                 is
                 accessory
                 to
                 the
                 Heir
                 Male
                 ,
                 or
                 of
                 Tailzie
                 ,
                 or
                 Provision
                 .
                 As
                 if
                 a
                 Proprietar
                 Infeft
                 himself
                 ,
                 or
                 his
                 Heirs
                 Male
                 ,
                 or
                 of
                 Tailzie
                 ,
                 or
                 Provision
                 ,
                 in
                 Lands
                 or
                 Annualrents
                 ,
                 and
                 thereafter
                 acquire
                 Reversion
                 ,
                 Apprisings
                 ,
                 Tacks
                 ,
                 or
                 others
                 ,
                 further
                 or
                 better
                 security
                 of
                 the
                 same
                 Lands
                 to
                 himself
                 and
                 his
                 Heirs
                 whatsoever
                 ;
                 these
                 will
                 accress
                 to
                 his
                 Heirs
                 Male
                 ,
                 or
                 of
                 Tailzie
                 ,
                 or
                 Provision
                 ,
                 whether
                 the
                 Infeftment
                 in
                 their
                 favours
                 be
                 anterior
                 or
                 posterior
                 ,
                 which
                 is
                 the
                 more
                 dubious
                 Case
                 ;
                 for
                 it
                 cannot
                 be
                 thought
                 that
                 the
                 Defunct
                 having
                 before
                 provided
                 such
                 Lands
                 or
                 Annualrents
                 to
                 his
                 special
                 Heirs
                 ,
                 doth
                 by
                 acquiring
                 new
                 Rights
                 mean
                 to
                 set
                 his
                 Heirs
                 by
                 the
                 Ears
                 to
                 debate
                 upon
                 their
                 several
                 Rights
                 :
                 Neither
                 can
                 his
                 posterior
                 Deeds
                 be
                 repute
                 an
                 alteration
                 of
                 the
                 former
                 Provision
                 ;
                 which
                 can
                 only
                 be
                 done
                 by
                 Resignation
                 ,
                 unless
                 the
                 Defunct
                 debarred
                 expressly
                 ,
                 his
                 former
                 special
                 Heirs
                 ,
                 and
                 obtained
                 his
                 Heirs
                 whatsoever
                 Infeft
                 .
                 And
                 though
                 Heirs
                 whatsoever
                 do
                 ordinarily
                 signifie
                 Heirs
                 of
                 Line
                 ,
                 who
                 are
                 heirs
                 general
                 ,
                 and
                 take
                 place
                 ,
                 when
                 the
                 Right
                 of
                 no
                 special
                 heir
                 appeareth
                 ,
                 yet
                 the
                 adequat
                 signification
                 thereof
                 ,
                 is
                 not
                 heirs
                 general
                 ,
                 but
                 heirs
                 generally
                 ,
                 whether
                 of
                 Line
                 ,
                 Male
                 ,
                 Tailzie
                 ,
                 or
                 Provision
                 ,
                 as
                 is
                 more
                 clear
                 passivè
                 in
                 the
                 Defuncts
                 Obliegment
                 ,
                 as
                 if
                 he
                 oblieged
                 himself
                 and
                 his
                 heirs
                 whatsoever
                 .
                 By
                 heirs
                 whatsoever
                 ,
                 will
                 be
                 understood
                 all
                 kind
                 of
                 heirs
                 in
                 their
                 order
                 ,
                 yea
                 in
                 some
                 Cases
                 only
                 his
                 special
                 heirs
                 ,
                 if
                 the
                 Obliegment
                 relate
                 to
                 Lands
                 or
                 others
                 so
                 provided
                 ,
                 as
                 will
                 shortly
                 appear
                 :
                 And
                 therefore
                 ,
                 heirs
                 Male
                 ,
                 or
                 of
                 Tailzie
                 and
                 Provision
                 ,
                 in
                 respect
                 of
                 the
                 heirs
                 of
                 Line
                 ,
                 are
                 as
                 Strangers
                 ,
                 and
                 may
                 come
                 against
                 their
                 Predecessors
                 Deeds
                 in
                 favours
                 of
                 his
                 heirs
                 of
                 Line
                 ;
                 as
                 if
                 any
                 person
                 provide
                 any
                 Lands
                 or
                 Annualrents
                 to
                 his
                 heirs
                 Male
                 ,
                 or
                 of
                 Tailzie
                 ,
                 and
                 thereafter
                 dispone
                 the
                 same
                 to
                 his
                 heirs
                 apparent
                 of
                 Line
                 ,
                 his
                 heirs
                 Male
                 ,
                 or
                 of
                 Tailzie
                 ,
                 will
                 in
                 several
                 Cases
                 not
                 be
                 oblieged
                 to
                 fulfil
                 that
                 Provision
                 ;
                 and
                 if
                 such
                 express
                 Provisions
                 be
                 ineffectual
                 to
                 the
                 heir
                 of
                 Line
                 ,
                 it
                 seems
                 a
                 general
                 taking
                 
                 a
                 new
                 Right
                 in
                 favours
                 of
                 heirs
                 whatsoever
                 should
                 be
                 less
                 effectual
                 :
                 But
                 the
                 difficulty
                 is
                 ,
                 how
                 special
                 heirs
                 can
                 be
                 served
                 heirs
                 in
                 such
                 Rights
                 supervenient
                 ,
                 conceived
                 in
                 favours
                 of
                 heirs
                 whatsoever
                 ,
                 which
                 will
                 be
                 loosed
                 if
                 the
                 heirs
                 special
                 may
                 be
                 comprehended
                 ,
                 and
                 so
                 served
                 under
                 the
                 common
                 Title
                 of
                 heirs
                 whatsoever
                 .
                 How
                 far
                 heirs
                 of
                 Tailzie
                 or
                 Provision
                 may
                 alter
                 the
                 Tailzie
                 of
                 the
                 Fee
                 ,
                 or
                 affect
                 or
                 burden
                 the
                 same
                 ,
                 is
                 largely
                 considered
                 ,
                 Title
                 13.
                 
                 §
                 .
                 58.
                 which
                 therefore
                 needs
                 not
                 here
                 be
                 repeated
                 .
              
               
                 13.
                 
                 The
                 common
                 Interest
                 of
                 heirs
                 passivè
                 ,
                 is
                 ,
                 that
                 they
                 are
                 lyable
                 for
                 their
                 Predecessors
                 Debts
                 ,
                 for
                 they
                 are
                 repute
                 in
                 Law
                 as
                 one
                 Person
                 with
                 their
                 Predecessors
                 ,
                 and
                 so
                 represent
                 them
                 ,
                 not
                 only
                 active
                 in
                 their
                 Estates
                 and
                 Goods
                 ,
                 but
                 also
                 passive
                 in
                 their
                 Debts
                 and
                 Burdens
                 ,
                 
                   Quem
                   sequuntur
                   commoda
                   eundem
                   &
                   incommoda
                   sequuntur
                
                 ;
                 and
                 this
                 is
                 common
                 also
                 to
                 Executors
                 as
                 being
                 heirs
                 in
                 the
                 Moveables
                 ,
                 but
                 as
                 the
                 Executors
                 succeed
                 only
                 in
                 Moveable
                 Rights
                 active
                 ,
                 so
                 they
                 succeed
                 only
                 in
                 Moveable
                 Debts
                 passive
                 ,
                 yet
                 the
                 Creditor
                 hath
                 his
                 option
                 to
                 pursue
                 either
                 ,
                 or
                 both
                 of
                 them
                 ,
                 whether
                 the
                 Debt
                 be
                 heretable
                 or
                 moveable
                 ,
                 and
                 the
                 heir
                 hath
                 relief
                 against
                 the
                 Executor
                 ,
                 in
                 so
                 far
                 as
                 he
                 is
                 distressed
                 for
                 Moveable
                 Debts
                 ;
                 so
                 hath
                 the
                 Executor
                 releif
                 against
                 the
                 heir
                 of
                 the
                 heretable
                 Debts
                 ,
                 March
                 7.
                 1629.
                 
                 Falconer
                 contra
                 
                   Blair
                   .
                   Spots
                
                 .
                 Executors
                 Laird
                 of
                 Carnousie
                 contra
                 Meldrum
                 .
                 But
                 heirs
                 and
                 Executors
                 differ
                 in
                 this
                 ,
                 that
                 the
                 Executor
                 is
                 only
                 lyable
                 
                   secundum
                   vires
                   inventarli
                
                 ,
                 according
                 to
                 the
                 Inventar
                 of
                 the
                 confirmed
                 Testament
                 ,
                 unless
                 he
                 disorderly
                 intromet
                 with
                 more
                 ;
                 but
                 the
                 heirs
                 are
                 lyable
                 
                   in
                   solidum
                
                 ,
                 though
                 the
                 Debt
                 far
                 exceed
                 the
                 value
                 of
                 the
                 Estate
                 .
              
               
                 Heirs
                 are
                 lyable
                 for
                 their
                 Predecessors
                 Debts
                 ,
                 but
                 not
                 all
                 the
                 same
                 way
                 :
                 First
                 ,
                 Heirs
                 portioners
                 though
                 jointly
                 they
                 be
                 lyable
                 for
                 their
                 Predecessors
                 Debts
                 in
                 solidum
                 ,
                 without
                 benefit
                 of
                 Inventary
                 ;
                 yet
                 severally
                 ,
                 each
                 Heir-portioner
                 is
                 regularly
                 lyable
                 but
                 
                   pro
                   rata
                   parte
                
                 ,
                 though
                 the
                 proportion
                 whereunto
                 they
                 succeed
                 be
                 more
                 then
                 the
                 whole
                 Debt
                 ,
                 February
                 7.
                 1632.
                 
                 Hoom
                 contra
                 
                   Hoom.
                   Spots
                
                 .
                 Improbation
                 Laird
                 of
                 Laars
                 contra
                 
                   Dunbars
                   ,
                   John
                   Duncan
                
                 and
                 the
                 heirs
                 of
                 
                   John
                   Ogilvy
                
                 .
              
               
                 14.
                 
                 Yet
                 one
                 Heir-portioner
                 was
                 found
                 lyable
                 in
                 solidum
                 ,
                 as
                 Successors
                 in
                 his
                 whole
                 Estate
                 by
                 disposition
                 
                   post
                   contractum
                   debitum
                
                 ,
                 though
                 there
                 were
                 other
                 two
                 Sisters
                 ,
                 the
                 one
                 of
                 whom
                 being
                 called
                 ,
                 renounced
                 ,
                 the
                 Pursuer
                 condescending
                 upon
                 nothing
                 ,
                 unto
                 which
                 she
                 could
                 Succeed
                 ;
                 and
                 the
                 other
                 having
                 no
                 means
                 ,
                 but
                 being
                 called
                 
                   passive
                   ,
                   Feb.
                
                 15.
                 1634.
                 
                 
                   Peter
                   Orr
                
                 contra
                 
                   Elizabeth
                   〈◊〉
                
                 :
                 Neither
                 did
                 it
                 avail
                 ,
                 that
                 the
                 other
                 Sisters
                 had
                 received
                 portions
                 of
                 money
                 near
                 to
                 the
                 value
                 of
                 the
                 Estate
                 ,
                 by
                 the
                 Father
                 in
                 his
                 Life
                 ,
                 but
                 Action
                 of
                 Relief
                 was
                 reserved
                 against
                 them
                 ,
                 as
                 accords
                 ,
                 March
                 21.
                 1634.
                 
                 
                   Inter
                   eosdem
                
                 :
                 The
                 reason
                 thereof
                 adduced
                 ,
                 is
                 ,
                 that
                 the
                 getting
                 Portions
                 in
                 Money
                 ,
                 could
                 be
                 no
                 
                   〈◊〉
                   〈◊〉
                
                 ,
                 and
                 so
                 could
                 not
                 make
                 the
                 Receivers
                 Lucrative
                 Successors
                 ,
                 
                   〈◊〉
                   contractum
                   debitum
                
                 ,
                 as
                 the
                 Disposition
                 of
                 the
                 Lands
                 doth
                 .
                 Yea
                 ,
                 an
                 heir
                 portioner
                 being
                 convened
                 without
                 the
                 other
                 ,
                 was
                 found
                 lyable
                 in
                 solidum
                 ,
                 because
                 the
                 other
                 was
                 found
                 not
                 solvendo
                 ,
                 and
                 had
                 disponed
                 all
                 right
                 to
                 the
                 Defender
                 ,
                 January
                 29.
                 1642.
                 
                 Scot
                 contra
                 Hart.
                 But
                 here
                 the
                 matter
                 was
                 but
                 of
                 small
                 moment
                 ,
                 and
                 this
                 was
                 a
                 doubt
                 in
                 the
                 first
                 Decision
                 ,
                 in
                 this
                 Case
                 ,
                 if
                 some
                 of
                 the
                 heirs
                 Portioners
                 should
                 be
                 insolvendo
                 ,
                 whether
                 or
                 no
                 recourse
                 might
                 be
                 had
                 ,
                 against
                 them
                 that
                 were
                 solvendo
                 ,
                 at
                 the
                 least
                 ,
                 to
                 the
                 value
                 of
                 their
                 proportion
                 ;
                 which
                 ,
                 though
                 it
                 seem
                 Equitable
                 ,
                 and
                 is
                 favoured
                 by
                 this
                 last
                 Decision
                 ,
                 yet
                 it
                 is
                 not
                 decyded
                 in
                 the
                 former
                 ,
                 neither
                 have
                 I
                 observed
                 it
                 decided
                 since
                 ,
                 but
                 in
                 the
                 pursuit
                 ,
                 Decem.
                 23.
                 1665.
                 at
                 the
                 instance
                 
                 of
                 Dam
                 
                   Rachel
                   Burnet
                
                 ,
                 now
                 Lady
                 Preston
                 contra
                 Sisters
                 of
                 her
                 first
                 husband
                 :
                 The
                 Lords
                 only
                 discerned
                 ,
                 against
                 the
                 heirs
                 portioners
                 ,
                 
                   pro
                   rata
                
                 ,
                 but
                 with
                 Reservation
                 to
                 the
                 Pursuer
                 ,
                 to
                 Insist
                 and
                 Dispute
                 her
                 Right
                 against
                 any
                 of
                 them
                 ,
                 for
                 more
                 ,
                 if
                 any
                 of
                 them
                 proved
                 insolvent
                 :
                 But
                 it
                 seems
                 ,
                 the
                 Portion
                 of
                 the
                 insolvent
                 ,
                 would
                 not
                 reach
                 the
                 solvent
                 ,
                 above
                 the
                 value
                 of
                 their
                 Succession
                 .
                 Because
                 the
                 only
                 ground
                 they
                 could
                 be
                 lyable
                 on
                 ,
                 for
                 more
                 then
                 their
                 part
                 would
                 be
                 in
                 
                   quantum
                   lucrantur
                
                 .
                 For
                 as
                 heirs
                 they
                 could
                 not
                 be
                 lyable
                 in
                 solidum
                 ,
                 neither
                 by
                 our
                 Law
                 ,
                 nor
                 the
                 Civil
                 Law.
                 And
                 if
                 the
                 Creditors
                 Taciturnitie
                 ,
                 whereby
                 the
                 other
                 heirs
                 became
                 insolvent
                 did
                 appear
                 ,
                 it
                 would
                 prejudge
                 the
                 silent
                 Creditor
                 ,
                 and
                 not
                 the
                 heir
                 ,
                 who
                 did
                 not
                 know
                 the
                 debt
                 ,
                 and
                 so
                 could
                 not
                 prevent
                 the
                 others
                 Dilapidation
                 .
              
               
                 15.
                 
                 There
                 is
                 a
                 case
                 occurreth
                 oft-times
                 amongst
                 heirs
                 Portioners
                 ,
                 when
                 Several
                 Obligations
                 ,
                 and
                 Provisions
                 are
                 granted
                 in
                 their
                 Favours
                 by
                 the
                 Defunct
                 ,
                 whereby
                 ,
                 after
                 his
                 Decease
                 ,
                 they
                 become
                 mutual
                 Debitors
                 ,
                 and
                 Creditors
                 ;
                 and
                 sometimes
                 these
                 Provisions
                 exceed
                 the
                 Estate
                 ,
                 
                   quid
                   juris
                
                 ,
                 whether
                 do
                 these
                 Obligations
                 evanish
                 ,
                 and
                 become
                 extinct
                 confusione
                 ;
                 because
                 the
                 same
                 Persons
                 become
                 Debitors
                 and
                 Creditors
                 ;
                 or
                 whether
                 they
                 do
                 all
                 stand
                 ,
                 and
                 in
                 that
                 Case
                 ,
                 whether
                 the
                 first
                 in
                 Order
                 will
                 be
                 preferred
                 ,
                 or
                 ,
                 if
                 they
                 all
                 will
                 be
                 abated
                 proportionally
                 ,
                 to
                 the
                 value
                 of
                 the
                 heritage
                 .
                 Thus
                 Maitland
                 observes
                 ,
                 December
                 20.
                 1550.
                 
                 That
                 a
                 Father
                 Infeft
                 himself
                 ,
                 and
                 the
                 heirs
                 of
                 the
                 first
                 Marriage
                 ,
                 and
                 thereafter
                 resigned
                 ,
                 and
                 Infeft
                 himself
                 ,
                 and
                 the
                 heirs
                 Male
                 of
                 the
                 second
                 Marriage
                 ,
                 which
                 failling
                 his
                 nearest
                 heirs
                 whatsomever
                 ,
                 these
                 heirs
                 Male
                 the
                 second
                 Marriage
                 failled
                 :
                 And
                 therefore
                 ,
                 not
                 the
                 Daughter
                 of
                 the
                 first
                 Marriage
                 only
                 ,
                 but
                 she
                 ,
                 and
                 the
                 Daughters
                 of
                 a
                 third
                 Marriage
                 Succeeded
                 ,
                 by
                 the
                 second
                 Infeftment
                 ,
                 as
                 his
                 heirs
                 whatsomever
                 ,
                 substitute
                 to
                 be
                 his
                 heirs
                 of
                 the
                 second
                 Marriage
                 .
                 Craig
                 hath
                 the
                 Case
                 ,
                 but
                 otherways
                 observed
                 ,
                 lib.
                 2.
                 dieg
                 .
                 14.
                 
                 Where
                 a
                 person
                 had
                 provided
                 his
                 Lands
                 to
                 the
                 heirs
                 of
                 three
                 several
                 Marriages
                 ;
                 of
                 each
                 whereof
                 there
                 survived
                 a
                 Daughter
                 :
                 The
                 question
                 was
                 ,
                 which
                 of
                 the
                 Daughters
                 should
                 succeed
                 ?
                 Whether
                 the
                 first
                 ,
                 as
                 having
                 the
                 first
                 Provision
                 ,
                 or
                 the
                 last
                 having
                 the
                 last
                 Provision
                 :
                 The
                 parties
                 were
                 three
                 Sisters
                 ,
                 Aikmans
                 .
                 In
                 which
                 the
                 Lords
                 admitted
                 all
                 the
                 three
                 Sisters
                 as
                 heirs
                 Portioners
                 ,
                 and
                 so
                 confounded
                 the
                 Provisions
                 ,
                 being
                 all
                 equal
                 ;
                 and
                 about
                 the
                 same
                 thing
                 ,
                 which
                 must
                 be
                 the
                 Reason
                 ,
                 and
                 not
                 that
                 which
                 is
                 there
                 rendered
                 .
                 Because
                 the
                 Defunct
                 ,
                 notwithstanding
                 of
                 these
                 Provisions
                 ,
                 in
                 Favours
                 of
                 heirs
                 might
                 have
                 Disponed
                 effectual
                 ,
                 to
                 a
                 Stranger
                 :
                 And
                 so
                 likewise
                 to
                 his
                 own
                 Children
                 of
                 another
                 Marriage
                 ;
                 For
                 that
                 Reason
                 would
                 have
                 excluded
                 the
                 Daughters
                 of
                 the
                 first
                 Marriage
                 ,
                 and
                 preferred
                 the
                 Daughter
                 of
                 the
                 last
                 Marriage
                 .
                 And
                 as
                 hath
                 been
                 shown
                 ,
                 Tailzies
                 of
                 Provisions
                 ,
                 upon
                 an
                 anticedent
                 ,
                 
                   onerous
                   obligation
                
                 ;
                 Such
                 as
                 is
                 Marriage
                 ,
                 hinder
                 the
                 Fiar
                 to
                 dispone
                 ,
                 or
                 provide
                 the
                 same
                 to
                 his
                 heirs
                 of
                 Lyne
                 ,
                 representing
                 him
                 simplie
                 ,
                 and
                 must
                 fulfil
                 his
                 Obliegment
                 ;
                 Albeit
                 his
                 Disposition
                 to
                 Strangers
                 ,
                 not
                 so
                 representing
                 him
                 ,
                 will
                 be
                 effectual
                 :
                 And
                 therefore
                 ,
                 Craig
                 in
                 that
                 same
                 place
                 observeth
                 ,
                 in
                 the
                 case
                 of
                 
                   Isobel
                   Barron
                
                 ,
                 who
                 being
                 heir
                 to
                 her
                 Father
                 of
                 his
                 first
                 Marriage
                 ,
                 by
                 which
                 it
                 was
                 provided
                 ,
                 that
                 the
                 heirs
                 of
                 the
                 Marriage
                 should
                 Succeed
                 to
                 all
                 Lands
                 conquest
                 during
                 the
                 Marriage
                 :
                 And
                 thereafter
                 ,
                 having
                 a
                 Son
                 of
                 the
                 second
                 Marriage
                 ,
                 who
                 was
                 his
                 Fathers
                 heir
                 of
                 Lyne
                 ,
                 to
                 whom
                 his
                 Father
                 Disponed
                 ,
                 or
                 provided
                 a
                 Tenement
                 acquired
                 ,
                 during
                 the
                 first
                 Marriage
                 ;
                 Yet
                 the
                 said
                 Isobel
                 ,
                 as
                 heir
                 of
                 that
                 Marriage
                 ,
                 recovered
                 that
                 Tenement
                 from
                 her
                 Brother
                 ,
                 as
                 heir
                 of
                 Lyne
                 .
                 But
                 the
                 main
                 difficultie
                 remaineth
                 ,
                 when
                 the
                 obliegment
                 in
                 favours
                 of
                 the
                 heirs
                 portioners
                 are
                 un-equal
                 for
                 when
                 they
                 are
                 equal
                 ,
                 whether
                 they
                 become
                 extinct
                 by
                 confusion
                 ,
                 or
                 not
                 ,
                 it
                 is
                 alike
                 :
                 But
                 if
                 they
                 be
                 so
                 extinct
                 ,
                 when
                 they
                 are
                 un-equal
                 ,
                 there
                 will
                 not
                 be
                 
                 an
                 equal
                 suffering
                 ,
                 or
                 abatement
                 ;
                 but
                 the
                 greatest
                 obliegment
                 will
                 be
                 extinct
                 ,
                 as
                 well
                 as
                 the
                 least
                 :
                 Neither
                 can
                 such
                 obligations
                 be
                 wholly
                 extinct
                 ,
                 by
                 confusion
                 ,
                 but
                 only
                 
                   pro
                   rata
                
                 .
                 So
                 that
                 if
                 there
                 be
                 three
                 heirs
                 Portioners
                 ,
                 for
                 example
                 ,
                 the
                 obliegment
                 granted
                 to
                 every
                 one
                 of
                 them
                 ,
                 can
                 only
                 be
                 extinct
                 for
                 a
                 thirdpart
                 ,
                 because
                 they
                 are
                 but
                 heirs
                 in
                 a
                 third
                 part
                 ,
                 and
                 as
                 to
                 two
                 third
                 parts
                 ,
                 each
                 two
                 of
                 them
                 are
                 debitors
                 to
                 the
                 third
                 :
                 And
                 if
                 the
                 obligation
                 exceed
                 the
                 value
                 of
                 the
                 heritage
                 ,
                 such
                 of
                 them
                 as
                 find
                 themselves
                 losers
                 ,
                 if
                 they
                 enter
                 heirs
                 ,
                 may
                 abstain
                 ,
                 and
                 renounce
                 ,
                 and
                 they
                 ,
                 or
                 their
                 Assigneys
                 ,
                 may
                 pursue
                 any
                 of
                 the
                 rest
                 that
                 shal
                 enter
                 ,
                 for
                 fulfilling
                 of
                 the
                 Defuncts
                 obliegments
                 ,
                 but
                 if
                 they
                 be
                 considerat
                 ,
                 when
                 all
                 the
                 obligations
                 joyntly
                 exceed
                 the
                 value
                 of
                 the
                 Estate
                 ,
                 they
                 will
                 all
                 Renounce
                 ,
                 and
                 Assigne
                 there
                 obliegments
                 ,
                 and
                 their
                 Assigneys
                 will
                 be
                 preferred
                 ,
                 according
                 to
                 their
                 dilignece
                 ,
                 without
                 consideration
                 of
                 the
                 priority
                 ,
                 or
                 posteriority
                 of
                 the
                 obliegments
                 ;
                 but
                 if
                 they
                 happen
                 to
                 enter
                 ,
                 or
                 when
                 their
                 provisions
                 are
                 not
                 Personal
                 to
                 themselves
                 ,
                 nominatim
                 ,
                 but
                 as
                 they
                 are
                 heirs
                 of
                 Provision
                 ;
                 and
                 therefore
                 necessarily
                 require
                 ,
                 that
                 they
                 must
                 be
                 heirs
                 ,
                 before
                 they
                 can
                 obtain
                 their
                 Provisions
                 ,
                 then
                 the
                 obliegments
                 or
                 Provisions
                 of
                 each
                 Portioner
                 are
                 extinct
                 ,
                 as
                 to
                 their
                 own
                 proportion
                 ;
                 but
                 they
                 have
                 like
                 Action
                 against
                 the
                 others
                 heirs
                 portioners
                 ,
                 for
                 there
                 proportion
                 ,
                 as
                 other
                 Creditors
                 have
                 ,
                 the
                 point
                 will
                 be
                 clear
                 by
                 example
                 ;
                 if
                 three
                 Sisters
                 were
                 provided
                 by
                 the
                 Father
                 ,
                 to
                 un-equal
                 Portions
                 .
                 The
                 first
                 to
                 15000.
                 
                 Merks
                 ,
                 the
                 second
                 to
                 12000.
                 
                 Merks
                 ,
                 the
                 third
                 to
                 6000.
                 
                 Merks
                 .
                 and
                 the
                 Defuncts
                 whole
                 Estate
                 ,
                 had
                 only
                 been
                 worth
                 18000.
                 
                 Merks
                 .
                 All
                 of
                 them
                 entering
                 ,
                 the
                 case
                 would
                 be
                 thus
                 :
                 The
                 eldest
                 would
                 succeed
                 to
                 6000.
                 
                 Merks
                 of
                 the
                 heritage
                 for
                 her
                 part
                 ,
                 and
                 the
                 second
                 would
                 be
                 lyable
                 to
                 her
                 for
                 5000.
                 
                 Merks
                 ,
                 as
                 the
                 third
                 of
                 the
                 her
                 provision
                 ,
                 to
                 whom
                 she
                 would
                 also
                 be
                 lyable
                 ,
                 for
                 4000.
                 
                 Merks
                 ,
                 as
                 the
                 third
                 of
                 the
                 seconds
                 Provision
                 ,
                 which
                 being
                 compensed
                 ,
                 the
                 second
                 would
                 be
                 lyable
                 to
                 the
                 first
                 in
                 an
                 1000.
                 
                 Merks
                 ,
                 
                   dc
                   claro
                
                 .
                 In
                 like
                 manner
                 ,
                 the
                 first
                 would
                 be
                 lyable
                 to
                 the
                 third
                 in
                 2000.
                 
                 Merks
                 ,
                 and
                 the
                 third
                 would
                 be
                 lyable
                 to
                 the
                 first
                 ,
                 in
                 5000.
                 
                 Merks
                 ,
                 which
                 being
                 ballanced
                 ,
                 the
                 third
                 would
                 be
                 debitor
                 
                   de
                   claro
                
                 ,
                 to
                 the
                 first
                 ,
                 in
                 3000.
                 
                 Merks
                 .
                 So
                 the
                 Interest
                 of
                 the
                 first
                 would
                 be
                 6000.
                 
                 Merks
                 ,
                 as
                 her
                 own
                 portion
                 :
                 and
                 one
                 out
                 of
                 the
                 Second
                 ,
                 and
                 Three
                 out
                 of
                 the
                 Thirds
                 Portion
                 ,
                 being
                 in
                 all
                 a
                 10000.
                 
                 The
                 second
                 falleth
                 6000.
                 as
                 her
                 share
                 ,
                 out
                 of
                 which
                 she
                 is
                 lyable
                 in
                 1000.
                 
                 Merks
                 ,
                 to
                 the
                 eldest
                 and
                 the
                 youngest
                 is
                 due
                 to
                 her
                 ,
                 
                   de
                   claro
                
                 ,
                 2000.
                 
                 Merks
                 ,
                 whereby
                 her
                 interest
                 will
                 be
                 7000.
                 
                 Merks
                 ,
                 the
                 youngest
                 Portion
                 will
                 be
                 6000.
                 
                 Merks
                 ,
                 out
                 of
                 which
                 she
                 is
                 due
                 to
                 the
                 eldest
                 ,
                 3000.
                 
                 Merks
                 ,
                 and
                 to
                 the
                 second
                 2000.
                 
                 So
                 there
                 will
                 remain
                 only
                 free
                 to
                 her
                 1000.
                 
                 Merks
                 ,
                 This
                 may
                 clear
                 the
                 case
                 as
                 to
                 liquid
                 Sums
                 ,
                 and
                 as
                 to
                 Dispositions
                 ,
                 or
                 Provisions
                 of
                 Lands
                 ,
                 or
                 other
                 obliegments
                 in
                 facto
                 .
                 These
                 ,
                 or
                 the
                 Interest
                 ,
                 or
                 Value
                 ,
                 will
                 be
                 the
                 same
                 way
                 effectual
                 ,
                 amongst
                 the
                 Heirs
                 Portioners
                 ,
                 as
                 if
                 they
                 had
                 been
                 made
                 to
                 Strangers
                 ;
                 Except
                 ,
                 where
                 the
                 same
                 Disposition
                 ,
                 or
                 Provision
                 is
                 made
                 to
                 divers
                 of
                 them
                 :
                 For
                 then
                 either
                 being
                 equally
                 oblieged
                 to
                 others
                 ,
                 as
                 representing
                 the
                 Defunct
                 ,
                 the
                 same
                 become
                 void
                 ,
                 and
                 in-effectual
                 ,
                 protanto
                 .
                 As
                 was
                 found
                 in
                 the
                 case
                 of
                 the
                 Sisters
                 Aikmans
                 :
                 But
                 since
                 the
                 Act
                 of
                 Parliament
                 1621.
                 against
                 fraudulent
                 Dispositions
                 ,
                 the
                 first
                 Disposition
                 ,
                 or
                 Provision
                 ,
                 constituting
                 ,
                 that
                 Party
                 Creditor
                 may
                 give
                 ground
                 to
                 Reduce
                 a
                 posterior
                 Disposition
                 of
                 the
                 same
                 thing
                 ,
                 to
                 another
                 of
                 the
                 Heirs
                 Portioners
                 ,
                 as
                 being
                 without
                 a
                 Cause
                 onerous
                 ,
                 after
                 contractiong
                 of
                 the
                 first
                 debt
                 ,
                 but
                 that
                 will
                 not
                 hold
                 in
                 Bands
                 ,
                 for
                 Sums
                 of
                 Money
                 ,
                 all
                 which
                 will
                 have
                 their
                 effect
                 ,
                 as
                 is
                 before
                 said
                 .
                 Neither
                 will
                 it
                 hold
                 ,
                 when
                 the
                 Provision
                 of
                 Lands
                 ,
                 provideth
                 the
                 Party
                 provided
                 to
                 be
                 Heir
                 ,
                 for
                 thereby
                 the
                 party
                 cannot
                 Quarrel
                 that
                 Predecessors
                 Deed
                 :
                 Otherwayes
                 the
                 first
                 Obliegment
                 ,
                 or
                 Disposition
                 to
                 any
                 of
                 the
                 Heirs
                 Portioners
                 nominatim
                 ,
                 may
                 Reduce
                 any
                 posterior
                 Disposition
                 to
                 others
                 ,
                 of
                 the
                 Heirs
                 Portioners
                 .
              
               
               
                 Two
                 Daughters
                 being
                 served
                 ,
                 both
                 Heirs
                 Portioners
                 to
                 their
                 Father
                 in
                 some
                 Teinds
                 ,
                 but
                 one
                 of
                 them
                 Succeeding
                 to
                 her
                 Brother
                 ,
                 who
                 was
                 Infeft
                 as
                 Heir
                 to
                 his
                 Father
                 in
                 Lands
                 ,
                 excluding
                 the
                 other
                 Sister
                 ,
                 who
                 was
                 not
                 Sister
                 German
                 to
                 her
                 Brother
                 ,
                 by
                 both
                 Bloods
                 ,
                 and
                 both
                 being
                 pursued
                 for
                 their
                 Fathers
                 Debt
                 ,
                 they
                 were
                 not
                 found
                 lyable
                 equally
                 ,
                 but
                 proportionally
                 ,
                 according
                 to
                 the
                 Interest
                 they
                 Succeeded
                 to
                 ;
                 the
                 one
                 being
                 only
                 immediat
                 Heir
                 to
                 her
                 Father
                 ,
                 in
                 a
                 Right
                 of
                 Tiends
                 ,
                 wherein
                 her
                 Brother
                 was
                 not
                 served
                 ,
                 and
                 Infeft
                 ,
                 the
                 other
                 being
                 equally
                 ,
                 and
                 Immediately
                 Heir
                 to
                 her
                 Father
                 ,
                 in
                 these
                 Teinds
                 ,
                 and
                 mediatly
                 Heir
                 to
                 her
                 Father
                 ,
                 by
                 being
                 Heir
                 to
                 her
                 Brother
                 ,
                 who
                 was
                 Heir
                 to
                 his
                 Father
                 ,
                 being
                 Infeft
                 in
                 the
                 Lands
                 ,
                 by
                 precept
                 of
                 
                   Clare
                   Constat
                
                 ,
                 without
                 Service
                 ,
                 June
                 10.
                 1673.
                 
                 
                   Christian
                   White
                
                 contra
                 
                   Janet
                   White
                
                 .
              
               
                 16.
                 
                 Other
                 heirs
                 not
                 being
                 Heirs-portioners
                 are
                 lyable
                 for
                 the
                 Defuncts
                 Debt
                 in
                 solidum
                 ,
                 except
                 heirs
                 substitute
                 in
                 Bands
                 ,
                 who
                 are
                 only
                 lyable
                 
                   quoad
                   valorem
                
                 in
                 the
                 sums
                 in
                 these
                 Bonds
                 ,
                 July
                 3.
                 1666.
                 
                 Fleeming
                 contra
                 Fleeming
                 .
              
               
                 17.
                 
                 Heirs
                 are
                 not
                 conveenable
                 at
                 the
                 Creditors
                 option
                 ,
                 as
                 in
                 the
                 case
                 of
                 heirs
                 and
                 Executors
                 ,
                 but
                 they
                 have
                 the
                 benefit
                 of
                 an
                 order
                 of
                 discussing
                 .
                 Thus
                 ,
                 first
                 Debts
                 and
                 Obliegments
                 ,
                 relating
                 to
                 any
                 particular
                 Lands
                 or
                 Rights
                 ,
                 and
                 no
                 other
                 ,
                 do
                 in
                 the
                 first
                 place
                 affect
                 the
                 heirs
                 who
                 may
                 succeed
                 in
                 these
                 Lands
                 or
                 Rights
                 before
                 the
                 heir
                 general
                 :
                 So
                 an
                 Obliegment
                 oblieging
                 the
                 Defuncts
                 heir
                 of
                 Line
                 or
                 Tailzie
                 ,
                 so
                 soon
                 as
                 he
                 should
                 come
                 to
                 his
                 Estate
                 ,
                 was
                 found
                 to
                 affect
                 the
                 heir
                 of
                 Tailzie
                 who
                 came
                 to
                 that
                 ,
                 Estate
                 without
                 discussing
                 the
                 heir
                 of
                 Line
                 ,
                 
                   Hope
                   de
                   Haeredibus
                   ,
                   Lyon
                
                 contra
                 Sir
                 
                   Robert
                   Scot.
                   Nicol.
                   de
                   haereditariis
                   actionibus
                   inter
                   eosdem
                   :
                
                 So
                 an
                 Obliegment
                 oblieging
                 a
                 Debitor
                 and
                 his
                 heirs
                 Male
                 succeeding
                 in
                 such
                 an
                 Estate
                 and
                 not
                 all
                 other
                 heirs
                 ,
                 was
                 found
                 to
                 burden
                 the
                 heir
                 Male
                 ,
                 before
                 the
                 heir
                 of
                 Line
                 or
                 Executors
                 ,
                 July
                 22.
                 1662.
                 
                 
                   Margaret
                   Anderson
                
                 contra
                 Andersons
                 .
                 So
                 likewise
                 ,
                 an
                 Obliegment
                 to
                 infeft
                 a
                 Party
                 in
                 an
                 Annualrent
                 out
                 of
                 Lands
                 designed
                 ,
                 was
                 found
                 to
                 affect
                 the
                 heir
                 of
                 Provision
                 in
                 these
                 Lands
                 ,
                 without
                 discussing
                 the
                 heir
                 of
                 Line
                 ,
                 Nicol
                 ibid.
                 Edmonstoun
                 contra
                 Edmonstoun
                 .
                 This
                 was
                 also
                 the
                 opinion
                 of
                 the
                 Lords
                 ,
                 though
                 there
                 was
                 no
                 decision
                 in
                 it
                 ,
                 February
                 19.
                 1611.
                 
                 Laird
                 of
                 Blair
                 contra
                 Fairlie
                 .
                 And
                 in
                 these
                 Cases
                 ,
                 the
                 heir
                 of
                 Tailzie
                 or
                 Provision
                 will
                 have
                 no
                 Relief
                 against
                 the
                 heir
                 of
                 Line
                 ,
                 or
                 other
                 nearer
                 heirs
                 of
                 Blood
                 ,
                 who
                 otherwise
                 ,
                 and
                 also
                 Executors
                 ,
                 must
                 be
                 discuss'd
                 before
                 heirs
                 of
                 Provision
                 or
                 Tailzie
                 .
                 General
                 Obliegments
                 not
                 relating
                 to
                 particular
                 Lands
                 ,
                 do
                 ,
                 first
                 ,
                 affect
                 the
                 heirs
                 of
                 Line
                 ,
                 who
                 are
                 heirs
                 general
                 .
                 2.
                 
                 The
                 heirs
                 of
                 Conquest
                 ,
                 July
                 21.
                 1630.
                 
                 Fairlie
                 contra
                 Fairlie
                 .
                 3.
                 
                 Heirs
                 Male
                 must
                 be
                 discuss'd
                 before
                 heirs
                 of
                 Tailzie
                 or
                 Provision
                 ,
                 not
                 being
                 so
                 near
                 of
                 Blood
                 ,
                 
                   Hope
                   de
                   haered
                   .
                   Dunbar
                
                 contra
                 Hay
                 of
                 Murkill
                 .
                 the
                 like
                 must
                 follow
                 as
                 to
                 heirs
                 of
                 Marriages
                 ,
                 who
                 are
                 also
                 heirs
                 of
                 Blood
                 ,
                 and
                 must
                 be
                 discuss'd
                 before
                 other
                 heirs
                 of
                 Provision
                 or
                 Tailzie
                 ,
                 who
                 therefore
                 are
                 only
                 lyable
                 in
                 the
                 last
                 place
                 ,
                 the
                 rest
                 being
                 discuss'd
                 ,
                 unless
                 they
                 become
                 oblieged
                 to
                 relieve
                 the
                 heir
                 of
                 Line
                 ,
                 November
                 22.
                 1665.
                 
                 
                   Lawrence
                   Scot
                
                 contra
                 Boswel
                 of
                 Auchinleck
                 .
              
               
                 18.
                 
                 But
                 an
                 heir
                 of
                 Tailzie
                 was
                 not
                 found
                 to
                 represent
                 the
                 Defunct
                 in
                 Obligations
                 contrary
                 to
                 the
                 terms
                 of
                 the
                 Tailzie
                 ,
                 as
                 to
                 which
                 ,
                 heirs
                 of
                 Tailzie
                 are
                 as
                 Creditors
                 and
                 Strangers
                 ;
                 as
                 when
                 the
                 security
                 of
                 a
                 Sum
                 was
                 by
                 way
                 of
                 Tailzie
                 payable
                 to
                 the
                 Creditor
                 and
                 the
                 heirs
                 of
                 his
                 Body
                 ,
                 which
                 failing
                 ,
                 to
                 a
                 Person
                 named
                 ,
                 his
                 heirs
                 and
                 Assigneys
                 whatsoever
                 ,
                 the
                 Creditor
                 being
                 oblieged
                 to
                 do
                 no
                 Deed
                 hurtful
                 to
                 the
                 Tailzie
                 ;
                 and
                 the
                 Debitor
                 oblieged
                 not
                 to
                 
                 pay
                 without
                 the
                 consent
                 of
                 the
                 Person
                 named
                 ,
                 that
                 Person
                 was
                 found
                 to
                 have
                 Interest
                 to
                 obtain
                 Declarator
                 that
                 the
                 sum
                 was
                 unwarrantably
                 payed
                 by
                 the
                 Debitor
                 ,
                 without
                 his
                 consent
                 or
                 order
                 of
                 Law
                 ,
                 by
                 consigning
                 it
                 to
                 be
                 imployed
                 in
                 the
                 same
                 terms
                 ,
                 and
                 therefore
                 ,
                 the
                 Debitor
                 was
                 ordained
                 to
                 make
                 up
                 the
                 Security
                 again
                 as
                 at
                 first
                 ,
                 reserving
                 to
                 Creditors
                 how
                 far
                 they
                 could
                 affect
                 this
                 Sum
                 for
                 the
                 first
                 Fiars
                 Debt
                 ;
                 or
                 whether
                 the
                 terms
                 of
                 the
                 Tailzie
                 would
                 exclude
                 the
                 Fiars
                 Debts
                 or
                 Deeds
                 for
                 his
                 necessary
                 use
                 ,
                 or
                 only
                 unnecessary
                 and
                 voluntary
                 Deeds
                 ,
                 Feb.
                 3
                 1674
                 ,
                 Drummond
                 contra
                 Drummond
                 .
                 And
                 in
                 like
                 manner
                 ,
                 a
                 Father
                 having
                 granted
                 two
                 Bonds
                 of
                 Provision
                 to
                 his
                 two
                 Daughters
                 payable
                 to
                 them
                 and
                 the
                 heirs
                 of
                 their
                 Body
                 ,
                 which
                 failing
                 ,
                 to
                 return
                 to
                 the
                 Father
                 and
                 his
                 heirs
                 ,
                 the
                 one
                 of
                 them
                 having
                 died
                 without
                 heirs
                 of
                 her
                 Body
                 ,
                 but
                 having
                 assigned
                 her
                 Bond
                 to
                 her
                 Sister
                 ,
                 the
                 Assignation
                 was
                 found
                 ineffectual
                 ,
                 as
                 being
                 done
                 on
                 design
                 to
                 disappoint
                 the
                 Tailzie
                 made
                 by
                 the
                 Father
                 of
                 the
                 return
                 of
                 the
                 Provision
                 ,
                 in
                 case
                 the
                 Daughters
                 had
                 no
                 Heirs
                 of
                 their
                 Bodies
                 ,
                 and
                 so
                 was
                 done
                 without
                 any
                 onerous
                 Cause
                 or
                 just
                 Consideration
                 ,
                 January
                 31.
                 1679.
                 
                 
                   Jean
                   Drummond
                
                 contra
                 Drummond
                 of
                 Rickertoun
                 .
              
               
                 19.
                 
                 And
                 likewise
                 heirs
                 of
                 Marriage
                 are
                 heirs
                 of
                 Provision
                 ,
                 and
                 partly
                 Creditors
                 ,
                 and
                 therefore
                 may
                 quarrel
                 Deeds
                 fraudulent
                 ,
                 or
                 meerly
                 gratuitous
                 ,
                 done
                 by
                 the
                 Defunct
                 whom
                 they
                 represent
                 in
                 prejudice
                 of
                 their
                 Provisions
                 ,
                 as
                 was
                 found
                 in
                 the
                 forementioned
                 Case
                 of
                 
                   Isobel
                   Baron
                
                 ,
                 observed
                 by
                 Craig
                 ,
                 who
                 being
                 heir
                 of
                 a
                 Marriage
                 ,
                 to
                 whom
                 all
                 Lands
                 conquest
                 during
                 the
                 Marriage
                 were
                 provided
                 ,
                 the
                 Father
                 having
                 disponed
                 a
                 Tenement
                 acquired
                 during
                 that
                 Marriage
                 to
                 his
                 eldest
                 Son
                 by
                 another
                 Marriage
                 ,
                 yet
                 that
                 heir
                 of
                 the
                 Marriage
                 did
                 recover
                 the
                 same
                 from
                 that
                 Son
                 ,
                 albeit
                 the
                 heir
                 of
                 the
                 Marriage
                 did
                 represent
                 her
                 Father
                 ,
                 and
                 yet
                 not
                 simply
                 ,
                 but
                 according
                 to
                 the
                 provision
                 by
                 the
                 Contract
                 of
                 Marriage
                 ,
                 which
                 being
                 an
                 onerous
                 Contract
                 ,
                 
                   uberrimae
                   fidei
                
                 ,
                 the
                 Father
                 Contracter
                 can
                 do
                 no
                 Deed
                 contrary
                 thereto
                 ,
                 but
                 upon
                 an
                 onerous
                 Cause
                 or
                 just
                 Consideration
                 ;
                 and
                 therefore
                 ,
                 if
                 he
                 sell
                 any
                 thing
                 falling
                 within
                 such
                 Provisions
                 ,
                 the
                 heir
                 of
                 Provision
                 cannot
                 quarrel
                 that
                 Stranger
                 ,
                 but
                 is
                 oblieged
                 to
                 fulfil
                 to
                 him
                 ,
                 but
                 might
                 quarrel
                 the
                 same
                 ,
                 if
                 it
                 were
                 meerly
                 gratuitous
                 ,
                 much
                 more
                 might
                 heirs
                 of
                 a
                 Marriage
                 quarrel
                 Deeds
                 prejudicial
                 to
                 their
                 Provision
                 in
                 favours
                 of
                 the
                 Children
                 of
                 other
                 Marriages
                 ,
                 without
                 which
                 ,
                 the
                 great
                 trust
                 of
                 these
                 Contracts
                 would
                 be
                 eluded
                 ,
                 whereupon
                 Parties
                 rely
                 and
                 make
                 Matches
                 and
                 give
                 Tochers
                 ;
                 and
                 therefore
                 take
                 Provisions
                 to
                 the
                 heirs
                 of
                 the
                 Marriage
                 ,
                 either
                 of
                 definite
                 Sums
                 ,
                 or
                 of
                 all
                 ,
                 or
                 a
                 part
                 that
                 the
                 Contracters
                 have
                 ,
                 or
                 shall
                 acquire
                 during
                 the
                 Marriage
                 ,
                 by
                 which
                 ,
                 the
                 whole
                 Estates
                 of
                 Citizens
                 are
                 ordinarily
                 conveyed
                 ;
                 or
                 otherwise
                 ,
                 Contracts
                 of
                 Marriage
                 bear
                 particular
                 Lands
                 ,
                 or
                 Sums
                 to
                 be
                 provided
                 to
                 the
                 heirs
                 or
                 Bairns
                 of
                 the
                 Marriage
                 ,
                 and
                 also
                 the
                 conquest
                 during
                 the
                 Marriage
                 ,
                 which
                 clause
                 of
                 Conquest
                 will
                 reach
                 only
                 to
                 what
                 the
                 Father
                 had
                 more
                 at
                 his
                 Death
                 then
                 the
                 time
                 of
                 the
                 Contract
                 ,
                 and
                 is
                 ordinary
                 both
                 in
                 the
                 Contracts
                 of
                 Citizens
                 and
                 others
                 ,
                 which
                 therefore
                 should
                 not
                 be
                 elusory
                 ,
                 but
                 effectual
                 ,
                 according
                 to
                 the
                 true
                 meaning
                 of
                 the
                 Parties
                 ,
                 which
                 is
                 not
                 to
                 bind
                 up
                 the
                 Father
                 that
                 he
                 cannot
                 do
                 Deeds
                 for
                 Causes
                 onerous
                 ,
                 or
                 rational
                 Considerations
                 ,
                 but
                 that
                 he
                 can
                 do
                 no
                 other
                 Deeds
                 meerly
                 gratuitous
                 and
                 arbitrary
                 in
                 prejudice
                 of
                 such
                 Provisions
                 :
                 for
                 though
                 by
                 such
                 Provisions
                 when
                 fulfilled
                 ,
                 he
                 himself
                 must
                 become
                 Fiar
                 ,
                 and
                 so
                 may
                 dispone
                 ,
                 yet
                 he
                 is
                 also
                 Debitor
                 ,
                 and
                 so
                 cannot
                 effectually
                 dispone
                 against
                 the
                 import
                 and
                 meaning
                 of
                 the
                 Provision
                 :
                 And
                 therefore
                 ,
                 a
                 Father
                 by
                 his
                 Contract
                 of
                 Marriage
                 having
                 provided
                 certain
                 Tenements
                 to
                 himself
                 ,
                 and
                 his
                 future
                 Spouse
                 in
                 Conjunct-fee
                 ,
                 and
                 to
                 the
                 Bairns
                 of
                 the
                 Marriage
                 ,
                 &c.
                 and
                 the
                 Wife
                 having
                 restricted
                 her self
                 to
                 the
                 half
                 of
                 the
                 Liferent
                 of
                 these
                 Tenements
                 ,
                 after
                 which
                 the
                 Father
                 having
                 Infeft
                 her
                 of
                 new
                 in
                 that
                 half
                 ,
                 the
                 
                 said
                 last
                 Infeftment
                 was
                 found
                 reducible
                 at
                 the
                 instance
                 of
                 the
                 Bairns
                 ,
                 as
                 heirs
                 of
                 the
                 Marriage
                 ,
                 and
                 that
                 they
                 were
                 not
                 oblieged
                 to
                 fulfil
                 their
                 Fathers
                 Deed
                 in
                 favours
                 of
                 their
                 Mother
                 ,
                 who
                 was
                 competently
                 provided
                 ,
                 in
                 respect
                 the
                 same
                 was
                 contrary
                 the
                 provision
                 in
                 the
                 Contract
                 of
                 Marriage
                 ,
                 July
                 10.
                 1677.
                 
                 Carnagie
                 and
                 Clark
                 contra
                 Smith
                 and
                 Baird
                 .
                 Yea
                 ,
                 a
                 Father
                 by
                 his
                 Contract
                 of
                 Marriage
                 having
                 provided
                 a
                 definite
                 Sum
                 to
                 the
                 eldest
                 heir
                 Female
                 of
                 the
                 Marriage
                 ,
                 and
                 thereafter
                 having
                 disponed
                 his
                 Estate
                 to
                 her
                 ,
                 she
                 marrying
                 a
                 Person
                 that
                 would
                 assume
                 his
                 Name
                 and
                 Arms
                 ,
                 wherein
                 if
                 she
                 failzied
                 ,
                 providing
                 the
                 same
                 to
                 his
                 second
                 Daughter
                 upon
                 the
                 same
                 terms
                 ,
                 &c.
                 the
                 said
                 eldest
                 Daughter
                 having
                 married
                 suteably
                 before
                 she
                 knew
                 that
                 Disposition
                 ,
                 and
                 her
                 husband
                 refusing
                 to
                 take
                 her
                 Name
                 ,
                 she
                 was
                 found
                 to
                 have
                 Right
                 to
                 take
                 her
                 to
                 her
                 Portion
                 by
                 her
                 Mothers
                 Contract
                 ,
                 and
                 so
                 the
                 Right
                 of
                 her
                 Fathers
                 Estate
                 was
                 divolved
                 to
                 her
                 second
                 Sister
                 ,
                 upon
                 the
                 terms
                 therein
                 contained
                 ,
                 who
                 was
                 found
                 lyable
                 to
                 pay
                 the
                 Provision
                 to
                 her
                 eldest
                 Sister
                 ,
                 contained
                 in
                 her
                 Mothers
                 Contract
                 ,
                 July
                 26.
                 1677.
                 
                 
                   John
                   Stevinson
                
                 contra
                 
                   Marion
                   Stevinson
                
                 .
                 But
                 these
                 Provisions
                 do
                 not
                 hinder
                 just
                 and
                 rational
                 Deeds
                 of
                 the
                 Father
                 ,
                 as
                 providing
                 a
                 Joynture
                 for
                 a
                 posterior
                 Wife
                 ,
                 as
                 was
                 found
                 in
                 the
                 Case
                 of
                 
                   Katharine
                   Mitchel
                
                 contra
                 the
                 heirs
                 of
                 
                   Thomas
                   〈◊〉
                   ,
                   June
                
                 16.
                 1676.
                 
                 Nor
                 will
                 they
                 hinder
                 Fathers
                 to
                 provide
                 Children
                 of
                 an
                 other
                 Marriage
                 with
                 competent
                 Provisions
                 according
                 to
                 his
                 condition
                 ,
                 though
                 thereby
                 the
                 conquest
                 during
                 the
                 Marriage
                 will
                 be
                 affected
                 ;
                 Yea
                 ,
                 where
                 in
                 a
                 Contract
                 of
                 Marriage
                 ,
                 the
                 Husbands
                 present
                 Means
                 ,
                 and
                 the
                 Wifes
                 Tocher
                 ,
                 were
                 provided
                 to
                 be
                 imployed
                 for
                 the
                 Man
                 and
                 Wife
                 in
                 Liferent
                 ,
                 whilks
                 failing
                 ,
                 the
                 one
                 half
                 to
                 the
                 Mans
                 heir
                 ,
                 and
                 the
                 other
                 half
                 to
                 the
                 Womans
                 heir
                 .
                 There
                 being
                 no
                 Bairns
                 of
                 the
                 Marriage
                 ,
                 the
                 Husband
                 was
                 not
                 found
                 lyable
                 to
                 imploy
                 that
                 Sum
                 ,
                 and
                 the
                 conquest
                 in
                 favours
                 of
                 himself
                 and
                 the
                 Wifes
                 heirs
                 ,
                 but
                 that
                 he
                 might
                 imploy
                 the
                 whole
                 in
                 favours
                 of
                 the
                 Child
                 he
                 had
                 by
                 a
                 posterior
                 Marriage
                 ,
                 December
                 21.
                 1680.
                 
                 Bailiff
                 Anderson
                 contra
                 
                   Andrew
                   Bruce
                
                 .
              
               
                 20.
                 
                 The
                 exception
                 that
                 all
                 Parties
                 having
                 Interest
                 are
                 not
                 called
                 ,
                 will
                 be
                 sufficient
                 to
                 sist
                 Process
                 against
                 such
                 Heirs
                 as
                 have
                 the
                 benefite
                 of
                 discussion
                 ,
                 without
                 necessity
                 to
                 condescend
                 or
                 instruct
                 any
                 Right
                 they
                 may
                 succeed
                 to
                 ,
                 January
                 24.
                 1667.
                 
                 Laird
                 of
                 Luss
                 and
                 Glendening
                 contra
                 Earl
                 of
                 Nithsdale
                 .
              
               
                 21.
                 
                 But
                 the
                 exception
                 of
                 the
                 order
                 of
                 discussing
                 will
                 not
                 be
                 sustained
                 ,
                 unless
                 the
                 Defender
                 condescend
                 on
                 ,
                 and
                 clear
                 an
                 Heritage
                 ,
                 to
                 which
                 the
                 anterior
                 heir
                 may
                 succeed
                 ,
                 which
                 being
                 a
                 Dilator
                 ,
                 must
                 be
                 instantly
                 verified
                 ,
                 as
                 where
                 it
                 is
                 notour
                 ;
                 and
                 where
                 that
                 cannot
                 be
                 ,
                 sometimes
                 Process
                 will
                 be
                 sustained
                 against
                 both
                 heirs
                 of
                 Line
                 and
                 of
                 Tailzie
                 together
                 ,
                 superceding
                 Execution
                 against
                 the
                 heirs
                 Male
                 or
                 of
                 Tailzie
                 ,
                 till
                 the
                 heir
                 of
                 Line
                 were
                 discuss'd
                 ,
                 July
                 13.
                 1626.
                 
                 Edgar
                 contra
                 Heirs
                 of
                 Craigmiller
                 .
                 And
                 heirs
                 of
                 Line
                 and
                 Provision
                 being
                 pursued
                 joyntly
                 ,
                 the
                 heir
                 of
                 Line
                 renouncing
                 ,
                 was
                 assoilied
                 and
                 Protestation
                 admitted
                 for
                 Adjudication
                 against
                 the
                 heir
                 of
                 Line
                 ,
                 which
                 the
                 Pursuer
                 was
                 ordained
                 to
                 assign
                 to
                 the
                 heir
                 of
                 Provision
                 ,
                 and
                 was
                 not
                 found
                 oblieged
                 further
                 to
                 discuss
                 the
                 heir
                 of
                 Line
                 ,
                 or
                 to
                 put
                 him
                 to
                 his
                 Oath
                 upon
                 any
                 other
                 passive
                 Title
                 ,
                 seing
                 the
                 heir
                 of
                 Provision
                 required
                 not
                 the
                 same
                 ,
                 when
                 the
                 heir
                 of
                 Line
                 renounced
                 ,
                 nor
                 shew
                 any
                 visible
                 Estate
                 which
                 might
                 befall
                 to
                 the
                 heir
                 of
                 Line
                 ,
                 June
                 22.
                 1678.
                 
                 
                   Thomas
                   Crawford
                
                 contra
                 the
                 heirs
                 of
                 the
                 Laird
                 of
                 Rater
                 .
                 The
                 question
                 is
                 here
                 ,
                 what
                 is
                 meaned
                 by
                 discussing
                 ,
                 which
                 is
                 not
                 understood
                 by
                 that
                 heirs
                 renouncing
                 to
                 be
                 heir
                 ?
                 July
                 26.
                 1622.
                 
                 Cowan
                 contra
                 Murray
                 ,
                 but
                 in
                 that
                 Case
                 the
                 renounced
                 Heritage
                 must
                 be
                 adjudged
                 .
                 Discussing
                 therefore
                 ,
                 is
                 by
                 Horning
                 ,
                 Caption
                 ,
                 and
                 Apprising
                 ,
                 March
                 22.
                 1627.
                 
                 Edgar
                 contra
                 Heirs
                 of
                 Craigmiller
                 ;
                 or
                 otherwise
                 by
                 Adjudication
                 ,
                 in
                 case
                 the
                 heirs
                 
                 renounce
                 ,
                 by
                 alledging
                 his
                 behaving
                 as
                 heir
                 ,
                 was
                 found
                 in
                 the
                 foresaid
                 Case
                 ,
                 Cleghorn
                 contra
                 Fairlie
                 .
                 This
                 passive
                 succession
                 of
                 heirs
                 in
                 their
                 Predecessors
                 Debts
                 and
                 Obliegments
                 ,
                 making
                 them
                 personally
                 lyable
                 thereto
                 ,
                 befalleth
                 in
                 three
                 Cases
                 .
                 First
                 ,
                 When
                 the
                 Heir
                 is
                 entered
                 heir
                 .
                 2.
                 
                 When
                 he
                 is
                 not
                 entered
                 ,
                 but
                 immixeth
                 himself
                 by
                 medling
                 himself
                 as
                 heir
                 ,
                 or
                 becoming
                 lucrative
                 Successor
                 ,
                 after
                 the
                 Debt
                 contracted
                 .
                 3.
                 
                 When
                 the
                 Heir
                 is
                 lawfully
                 charged
                 to
                 enter
                 Heir
                 ,
                 though
                 he
                 hath
                 neither
                 entered
                 nor
                 medled
                 ,
                 if
                 he
                 do
                 not
                 renounce
                 ,
                 he
                 is
                 personally
                 oblieged
                 ;
                 and
                 if
                 he
                 do
                 renounce
                 ,
                 his
                 Person
                 and
                 proper
                 Estate
                 is
                 free
                 ,
                 and
                 only
                 the
                 Heretage
                 is
                 lyable
                 ,
                 and
                 the
                 Creditor
                 hath
                 Action
                 
                   contra
                   haereditatem
                   jacentem
                
                 .
                 The
                 first
                 Case
                 is
                 most
                 ordinary
                 and
                 orderly
                 ,
                 the
                 second
                 inferreth
                 the
                 vitious
                 passive
                 Titles
                 ,
                 
                   Gestionem
                   pro
                   haerede
                
                 ,
                 or
                 
                   Preceptionem
                   haereditatis
                
                 :
                 of
                 which
                 in
                 the
                 ensuing
                 Titles
                 .
                 Let
                 us
                 here
                 consider
                 ,
                 first
                 ,
                 the
                 Charge
                 to
                 enter
                 Heir
                 ,
                 which
                 is
                 antecedent
                 to
                 the
                 Entry
                 ;
                 and
                 then
                 the
                 Entry
                 of
                 Heirs
                 it self
                 .
              
               
                 22.
                 
                 The
                 Charge
                 to
                 enter
                 Heir
                 ,
                 is
                 founded
                 upon
                 the
                 Act
                 of
                 Parliament
                 ,
                 1540.
                 cap.
                 106.
                 and
                 it
                 is
                 of
                 two
                 kinds
                 ;
                 a
                 general
                 Charge
                 ,
                 and
                 a
                 special
                 Charge
                 :
                 The
                 general
                 Charge
                 to
                 enter
                 Heir
                 proceedeth
                 thus
                 ;
                 the
                 Creditor
                 ,
                 upon
                 Supplication
                 ,
                 without
                 Citation
                 ,
                 obtaineth
                 from
                 the
                 Lords
                 of
                 Course
                 ,
                 Letters
                 passing
                 under
                 the
                 Signet
                 ,
                 to
                 charge
                 the
                 Party
                 complained
                 upon
                 to
                 enter
                 heir
                 ,
                 to
                 the
                 Compleaners
                 Defunct
                 Debitor
                 ,
                 within
                 40
                 days
                 after
                 the
                 execution
                 of
                 the
                 Charge
                 ,
                 with
                 Certification
                 if
                 he
                 enter
                 not
                 ,
                 such
                 Process
                 will
                 be
                 granted
                 against
                 him
                 ,
                 as
                 if
                 he
                 were
                 actually
                 entered
                 Heir
                 :
                 The
                 reason
                 of
                 this
                 Charge
                 with
                 us
                 ,
                 is
                 ,
                 because
                 Heirs
                 are
                 not
                 lyable
                 passive
                 ,
                 if
                 they
                 enter
                 not
                 ,
                 nor
                 immix
                 themselves
                 in
                 the
                 Heretage
                 ;
                 and
                 therefore
                 ,
                 that
                 the
                 Creditor
                 may
                 not
                 ly
                 out
                 beyond
                 the
                 Year
                 and
                 Day
                 granted
                 to
                 Heirs
                 to
                 deliberate
                 ,
                 the
                 Law
                 hath
                 introduced
                 this
                 remeid
                 ,
                 that
                 the
                 Creditor
                 may
                 charge
                 the
                 Debitors
                 appearand
                 Heir
                 to
                 enter
                 ,
                 whereupon
                 he
                 hath
                 personal
                 Action
                 against
                 him
                 ,
                 if
                 he
                 renounce
                 not
                 ,
                 and
                 thereupon
                 may
                 reach
                 not
                 only
                 his
                 Heretage
                 ,
                 but
                 his
                 own
                 proper
                 Goods
                 belonging
                 to
                 him
                 aliunde
                 ;
                 and
                 if
                 he
                 renounce
                 ,
                 he
                 hath
                 Action
                 
                   contra
                   haereditatem
                   jacentem
                
                 .
              
               
                 The
                 general
                 Charge
                 to
                 enter
                 Heir
                 ,
                 may
                 be
                 execute
                 against
                 the
                 appearand
                 Heir
                 ,
                 after
                 the
                 Defuncts
                 death
                 ,
                 even
                 within
                 the
                 
                   annus
                   deliberandi
                
                 ;
                 but
                 the
                 Summonds
                 thereupon
                 ,
                 must
                 be
                 after
                 the
                 Year
                 and
                 day
                 expired
                 ,
                 not
                 only
                 from
                 the
                 Defuncts
                 death
                 ,
                 but
                 from
                 the
                 Heirs
                 〈◊〉
                 ,
                 if
                 he
                 be
                 
                   posthumus
                   ,
                   Spots
                
                 .
                 Heirs
                 of
                 Livingston
                 contra
                 Fullertoun
                 ;
                 and
                 therefore
                 a
                 Summonds
                 execute
                 after
                 Year
                 and
                 Day
                 expired
                 ,
                 upon
                 a
                 Charge
                 to
                 enter
                 Heir
                 within
                 the
                 Year
                 ,
                 was
                 sustained
                 ,
                 June
                 19.
                 1628.
                 
                 
                   David
                   Maculloch
                
                 contra
                 Marshal
                 and
                 
                   Reid
                   .
                   July
                
                 10.
                 1610.
                 
                 
                   Neil
                   Montgomery
                
                 eontra
                 Laird
                 of
                 Langshaw
                 .
                 There
                 is
                 also
                 an
                 Act
                 of
                 Sedorunt
                 in
                 Anno
                 1613.
                 allowing
                 general
                 Charges
                 to
                 enter
                 Heir
                 within
                 the
                 Year
                 and
                 Day
                 ,
                 or
                 within
                 the
                 days
                 of
                 the
                 Charge
                 ,
                 if
                 the
                 Heir
                 renounce
                 and
                 omit
                 that
                 Defence
                 ,
                 the
                 Decreet
                 
                   Cognitionis
                   causa
                
                 ,
                 and
                 Adjudication
                 thereupon
                 ,
                 werefound
                 valid
                 ,
                 and
                 that
                 alledgance
                 proponed
                 by
                 another
                 Creditor
                 ,
                 was
                 repelled
                 ;
                 because
                 it
                 was
                 free
                 to
                 the
                 Heir
                 as
                 well
                 to
                 renounce
                 when
                 he
                 pleased
                 ,
                 as
                 to
                 enter
                 when
                 he
                 pleased
                 ,
                 July
                 10.
                 1631.
                 
                 Blair
                 contra
                 Broun
                 ;
                 but
                 it
                 is
                 like
                 the
                 posterior
                 Creditor
                 hath
                 been
                 negligent
                 ,
                 otherwise
                 that
                 
                   prae
                   natura
                   diligentia
                
                 of
                 pursuing
                 and
                 renouncing
                 within
                 the
                 Year
                 ,
                 would
                 have
                 been
                 accounted
                 collusive
                 and
                 fraudulent
                 ,
                 and
                 so
                 would
                 not
                 prejudge
                 the
                 other
                 Creditor
                 doing
                 diligence
                 in
                 the
                 ordinary
                 way
                 .
              
               
                 General
                 charges
                 to
                 enter
                 Heir
                 ,
                 do
                 evanish
                 as
                 incompleat
                 diligences
                 ,
                 if
                 the
                 Party
                 charged
                 die
                 before
                 Litiscontestation
                 or
                 Sentence
                 ;
                 and
                 though
                 the
                 fourty
                 
                 days
                 be
                 expired
                 before
                 the
                 death
                 of
                 the
                 Party
                 charged
                 ,
                 yet
                 the
                 Charge
                 useth
                 not
                 to
                 be
                 transferred
                 or
                 made
                 use
                 of
                 against
                 any
                 subsequent
                 Heir
                 apparant
                 ,
                 but
                 it
                 is
                 not
                 consequent
                 that
                 if
                 the
                 Charger
                 die
                 before
                 Litiscontestation
                 or
                 Sentence
                 ,
                 that
                 the
                 same
                 should
                 also
                 become
                 void
                 ,
                 because
                 the
                 Charger
                 doth
                 not
                 necessitate
                 the
                 Party
                 charged
                 to
                 enter
                 or
                 renounce
                 in
                 favours
                 of
                 the
                 Chargers
                 heirs
                 ,
                 but
                 of
                 himself
                 .
                 And
                 it
                 was
                 found
                 ,
                 that
                 an
                 Assigny
                 might
                 insist
                 upon
                 a
                 Charge
                 at
                 the
                 Cedents
                 instance
                 ,
                 after
                 the
                 Cedents
                 death
                 ,
                 though
                 nothing
                 followed
                 thereupon
                 during
                 his
                 life
                 ,
                 June
                 18.
                 1631.
                 
                 Prior
                 of
                 Archattan
                 concra
                 Captain
                 of
                 Clanronnald
                 .
              
               
                 23.
                 
                 A
                 special
                 Charge
                 to
                 enter
                 Heir
                 ,
                 differeth
                 from
                 the
                 general
                 Charge
                 in
                 this
                 ,
                 That
                 the
                 general
                 Charge
                 is
                 in
                 lieu
                 of
                 the
                 general
                 Service
                 :
                 for
                 thereby
                 the
                 Creditor
                 reacheth
                 the
                 Person
                 of
                 the
                 apparant
                 heir
                 of
                 his
                 Debitor
                 ,
                 and
                 his
                 Estate
                 or
                 Goods
                 established
                 in
                 his
                 person
                 ,
                 unless
                 he
                 renounce
                 :
                 and
                 so
                 the
                 general
                 Charge
                 is
                 the
                 ground
                 of
                 Process
                 and
                 Decreet
                 for
                 Payment
                 .
                 But
                 thereby
                 the
                 Creditor
                 cannot
                 reach
                 the
                 Lands
                 and
                 Annualrents
                 ,
                 which
                 are
                 not
                 as
                 yet
                 established
                 in
                 the
                 Person
                 of
                 the
                 apparant
                 heir
                 ,
                 he
                 not
                 being
                 specially
                 served
                 thereto
                 ,
                 or
                 infeft
                 therein
                 .
                 And
                 therefore
                 ,
                 that
                 the
                 Creditor
                 may
                 reach
                 these
                 ,
                 he
                 must
                 use
                 a
                 special
                 Charge
                 ,
                 which
                 supplieth
                 the
                 special
                 Service
                 and
                 Eutry
                 .
              
               
                 This
                 special
                 Charge
                 ,
                 though
                 it
                 proceedeth
                 upon
                 Supplication
                 without
                 Citation
                 ,
                 yet
                 it
                 must
                 be
                 upon
                 production
                 of
                 a
                 Decreet
                 at
                 the
                 Creditors
                 instance
                 ,
                 not
                 only
                 
                   cognitiònis
                   causâ
                
                 ,
                 but
                 for
                 performance
                 .
                 And
                 it
                 is
                 competent
                 in
                 two
                 Cases
                 :
                 First
                 ,
                 upon
                 the
                 proper
                 Debt
                 of
                 the
                 Party
                 to
                 be
                 charged
                 .
                 For
                 if
                 the
                 Debitor
                 be
                 unentered
                 to
                 some
                 of
                 his
                 Predecessors
                 ,
                 and
                 so
                 their
                 Rights
                 not
                 established
                 in
                 his
                 Person
                 ;
                 in
                 that
                 Case
                 the
                 Creditor
                 must
                 charge
                 his
                 own
                 Debitor
                 specially
                 to
                 enter
                 heir
                 in
                 the
                 Rights
                 competent
                 to
                 him
                 by
                 that
                 Predecessor
                 ,
                 with
                 certification
                 if
                 he
                 enter
                 not
                 ,
                 the
                 Creditor
                 shall
                 have
                 such
                 Process
                 and
                 Execution
                 against
                 that
                 Land
                 and
                 heretage
                 to
                 which
                 he
                 might
                 enter
                 ,
                 as
                 if
                 he
                 were
                 actually
                 entered
                 therein
                 :
                 whereupon
                 Apprising
                 doth
                 proceed
                 .
                 In
                 this
                 Case
                 there
                 is
                 no
                 necessity
                 of
                 an
                 antecedent
                 general
                 Charge
                 ,
                 which
                 only
                 is
                 used
                 to
                 the
                 effect
                 that
                 the
                 Debt
                 may
                 be
                 established
                 in
                 the
                 Person
                 of
                 the
                 Debitors
                 apparant
                 heir
                 passivè
                 ,
                 by
                 a
                 Decreet
                 upon
                 the
                 general
                 Charge
                 .
                 The
                 other
                 Case
                 is
                 ,
                 when
                 the
                 Debt
                 is
                 not
                 the
                 proper
                 Debt
                 of
                 the
                 Party
                 charged
                 ,
                 but
                 of
                 some
                 Predecessor
                 to
                 whom
                 he
                 may
                 be
                 heir
                 :
                 in
                 which
                 Case
                 the
                 Debt
                 must
                 first
                 be
                 〈◊〉
                 against
                 him
                 passive
                 ,
                 and
                 then
                 followeth
                 the
                 special
                 Charge
                 .
                 In
                 this
                 Case
                 the
                 special
                 Charge
                 cannot
                 be
                 till
                 after
                 Year
                 and
                 day
                 ,
                 because
                 it
                 presupposeth
                 not
                 only
                 the
                 Summons
                 ,
                 but
                 also
                 the
                 Sentence
                 upon
                 the
                 general
                 Charge
                 ,
                 both
                 which
                 must
                 be
                 after
                 Year
                 and
                 Day
                 .
                 When
                 the
                 Debt
                 is
                 the
                 proper
                 Debt
                 of
                 the
                 Party
                 charged
                 ,
                 if
                 the
                 special
                 Charge
                 may
                 not
                 be
                 at
                 any
                 time
                 ,
                 even
                 within
                 Year
                 and
                 Day
                 ,
                 or
                 if
                 it
                 must
                 be
                 after
                 the
                 
                   annus
                   deliberandi
                
                 ?
                 This
                 makes
                 for
                 the
                 Negative
                 ,
                 That
                 it
                 needs
                 not
                 abide
                 the
                 Year
                 of
                 Deliberation
                 ,
                 because
                 the
                 intent
                 of
                 the
                 Deliberation
                 ,
                 is
                 not
                 so
                 much
                 whether
                 the
                 Party
                 charged
                 will
                 be
                 heir
                 ,
                 as
                 whether
                 he
                 will
                 personally
                 subject
                 himself
                 to
                 the
                 ground
                 of
                 that
                 Charge
                 ,
                 For
                 albeit
                 he
                 renounce
                 not
                 ,
                 it
                 will
                 not
                 make
                 him
                 lyable
                 to
                 any
                 of
                 the
                 Defuncts
                 Debts
                 ,
                 except
                 it
                 be
                 by
                 his
                 fraud
                 and
                 collusion
                 with
                 one
                 Creditor
                 in
                 prejudice
                 of
                 another
                 .
                 And
                 therefore
                 seing
                 he
                 cannot
                 deliberate
                 ,
                 whether
                 he
                 will
                 be
                 subject
                 to
                 his
                 own
                 Debt
                 ,
                 he
                 ought
                 not
                 to
                 have
                 the
                 benefite
                 ofYear
                 and
                 Day
                 before
                 the
                 special
                 Charge
                 be
                 effectual
                 .
                 Yet
                 before
                 the
                 late
                 Act
                 preferring
                 the
                 diligence
                 of
                 the
                 Defuncts
                 Creditors
                 to
                 the
                 heirs
                 proper
                 Creditors
                 ,
                 there
                 was
                 no
                 reason
                 to
                 allow
                 special
                 Charges
                 for
                 the
                 apparant
                 heirs
                 own
                 Debt
                 ,
                 but
                 more
                 summar
                 Execution
                 than
                 other
                 Charges
                 so
                 to
                 prefer
                 the
                 apparent
                 heirs
                 proper
                 Creditors
                 to
                 be
                 Heir
                 .
              
               
               
                 The
                 Act
                 of
                 Parliament
                 ,
                 which
                 is
                 the
                 ground
                 of
                 the
                 Charge
                 to
                 enter
                 Heir
                 ,
                 and
                 is
                 only
                 the
                 rise
                 of
                 the
                 special
                 Charge
                 ,
                 insinuates
                 an
                 Exception
                 ,
                 if
                 the
                 heir
                 be
                 major
                 :
                 But
                 the
                 custom
                 of
                 the
                 Lords
                 hath
                 introduced
                 the
                 general
                 Charge
                 to
                 constitute
                 the
                 Debt
                 ,
                 and
                 allows
                 both
                 Charges
                 against
                 minors
                 .
              
               
                 There
                 is
                 no
                 necessity
                 either
                 of
                 a
                 general
                 or
                 special
                 Charge
                 ,
                 as
                 to
                 real
                 Actions
                 ,
                 which
                 may
                 proceed
                 against
                 apparant
                 heirs
                 ;
                 as
                 poynding
                 of
                 the
                 Ground
                 ,
                 January
                 2.
                 1667.
                 
                 Oliphant
                 contra
                 Hamilton
                 .
                 Neither
                 in
                 Declarators
                 or
                 Reductions
                 .
              
               
                 24.
                 
                 The
                 remedy
                 against
                 both
                 Charges
                 to
                 be
                 heir
                 ,
                 is
                 a
                 Renounciation
                 to
                 be
                 heir
                 ,
                 whereby
                 the
                 Renouncers
                 Person
                 and
                 his
                 proper
                 Estate
                 ,
                 will
                 not
                 be
                 lyable
                 for
                 his
                 Predecessors
                 Debt
                 ,
                 but
                 only
                 his
                 Predecessors
                 heretage
                 .
                 This
                 Renounciation
                 useth
                 to
                 be
                 offered
                 by
                 way
                 of
                 Exception
                 in
                 the
                 Process
                 upon
                 the
                 general
                 Charge
                 :
                 and
                 if
                 the
                 Defender
                 be
                 not
                 absent
                 ,
                 it
                 is
                 not
                 ordinarily
                 admitted
                 by
                 Suspension
                 ,
                 except
                 in
                 favour
                 of
                 Minors
                 :
                 who
                 though
                 being
                 apparant
                 heirs
                 they
                 take
                 a
                 day
                 to
                 Renounce
                 and
                 fail
                 therein
                 ,
                 yet
                 they
                 will
                 be
                 restored
                 against
                 the
                 same
                 by
                 Suspension
                 ,
                 without
                 Reduction
                 ,
                 January
                 25.
                 1628.
                 
                 Kennedy
                 contra
                 
                   Mackdougal
                   .
                   Spots
                   .
                   Minors
                   ,
                   Nisbet
                
                 contra
                 Nisbet
                 .
                 But
                 if
                 the
                 Minority
                 were
                 controverse
                 ,
                 and
                 not
                 instantly
                 verefied
                 ,
                 it
                 must
                 be
                 by
                 Reduction
                 ,
                 
                   Spots
                   .
                   Minors
                
                 ,
                 Mr.
                 
                   Thomas
                   Craig
                
                 Advocat
                 
                   contra
                   Cockburn
                
                 .
              
               
                 Renounciation
                 to
                 be
                 Heir
                 ,
                 was
                 admitted
                 
                   rebus
                   integris
                
                 ,
                 though
                 the
                 Decreet
                 and
                 Charge
                 were
                 six
                 years
                 before
                 ,
                 July
                 20.
                 1626.
                 
                 Harvie
                 contra
                 Baron
                 .
                 Yea
                 it
                 was
                 admitted
                 ,
                 though
                 there
                 was
                 an
                 Adjudication
                 ,
                 and
                 the
                 Decreet
                 supsended
                 ,
                 which
                 was
                 declared
                 to
                 stand
                 ,
                 and
                 the
                 apparant
                 heirs
                 Person
                 and
                 proper
                 Estate
                 were
                 only
                 freed
                 .
                 
                   Spots
                   .
                   Restitution
                   in
                   integrim
                   ,
                   John
                   Oliphant
                
                 contra
                 Mr.
                 
                   William
                   Blackburn
                
                 .
                 A
                 Renounciation
                 to
                 be
                 heir
                 was
                 not
                 admitted
                 with
                 this
                 quality
                 ,
                 Excepting
                 to
                 the
                 Renouncer
                 certain
                 Lands
                 whereinto
                 he
                 was
                 appointed
                 to
                 be
                 infeft
                 by
                 his
                 Fathers
                 Contract
                 of
                 Marriage
                 ,
                 and
                 whereupon
                 Inhibition
                 was
                 used
                 before
                 contracting
                 of
                 the
                 Chargers
                 Debt
                 ,
                 to
                 the
                 effect
                 he
                 might
                 enter
                 heir
                 to
                 those
                 Lands
                 ,
                 January
                 23.
                 1627.
                 
                 Lady
                 Ogilvy
                 contra
                 Lord
                 Ogilvy
                 .
                 But
                 in
                 the
                 like
                 Case
                 ,
                 Hope
                 Inhibition
                 ,
                 
                   Donald
                   Thorntoun
                
                 contra
                 
                   Bailzie
                   ,
                   June
                
                 15.
                 1615.
                 and
                 the
                 like
                 ,
                 November
                 30.
                 1620.
                 
                 Adamson
                 contra
                 Hamiltoun
                 ,
                 the
                 apparant
                 heir
                 was
                 suffered
                 to
                 renounce
                 to
                 be
                 heir
                 to
                 his
                 Goodsire
                 ,
                 except
                 as
                 to
                 those
                 Lands
                 which
                 his
                 Goodsire
                 had
                 disponed
                 to
                 his
                 Father
                 in
                 his
                 Contract
                 of
                 Marriage
                 ,
                 whereupon
                 Inhibition
                 was
                 used
                 :
                 which
                 the
                 Lords
                 found
                 a
                 singular
                 Title
                 consistent
                 with
                 a
                 Renounciation
                 of
                 the
                 heretage
                 
                   ex
                   titulo
                   universali
                
                 .
              
               
                 The
                 Exception
                 upon
                 Renounciation
                 to
                 be
                 heir
                 ,
                 is
                 elided
                 ,
                 If
                 the
                 Defuncts
                 Estate
                 be
                 burthened
                 with
                 the
                 heirs
                 proper
                 Debt
                 :
                 whichis
                 taken
                 off
                 by
                 the
                 duply
                 of
                 purging
                 the
                 same
                 :
                 as
                 appears
                 in
                 the
                 Decisions
                 before
                 adduced
                 .
                 The
                 said
                 Exception
                 is
                 also
                 elided
                 by
                 the
                 Reply
                 ,
                 As
                 behaving
                 as
                 heir
                 ,
                 albeit
                 the
                 same
                 were
                 libelled
                 as
                 a
                 several
                 passive
                 Title
                 ,
                 March
                 18.
                 1631.
                 
                 
                   Reguel
                   Bennet
                
                 contra
                 Bennet
                 .
              
               
                 25.
                 
                 The
                 Entry
                 of
                 Heirs
                 ,
                 is
                 either
                 of
                 heirs
                 general
                 ,
                 or
                 heirs
                 special
                 .
                 The
                 former
                 requires
                 only
                 a
                 general
                 Service
                 ,
                 which
                 is
                 necessary
                 to
                 all
                 heirs
                 ,
                 except
                 heirs
                 in
                 Tacks
                 ,
                 Pensions
                 ,
                 and
                 heirs
                 nominatim
                 ,
                 immediately
                 substitute
                 in
                 Bands
                 .
                 But
                 heirs
                 of
                 Tailzie
                 or
                 Provision
                 must
                 be
                 served
                 ,
                 that
                 it
                 may
                 appear
                 that
                 the
                 heirs
                 to
                 whom
                 they
                 are
                 substitute
                 are
                 failed
                 .
                 And
                 therefore
                 the
                 only
                 Child
                 of
                 a
                 Marriage
                 was
                 found
                 to
                 have
                 no
                 title
                 to
                 pursue
                 Implement
                 of
                 the
                 Contract
                 of
                 Marriage
                 ,
                 till
                 he
                 was
                 served
                 heir
                 of
                 the
                 Marriage
                 ,
                 July
                 21.
                 1676.
                 
                 Hay
                 of
                 
                 Drumelzier
                 contra
                 Earl
                 of
                 Tweeddale
                 .
                 The
                 general
                 proceedeth
                 thus
                 ,
                 a
                 Brieve
                 is
                 taken
                 out
                 of
                 the
                 Chancery
                 of
                 course
                 ,
                 without
                 Citation
                 or
                 Supplication
                 ,
                 for
                 serving
                 such
                 a
                 Person
                 nearest
                 and
                 lawful
                 heir
                 to
                 such
                 a
                 Defunct
                 .
                 It
                 may
                 be
                 directed
                 to
                 any
                 Judge
                 ordinar
                 at
                 the
                 Parties
                 option
                 ,
                 albeit
                 the
                 Defunct
                 nor
                 the
                 heir
                 never
                 lived
                 within
                 that
                 Jurisdiction
                 ,
                 March
                 6.
                 1630.
                 the
                 Laird
                 of
                 Caskiben
                 Supplicant
                 .
              
               
                 The
                 Lords
                 may
                 in
                 Cases
                 where
                 an
                 ancient
                 or
                 important
                 Service
                 is
                 required
                 ,
                 choose
                 the
                 Judge
                 most
                 fitting
                 for
                 the
                 Affair
                 .
                 And
                 when
                 Brieves
                 pass
                 of
                 course
                 ,
                 they
                 are
                 obtained
                 to
                 any
                 Judge
                 desired
                 .
                 But
                 they
                 are
                 easily
                 Advocat
                 ,
                 and
                 remitted
                 to
                 the
                 Macers
                 ,
                 with
                 Assessors
                 in
                 cases
                 of
                 difficulty
                 .
              
               
                 The
                 tenor
                 of
                 the
                 Brieve
                 ,
                 is
                 by
                 way
                 of
                 Precept
                 from
                 the
                 King
                 to
                 the
                 Judge
                 ,
                 To
                 enquire
                 
                   per
                   probos
                   &
                   fideles
                   homines
                   patriae
                   ,
                
                 That
                 such
                 a
                 Person
                 died
                 at
                 the
                 Faith
                 and
                 Peace
                 of
                 our
                 Soveraign
                 Lord
                 :
                 And
                 that
                 the
                 user
                 of
                 the
                 Brieve
                 ,
                 is
                 the
                 nearest
                 and
                 lawful
                 heir
                 .
                 So
                 this
                 Brieve
                 ,
                 hath
                 only
                 these
                 two
                 heads
                 .
                 And
                 thus
                 not
                 only
                 Heirs
                 of
                 Line
                 may
                 be
                 served
                 generally
                 ,
                 but
                 also
                 Heirs
                 of
                 Conquest
                 ,
                 being
                 to
                 Succeed
                 to
                 Reversions
                 ,
                 heretable
                 Bonds
                 ,
                 or
                 the
                 like
                 Rights
                 ,
                 not
                 having
                 an
                 Infeftment
                 ,
                 or
                 requiring
                 a
                 special
                 Service
                 :
                 Hope
                 Succession
                 ,
                 Earle
                 of
                 Dumbar's
                 Heirs
                 .
                 And
                 no
                 doubt
                 ,
                 Heirs
                 Male
                 may
                 be
                 served
                 generally
                 ,
                 that
                 they
                 may
                 succeed
                 to
                 the
                 like
                 Rights
                 which
                 may
                 be
                 conceived
                 in
                 their
                 Favour
                 ,
                 and
                 whereunto
                 they
                 can
                 have
                 no
                 other
                 Access
                 .
                 And
                 for
                 the
                 same
                 reason
                 ,
                 Heirs
                 of
                 a
                 Marriage
                 may
                 also
                 be
                 served
                 ,
                 and
                 Heirs
                 of
                 Provision
                 in
                 Bands
                 .
              
               
                 General
                 Services
                 ,
                 use
                 to
                 be
                 included
                 in
                 special
                 Services
                 ,
                 as
                 Members
                 thereof
                 ;
                 and
                 a
                 Retour
                 to
                 an
                 Annual-rent
                 ,
                 bearing
                 to
                 be
                 granted
                 to
                 Heirs
                 whatsoever
                 ,
                 and
                 that
                 the
                 persons
                 retoured
                 Heirs
                 in
                 the
                 said
                 Annual-rent
                 ,
                 was
                 found
                 to
                 instruct
                 him
                 general
                 heir
                 ,
                 though
                 it
                 did
                 not
                 bear
                 
                   per
                   expressum
                
                 ,
                 that
                 he
                 was
                 heir
                 generally
                 ,
                 but
                 only
                 in
                 that
                 Annualrent
                 :
                 Feb.
                 9.
                 1676.
                 
                 
                   Ricartoun
                   Drumniond
                
                 contra
                 Stirling
                 of
                 Airdoch
                 .
              
               
                 The
                 general
                 Service
                 of
                 Heirs
                 being
                 retour'd
                 ,
                 doeth
                 so
                 establish
                 Rights
                 not
                 having
                 Infeftment
                 (
                 as
                 Dispositions
                 ,
                 Heretable
                 Bonds
                 ,
                 Reversions
                 ,
                 Apprisings
                 ,
                 and
                 Adjudications
                 )
                 in
                 the
                 Person
                 of
                 the
                 heir
                 served
                 ,
                 as
                 that
                 no
                 posterior
                 heirs
                 can
                 have
                 Right
                 thereto
                 ,
                 unless
                 they
                 be
                 served
                 heirs
                 to
                 the
                 Person
                 last
                 served
                 heir
                 ,
                 though
                 the
                 Right
                 stood
                 in
                 the
                 name
                 of
                 the
                 firstAcquirer
                 ,
                 and
                 not
                 
                   ofthe
                   
                     of
                     the
                  
                
                 last
                 heir
                 ,
                 as
                 an
                 heretable
                 Bond
                 or
                 Reversion
                 remaining
                 in
                 the
                 name
                 of
                 aFather
                 ,
                 to
                 whom
                 his
                 eldest
                 Son
                 was
                 served
                 heir
                 generally
                 ,
                 who
                 dying
                 without
                 Issue
                 ,
                 the
                 second
                 Brother
                 must
                 be
                 served
                 heir
                 to
                 his
                 Brother
                 ,
                 and
                 not
                 to
                 his
                 Father
                 therein
                 :
                 as
                 was
                 thought
                 by
                 all
                 the
                 Lords
                 after
                 dispute
                 
                   in
                   praesentia
                
                 ,
                 albeit
                 the
                 matter
                 was
                 agreed
                 without
                 decision
                 .
                 Spots
                 .
                 Heirs
                 ,
                 Captain
                 
                   Peter
                   Rollo
                
                 contra
                 Stewart
                 of
                 〈◊〉
                 .
                 The
                 reason
                 is
                 ,
                 because
                 the
                 general
                 Service
                 is
                 a
                 compleatestablishing
                 of
                 the
                 Right
                 in
                 the
                 Person
                 of
                 the
                 heir
                 :
                 and
                 therefore
                 as
                 in
                 special
                 Services
                 the
                 heir
                 is
                 served
                 to
                 him
                 who
                 died
                 last
                 vest
                 and
                 seised
                 as
                 ofFee
                 ,
                 whereby
                 that
                 Right
                 is
                 established
                 ;
                 so
                 in
                 the
                 general
                 Service
                 ,
                 the
                 heir
                 must
                 be
                 served
                 to
                 him
                 in
                 whose
                 Person
                 the
                 Right
                 stood
                 last
                 .
                 And
                 though
                 in
                 special
                 Services
                 ,
                 the
                 heir
                 cannot
                 be
                 served
                 to
                 him
                 who
                 is
                 last
                 served
                 special
                 heir
                 ,
                 unless
                 he
                 had
                 been
                 also
                 Infeft
                 :
                 the
                 reason
                 thereof
                 is
                 ,
                 because
                 the
                 special
                 Service
                 as
                 an
                 incompleat
                 Right
                 evanisheth
                 ,
                 and
                 the
                 next
                 apparant
                 heir
                 must
                 be
                 served
                 again
                 to
                 the
                 same
                 Defunct
                 ,
                 but
                 it
                 is
                 not
                 so
                 in
                 general
                 Services
                 .
              
               
                 26.
                 
                 The
                 Entry
                 of
                 Heirs
                 to
                 Lands
                 or
                 Annualrents
                 ,
                 the
                 Fee
                 whereof
                 is
                 by
                 Infeftment
                 is
                 either
                 by
                 consent
                 of
                 the
                 Superior
                 voluntarly
                 ,
                 or
                 by
                 Law.
                 The
                 former
                 is
                 by
                 the
                 Superiors
                 Precept
                 ,
                 which
                 from
                 the
                 initial
                 words
                 thereof
                 ,
                 
                   Quia
                   
                   mihi
                   clare
                   constat
                
                 ,
                 &c.
                 is
                 called
                 a
                 Precept
                 of
                 
                   Clare
                   constat
                
                 ,
                 by
                 which
                 the
                 Superior
                 acknowledgeth
                 ,
                 that
                 the
                 Defunct
                 died
                 last
                 vest
                 and
                 seised
                 in
                 such
                 Lands
                 or
                 Annualrents
                 ,
                 and
                 that
                 the
                 same
                 are
                 holden
                 of
                 him
                 by
                 such
                 a
                 Tenor
                 ,
                 and
                 that
                 the
                 obtainer
                 of
                 the
                 Precept
                 is
                 nearest
                 and
                 lawful
                 Heir
                 to
                 him
                 in
                 the
                 said
                 Lands
                 ,
                 &c.
                 and
                 that
                 he
                 is
                 of
                 lawful
                 Age
                 for
                 entering
                 thereto
                 .
                 And
                 therefore
                 commands
                 his
                 Bailiff
                 to
                 Infeft
                 him
                 therein
                 .
                 Infeftment
                 being
                 past
                 accordingly
                 ,
                 giveth
                 that
                 Party
                 the
                 real
                 Right
                 of
                 Lands
                 or
                 Annualrents
                 if
                 done
                 by
                 the
                 light
                 Superior
                 .
                 It
                 doeth
                 also
                 constitute
                 the
                 receiver
                 thereof
                 Heir
                 passivè
                 ,
                 and
                 makes
                 him
                 lyable
                 to
                 his
                 Predecessors
                 Debts
                 :
                 but
                 it
                 will
                 not
                 constitute
                 or
                 instruct
                 him
                 Heir
                 activè
                 ,
                 or
                 give
                 him
                 an
                 active
                 Title
                 to
                 pursue
                 as
                 Heir
                 .
                 Yea
                 it
                 will
                 not
                 be
                 a
                 sufficient
                 title
                 as
                 to
                 the
                 real
                 Right
                 of
                 the
                 Ground
                 against
                 any
                 other
                 Party
                 ,
                 than
                 those
                 who
                 acknowledge
                 the
                 Giver
                 thereof
                 to
                 be
                 Superior
                 ,
                 and
                 the
                 Receiver
                 to
                 be
                 Heir
                 .
                 For
                 if
                 upon
                 any
                 other
                 colourable
                 Title
                 ,
                 they
                 question
                 any
                 of
                 these
                 ,
                 the
                 Infeftment
                 and
                 precept
                 of
                 
                   Clare
                   Constat
                
                 will
                 not
                 be
                 sufficient
                 alone
                 ,
                 unless
                 it
                 have
                 obtained
                 the
                 benefit
                 of
                 a
                 Possessory
                 Judgment
                 or
                 Prescription
                 .
              
               
                 27.
                 
                 Like
                 unto
                 this
                 is
                 the
                 entry
                 of
                 Heirs
                 ,
                 within
                 Burgh
                 Royal
                 ,
                 by
                 Hespand
                 Staple
                 ,
                 according
                 to
                 the
                 Custom
                 of
                 Burgh
                 ,
                 which
                 is
                 instructed
                 by
                 the
                 Instrument
                 of
                 Seasing
                 only
                 ,
                 without
                 other
                 adminicles
                 ,
                 November
                 13.
                 1623.
                 
                 Mershall
                 contra
                 
                   Mershal
                   ,
                   July
                   penult
                
                 .
                 1629.
                 
                 Wilson
                 contra
                 Stewart
                 .
                 In
                 which
                 case
                 ,
                 though
                 a
                 Seasing
                 by
                 Hesp
                 and
                 Staple
                 ,
                 was
                 sustained
                 to
                 instruct
                 an
                 Heir
                 activè
                 :
                 yet
                 it
                 was
                 only
                 because
                 this
                 pursuer
                 had
                 been
                 proven
                 Heir
                 passivè
                 the
                 eby
                 ,
                 at
                 the
                 instance
                 of
                 that
                 Defender
                 .
              
               
                 28.
                 
                 The
                 securest
                 Entry
                 of
                 Heirs
                 specially
                 ,
                 in
                 Lands
                 or
                 Annalrents
                 ,
                 is
                 by
                 Law.
                 The
                 procedor
                 whereof
                 is
                 in
                 this
                 manner
                 :
                 Any
                 Person
                 may
                 summarely
                 〈◊〉
                 a
                 Brieve
                 ,
                 out
                 of
                 the
                 Chancerie
                 ,
                 in
                 the
                 same
                 manner
                 ,
                 as
                 the
                 general
                 〈◊〉
                 which
                 is
                 directed
                 by
                 way
                 of
                 Precept
                 from
                 the
                 King
                 ,
                 or
                 Lord
                 of
                 the
                 Regality
                 ,
                 having
                 Chapel
                 and
                 Chancelarie
                 ;
                 whereby
                 the
                 Judge
                 to
                 whom
                 it
                 is
                 directed
                 ,
                 is
                 ordained
                 ,
                 by
                 an
                 Inquest
                 upon
                 oath
                 ,
                 to
                 enquire
                 ,
                 Who
                 died
                 last
                 Vest
                 and
                 Seized
                 ,
                 as
                 of
                 Fee
                 in
                 such
                 Lands
                 ,
                 or
                 Annualrents
                 :
                 And
                 if
                 at
                 the
                 Faith
                 and
                 Peace
                 of
                 our
                 Soveraign
                 Lord
                 ,
                 and
                 Who
                 is
                 his
                 nearest
                 and
                 lawful
                 Heir
                 therein
                 ,
                 Of
                 whom
                 it
                 is
                 holden
                 in
                 Chief
                 ,
                 By
                 what
                 Service
                 ,
                 and
                 What
                 the
                 Value
                 of
                 it
                 is
                 ,
                 now
                 ,
                 and
                 in
                 time
                 of
                 Peace
                 ;
                 And
                 if
                 the
                 said
                 Heir
                 be
                 of
                 lawful
                 Age
                 ,
                 In
                 whose
                 hands
                 the
                 same
                 now
                 is
                 ,
                 From
                 what
                 time
                 ,
                 How
                 ,
                 By
                 what
                 Service
                 ,
                 By
                 whom
                 ,
                 and
                 through
                 what
                 cause
                 .
                 It
                 is
                 needless
                 to
                 be
                 Curious
                 concerning
                 the
                 number
                 of
                 the
                 heads
                 of
                 this
                 Brieve
                 ,
                 some
                 parts
                 thereof
                 not
                 being
                 distinct
                 ,
                 but
                 explicatory
                 of
                 the
                 former
                 .
              
               
                 29.
                 
                 These
                 Brieves
                 are
                 accordingly
                 direct
                 to
                 the
                 Judges
                 ordinary
                 ,
                 where
                 the
                 Land
                 ,
                 or
                 Annualrent
                 lyes
                 ,
                 as
                 to
                 Sheriffs
                 ,
                 Bailiffs
                 of
                 Royaltie
                 ,
                 or
                 Regality
                 ,
                 or
                 Bailiffs
                 of
                 Burghs-royal
                 .
                 But
                 if
                 there
                 be
                 just
                 exception
                 ,
                 against
                 the
                 Judge
                 ordinary
                 of
                 the
                 place
                 ,
                 or
                 if
                 the
                 Lands
                 ,
                 or
                 Annualrents
                 lye
                 in
                 divers
                 Jurisdictions
                 ,
                 and
                 so
                 be
                 represented
                 ;
                 Warrand
                 will
                 be
                 granted
                 ,
                 upon
                 Supplication
                 to
                 the
                 Lords
                 ,
                 that
                 the
                 Director
                 of
                 the
                 Chancerie
                 ,
                 issue
                 Brieves
                 to
                 other
                 Persons
                 :
                 and
                 frequently
                 ,
                 in
                 the
                 case
                 of
                 diverse
                 Jurisdictions
                 ,
                 they
                 are
                 directed
                 to
                 the
                 Macers
                 .
              
               
                 30.
                 
                 By
                 Vertue
                 of
                 this
                 Brieve
                 ,
                 the
                 Judge
                 ordinary
                 ,
                 or
                 Delegat
                 ,
                 to
                 whom
                 they
                 are
                 direct
                 ,
                 citeth
                 Persons
                 to
                 be
                 members
                 of
                 inquest
                 ,
                 upon
                 15.
                 dayes
                 :
                 And
                 〈◊〉
                 the
                 Brieves
                 at
                 they
                 Mercat
                 Cross
                 ,
                 unless
                 they
                 be
                 Served
                 at
                 the
                 〈◊〉
                 Court
                 ,
                 when
                 all
                 the
                 Free-holders
                 are
                 oblieged
                 to
                 be
                 present
                 ,
                 
                 and
                 then
                 the
                 Brieve
                 may
                 be
                 served
                 ,
                 without
                 further
                 delay
                 ,
                 conform
                 to
                 the
                 Act
                 of
                 Parliament
                 1429.
                 cap.
                 27.
                 and
                 Par.
                 1503.
                 cap.
                 94.
                 where
                 it
                 is
                 left
                 arbitrary
                 ,
                 to
                 summon
                 the
                 Inquest
                 on
                 what
                 dayes
                 the
                 Judge
                 server
                 of
                 the
                 Brieve
                 pleaseth
                 :
                 or
                 presently
                 ,
                 if
                 they
                 be
                 Persons
                 of
                 Inquest
                 present
                 in
                 the
                 Tolbooth
                 ,
                 un-summoned
                 .
                 But
                 in
                 all
                 cases
                 ,
                 the
                 Brieves
                 must
                 be
                 proclaimed
                 publickly
                 ,
                 at
                 the
                 Market
                 Cross
                 ,
                 in
                 plain
                 Market
                 ,
                 where
                 most
                 confluence
                 of
                 people
                 is
                 gathered
                 ,
                 so
                 as
                 it
                 may
                 come
                 to
                 the
                 knowledge
                 of
                 the
                 partie
                 ,
                 before
                 whom
                 it
                 should
                 be
                 served
                 .
                 And
                 then
                 ,
                 that
                 the
                 said
                 Brieve
                 be
                 thrice
                 cryed
                 ,
                 plainly
                 together
                 :
                 which
                 is
                 by
                 three
                 several
                 Oyesses
                 ,
                 with
                 a
                 loud
                 and
                 audible
                 Voice
                 ,
                 before
                 the
                 reading
                 of
                 the
                 Brieve
                 ,
                 and
                 the
                 Sheriffs
                 Precept
                 thereupon
                 :
                 and
                 each
                 Oyes
                 to
                 be
                 at
                 as
                 great
                 distance
                 from
                 other
                 ,
                 as
                 the
                 time
                 required
                 to
                 give
                 the
                 said
                 Oyes
                 ,
                 thrice
                 :
                 and
                 that
                 the
                 Officers
                 of
                 the
                 Town
                 be
                 present
                 .
                 But
                 if
                 the
                 Brieve
                 come
                 to
                 be
                 served
                 so
                 near
                 Whitsunday
                 ,
                 or
                 Martinmass
                 ,
                 that
                 there
                 does
                 not
                 intervene
                 a
                 Market
                 day
                 ,
                 the
                 Brieves
                 may
                 be
                 proclaimed
                 upon
                 any
                 week
                 day
                 ;
                 the
                 Officers
                 and
                 six
                 .
                 others
                 of
                 the
                 Town
                 being
                 present
                 :
                 Yet
                 ,
                 either
                 the
                 day
                 of
                 Compearance
                 ,
                 or
                 the
                 day
                 of
                 Citation
                 is
                 numbered
                 ,
                 as
                 one
                 of
                 the
                 fifteen
                 .
                 
                   July
                   27.
                   1626.
                   
                   Mackculluch
                
                 contra
                 Mackculloch
                 .
              
               
                 There
                 is
                 no
                 necessity
                 to
                 Summon
                 any
                 Defender
                 :
                 in
                 lieu
                 whereof
                 ,
                 is
                 the
                 publication
                 of
                 the
                 Brieve
                 ,
                 by
                 Proclamation
                 at
                 the
                 Market
                 Cross.
                 Yet
                 upon
                 the
                 Supplication
                 of
                 the
                 partie
                 interessed
                 ,
                 Warrant
                 was
                 granted
                 by
                 the
                 Lords
                 ,
                 to
                 the
                 Director
                 of
                 the
                 Chancerie
                 ,
                 that
                 no
                 Brieves
                 should
                 be
                 issued
                 for
                 serving
                 Heirs
                 to
                 such
                 a
                 Defunct
                 ,
                 unless
                 they
                 contained
                 a
                 Clause
                 to
                 cite
                 the
                 Supplicant
                 ,
                 who
                 was
                 Donatar
                 to
                 the
                 Defunct's
                 Bastardrie
                 ,
                 
                   Spots
                   .
                   de
                   haereditarijs
                   actionibus
                   ,
                   Mackculloch
                
                 contra
                 Laird
                 of
                 Martoun
                 .
              
               
                 31.
                 
                 The
                 Inquest
                 being
                 called
                 ,
                 consisteth
                 ordainarly
                 of
                 15.
                 
                 Persons
                 :
                 against
                 whom
                 ,
                 like
                 Exceptions
                 are
                 competent
                 ,
                 as
                 against
                 Witnesses
                 .
                 And
                 though
                 
                   Craig
                   ,
                   lib.
                   2.
                   dieg
                   .
                   17.
                
                 regrateth
                 ,
                 that
                 any
                 person
                 is
                 admitted
                 to
                 be
                 one
                 of
                 the
                 Inquest
                 ,
                 whose
                 Rent
                 exceedeth
                 not
                 40.
                 lib.
                 though
                 they
                 be
                 not
                 
                   pares
                   curiae
                
                 ,
                 nor
                 Con-vassalls
                 with
                 the
                 partie
                 to
                 be
                 served
                 ,
                 neither
                 of
                 the
                 vicinity
                 ,
                 or
                 Neighbour-hood
                 ,
                 contrary
                 to
                 the
                 Intent
                 and
                 Ancient
                 Custom
                 of
                 these
                 Services
                 :
                 Yet
                 he
                 acknowledgeth
                 ,
                 that
                 it
                 was
                 so
                 ordainarly
                 ,
                 especially
                 in
                 the
                 Service
                 of
                 Noblemen
                 :
                 and
                 Custom
                 hath
                 containued
                 the
                 same
                 hitherto
                 .
                 But
                 those
                 of
                 the
                 Neighbour-hood
                 were
                 fittest
                 :
                 because
                 ,
                 as
                 Craig
                 observeth
                 in
                 that
                 place
                 ,
                 Inquests
                 are
                 in
                 the
                 middle
                 ,
                 betwixt
                 Judges
                 and
                 Witnesses
                 ,
                 partaking
                 part
                 of
                 them
                 both
                 for
                 two
                 ,
                 or
                 more
                 of
                 them
                 ,
                 of
                 their
                 proper
                 Knowledge
                 ,
                 will
                 be
                 sufficient
                 for
                 Witnesses
                 ,
                 in
                 the
                 matter
                 of
                 fact
                 ;
                 and
                 upon
                 their
                 declaration
                 ,
                 all
                 the
                 rest
                 will
                 Serve
                 affirmativè
                 ,
                 without
                 any
                 other
                 Testimony
                 .
                 And
                 it
                 is
                 like
                 they
                 have
                 been
                 of
                 old
                 ,
                 sole
                 Judges
                 in
                 Brieves
                 ,
                 the
                 Judge
                 ordinary
                 ,
                 having
                 no
                 more
                 power
                 ,
                 but
                 to
                 call
                 and
                 order
                 them
                 .
                 And
                 they
                 are
                 yet
                 with
                 the
                 Judge
                 ordinary
                 ,
                 or
                 Delegat
                 ,
                 as
                 Judges
                 :
                 for
                 they
                 must
                 serve
                 ,
                 and
                 do
                 sometimes
                 seal
                 the
                 Service
                 with
                 him
                 .
              
               
                 32.
                 
                 The
                 Inquest
                 being
                 settled
                 ,
                 the
                 Heir
                 apparant
                 gives
                 in
                 his
                 Claim
                 ,
                 craving
                 to
                 be
                 served
                 Heir
                 to
                 his
                 Predecessor
                 ,
                 in
                 such
                 Lands
                 ,
                 or
                 Annualrents
                 :
                 and
                 therewith
                 the
                 Brieve
                 and
                 Executions
                 thereof
                 ,
                 together
                 with
                 the
                 instructions
                 of
                 the
                 same
                 .
              
               
                 33.
                 
                 The
                 Brieve
                 and
                 Claim
                 are
                 as
                 a
                 Libel
                 ;
                 against
                 which
                 ,
                 any
                 partie
                 compearing
                 ,
                 and
                 found
                 to
                 have
                 Interest
                 ,
                 may
                 propone
                 their
                 Exceptions
                 ;
                 which
                 are
                 many
                 more
                 than
                 those
                 ,
                 contained
                 in
                 the
                 said
                 last
                 Act
                 of
                 Par.
                 1503.
                 cap.
                 94.
                 
                 And
                 first
                 against
                 the
                 Executions
                 ,
                 as
                 being
                 blotted
                 in
                 the
                 
                 date
                 ,
                 or
                 other
                 Substantials
                 ,
                 and
                 so
                 null
                 ;
                 which
                 thereby
                 may
                 not
                 be
                 mended
                 ,
                 as
                 other
                 Executions
                 :
                 as
                 the
                 Name
                 ,
                 and
                 Sir-name
                 of
                 the
                 Followers
                 ,
                 and
                 of
                 the
                 Defender
                 ;
                 the
                 name
                 of
                 the
                 Land
                 ,
                 and
                 Cause
                 upon
                 which
                 the
                 Brieve
                 was
                 purchased
                 .
                 Which
                 was
                 found
                 ,
                 not
                 only
                 to
                 extend
                 to
                 the
                 blotting
                 of
                 the
                 Brieve
                 ,
                 but
                 to
                 the
                 Executions
                 thereof
                 .
                 July
                 27.
                 1623.
                 
                 Mackculloch
                 contra
                 Martoun
                 .
                 Or
                 as
                 not
                 proclaimed
                 upon
                 fifeen
                 days
                 ,
                 which
                 also
                 will
                 be
                 relevant
                 ,
                 by
                 way
                 of
                 Reduction
                 .
                 Or
                 that
                 the
                 Defunct
                 was
                 Bastard
                 ,
                 and
                 had
                 no
                 lawful
                 Issue
                 .
                 Or
                 ,
                 that
                 the
                 pursuer
                 of
                 the
                 Brieve
                 is
                 Bastard
                 ,
                 and
                 so
                 incapable
                 of
                 Succession
                 :
                 wherein
                 ,
                 if
                 the
                 proponer
                 be
                 more
                 special
                 ,
                 and
                 pregnant
                 ,
                 than
                 the
                 apparant
                 Heir
                 ,
                 in
                 his
                 alledgence
                 of
                 being
                 nearest
                 and
                 lawful
                 Heir
                 ;
                 he
                 will
                 be
                 preferred
                 .
                 Exceptions
                 also
                 are
                 Competent
                 ,
                 as
                 to
                 the
                 point
                 of
                 Right
                 ,
                 by
                 proponing
                 ,
                 and
                 instructing
                 ,
                 that
                 the
                 Defunct
                 was
                 denuded
                 of
                 the
                 Fee
                 :
                 but
                 Exceptions
                 upon
                 paralel
                 Rights
                 ,
                 that
                 the
                 Defunct
                 had
                 not
                 a
                 good
                 Right
                 ,
                 are
                 not
                 competent
                 here
                 .
                 And
                 also
                 Exceptions
                 upon
                 the
                 age
                 of
                 the
                 apparent
                 Heir
                 ,
                 or
                 his
                 being
                 forefault
                 ,
                 or
                 Rebel
                 ,
                 &c.
                 are
                 here
                 competent
                 :
                 and
                 likewise
                 Objections
                 and
                 Debates
                 ,
                 upon
                 Instructions
                 and
                 Writs
                 adduced
                 for
                 proving
                 of
                 the
                 Claim
                 and
                 Head
                 of
                 the
                 Brieve
                 .
                 In
                 which
                 cases
                 ,
                 if
                 there
                 appear
                 difficultie
                 ,
                 or
                 intricacie
                 ;
                 the
                 Lords
                 upon
                 supplication
                 ,
                 will
                 constitute
                 Assessors
                 or
                 grant
                 Advocation
                 of
                 the
                 Service
                 :
                 and
                 after
                 discussing
                 of
                 the
                 points
                 
                   in
                   jure
                
                 ,
                 will
                 remit
                 the
                 same
                 .
                 either
                 to
                 the
                 same
                 ,
                 or
                 to
                 other
                 Judges
                 delegat
                 .
                 But
                 no
                 Objection
                 or
                 Exception
                 will
                 be
                 admitted
                 ,
                 unless
                 it
                 be
                 instantly
                 verified
                 ;
                 because
                 this
                 Brieve
                 is
                 no
                 Brieve
                 of
                 Plea
                 ,
                 Par.
                 1503.
                 cap.
                 94.
                 and
                 therefore
                 cannot
                 admit
                 of
                 terms
                 to
                 prove
                 Exceptions
                 .
              
               
                 34.
                 
                 The
                 Debates
                 upon
                 the
                 Brieve
                 being
                 discussed
                 ,
                 the
                 Pursuer
                 thereof
                 must
                 prove
                 ,
                 and
                 instruct
                 sufficiently
                 the
                 Heads
                 of
                 the
                 same
                 .
                 As
                 first
                 ,
                 that
                 the
                 Defunct
                 died
                 last
                 vest
                 and
                 seised
                 ,
                 as
                 of
                 Fee
                 ,
                 at
                 the
                 faith
                 and
                 peace
                 of
                 our
                 Soveraign
                 Lord
                 :
                 which
                 comprehends
                 ,
                 first
                 ,
                 the
                 Death
                 of
                 the
                 Defunct
                 ,
                 which
                 is
                 ordainarly
                 proven
                 by
                 the
                 Knowledge
                 of
                 the
                 members
                 ,
                 Notorietie
                 ,
                 or
                 common
                 Fame
                 ,
                 without
                 necessity
                 to
                 instruct
                 the
                 same
                 ,
                 by
                 ocular
                 Witnesses
                 who
                 saw
                 the
                 Defnnct
                 die
                 ,
                 or
                 buried
                 .
                 But
                 in
                 case
                 of
                 the
                 Defunct's
                 Death
                 out
                 of
                 the
                 Countrey
                 ,
                 or
                 if
                 it
                 be
                 dubious
                 or
                 controverse
                 ;
                 the
                 testimony
                 of
                 Witnesses
                 ,
                 or
                 proper
                 knowledge
                 of
                 two
                 ,
                 at
                 least
                 ,
                 of
                 the
                 Inquest
                 ,
                 or
                 Testificats
                 from
                 abroad
                 ,
                 especially
                 from
                 the
                 Magistrats
                 of
                 the
                 Place
                 where
                 the
                 Defunct
                 died
                 ,
                 or
                 was
                 buried
                 ,
                 are
                 requisite
                 :
                 or
                 common
                 Fame
                 ,
                 as
                 to
                 Persons
                 who
                 perish
                 ,
                 or
                 are
                 killed
                 .
              
               
                 The
                 second
                 poynt
                 of
                 this
                 Head
                 is
                 ,
                 that
                 the
                 Defunct
                 died
                 ,
                 last
                 vest
                 and
                 Seised
                 as
                 ofFee
                 :
                 which
                 must
                 be
                 instructed
                 ,
                 by
                 production
                 of
                 theInfeftment
                 ,
                 specially
                 the
                 Instfrument
                 of
                 Seising
                 ,
                 and
                 warrant
                 thereof
                 or
                 ground
                 of
                 the
                 same
                 :
                 For
                 though
                 
                   in
                   antiquis
                
                 the
                 very
                 Precept
                 cannot
                 be
                 shown
                 ,
                 yet
                 the
                 Charter
                 ,
                 or
                 Disposition
                 will
                 be
                 a
                 sufficientAdminicle
                 ,
                 to
                 corroberat
                 thisSeising
                 ,
                 that
                 it
                 be
                 not
                 accounted
                 only
                 as
                 the
                 assertion
                 of
                 a
                 Natar
                 :
                 Yea
                 ,
                 there
                 is
                 no
                 doubt
                 ,
                 but
                 since
                 the
                 Act
                 of
                 Prescription
                 ,
                 consequent
                 Seisings
                 having
                 the
                 Course
                 of
                 fourtie
                 Years
                 ,
                 may
                 instruct
                 this
                 point
                 :
                 being
                 sufficient
                 even
                 in
                 the
                 case
                 of
                 Competition
                 ,
                 which
                 is
                 much
                 exacter
                 than
                 this
                 .
                 And
                 Spotswood
                 observeth
                 upon
                 Retours
                 ,
                 that
                 in
                 Anno
                 1547.
                 a
                 negativeService
                 was
                 reduced
                 ,
                 upon
                 production
                 of
                 a
                 Transumpt
                 of
                 theDefuncts
                 Seising
                 ,
                 out
                 of
                 a
                 Protocol
                 transumed
                 before
                 a
                 Comissar
                 ,
                 with
                 a
                 Decreet
                 against
                 the
                 Superior
                 ;
                 bearing
                 ,
                 to
                 have
                 confessed
                 ,
                 that
                 he
                 had
                 infeft
                 the
                 Defunct
                 .
                 But
                 here
                 the
                 instructing
                 the
                 Defunct's
                 being
                 once
                 infeft
                 ,
                 will
                 infer
                 a
                 Presumption
                 ,
                 that
                 he
                 so
                 continued
                 ,
                 and
                 so
                 died
                 Infeft
                 :
                 unless
                 the
                 contrary
                 be
                 proven
                 ,
                 that
                 he
                 was
                 denuded
                 .
              
               
               
                 The
                 third
                 poynt
                 in
                 this
                 Head
                 ,
                 That
                 the
                 Defunct
                 died
                 at
                 the
                 Faith
                 and
                 peace
                 of
                 our
                 Soveraign
                 Lord
                 ,
                 is
                 also
                 presumed
                 :
                 
                   quia
                   quod
                   inesse
                   debet
                   〈◊〉
                
                 .
                 And
                 therefore
                 needs
                 no
                 other
                 Probation
                 ,
                 but
                 layeth
                 the
                 burthen
                 of
                 Probation
                 upon
                 theAlledger
                 in
                 the
                 contrary
                 ,
                 viz.
                 That
                 the
                 Defunct
                 died
                 Rebel
                 ,
                 or
                 that
                 he
                 was
                 Forfaulted
                 ,
                 or
                 his
                 Blood
                 attiainted
                 :
                 which
                 may
                 be
                 elided
                 ,
                 by
                 the
                 Replyes
                 of
                 Relaxation
                 ,
                 Dispensation
                 ,
                 or
                 Restitution
                 .
                 But
                 there
                 useth
                 small
                 notice
                 to
                 be
                 taken
                 of
                 Rebellion
                 upon
                 civil
                 Debts
                 :
                 but
                 only
                 open
                 Rebellion
                 of
                 War
                 ,
                 or
                 upon
                 Treasonable
                 Causes
                 ,
                 whereupon
                 the
                 Defunct
                 was
                 declared
                 Fugitve
                 ;
                 which
                 makes
                 the
                 Defunct
                 ,
                 as
                 to
                 this
                 poynt
                 ,
                 not
                 to
                 die
                 at
                 the
                 Faith
                 of
                 our
                 Soveraing
                 Lord.
                 November
                 21.
                 1626.
                 
                 Seatoun
                 Supplicant
                 .
              
               
                 35.
                 
                 The
                 second
                 Head
                 of
                 the
                 Brieve
                 ,
                 is
                 ,
                 That
                 the
                 Pursuer
                 is
                 nearest
                 and
                 lawful
                 Heir
                 to
                 the
                 Defunct
                 in
                 these
                 Lands
                 .
                 Which
                 resolveth
                 in
                 two
                 points
                 :
                 First
                 ,
                 that
                 the
                 Fee
                 was
                 provided
                 to
                 such
                 Heirs
                 ,
                 as
                 are
                 contained
                 in
                 the
                 Claim
                 ,
                 whether
                 they
                 be
                 Heirs
                 of
                 Line
                 ,
                 or
                 of
                 Conquest
                 ,
                 Heirs
                 Portioners
                 ,
                 Heirs
                 of
                 Marriage
                 ,
                 Heirs
                 Male
                 ,
                 or
                 of
                 Tailzie
                 and
                 Provision
                 .
                 And
                 this
                 can
                 only
                 be
                 instructed
                 by
                 the
                 Defunct's
                 Infeftment
                 ,
                 and
                 other
                 ancient
                 Evidents
                 where
                 in
                 dutio
                 ,
                 the
                 Presumption
                 is
                 always
                 for
                 the
                 Heir
                 of
                 Line
                 .
                 So
                 that
                 if
                 it
                 be
                 not
                 sufficiently
                 instructed
                 ,
                 that
                 the
                 Fee
                 was
                 provided
                 to
                 special
                 Heirs
                 ,
                 it
                 will
                 belong
                 to
                 the
                 Heirs
                 general
                 ,
                 of
                 Lyne
                 ,
                 or
                 Conquest
                 according
                 to
                 Law
                 :
                 as
                 if
                 it
                 be
                 instructed
                 by
                 three
                 consequent
                 Seisings
                 ,
                 which
                 ordinarly
                 do
                 not
                 express
                 the
                 the
                 several
                 Kinds
                 of
                 Heirs
                 .
              
               
                 The
                 other
                 point
                 of
                 this
                 Head
                 is
                 ,
                 That
                 the
                 Pursuer
                 of
                 the
                 Brieve
                 is
                 nearest
                 lawful
                 Heir
                 :
                 which
                 sometimes
                 also
                 is
                 instructed
                 by
                 the
                 Infeftment
                 .
                 As
                 when
                 the
                 Person
                 to
                 be
                 served
                 ,
                 is
                 a
                 Member
                 of
                 Tailzie
                 nominat
                 :
                 as
                 if
                 the
                 Infeftment
                 bear
                 Land
                 ,
                 or
                 Annualrents
                 ,
                 to
                 be
                 granted
                 to
                 the
                 Feer
                 ,
                 and
                 to
                 the
                 Heirs
                 of
                 his
                 Bodie
                 ;
                 which
                 failling
                 to
                 George
                 his
                 Brother
                 ,
                 &c.
                 
                 George
                 pursuing
                 a
                 special
                 Service
                 ,
                 needs
                 no
                 further
                 instruction
                 :
                 because
                 ,
                 That
                 he
                 is
                 George
                 ,
                 the
                 Defuncts
                 Brother
                 ,
                 passeth
                 without
                 probation
                 as
                 Notorium
                 .
                 But
                 ordinarly
                 the
                 Propinquity
                 of
                 Blood
                 must
                 be
                 proven
                 to
                 the
                 Feer
                 ,
                 who
                 died
                 last
                 infeft
                 ,
                 or
                 to
                 some
                 member
                 of
                 Tailzie
                 substitute
                 .
                 For
                 proving
                 whereof
                 ,
                 the
                 Relation
                 must
                 be
                 particularly
                 condescended
                 on
                 ,
                 according
                 to
                 the
                 Line
                 of
                 Succession
                 ,
                 mentioned
                 in
                 the
                 former
                 Title
                 ,
                 as
                 that
                 the
                 Pursuer
                 is
                 the
                 Defunct's
                 eldest
                 Son
                 ,
                 or
                 the
                 eldest
                 lawful
                 Son
                 of
                 that
                 Son
                 ;
                 or
                 that
                 they
                 are
                 the
                 Daughters
                 of
                 that
                 Son
                 ,
                 &c.
                 or
                 the
                 lawful
                 Daughters
                 of
                 the
                 Defunct
                 ,
                 &c.
                 
                 And
                 it
                 will
                 not
                 be
                 sufficient
                 to
                 instruct
                 ,
                 or
                 serve
                 the
                 Pursuer
                 nearest
                 lawful
                 Heir
                 ,
                 without
                 condescending
                 .
                 Here
                 also
                 the
                 propinquity
                 of
                 Blood
                 ,
                 being
                 condescended
                 on
                 ,
                 and
                 proven
                 ;
                 it
                 is
                 sufficient
                 ,
                 in
                 whatsoever
                 Degree
                 can
                 be
                 proven
                 ,
                 though
                 it
                 were
                 beyond
                 the
                 tenthDegree
                 .
                 Yea
                 ,
                 any
                 Degree
                 being
                 presumed
                 to
                 be
                 the
                 nearest
                 Degree
                 ,
                 unless
                 a
                 nearer
                 Degree
                 be
                 instructed
                 ;
                 for
                 it
                 resolves
                 in
                 this
                 Negative
                 ,
                 that
                 there
                 is
                 no
                 other
                 nearer
                 Degree
                 ;
                 which
                 as
                 other
                 Negatives
                 ,
                 proves
                 it self
                 .
                 And
                 that
                 thePursuer
                 is
                 not
                 only
                 nearest
                 Heir
                 ,
                 according
                 to
                 Lineal
                 Succession
                 ,
                 by
                 Course
                 of
                 Law
                 ;
                 but
                 that
                 he
                 ,
                 nor
                 none
                 of
                 the
                 Intervenient
                 Blood
                 were
                 Bastards
                 ,
                 or
                 unlawful
                 Children
                 ,
                 (
                 which
                 is
                 instructed
                 sufficiently
                 by
                 common
                 Fame
                 ,
                 or
                 being
                 so
                 holden
                 and
                 repute
                 ,
                 in
                 the
                 Intermediates
                 )
                 it
                 will
                 be
                 sufficient
                 ,
                 that
                 nothing
                 is
                 known
                 to
                 the
                 Inquest
                 ,
                 on
                 the
                 contrary
                 ,
                 unless
                 Bastardrie
                 be
                 on
                 the
                 other
                 part
                 alledged
                 ,
                 and
                 instructed
                 .
                 This
                 propinquity
                 of
                 Blood
                 is
                 proven
                 ,
                 either
                 by
                 Writ
                 ,
                 or
                 by
                 Retours
                 ,
                 Infeftments
                 ,
                 or
                 Designations
                 ,
                 or
                 Acknowledgments
                 of
                 the
                 Feer
                 for
                 the
                 time
                 ,
                 bearing
                 such
                 a
                 Person
                 to
                 be
                 of
                 such
                 a
                 Degree
                 ,
                 or
                 Relation
                 to
                 him
                 .
                 And
                 
                   in
                   antiquis
                
                 ,
                 Writs
                 bearing
                 such
                 Designation
                 and
                 Acknowledgment
                 ,
                 even
                 by
                 others
                 of
                 Fame
                 ,
                 will
                 be
                 sufficient
                 .
                 For
                 there
                 is
                 not
                 equal
                 evidence
                 of
                 Fame
                 
                 required
                 in
                 all
                 Cases
                 .
                 And
                 therefore
                 ,
                 when
                 the
                 Fee
                 is
                 to
                 fall
                 Caduciarie
                 ,
                 and
                 to
                 cease
                 from
                 the
                 Feer's
                 proper
                 Blood
                 ,
                 lesse
                 probation
                 will
                 serve
                 ,
                 than
                 when
                 the
                 Competition
                 is
                 betwixt
                 divers
                 Persons
                 of
                 the
                 same
                 Blood
                 ;
                 or
                 at
                 least
                 members
                 of
                 the
                 same
                 Tailzie
                 :
                 amongst
                 whom
                 the
                 pregnantest
                 probation
                 will
                 take
                 place
                 .
                 So
                 the
                 Service
                 and
                 Retour
                 of
                 the
                 Earl
                 of
                 Airth
                 ,
                 then
                 designed
                 Earl
                 of
                 Strathern
                 ,
                 was
                 reduced
                 ;
                 because
                 the
                 propinquity
                 of
                 Blood
                 not
                 sufficiently
                 instructed
                 :
                 which
                 could
                 not
                 be
                 known
                 by
                 the
                 Inquest
                 ,
                 or
                 was
                 Witnesses
                 ,
                 the
                 progresse
                 thereof
                 being
                 far
                 past
                 memory
                 of
                 man
                 ;
                 and
                 Hear-say
                 ,
                 or
                 common
                 Fame
                 was
                 not
                 found
                 sufficient
                 .
                 Neither
                 were
                 the
                 Writs
                 produced
                 sufficient
                 to
                 prove
                 the
                 said
                 Earls
                 Propinquity
                 of
                 Blood
                 to
                 David
                 Earl
                 of
                 Strathern
                 ,
                 Son
                 to
                 King
                 Robert
                 the
                 second
                 ,
                 or
                 to
                 Eupham
                 ,
                 only
                 Daughter
                 to
                 the
                 said
                 David
                 ,
                 and
                 
                   Patrick
                   Graham
                
                 her
                 Spouse
                 :
                 which
                 progress
                 not
                 being
                 sufficiently
                 instructed
                 ,
                 the
                 Right
                 remained
                 with
                 the
                 King
                 ,
                 as
                 the
                 unquestionable
                 Descendent
                 of
                 the
                 said
                 King
                 Robert
                 the
                 third
                 ,
                 and
                 so
                 Heir
                 of
                 his
                 Brother
                 ,
                 the
                 said
                 David
                 Earl
                 of
                 Strathern
                 So
                 that
                 no
                 other
                 lawful
                 Issue
                 ,
                 being
                 proven
                 of
                 the
                 said
                 David's
                 own
                 Bodie
                 ,
                 nor
                 of
                 any
                 other
                 nearer
                 Brother
                 ;
                 all
                 his
                 Right
                 remained
                 with
                 the
                 King
                 ,
                 as
                 descending
                 from
                 King
                 Robert
                 the
                 third
                 ,
                 who
                 was
                 Brother
                 to
                 the
                 said
                 David
                 Earl
                 of
                 
                   Strathern
                   .
                   March
                
                 22
                 :
                 1633.
                 
                 The
                 King
                 contra
                 the
                 Earl
                 of
                 Strathern
                 .
                 There
                 is
                 another
                 Exception
                 against
                 this
                 Head
                 ,
                 That
                 the
                 pursuer
                 hath
                 slain
                 his
                 Father
                 ,
                 Mother
                 ,
                 Good-sire
                 ,
                 Grandsire
                 ,
                 &c.
                 whereby
                 he
                 ,
                 and
                 all
                 his
                 Issue
                 are
                 excluded
                 from
                 the
                 Heritage
                 of
                 the
                 Partie
                 slain
                 ,
                 if
                 he
                 be
                 convict
                 thereof
                 by
                 an
                 Assyse
                 and
                 the
                 next
                 Agnat
                 may
                 be
                 served
                 .
                 Par.
                 1594.
                 cap.
                 220.
                 
                 Which
                 was
                 not
                 sustained
                 ,
                 where
                 the
                 Slayer
                 was
                 only
                 declared
                 Eugitive
                 ,
                 for
                 not
                 appearing
                 to
                 underly
                 the
                 Law
                 ,
                 in
                 a
                 Dittay
                 for
                 Slaying
                 his
                 Mother
                 .
                 Feb.
                 3.
                 1674.
                 
                 Mr.
                 
                   George
                   Oliphant
                
                 contra
                 Oliphant
                 .
              
               
                 36.
                 
                 The
                 third
                 Head
                 of
                 the
                 Brieve
                 is
                 ,
                 Of
                 whom
                 the
                 Fee
                 is
                 holden
                 in
                 Chief
                 ,
                 or
                 who
                 is
                 immediat
                 lawful
                 Superior
                 thereof
                 :
                 and
                 this
                 also
                 be
                 instructed
                 by
                 the
                 Infeftments
                 :
                 whereby
                 the
                 Giver
                 of
                 the
                 last
                 Infeftment
                 will
                 also
                 be
                 presumed
                 to
                 continue
                 Superior
                 ,
                 and
                 the
                 Inquest
                 will
                 serve
                 accordingly
                 ;
                 unless
                 another
                 Superior
                 be
                 instructed
                 ,
                 or
                 acknowledged
                 by
                 the
                 Pursuer
                 .
                 Which
                 acknowledgment
                 ,
                 in
                 respect
                 of
                 the
                 Pursuer's
                 hazard
                 of
                 Disclamation
                 ,
                 and
                 that
                 the
                 subsequent
                 Superior's
                 Rights
                 are
                 in
                 his
                 own
                 hand
                 ,
                 and
                 he
                 cannot
                 be
                 prejudged
                 by
                 the
                 Service
                 ;
                 therefore
                 that
                 poynt
                 will
                 be
                 so
                 served
                 
                   Periculo
                   petentis
                
                 .
              
               
                 37.
                 
                 The
                 fourth
                 Head
                 of
                 the
                 Brieve
                 is
                 ,
                 By
                 what
                 Service
                 the
                 Fee
                 is
                 holden
                 ,
                 whether
                 it
                 be
                 Ward
                 ,
                 Blench
                 ,
                 Feu
                 or
                 Burgage
                 ;
                 which
                 also
                 must
                 be
                 instructed
                 by
                 the
                 Evidents
                 .
                 And
                 if
                 nothing
                 else
                 appear
                 ,
                 the
                 Fee
                 is
                 presumed
                 to
                 be
                 Ward
                 ,
                 because
                 that
                 only
                 is
                 the
                 proper
                 Fee
                 ,
                 and
                 the
                 others
                 are
                 improper
                 ,
                 declyning
                 from
                 the
                 nature
                 of
                 Fees
                 :
                 and
                 therefore
                 are
                 not
                 presumed
                 ,
                 but
                 must
                 be
                 proven
                 :
                 And
                 as
                 Craig
                 observes
                 ,
                 lib.
                 2.
                 dieg
                 .
                 17.
                 
                 It
                 will
                 not
                 instruct
                 the
                 Fee
                 not
                 to
                 be
                 Ward
                 ,
                 though
                 it
                 contain
                 a
                 particular
                 Reddendo
                 ,
                 of
                 a
                 Cane
                 or
                 Dutie
                 ;
                 yea
                 ,
                 though
                 it
                 bear
                 
                   pro
                   omni
                   alio
                   servitio
                   &
                   questione
                   seculari
                   :
                
                 unless
                 it
                 express
                 the
                 said
                 Reddendo
                 to
                 be
                 in
                 name
                 of
                 Blench
                 Dutie
                 ,
                 or
                 in
                 name
                 of
                 FeuDutie
                 ;
                 So
                 an
                 Infeftment
                 ,
                 bearing
                 a
                 particular
                 Duty
                 payable
                 at
                 Whitsunday
                 ,
                 and
                 Martinmass
                 yearly
                 ,
                 
                   cum
                   servitiis
                   in
                   curiis
                   nostris
                   debitis
                   &
                   consuetis
                
                 ;
                 was
                 found
                 to
                 be
                 a
                 Ward
                 Holding
                 .
                 
                   Hope
                   de
                   Feudi
                   Renovatione
                   Williamson
                
                 contra
                 Thomson
                 :
                 And
                 an
                 Infeftment
                 bearing
                 
                   sex
                   denarios
                   nomine
                   canae
                
                 ,
                 with
                 a
                 Taxed
                 Marriage
                 ,
                 was
                 found
                 Ward
                 .
                 Feb.
                 7.
                 1610.
                 
                 As
                 was
                 resolved
                 by
                 Oliphant
                 the
                 King's
                 Advocat
                 ,
                 in
                 a
                 Consultation
                 with
                 the
                 Bishop
                 of
                 St.
                 Andrews
                 ,
                 for
                 entring
                 the
                 Lord
                 Lindsay
                 to
                 the
                 Lands
                 of
                 Struthers
                 .
              
               
               
                 38.
                 
                 The
                 fifth
                 Head
                 is
                 ,
                 The
                 Value
                 of
                 the
                 Fee
                 now
                 ,
                 and
                 in
                 time
                 of
                 peace
                 .
                 The
                 reason
                 of
                 inserting
                 of
                 this
                 Article
                 ,
                 is
                 ,
                 because
                 there
                 is
                 due
                 to
                 the
                 Superior
                 a
                 years
                 Rent
                 of
                 the
                 Fee
                 ,
                 for
                 the
                 entire
                 of
                 the
                 Heir
                 ,
                 which
                 is
                 called
                 the
                 Relief
                 :
                 of
                 which
                 formerly
                 ,
                 
                   Title
                   Superiority
                
                 .
                 And
                 that
                 it
                 might
                 be
                 constant
                 ,
                 and
                 liquidat
                 ,
                 there
                 was
                 a
                 general
                 Valuation
                 of
                 the
                 whole
                 Kingdom
                 ,
                 which
                 is
                 called
                 the
                 old
                 Retour
                 ,
                 or
                 old
                 Extent
                 .
                 Thereafter
                 there
                 was
                 a
                 second
                 Retour
                 ,
                 called
                 the
                 new
                 Retour
                 ,
                 or
                 Extent
                 ;
                 whereby
                 the
                 new
                 Retour
                 of
                 some
                 Shires
                 was
                 made
                 the
                 Triple
                 ,
                 and
                 some
                 the
                 Quadruple
                 of
                 the
                 old
                 ;
                 Yea
                 ,
                 different
                 new
                 Retours
                 were
                 in
                 the
                 same
                 Shyre
                 ,
                 but
                 there
                 is
                 no
                 new
                 Retours
                 in
                 
                   Southern
                   Shires
                
                 ,
                 upon
                 the
                 Border
                 ,
                 which
                 were
                 frequently
                 wasted
                 with
                 War
                 ,
                 and
                 little
                 addition
                 in
                 the
                 
                   Northern
                   Shyres
                
                 .
                 So
                 the
                 meaning
                 of
                 the
                 Article
                 is
                 ,
                 what
                 the
                 Fee
                 is
                 worth
                 now
                 ,
                 that
                 is
                 ,
                 what
                 the
                 new
                 Retour
                 ,
                 or
                 Extent
                 thereof
                 is
                 ,
                 and
                 what
                 it
                 was
                 worth
                 in
                 the
                 time
                 of
                 Peace
                 ,
                 or
                 what
                 is
                 the
                 old
                 Extent
                 thereof
                 .
                 Craig
                 declares
                 ,
                 he
                 could
                 never
                 find
                 clear
                 satisfaction
                 in
                 the
                 reason
                 of
                 these
                 expressions
                 ,
                 especially
                 ,
                 why
                 the
                 old
                 Retour
                 is
                 called
                 that
                 which
                 was
                 in
                 the
                 time
                 of
                 Peace
                 .
                 And
                 he
                 conjectureth
                 ,
                 that
                 because
                 our
                 fore
                 Fathers
                 are
                 said
                 to
                 rest
                 in
                 peace
                 ,
                 therefore
                 ,
                 by
                 the
                 same
                 peace
                 ,
                 is
                 meant
                 the
                 time
                 of
                 our
                 Predecessors
                 .
                 But
                 I
                 conceive
                 the
                 matter
                 may
                 be
                 better
                 cleared
                 thus
                 .
                 The
                 Casualities
                 of
                 the
                 Superiority
                 were
                 ,
                 of
                 old
                 ,
                 the
                 Chief
                 Patrimony
                 of
                 the
                 Crown
                 of
                 Scotland
                 ,
                 and
                 were
                 further
                 extended
                 than
                 of
                 late
                 :
                 and
                 therefore
                 it
                 seems
                 ,
                 that
                 the
                 time
                 of
                 the
                 making
                 the
                 new
                 Retour
                 ,
                 and
                 cause
                 thereof
                 ,
                 was
                 the
                 frequency
                 of
                 War
                 ,
                 requiring
                 an
                 Addition
                 of
                 the
                 Royal
                 Revenue
                 And
                 though
                 ,
                 through
                 the
                 alteration
                 of
                 the
                 Rate
                 of
                 Money
                 ,
                 neither
                 of
                 the
                 Retours
                 be
                 now
                 considerable
                 ;
                 Yet
                 doubtlesse
                 they
                 were
                 very
                 considerable
                 in
                 those
                 times
                 .
                 So
                 that
                 by
                 
                   quid
                   valet
                   nunc
                
                 ,
                 is
                 to
                 be
                 understood
                 in
                 time
                 of
                 War
                 ,
                 at
                 which
                 time
                 the
                 new
                 Retour
                 was
                 made
                 :
                 which
                 is
                 the
                 more
                 evident
                 ,
                 by
                 the
                 opposite
                 member
                 ,
                 what
                 was
                 the
                 Value
                 in
                 the
                 time
                 of
                 Peace
                 .
                 So
                 that
                 the
                 old
                 Retour
                 ,
                 being
                 that
                 Value
                 which
                 was
                 before
                 the
                 necessity
                 of
                 heightening
                 thereof
                 ,
                 by
                 the
                 War
                 ,
                 is
                 fitly
                 said
                 to
                 be
                 that
                 which
                 was
                 in
                 time
                 of
                 Peace
                 :
                 and
                 the
                 new
                 Retour
                 ,
                 that
                 which
                 was
                 made
                 in
                 time
                 of
                 War.
                 And
                 immediately
                 ,
                 after
                 the
                 Constitution
                 thereof
                 ,
                 the
                 Brieve
                 was
                 made
                 to
                 expresse
                 it
                 ,
                 by
                 the
                 then
                 present
                 time
                 ,
                 Nunc
                 :
                 which
                 hath
                 been
                 always
                 so
                 continued
                 ,
                 because
                 the
                 Style
                 of
                 Brievs
                 is
                 not
                 to
                 be
                 altered
                 .
                 This
                 is
                 the
                 more
                 evident
                 ,
                 that
                 the
                 Bordering
                 Shyres
                 ,
                 which
                 were
                 frequently
                 wasted
                 ,
                 by
                 Incursions
                 ,
                 were
                 not
                 altered
                 in
                 their
                 Extent
                 :
                 So
                 that
                 it
                 hath
                 been
                 made
                 in
                 a
                 time
                 of
                 War.
                 
              
               
                 The
                 new
                 Extent
                 is
                 not
                 only
                 the
                 Rule
                 of
                 Relief
                 ,
                 but
                 of
                 Non-Entrie
                 ,
                 in
                 Lands
                 holden
                 Ward
                 ,
                 and
                 Blench
                 :
                 for
                 the
                 new
                 Retour
                 Mail
                 is
                 only
                 due
                 till
                 general
                 Declarator
                 .
                 But
                 in
                 Feu
                 Lands
                 ,
                 there
                 is
                 only
                 regard
                 to
                 the
                 Extent
                 for
                 during
                 the
                 Non-Entry
                 thereof
                 ,
                 at
                 least
                 before
                 general
                 Declarator
                 ,
                 nothing
                 is
                 due
                 :
                 but
                 the
                 Feu
                 Dutie
                 ,
                 and
                 the
                 Duplication
                 thereof
                 for
                 the
                 Relief
                 .
                 Annualrents
                 have
                 no
                 difference
                 ,
                 before
                 or
                 after
                 Declarator
                 :
                 and
                 therefore
                 are
                 alwayes
                 Retoured
                 to
                 the
                 full
                 Value
                 of
                 the
                 Annualrent
                 ,
                 and
                 is
                 thus
                 exprest
                 ,
                 
                   quod
                   valet
                   seipsum
                
                 .
              
               
                 39.
                 
                 The
                 sixth
                 Head
                 is
                 ,
                 Whether
                 the
                 Pursuer
                 be
                 of
                 lawful
                 age
                 .
                 Wherein
                 we
                 must
                 distinguish
                 betwixt
                 Ward
                 Holdings
                 and
                 other
                 Holdings
                 ,
                 Blench
                 ,
                 Feu
                 ,
                 or
                 Burgage
                 ;
                 For
                 in
                 these
                 ,
                 any
                 Age
                 is
                 lawful
                 Age.
                 but
                 in
                 Ward
                 :
                 Holdings
                 ,
                 because
                 the
                 Superior
                 by
                 vertue
                 of
                 the
                 Ward
                 ,
                 hath
                 the
                 profit
                 of
                 the
                 Land
                 ,
                 during
                 the
                 Heirs
                 Minority
                 ;
                 therefore
                 they
                 cannot
                 enter
                 till
                 their
                 Majority
                 ,
                 at
                 which
                 time
                 ,
                 only
                 the
                 Heir
                 is
                 of
                 lawful
                 Age
                 :
                 which
                 in
                 Men
                 is
                 ,
                 twenty
                 one
                 Years
                 compleat
                 ,
                 and
                 in
                 Women
                 fourteen
                 Years
                 compleat
                 .
                 January
                 27.
                 1610.
                 
                 Laird
                 of
                 Kilbirnie
                 contra
                 Fairly
                 .
                 Yet
                 if
                 the
                 King
                 ,
                 or
                 any
                 other
                 Superior
                 give
                 Dispensation
                 
                 of
                 the
                 Age
                 ,
                 the
                 Service
                 will
                 proceed
                 ,
                 but
                 the
                 benefit
                 of
                 the
                 Ward
                 continueth
                 with
                 the
                 Superior
                 ,
                 by
                 the
                 Dispensation
                 in
                 the
                 Disposition
                 .
                 The
                 Heir
                 Age
                 must
                 also
                 be
                 instructed
                 to
                 the
                 Inquest
                 ,
                 either
                 as
                 being
                 Notour
                 ,
                 by
                 inspection
                 of
                 the
                 Persons
                 ;
                 for
                 it
                 would
                 be
                 Ridiculous
                 ,
                 to
                 prove
                 a
                 Gray-headed
                 Heir
                 to
                 be
                 Major
                 ,
                 but
                 in
                 dubio
                 ,
                 Witnesses
                 ,
                 or
                 other
                 sufficient
                 Adminicles
                 must
                 be
                 adhibited
                 .
              
               
                 40.
                 
                 The
                 seventh
                 Head
                 of
                 the
                 Brieve
                 ,
                 is
                 ,
                 In
                 whose
                 hand
                 the
                 Fee
                 is
                 ;
                 that
                 is
                 ,
                 to
                 whom
                 the
                 profit
                 and
                 benefit
                 thereof
                 doth
                 now
                 belong
                 .
                 For
                 ordinarly
                 the
                 Fee
                 is
                 Retoured
                 ;
                 to
                 be
                 in
                 the
                 hands
                 of
                 the
                 Superior
                 by
                 reason
                 of
                 Non-Entrie
                 ,
                 but
                 sometimes
                 retoured
                 to
                 be
                 in
                 the
                 hands
                 of
                 the
                 Supeiors
                 ,
                 Superior
                 ,
                 when
                 the
                 Sùperior
                 hath
                 lost
                 the
                 Casualities
                 of
                 the
                 Superioritie
                 ,
                 during
                 his
                 Life
                 ;
                 and
                 sometimes
                 it
                 is
                 in
                 the
                 hands
                 of
                 the
                 Liferenters
                 ,
                 by
                 Conjunct-Fee
                 ,
                 or
                 Liferent
                 holden
                 of
                 the
                 Superior
                 ;
                 which
                 doth
                 not
                 hinder
                 the
                 Entrie
                 of
                 the
                 Heir
                 to
                 the
                 Fee
                 ,
                 yet
                 excludeth
                 Non-Entrie
                 .
              
               
                 The
                 remanent
                 Particles
                 of
                 the
                 Brieve
                 ,
                 From
                 what
                 time
                 ,
                 how
                 ,
                 by
                 what
                 Service
                 ,
                 by
                 whom
                 ,
                 and
                 through
                 what
                 Cause
                 ;
                 are
                 but
                 circumstances
                 relative
                 to
                 the
                 last
                 Head
                 :
                 that
                 thereby
                 it
                 may
                 appear
                 ,
                 First
                 ,
                 How
                 long
                 the
                 Fee
                 hath
                 been
                 in
                 Non-Entry
                 ,
                 or
                 in
                 the
                 hands
                 of
                 the
                 immediat
                 Superior
                 ,
                 or
                 Liferenter
                 .
                 2.
                 
                 How
                 it
                 came
                 to
                 be
                 in
                 that
                 Condition
                 :
                 So
                 it
                 became
                 in
                 Non-Entrie
                 ,
                 by
                 the
                 Vassal's
                 Death
                 ,
                 and
                 in
                 the
                 hands
                 of
                 the
                 mediat
                 Superior
                 ,
                 by
                 the
                 contumacie
                 of
                 the
                 immediat
                 Superior
                 ,
                 in
                 not
                 entring
                 his
                 Vassal
                 ;
                 and
                 in
                 the
                 hands
                 of
                 the
                 Liferenter
                 ,
                 by
                 the
                 Infeftment
                 of
                 Liferent
                 ,
                 granted
                 by
                 the
                 Superior
                 .
                 3.
                 
                 The
                 kind
                 of
                 Service
                 which
                 relateth
                 to
                 the
                 Fee's
                 being
                 in
                 the
                 hands
                 of
                 the
                 Liferenter
                 ,
                 in
                 respect
                 that
                 the
                 Liferent
                 ,
                 is
                 oftimes
                 a
                 different
                 Holding
                 from
                 the
                 Fee
                 ,
                 and
                 is
                 ordinarly
                 Blench
                 ;
                 and
                 therefore
                 it
                 is
                 the
                 Superiors
                 Interest
                 ,
                 to
                 know
                 what
                 such
                 Service
                 is
                 ,
                 and
                 also
                 to
                 know
                 by
                 whom
                 ,
                 and
                 through
                 what
                 Cause
                 ,
                 the
                 Fee
                 is
                 in
                 the
                 hands
                 of
                 such
                 a
                 Person
                 .
                 These
                 Circumstances
                 therefore
                 ,
                 do
                 not
                 make
                 distinct
                 Heads
                 of
                 the
                 Brieve
                 ,
                 and
                 are
                 not
                 al
                 ways
                 necessary
                 to
                 be
                 retoured
                 ,
                 as
                 the
                 former
                 Heads
                 be
                 .
              
               
                 41.
                 
                 The
                 points
                 aforesaid
                 being
                 cleared
                 ,
                 and
                 instructed
                 to
                 the
                 Inquest
                 ,
                 the
                 Service
                 is
                 the
                 Sentence
                 or
                 Decreet
                 :
                 which
                 ought
                 to
                 be
                 sealed
                 with
                 their
                 Seals
                 ,
                 and
                 with
                 the
                 Seal
                 of
                 the
                 Judge
                 ,
                 to
                 whom
                 the
                 Brieve
                 is
                 directed
                 ,
                 and
                 is
                 returned
                 to
                 the
                 Chancerie
                 ,
                 whence
                 it
                 is
                 called
                 a
                 Retour
                 ,
                 being
                 Registrate
                 there
                 ,
                 and
                 Extracted
                 ;
                 till
                 which
                 it
                 is
                 not
                 compleat
                 :
                 neither
                 doth
                 the
                 Service
                 ordinarly
                 instruct
                 the
                 active
                 Title
                 but
                 only
                 the
                 Retour
                 .
                 The
                 Service
                 is
                 keeped
                 in
                 the
                 Chancery
                 ,
                 for
                 Warrant
                 of
                 the
                 Retour
                 :
                 Yet
                 it
                 was
                 found
                 ,
                 that
                 Services
                 before
                 the
                 year
                 1550.
                 were
                 sufficient
                 to
                 satisfie
                 the
                 Production
                 in
                 Improbations
                 ,
                 or
                 Reductions
                 ,
                 without
                 producing
                 the
                 Retour
                 it self
                 ;
                 because
                 at
                 that
                 time
                 the
                 Books
                 of
                 the
                 Chancerie
                 were
                 destroyed
                 by
                 War.
                 Feb.
                 17.
                 1624.
                 
                 Lord
                 Elphinstoun
                 contra
                 Earl
                 of
                 Marr.
                 
              
               
                 42.
                 
                 Retours
                 are
                 easily
                 annualled
                 ,
                 or
                 reduced
                 ,
                 because
                 no
                 Desender
                 is
                 called
                 thereto
                 ,
                 and
                 the
                 Probation
                 in
                 most
                 part
                 ,
                 is
                 by
                 presumption
                 ,
                 as
                 hath
                 been
                 shown
                 ;
                 and
                 by
                 the
                 proper
                 Knowledge
                 of
                 the
                 Inquest
                 ,
                 or
                 Witnesses
                 ,
                 whereof
                 there
                 seldom
                 remaineth
                 any
                 Testimony
                 in
                 retentis
                 .
                 The
                 Lords
                 would
                 not
                 reduce
                 a
                 Retour
                 for
                 want
                 thereof
                 ;
                 But
                 ordained
                 the
                 whole
                 Inquest
                 to
                 be
                 examined
                 upon
                 oath
                 ,
                 upon
                 what
                 Evidence
                 they
                 served
                 .
                 Feb.
                 24.
                 1665.
                 
                 Sr.
                 
                   James
                   Mercer
                
                 of
                 Aldie
                 contra
                 
                   William
                   Rowen
                
                 .
                 A
                 Retour
                 being
                 found
                 null
                 in
                 one
                 Head
                 ,
                 was
                 found
                 null
                 in
                 
                   otum
                   ,
                   Hope
                   ,
                   〈◊〉
                
                 ;
                 Laird
                 of
                 〈◊〉
                 contra
              
               
               
                 A
                 Retour
                 of
                 a
                 Sister
                 as
                 Heir
                 to
                 her
                 Brother
                 ,
                 was
                 found
                 null
                 by
                 Exception
                 upon
                 production
                 of
                 another
                 Brother's
                 Retour
                 ,
                 though
                 posterior
                 ,
                 who
                 thereupon
                 was
                 preferred
                 ;
                 albeit
                 an
                 excommunicat
                 
                   Papist
                   .
                   Feb.
                
                 16.
                 1627.
                 
                 Lord
                 Colvil
                 contra
                 Mr.
                 Walter
                 and
                 
                   Christian
                   Herds
                
                 .
                 And
                 a
                 Retour
                 of
                 a
                 second
                 Brother
                 served
                 Heir
                 to
                 his
                 Father
                 ,
                 where
                 the
                 elder
                 Brother
                 was
                 absent
                 ,
                 and
                 repute
                 dead
                 :
                 but
                 returning
                 home
                 again
                 ,
                 and
                 granting
                 Band
                 to
                 a
                 Creditor
                 ,
                 who
                 charged
                 him
                 to
                 enter
                 Heir
                 ,
                 and
                 apprised
                 and
                 possessed
                 ;
                 the
                 Retour
                 of
                 the
                 second
                 Brother
                 was
                 thereupon
                 found
                 null
                 by
                 Exception
                 ;
                 albeit
                 twenty
                 Years
                 after
                 the
                 Date
                 thereof
                 :
                 though
                 by
                 the
                 Act
                 of
                 Patliament
                 ,
                 1617.
                 cap.
                 13.
                 
                 Retours
                 are
                 not
                 quarrellable
                 by
                 Reduction
                 ,
                 or
                 Summonts
                 of
                 Error
                 ;
                 unless
                 the
                 same
                 be
                 intented
                 ,
                 execute
                 ,
                 and
                 pursued
                 within
                 twenty
                 Years
                 after
                 the
                 Service
                 ,
                 and
                 Retour
                 ,
                 in
                 respect
                 of
                 the
                 Apprising
                 ,
                 and
                 Possession
                 within
                 these
                 Years
                 ,
                 which
                 import
                 an
                 interruption
                 ;
                 and
                 that
                 the
                 second
                 Brother's
                 Retour
                 was
                 null
                 by
                 Exception
                 ,
                 and
                 needed
                 no
                 Reduction
                 .
                 January
                 11.
                 1673.
                 
                 Lamb
                 contra
                 Anderson
                 .
              
               
                 A
                 Retour
                 was
                 also
                 annulled
                 by
                 Exception
                 ,
                 by
                 referring
                 to
                 the
                 Parties
                 oath
                 ,
                 that
                 he
                 had
                 no
                 contingencie
                 of
                 Blood
                 with
                 the
                 Defunct
                 ,
                 Feb.
                 10.
                 1636.
                 
                 Murray
                 contra
                 Sinclair
                 and
                 Meikle
                 .
                 The
                 like
                 in
                 the
                 case
                 of
                 a
                 Woman
                 retoured
                 sole
                 Heir
                 :
                 it
                 being
                 instantly
                 verified
                 ,
                 that
                 there
                 was
                 another
                 Sister
                 .
                 
                   Hope
                   .
                   Retour
                   of
                   Idiotrie
                   ,
                   Fairly
                
                 contra
                 Fairly
                 .
                 The
                 like
                 was
                 found
                 by
                 Reply
                 ,
                 referring
                 it
                 to
                 the
                 Partie's
                 Oath
                 ,
                 that
                 he
                 was
                 Bastard
                 .
                 
                   Spots
                   .
                   Retours
                   ,
                   Murray
                
                 contra
                 Murray
                 .
              
               
                 43.
                 
                 Retours
                 are
                 ordinarly
                 annulled
                 and
                 reduced
                 by
                 a
                 great
                 Inquest
                 ,
                 of
                 twenty
                 five
                 Members
                 :
                 who
                 do
                 enquire
                 ,
                 not
                 only
                 concerning
                 the
                 Verity
                 ,
                 and
                 〈◊〉
                 of
                 the
                 Retour
                 ;
                 but
                 also
                 concerning
                 the
                 Ignorance
                 and
                 Malice
                 of
                 the
                 
                   Jurantes
                   super
                   assisa
                
                 :
                 which
                 is
                 not
                 always
                 inferred
                 ,
                 when
                 the
                 Retour
                 is
                 reduced
                 .
                 As
                 if
                 it
                 be
                 found
                 ,
                 that
                 the
                 Defunct
                 died
                 not
                 ,
                 last
                 vest
                 ,
                 and
                 Seased
                 ;
                 as
                 of
                 Fee
                 ;
                 by
                 instructing
                 that
                 he
                 was
                 denuded
                 :
                 July
                 7.
                 1663.
                 
                 
                   Isabel
                   Mow
                
                 contra
                 Dutchess
                 of
                 Buccleugh
                 .
                 Or
                 that
                 he
                 died
                 not
                 at
                 the
                 Faith
                 ,
                 and
                 Peace
                 of
                 Our
                 Soveraign
                 Lord
                 ;
                 by
                 instructing
                 that
                 he
                 was
                 forefault
                 :
                 or
                 that
                 he
                 was
                 not
                 nearest
                 and
                 lawful
                 Heir
                 ;
                 by
                 instructing
                 a
                 nearer
                 Heir
                 :
                 is
                 no
                 Error
                 in
                 the
                 first
                 Inquest
                 ;
                 seing
                 these
                 points
                 were
                 presumed
                 ,
                 and
                 needed
                 no
                 probation
                 .
                 And
                 in
                 like
                 manner
                 ,
                 if
                 by
                 Reduction
                 ,
                 there
                 be
                 a
                 more
                 pregnant
                 Condescendence
                 and
                 Probation
                 for
                 another
                 Partie
                 ,
                 than
                 for
                 the
                 Heir
                 served
                 ;
                 it
                 will
                 be
                 no
                 wilful
                 Error
                 ,
                 unless
                 competition
                 had
                 been
                 at
                 the
                 time
                 of
                 the
                 Service
                 .
                 But
                 it
                 must
                 be
                 an
                 evident
                 and
                 grosse
                 Error
                 ,
                 in
                 the
                 positive
                 Probation
                 ,
                 specially
                 concerning
                 the
                 Death
                 of
                 the
                 Defunct
                 ,
                 and
                 his
                 being
                 once
                 infeft
                 ;
                 the
                 special
                 Relation
                 ,
                 and
                 Degree
                 of
                 Blood
                 of
                 the
                 Heir
                 ,
                 his
                 Age
                 ,
                 and
                 the
                 Extent
                 of
                 the
                 Fee
                 ,
                 which
                 though
                 the
                 poynt
                 of
                 least
                 moment
                 ,
                 yet
                 will
                 annull
                 the
                 Retour
                 .
                 But
                 if
                 there
                 be
                 a
                 probable
                 cause
                 for
                 the
                 Inquest
                 ,
                 as
                 by
                 production
                 of
                 Writs
                 containing
                 wrong
                 Extents
                 ;
                 they
                 will
                 be
                 declared
                 free
                 of
                 wilfull
                 Error
                 .
                 
                   Spots
                   .
                   Retours
                   ,
                   Mark
                   Kerr
                
                 contra
                 Scot
                 of
                 Hartwoodmires
                 .
                 The
                 manner
                 of
                 reducing
                 of
                 Retours
                 ,
                 is
                 ,
                 by
                 a
                 Summons
                 of
                 Error
                 against
                 the
                 Assysors
                 before
                 the
                 Kings
                 Council
                 ,
                 which
                 is
                 now
                 the
                 Lords
                 of
                 Council
                 and
                 Session
                 .
                 Par.
                 1471.
                 cap.
                 47.
                 
              
               
                 44.
                 
                 Though
                 it
                 be
                 the
                 ordinary
                 way
                 to
                 annull
                 Retours
                 ,
                 by
                 a
                 great
                 Inquest
                 ;
                 yet
                 the
                 Lords
                 do
                 sometimes
                 sustain
                 Reductions
                 thereof
                 as
                 erronious
                 ,
                 by
                 Witnesses
                 before
                 themselves
                 ,
                 without
                 a
                 great
                 Inquest
                 ,
                 July
                 7.
                 1663.
                 
                 
                   Isabel
                   Mow
                
                 contra
                 Dutchess
                 of
                 Buccleugh
                 .
              
               
               
                 45.
                 
                 The
                 Reduction
                 of
                 Retours
                 being
                 of
                 such
                 hazard
                 to
                 the
                 members
                 of
                 Inquest
                 it
                 is
                 statute
                 Par.
                 1494.
                 cap.
                 57.
                 
                 That
                 they
                 shall
                 not
                 be
                 reducible
                 ,
                 but
                 within
                 three
                 years
                 after
                 the
                 Date
                 ;
                 so
                 as
                 to
                 inter
                 Error
                 against
                 the
                 Inquest
                 :
                 albeit
                 they
                 may
                 be
                 reduced
                 ,
                 as
                 to
                 render
                 the
                 Retours
                 null
                 in
                 themselves
                 at
                 any
                 time
                 ,
                 within
                 twenty
                 Years
                 after
                 they
                 were
                 deduced
                 .
                 Par.
                 1617.
                 cap.
                 13.
                 
                 Which
                 Act
                 reacheth
                 only
                 Retours
                 after
                 it
                 ,
                 but
                 not
                 Retours
                 before
                 ,
                 and
                 actions
                 against
                 the
                 same
                 ;
                 which
                 Prescrive
                 by
                 the
                 general
                 Act
                 of
                 Prescription
                 ,
                 Par.
                 1617.
                 cap.
                 12.
                 
                 As
                 was
                 found
                 November
                 28.
                 1665.
                 
                 Younger
                 contra
                 Johnstoun
                 .
              
               
                 46.
                 
                 The
                 Heir
                 being
                 thus
                 specially
                 served
                 and
                 retoured
                 ,
                 if
                 the
                 Fee
                 immemediatly
                 hold
                 of
                 the
                 King
                 ,
                 he
                 doeth
                 thereupon
                 obtain
                 Precepts
                 out
                 of
                 the
                 Chancery
                 ,
                 of
                 course
                 without
                 Citation
                 ;
                 commanding
                 the
                 Judge
                 ordinary
                 of
                 the
                 Place
                 where
                 the
                 Feelyes
                 ,
                 Sheriff
                 or
                 Balliff
                 ,
                 to
                 give
                 Seasine
                 to
                 the
                 Person
                 retoured
                 ,
                 
                   capiendo
                   securitatem
                
                 ,
                 taking
                 Security
                 for
                 the
                 Non-Entry
                 and
                 Relief
                 due
                 to
                 the
                 King
                 :
                 for
                 which
                 the
                 Judge
                 ordinary
                 is
                 countable
                 in
                 Exchequer
                 ,
                 unless
                 the
                 Profites
                 belong
                 to
                 himself
                 as
                 Bailiff
                 of
                 Regality
                 .
                 If
                 the
                 said
                 Judge
                 ordinary
                 do
                 not
                 grant
                 Seasine
                 accordingly
                 ,
                 the
                 Lords
                 upon
                 Supplication
                 ,
                 and
                 Instruments
                 of
                 his
                 disobedience
                 ,
                 will
                 grant
                 Warrant
                 to
                 the
                 Director
                 of
                 the
                 Chancery
                 ,
                 to
                 issue
                 Precepts
                 to
                 an
                 other
                 Person
                 as
                 Sheriff
                 in
                 that
                 part
                 specially
                 constiture
                 ,
                 without
                 first
                 using
                 Horning
                 against
                 the
                 Ordinary
                 disobeying
                 .
                 
                   Spots
                   .
                   David
                   Balfour
                
                 Supplicant
                 .
              
               
                 These
                 Precepts
                 ,
                 because
                 of
                 the
                 Clause
                 
                   capiendo
                   securitatem
                
                 ,
                 were
                 found
                 to
                 make
                 both
                 the
                 person
                 of
                 the
                 Heir
                 ,
                 and
                 the
                 Ground
                 lyable
                 for
                 the
                 Sums
                 due
                 thereby
                 ,
                 though
                 Infeftment
                 was
                 never
                 taken
                 .
                 
                   Spots
                   .
                   Sheriff
                
                 ,
                 Laird
                 of
                 Stobs
                 contra
                 Laird
                 of
                 Lauristoun
                 .
                 These
                 Seasines
                 are
                 appointed
                 to
                 be
                 given
                 by
                 the
                 ordinary
                 Clerk
                 of
                 the
                 Jurisdictions
                 ,
                 Parl.
                 1540.
                 cap.
                 77.
                 
                 Parl.
                 1567.
                 cap.
                 27.
                 
                 Parl.
                 1587.
                 cap.
                 64.
                 
                 If
                 the
                 Fee
                 be
                 holden
                 of
                 any
                 other
                 Superior
                 than
                 the
                 King
                 ,
                 if
                 he
                 do
                 not
                 willingly
                 grant
                 Infeftment
                 upon
                 fight
                 of
                 the
                 Retour
                 ;
                 the
                 Heir
                 will
                 of
                 course
                 get
                 Precepts
                 out
                 of
                 the
                 Chancery
                 ,
                 to
                 charge
                 the
                 Superior
                 to
                 enter
                 and
                 infeft
                 the
                 Heir
                 so
                 retoured
                 :
                 with
                 certification
                 if
                 he
                 fail
                 ,
                 he
                 shall
                 lose
                 the
                 benefite
                 of
                 the
                 Superiority
                 during
                 his
                 life
                 :
                 containing
                 also
                 this
                 Clause
                 in
                 favour
                 of
                 the
                 Superior
                 ,
                 
                   faciendo
                   vobis
                   quod
                   de
                   jure
                   facere
                   debet
                   .
                
                 And
                 upon
                 Instruments
                 of
                 the
                 Superior's
                 Refusal
                 or
                 Delay
                 ,
                 being
                 thrice
                 required
                 ;
                 Precepts
                 are
                 directed
                 out
                 of
                 the
                 Chancery
                 in
                 course
                 ,
                 against
                 his
                 Superior
                 ,
                 to
                 supply
                 his
                 place
                 :
                 and
                 if
                 he
                 should
                 refuse
                 ,
                 the
                 like
                 Certification
                 is
                 competent
                 against
                 him
                 ,
                 and
                 so
                 Precepts
                 are
                 direct
                 against
                 his
                 immediat
                 Superior
                 ,
                 till
                 at
                 last
                 it
                 come
                 to
                 the
                 King
                 as
                 supreme
                 Superior
                 ;
                 who
                 refuseth
                 none
                 ,
                 but
                 thereupon
                 Precepts
                 of
                 Seasine
                 are
                 direct
                 out
                 of
                 the
                 Chancery
                 to
                 the
                 Judge
                 ordinary
                 of
                 the
                 place
                 to
                 give
                 Seasine
                 .
              
               
                 47.
                 
                 For
                 preventing
                 of
                 the
                 loss
                 of
                 the
                 Superiority
                 during
                 life
                 ,
                 the
                 Superior
                 being
                 charged
                 ,
                 if
                 he
                 obey
                 not
                 ,
                 must
                 supend
                 the
                 Precepts
                 :
                 which
                 is
                 done
                 most
                 ordinarly
                 upon
                 this
                 Reason
                 ,
                 that
                 the
                 Heir
                 hath
                 not
                 satisfied
                 the
                 Relief
                 and
                 Non-entry
                 Duties
                 ,
                 due
                 to
                 the
                 Superior
                 ,
                 conform
                 to
                 the
                 Clause
                 of
                 the
                 Precept
                 ,
                 
                   faciendo
                   vobis
                
                 ,
                 &c.
                 
                 Which
                 
                   Craig
                   lib.
                
                 2.
                 dieg
                 .
                 17.
                 shows
                 not
                 to
                 have
                 been
                 sustained
                 by
                 the
                 Lords
                 ,
                 seing
                 the
                 Superior
                 had
                 poynding
                 of
                 the
                 Ground
                 competent
                 therefore
                 :
                 yet
                 the
                 custom
                 since
                 hath
                 been
                 contrary
                 ,
                 July
                 29.
                 1624.
                 
                 Laird
                 of
                 Capringtoun
                 contra
                 Laird
                 of
                 Keirs
                 .
                 In
                 which
                 case
                 ,
                 Keirs
                 being
                 pursued
                 to
                 receive
                 Capringtoun
                 in
                 place
                 of
                 Capringtoun's
                 immediate
                 Superior
                 ,
                 Foulshiels
                 ,
                 who
                 being
                 charged
                 to
                 enter
                 Heir
                 within
                 fourty
                 days
                 to
                 the
                 Superiority
                 ,
                 that
                 he
                 might
                 receive
                 Capringtoun
                 his
                 Vassal
                 ,
                 obeyed
                 not
                 ;
                 and
                 therefore
                 
                   Keirs
                   ,
                   Foulshiel's
                
                 
                 Superior
                 supplying
                 his
                 place
                 ,
                 was
                 ordained
                 to
                 receive
                 Capringtoun
                 ,
                 he
                 always
                 paying
                 the
                 Non-entry
                 ;
                 neither
                 was
                 Capringtoun
                 the
                 Sub-vassal
                 put
                 to
                 take
                 out
                 Charges
                 against
                 Keirs
                 as
                 he
                 had
                 done
                 against
                 Foulshiels
                 ,
                 but
                 this
                 Action
                 was
                 summarly
                 sustained
                 .
                 The
                 like
                 July
                 16.
                 1628.
                 
                 Earl
                 of
                 Wigtoun
                 contra
                 Lord
                 
                   Yester
                   .
                   March
                
                 12.
                 1630.
                 
                 Somervel
                 contra
                 Downie
                 .
                 Where
                 the
                 Annualrenter
                 craving
                 Entry
                 ,
                 was
                 not
                 found
                 lyable
                 to
                 pay
                 the
                 full
                 Annualrent
                 during
                 the
                 Non-entry
                 ,
                 but
                 the
                 Blench
                 duty
                 only
                 .
                 And
                 though
                 in
                 the
                 Case
                 of
                 Peebles
                 contra
                 Lord
                 
                   Ross
                   ,
                   January
                
                 23.
                 1630.
                 
                 Peebles
                 as
                 Superior
                 craving
                 the
                 Non-entry
                 Duties
                 for
                 three
                 Terms
                 subsequent
                 to
                 the
                 Ward
                 ,
                 to
                 be
                 payed
                 to
                 him
                 by
                 the
                 heir
                 craving
                 Entry
                 not
                 according
                 to
                 the
                 new
                 Retour
                 ,
                 but
                 according
                 to
                 the
                 full
                 Duties
                 ,
                 as
                 being
                 subsequent
                 to
                 the
                 Ward
                 ;
                 was
                 ordained
                 to
                 enter
                 the
                 heir
                 without
                 payment
                 of
                 those
                 Duties
                 ,
                 without
                 prejudice
                 of
                 his
                 Right
                 thereto
                 
                   Prout
                   dejure
                
                 :
                 the
                 reason
                 is
                 rendered
                 ,
                 because
                 the
                 Duties
                 were
                 not
                 liquid
                 as
                 the
                 new
                 Retour
                 is
                 ,
                 neither
                 was
                 the
                 case
                 it self
                 clear
                 and
                 unquestionable
                 ,
                 and
                 therefore
                 was
                 only
                 reserved
                 .
                 If
                 the
                 Superior
                 himself
                 be
                 not
                 entered
                 ,
                 he
                 may
                 be
                 charged
                 to
                 enter
                 within
                 fourty
                 days
                 ,
                 with
                 certification
                 if
                 he
                 fail
                 ,
                 to
                 lose
                 the
                 Superiority
                 during
                 his
                 life
                 ,
                 conform
                 to
                 the
                 Act
                 of
                 Parliament
                 1474.
                 cap.
                 57.
                 and
                 if
                 he
                 fail
                 ,
                 his
                 Superior
                 may
                 be
                 pursued
                 
                   via
                   actionis
                
                 ,
                 to
                 supply
                 his
                 place
                 ,
                 and
                 receive
                 the
                 Sub-vassal
                 with
                 the
                 same
                 Certification
                 ,
                 without
                 necessity
                 of
                 charging
                 him
                 with
                 Precepts
                 out
                 of
                 the
                 Chancery
                 :
                 As
                 was
                 sound
                 in
                 the
                 said
                 Decision
                 ,
                 Capringtoun
                 contra
                 Keirs
                 .
              
               
                 48.
                 
                 The
                 Certification
                 of
                 loss
                 of
                 the
                 Superiority
                 during
                 the
                 Superior's
                 life
                 ,
                 though
                 it
                 would
                 seem
                 to
                 extend
                 to
                 all
                 the
                 Casualties
                 of
                 the
                 Superiority
                 befalling
                 after
                 contumacy
                 ;
                 yet
                 it
                 was
                 found
                 only
                 to
                 extend
                 to
                 the
                 Non-entry
                 ,
                 which
                 was
                 purged
                 by
                 the
                 immediat
                 Superior
                 who
                 supplied
                 the
                 place
                 of
                 the
                 mediat
                 Superior
                 :
                 but
                 that
                 subsequent
                 Wards
                 and
                 Liferent-Escheats
                 did
                 notwithstanding
                 belong
                 to
                 the
                 immediat
                 Superiors
                 .
                 March
                 24.
                 1623.
                 
                 
                   James
                   Hay
                
                 contra
                 Laird
                 of
                 Achnames
                 .
                 In
                 which
                 Case
                 it
                 was
                 also
                 found
                 ,
                 that
                 the
                 Feu
                 and
                 Blench
                 Duties
                 contained
                 in
                 the
                 Reddendo
                 ,
                 did
                 no
                 ways
                 fall
                 by
                 the
                 said
                 Certification
                 :
                 which
                 is
                 clear
                 ,
                 because
                 these
                 are
                 not
                 Casualities
                 of
                 the
                 Superiority
                 .
                 But
                 whether
                 these
                 Casualities
                 will
                 not
                 be
                 lost
                 during
                 the
                 life
                 of
                 the
                 contumacious
                 Superior
                 ,
                 as
                 the
                 Certification
                 would
                 import
                 ,
                 and
                 will
                 belong
                 to
                 the
                 mediate
                 Superior
                 supplying
                 his
                 place
                 ,
                 is
                 not
                 so
                 clear
                 :
                 because
                 if
                 the
                 negative
                 hold
                 ,
                 the
                 Certification
                 which
                 seems
                 so
                 great
                 ,
                 signifies
                 nothing
                 .
              
               
                 49.
                 
                 The
                 next
                 Reason
                 of
                 Suspension
                 of
                 these
                 Charges
                 for
                 entring
                 of
                 Vassals
                 ,
                 is
                 ,
                 That
                 the
                 Heir
                 retoured
                 doth
                 not
                 produce
                 the
                 ancient
                 Evidents
                 ,
                 that
                 the
                 new
                 Precept
                 of
                 the
                 Superior
                 for
                 obedience
                 may
                 be
                 made
                 conform
                 thereto
                 .
                 This
                 Reason
                 was
                 repelled
                 ,
                 November
                 14.
                 1609.
                 
                 Laird
                 of
                 Drum
                 contra
                 Laird
                 of
                 Ley.
                 And
                 though
                 that
                 might
                 have
                 been
                 admitted
                 ,
                 because
                 of
                 old
                 Infeftments
                 were
                 simple
                 ;
                 but
                 now
                 since
                 they
                 are
                 clogged
                 with
                 many
                 Provisions
                 ,
                 which
                 fall
                 under
                 the
                 Service
                 of
                 the
                 Brieve
                 ,
                 there
                 is
                 reason
                 that
                 the
                 ancient
                 Evidences
                 should
                 be
                 showen
                 with
                 the
                 Retour
                 ,
                 and
                 those
                 Provisions
                 in
                 the
                 Precept
                 offered
                 to
                 the
                 Superior
                 ;
                 otherwise
                 the
                 said
                 Provisions
                 may
                 become
                 ineffectual
                 :
                 because
                 these
                 Precepts
                 and
                 Infeftments
                 thereupon
                 ,
                 will
                 be
                 sufficient
                 Rights
                 ,
                 without
                 showing
                 any
                 elder
                 .
                 And
                 seing
                 it
                 is
                 the
                 Vassal's
                 duty
                 to
                 show
                 his
                 Holdings
                 to
                 the
                 Superior
                 ,
                 there
                 can
                 be
                 no
                 time
                 so
                 sit
                 as
                 at
                 the
                 Entry
                 .
              
               
                 A
                 third
                 Reason
                 of
                 Suspension
                 of
                 these
                 Charges
                 ,
                 useth
                 to
                 be
                 upon
                 the
                 Superior's
                 Right
                 to
                 the
                 Property
                 by
                 Recognition
                 ,
                 or
                 upon
                 Improbation
                 of
                 the
                 heir's
                 Retour
                 .
                 Which
                 if
                 Decreet
                 be
                 not
                 past
                 thereupon
                 ,
                 will
                 be
                 repelled
                 ,
                 and
                 only
                 reserved
                 as
                 accords
                 :
                 but
                 will
                 not
                 be
                 sustained
                 upon
                 a
                 Reason
                 of
                 prejudiciality
                 
                 of
                 a
                 Reduction
                 at
                 the
                 Superior's
                 instance
                 .
                 
                   Spots
                   .
                   Sheriff
                
                 ,
                 Laird
                 of
                 Taich
                 contra
                 
                   Hume
                   .
                   Craig
                   lib.
                
                 2.
                 dieg
                 .
                 17.
                 moveth
                 this
                 Question
                 ,
                 When
                 one
                 Person
                 is
                 the
                 Feer
                 ,
                 and
                 another
                 Liserenter
                 of
                 the
                 Superiority
                 by
                 Reservation
                 of
                 his
                 Frank-Tenement
                 ,
                 or
                 Liferent
                 ;
                 and
                 the
                 like
                 is
                 ,
                 when
                 Liferentis
                 by
                 Conjunct-fee
                 :
                 Of
                 whom
                 in
                 that
                 Case
                 ought
                 the
                 Heir
                 crave
                 to
                 be
                 entered
                 ?
                 In
                 which
                 he
                 relates
                 ,
                 that
                 the
                 Lords
                 in
                 favour
                 of
                 the
                 Vassal
                 ,
                 found
                 in
                 the
                 Case
                 of
                 Cransioun
                 ,
                 Brother
                 to
                 the
                 Laird
                 of
                 Cranstoun
                 ,
                 That
                 the
                 Heir
                 might
                 enter
                 by
                 any
                 of
                 them
                 he
                 pleased
                 ,
                 being
                 without
                 detriment
                 to
                 either
                 of
                 them
                 .
                 As
                 to
                 the
                 Casualities
                 of
                 the
                 Superiority
                 ,
                 how
                 far
                 such
                 Casualities
                 belong
                 to
                 Liferenters
                 ,
                 Vide
                 Title
                 Liferents
                 .
              
               
                 50.
                 
                 There
                 is
                 another
                 weighty
                 and
                 subtile
                 Question
                 in
                 the
                 Enty
                 of
                 Heirs
                 ,
                 Whether
                 that
                 Person
                 who
                 falls
                 to
                 be
                 nearest
                 Heir
                 at
                 the
                 time
                 of
                 the
                 Defunct's
                 decease
                 ,
                 may
                 not
                 then
                 be
                 entered
                 ,
                 though
                 there
                 be
                 a
                 nearer
                 in
                 possibility
                 ,
                 or
                 in
                 hope
                 ?
                 There
                 is
                 no
                 question
                 but
                 when
                 a
                 nearer
                 Heir
                 is
                 really
                 or
                 probably
                 in
                 Being
                 ,
                 in
                 the
                 Womb
                 ,
                 though
                 unborn
                 ;
                 that
                 the
                 Service
                 must
                 be
                 stopped
                 till
                 the
                 Birth
                 .
                 For
                 in
                 all
                 things
                 working
                 in
                 favour
                 of
                 those
                 unborn
                 ,
                 they
                 are
                 accounted
                 as
                 born
                 :
                 and
                 that
                 not
                 only
                 for
                 presuming
                 that
                 there
                 is
                 a
                 living
                 Child
                 ,
                 not
                 a
                 salfe
                 Conception
                 ;
                 but
                 presuming
                 that
                 it
                 is
                 a
                 Male
                 Child
                 ,
                 not
                 a
                 Female
                 .
                 And
                 therefore
                 Daughters
                 of
                 a
                 Defunct
                 cannot
                 be
                 served
                 Heirs
                 ,
                 if
                 there
                 be
                 a
                 probability
                 of
                 a
                 posthumus
                 Child
                 ,
                 who
                 is
                 presumed
                 to
                 be
                 a
                 Son
                 :
                 whereby
                 they
                 will
                 be
                 excluded
                 till
                 the
                 contrary
                 appear
                 .
                 It
                 was
                 so
                 amongst
                 the
                 Romans
                 ,
                 who
                 therefore
                 sent
                 the
                 Womb
                 in
                 Possession
                 for
                 the
                 Child
                 .
                 But
                 with
                 us
                 ,
                 the
                 Fee
                 of
                 necessity
                 must
                 remain
                 in
                 Non-entry
                 :
                 and
                 the
                 Friends
                 or
                 nearest
                 Agnats
                 of
                 the
                 Birth
                 ,
                 as
                 Pro-tutors
                 ,
                 may
                 continue
                 the
                 Possession
                 .
                 But
                 the
                 difficulty
                 is
                 ,
                 when
                 the
                 nearer
                 Heir
                 is
                 in
                 possibility
                 ,
                 and
                 neither
                 conceived
                 nor
                 born
                 :
                 and
                 it
                 occurs
                 specially
                 in
                 two
                 Cases
                 .
                 First
                 ,
                 in
                 the
                 Case
                 of
                 Heirs
                 ascendent
                 :
                 as
                 when
                 the
                 Father
                 succeeds
                 to
                 the
                 Son
                 ,
                 having
                 no
                 Issue
                 ,
                 Brother
                 ,
                 or
                 Sister
                 .
                 For
                 in
                 that
                 Case
                 ,
                 though
                 at
                 the
                 Defunct's
                 death
                 there
                 be
                 neither
                 Sister
                 nor
                 Brother
                 gotten
                 or
                 born
                 ;
                 yet
                 the
                 Father
                 may
                 have
                 them
                 after
                 .
                 So
                 that
                 the
                 question
                 will
                 be
                 ,
                 Whether
                 the
                 Father
                 may
                 enter
                 immediatly
                 upon
                 the
                 death
                 of
                 his
                 Son
                 ,
                 having
                 no
                 Children
                 ,
                 Brother
                 ,
                 nor
                 Sister
                 born
                 ,
                 nor
                 in
                 the
                 Womb
                 ;
                 or
                 if
                 he
                 must
                 attend
                 the
                 future
                 possibility
                 of
                 a
                 superveening
                 Brother
                 or
                 Sister
                 ?
                 The
                 other
                 Case
                 is
                 in
                 Heirs
                 of
                 Tailzie
                 ,
                 whereof
                 there
                 was
                 a
                 notable
                 instance
                 ,
                 long
                 debated
                 in
                 Anno
                 1647
                 ,
                 and
                 1648.
                 on
                 this
                 occasion
                 .
                 The
                 Laird
                 of
                 Blackwood
                 married
                 his
                 Natural
                 Daughter
                 
                   Marion
                   Weir
                
                 ,
                 having
                 no
                 other
                 Children
                 ,
                 to
                 Major
                 
                   James
                   Bannatine
                
                 ;
                 and
                 in
                 Contemplation
                 of
                 the
                 Marriage
                 ,
                 and
                 for
                 a
                 Sum
                 advanced
                 by
                 the
                 Major
                 for
                 satisfying
                 his
                 Debts
                 ,
                 he
                 disponed
                 his
                 Estate
                 of
                 Blackwood
                 to
                 Major
                 Bannatine
                 and
                 the
                 Heir
                 to
                 be
                 procreat
                 betwixt
                 him
                 and
                 
                   Marion
                   Weir
                
                 ;
                 which
                 failing
                 ,
                 to
                 the
                 Heirs
                 of
                 the
                 said
                 
                   Marion
                   Weir
                
                 by
                 any
                 other
                 lawful
                 Husband
                 ;
                 which
                 failing
                 ,
                 to
                 the
                 Heirs
                 of
                 the
                 Bannatine
                 .
                 The
                 Major
                 died
                 without
                 Issue
                 :
                 So
                 the
                 question
                 was
                 ,
                 whether
                 Bannatine's
                 Heirs
                 should
                 succeed
                 ,
                 or
                 if
                 the
                 Succession
                 behoved
                 to
                 be
                 pendent
                 ,
                 till
                 it
                 appeared
                 whether
                 there
                 would
                 be
                 any
                 lawful
                 Heir
                 of
                 the
                 Body
                 of
                 the
                 said
                 
                   Marion
                   Weir
                
                 ,
                 who
                 was
                 no
                 Member
                 of
                 the
                 Tailzie
                 her self
                 ,
                 but
                 only
                 the
                 Heirs
                 of
                 her
                 Body
                 .
                 The
                 whole
                 question
                 resulted
                 in
                 this
                 Point
                 ,
                 Whether
                 
                   whilks
                   failing
                
                 was
                 to
                 be
                 understood
                 failing
                 
                   de
                   praesenti
                
                 at
                 the
                 time
                 of
                 the
                 Feer's
                 death
                 ,
                 or
                 failing
                 simply
                 as
                 being
                 〈◊〉
                 at
                 no
                 time
                 .
                 The
                 matter
                 was
                 not
                 dicided
                 ,
                 but
                 transacted
                 ,
                 Whereby
                 
                   Marion
                   Weir
                
                 being
                 married
                 to
                 
                   William
                   Lowrie
                
                 ,
                 and
                 having
                 Children
                 during
                 the
                 dependence
                 of
                 the
                 Plea
                 ,
                 the
                 matter
                 ended
                 by
                 Transaction
                 betwixt
                 the
                 Laird
                 of
                 Corhouse
                 ,
                 who
                 was
                 Major
                 Bannatine's
                 Heir
                 ,
                 and
                 
                   William
                   Lowrie
                
                 taling
                 Burthen
                 for
                 his
                 Heirs
                 with
                 
                   Marion
                   Weir
                
                 ,
                 thus
                 ;
                 That
                 the
                 tailized
                 〈◊〉
                 should
                 belong
                 to
                 
                   Marion
                   Weirs
                
                 ,
                 Heirs
                 :
                 That
                 
                   William
                   Lowrie
                
                 for
                 them
                 should
                 pay
                 to
                 Corchouse
                 20000
                 pound
                 Scots
                 ,
                 as
                 the
                 Sum
                 which
                 the
                 Major
                 his
                 Brother
                 
                 had
                 contracted
                 for
                 payment
                 of
                 Blackwood's
                 Debts
                 ,
                 and
                 had
                 payed
                 out
                 upon
                 Contemplation
                 of
                 the
                 Marriage
                 .
                 There
                 was
                 a
                 very
                 equitable
                 Transaction
                 to
                 the
                 same
                 effect
                 ,
                 as
                 if
                 the
                 Clause
                 in
                 the
                 Tailzie
                 had
                 been
                 interpret
                 thus
                 ;
                 That
                 failing
                 Heirs
                 of
                 
                   Marion
                   Weir
                
                 ,
                 that
                 is
                 ,
                 so
                 long
                 as
                 the
                 Heirs
                 failed
                 ,
                 the
                 Major's
                 Heirs
                 should
                 succeed
                 to
                 him
                 in
                 the
                 tailzied
                 Estate
                 .
                 So
                 that
                 where
                 there
                 became
                 to
                 exist
                 Heirs
                 of
                 
                   Marion
                   Weir
                
                 ,
                 both
                 that
                 they
                 should
                 succeed
                 to
                 Major
                 Bannatine's
                 Heirs
                 ,
                 to
                 wit
                 ,
                 Corehouse
                 who
                 was
                 served
                 Heir
                 of
                 Tailzie
                 to
                 his
                 Brother
                 Major
                 Bannatine
                 ;
                 and
                 should
                 exclude
                 Corehouse
                 his
                 Heirs
                 of
                 Line
                 .
                 Whereby
                 the
                 Fee
                 should
                 never
                 be
                 
                   in
                   pendente
                
                 at
                 the
                 death
                 of
                 the
                 last
                 Feer
                 ,
                 but
                 that
                 Person
                 should
                 be
                 entered
                 as
                 Heir
                 of
                 Tailzie
                 ,
                 who
                 at
                 the
                 death
                 of
                 the
                 Defunct
                 Feer
                 ,
                 or
                 at
                 the
                 time
                 of
                 the
                 Service
                 ,
                 was
                 nearest
                 Heir
                 of
                 the
                 Tailzie
                 :
                 whereby
                 Corehouse
                 should
                 succeed
                 as
                 Heir
                 of
                 Tailzie
                 to
                 his
                 Brother
                 ,
                 because
                 at
                 his
                 death
                 ,
                 neither
                 of
                 the
                 two
                 former
                 Branches
                 of
                 the
                 Tailzie
                 were
                 existent
                 ,
                 viz.
                 the
                 Heirs
                 betwixt
                 the
                 Major
                 ,
                 and
                 
                   Marion
                   Weirs
                
                 heirs
                 by
                 another
                 husband
                 .
                 And
                 therefore
                 ,
                 a
                 judicious
                 and
                 just
                 Inquest
                 lerving
                 a
                 Brieve
                 for
                 the
                 Heirs
                 of
                 Tailzie
                 of
                 Major
                 Bannatine
                 ,
                 could
                 not
                 but
                 find
                 that
                 he
                 died
                 last
                 vest
                 and
                 seased
                 as
                 of
                 Fee
                 ,
                 in
                 the
                 tailzied
                 Estate
                 of
                 Blackwood
                 ;
                 and
                 that
                 the
                 Majors
                 Heir
                 of
                 Line
                 ,
                 to
                 wit
                 Corehouse
                 ,
                 his
                 immediate
                 elder
                 Brother
                 ,
                 is
                 the
                 nearest
                 Heir
                 to
                 the
                 Major
                 by
                 the
                 Tailzie
                 ,
                 there
                 being
                 no
                 Heir
                 of
                 
                   Marion
                   Weir
                
                 then
                 existent
                 ,
                 conceived
                 or
                 born
                 ,
                 she
                 being
                 unmarried
                 .
                 For
                 if
                 she
                 had
                 then
                 had
                 a
                 lawful
                 Child
                 ,
                 the
                 Inquest
                 behoved
                 to
                 have
                 served
                 that
                 Heir
                 ,
                 as
                 nearest
                 Heir
                 of
                 Tailzie
                 to
                 Major
                 Bannatine
                 ,
                 then
                 his
                 Heir
                 of
                 Line
                 .
                 Neither
                 would
                 that
                 Child
                 be
                 excluded
                 ;
                 because
                 the
                 Child
                 could
                 not
                 be
                 Heir
                 to
                 
                   Marion
                   Weir
                
                 while
                 she
                 was
                 on
                 life
                 :
                 for
                 Heirs
                 in
                 that
                 case
                 were
                 only
                 mean'd
                 ,
                 such
                 as
                 might
                 be
                 Heirs
                 if
                 she
                 were
                 dead
                 .
                 Suppose
                 then
                 there
                 had
                 been
                 a
                 Son
                 betwixt
                 the
                 Major
                 and
                 
                   Marion
                   Weir
                
                 ,
                 who
                 had
                 been
                 infeft
                 as
                 Heir
                 to
                 his
                 Father
                 ,
                 and
                 died
                 without
                 Issue
                 ;
                 
                   Marion
                   Weir
                
                 at
                 her
                 death
                 having
                 then
                 a
                 Daughter
                 by
                 asecond
                 Husband
                 :
                 that
                 Daughter
                 would
                 have
                 succeeded
                 as
                 Heir
                 of
                 Tailzie
                 ,
                 albeit
                 a
                 Son
                 of
                 
                   Marion
                   Weir
                
                 were
                 in
                 possibility
                 ,
                 and
                 in
                 the
                 nearest
                 hope
                 ,
                 and
                 to
                 whom
                 the
                 title
                 of
                 her
                 Heir
                 would
                 be
                 most
                 proper
                 ,
                 as
                 being
                 her
                 Heir
                 of
                 Line
                 ,
                 or
                 Heir
                 simpliciter
                 :
                 yet
                 the
                 Fee
                 would
                 not
                 remain
                 
                   in
                   pendente
                
                 and
                 vacant
                 till
                 the
                 event
                 of
                 that
                 possibility
                 ,
                 but
                 the
                 Daughter
                 would
                 be
                 served
                 as
                 nearest
                 ,
                 at
                 the
                 last
                 Feer's
                 death
                 .
                 And
                 therefore
                 ,
                 the
                 Inquest
                 could
                 not
                 justly
                 swear
                 ,
                 but
                 that
                 Major
                 〈◊〉
                 Heir
                 of
                 Line
                 ,
                 is
                 his
                 nearest
                 Heir
                 of
                 Tailzie
                 the
                 time
                 of
                 the
                 Service
                 .
                 For
                 if
                 it
                 should
                 be
                 〈◊〉
                 ,
                 that
                 there
                 were
                 a
                 nearer
                 Heir
                 in
                 possibility
                 or
                 hope
                 ;
                 the
                 Inquest
                 could
                 not
                 demur
                 thereon
                 :
                 because
                 an
                 Heir
                 in
                 possibility
                 is
                 not
                 ,
                 but
                 only
                 may
                 be
                 .
                 And
                 therefore
                 ,
                 the
                 Major's
                 heir
                 is
                 the
                 nearest
                 heir
                 of
                 Tailzie
                 ,
                 who
                 needs
                 not
                 be
                 served
                 heir
                 of
                 Line
                 to
                 the
                 Major
                 .
                 If
                 the
                 Major
                 had
                 an
                 untailzied
                 Estate
                 ;
                 his
                 Brother
                 might
                 renounce
                 to
                 be
                 heir
                 of
                 Line
                 to
                 him
                 in
                 that
                 Estate
                 ,
                 and
                 yet
                 might
                 be
                 heir
                 of
                 Tailzie
                 to
                 him
                 in
                 the
                 tailzied
                 Estate
                 ,
                 as
                 being
                 still
                 his
                 heir
                 of
                 Line
                 demonshrativè
                 :
                 that
                 is
                 ,
                 the
                 Person
                 who
                 might
                 be
                 his
                 heir
                 of
                 Line
                 .
                 And
                 therefore
                 ,
                 after
                 Corehouse
                 his
                 death
                 ,
                 if
                 he
                 died
                 infeft
                 as
                 heir
                 of
                 Tailzie
                 to
                 his
                 Brother
                 ;
                 if
                 the
                 question
                 again
                 had
                 arisen
                 betwixt
                 Corehouse
                 his
                 Son
                 as
                 his
                 heir
                 of
                 Line
                 ,
                 and
                 
                   Marion
                   Weirs
                
                 Son
                 being
                 then
                 existent
                 ;
                 an
                 Inquest
                 could
                 not
                 justly
                 ferver
                 Corechouse
                 heir
                 of
                 Tailzie
                 to
                 him
                 in
                 the
                 Estate
                 of
                 Blackwood
                 :
                 because
                 then
                 
                   Marion
                   Weirs
                
                 Son
                 was
                 a
                 prior
                 Branch
                 of
                 the
                 Tailzie
                 ,
                 and
                 so
                 behoved
                 to
                 exclude
                 Bannatine's
                 heirs
                 of
                 Line
                 ,
                 which
                 are
                 the
                 posterior
                 Branch
                 .
                 Therefore
                 ,
                 in
                 lieu
                 of
                 this
                 temporary
                 Succession
                 of
                 Corehouse
                 ,
                 resolving
                 in
                 his
                 Liferent
                 ,
                 as
                 the
                 Branches
                 of
                 Tailzies
                 frequently
                 do
                 ;
                 he
                 accepted
                 20000
                 l.
                 which
                 was
                 his
                 Brothers
                 true
                 Interest
                 ,
                 and
                 denuded
                 himself
                 in
                 favour
                 of
                 
                   Marion
                   Weirs
                
                 Son
                 ,
                 the
                 prior
                 Branch
                 .
                 So
                 we
                 are
                 left
                 in
                 both
                 to
                 a
                 rational
                 Debate
                 ,
                 without
                 decision
                 .
                 As
                 to
                 the
                 first
                 Case
                 ,
                 we
                 have
                 already
                 showen
                 ,
                 both
                 by
                 Reason
                 and
                 Practice
                 ,
                 That
                 failing
                 the
                 Feer's
                 Children
                 ,
                 Brother
                 and
                 Sisters
                 ,
                 
                 his
                 Father
                 and
                 Grand-father
                 succeed
                 ,
                 and
                 exclude
                 their
                 Collateralls
                 .
                 So
                 thence
                 it
                 necessarly
                 followeth
                 ,
                 that
                 these
                 Ascendents
                 may
                 be
                 served
                 without
                 delay
                 :
                 otherways
                 they
                 could
                 never
                 be
                 served
                 ;
                 there
                 being
                 ever
                 possibility
                 of
                 the
                 Issue
                 of
                 Men.
                 Yet
                 if
                 they
                 should
                 not
                 be
                 entered
                 before
                 the
                 superveniency
                 ,
                 even
                 though
                 but
                 in
                 the
                 Womb
                 ,
                 the
                 same
                 would
                 take
                 place
                 :
                 but
                 if
                 the
                 Ascendent
                 be
                 actually
                 entered
                 ,
                 the
                 Law
                 affordeth
                 no
                 remedy
                 ,
                 Reversion
                 ,
                 or
                 Restitution
                 .
                 Neither
                 can
                 this
                 difficultie
                 be
                 a
                 Reason
                 against
                 the
                 Succcession
                 ofAscendents
                 :
                 because
                 the
                 question
                 is
                 only
                 betwixt
                 them
                 and
                 their
                 own
                 Children
                 ,
                 and
                 nothing
                 operats
                 in
                 favour
                 of
                 their
                 Brothers
                 and
                 Sisters
                 ,
                 or
                 their
                 Descendents
                 .
                 As
                 to
                 the
                 other
                 Case
                 ,
                 in
                 the
                 instance
                 proposed
                 ,
                 it
                 seems
                 the
                 Succeession
                 ought
                 to
                 have
                 depended
                 ,
                 till
                 the
                 event
                 of
                 the
                 lawful
                 Issue
                 of
                 
                   Marion
                   Weir
                
                 .
                 First
                 ,
                 because
                 that
                 had
                 a
                 determined
                 time
                 ,
                 by
                 the
                 Course
                 of
                 Nature
                 ,
                 viz.
                 the
                 fifteth
                 or
                 fiftieth
                 two
                 year
                 of
                 her
                 Age
                 ;
                 at
                 which
                 time
                 ,
                 the
                 Issue
                 of
                 Women
                 is
                 repute
                 extinct
                 :
                 which
                 is
                 not
                 so
                 in
                 the
                 case
                 of
                 Men.
                 Secondly
                 ,
                 in
                 Tailzies
                 upon
                 Contracts
                 ,
                 and
                 for
                 onerous
                 causes
                 ;
                 respect
                 is
                 to
                 be
                 had
                 to
                 the
                 meaning
                 ,
                 and
                 interest
                 of
                 the
                 Parties
                 contracters
                 :
                 and
                 
                   in
                   dubio
                   pars
                   mitior
                   est
                   sequenda
                   .
                
                 And
                 that
                 sense
                 is
                 to
                 be
                 imbraced
                 ,
                 by
                 which
                 the
                 provisions
                 can
                 have
                 some
                 effect
                 :
                 and
                 not
                 that
                 by
                 which
                 they
                 can
                 have
                 none
                 .
                 Whereby
                 it
                 may
                 seem
                 ,
                 that
                 it
                 was
                 Blackwood's
                 meaning
                 ,
                 that
                 the
                 Succession
                 of
                 his
                 own
                 Natural
                 Daughter
                 should
                 be
                 substitute
                 ,
                 in
                 the
                 second
                 member
                 ,
                 to
                 the
                 Heirs
                 betwixt
                 the
                 Major
                 and
                 her
                 :
                 and
                 that
                 while
                 these
                 were
                 possibe
                 ,
                 his
                 Heirs
                 should
                 have
                 no
                 place
                 .
                 Otherways
                 the
                 second
                 membet
                 had
                 been
                 elusory
                 .
                 For
                 if
                 by
                 sailling
                 the
                 Heirs
                 of
                 the
                 Major
                 with
                 the
                 said
                 Marion
                 ,
                 at
                 the
                 time
                 of
                 the
                 said
                 Major's
                 Decease
                 ,
                 Marions
                 Heirs
                 ,
                 by
                 another
                 lawful
                 Husband
                 should
                 take
                 place
                 ;
                 her
                 other
                 Heirs
                 could
                 never
                 take
                 place
                 .
                 For
                 she
                 could
                 not
                 have
                 another
                 lawful
                 Husband
                 ,
                 at
                 the
                 time
                 of
                 the
                 Majors
                 her
                 first
                 Husband's
                 Death
                 .
              
               
                 Yet
                 the
                 Reasons
                 on
                 the
                 contrary
                 are
                 no
                 lesse
                 pregnant
                 ;
                 and
                 that
                 in
                 this
                 Case
                 ,
                 as
                 in
                 the
                 Case
                 of
                 Heirs
                 ascendent
                 ,
                 the
                 Heirs
                 nearest
                 at
                 the
                 time
                 of
                 the
                 Feer's
                 Death
                 ,
                 should
                 have
                 Rights
                 immediatly
                 to
                 Succeed
                 :
                 because
                 the
                 Fee
                 necessarly
                 must
                 belong
                 to
                 some
                 Person
                 ,
                 and
                 it
                 cannot
                 hang
                 in
                 the
                 Air
                 ,
                 on
                 a
                 future
                 possibility
                 .
                 Which
                 is
                 a
                 principle
                 ,
                 whereof
                 mention
                 and
                 use
                 hath
                 been
                 made
                 frequently
                 before
                 .
                 Secondly
                 ,
                 if
                 that
                 were
                 the
                 meaning
                 ,
                 then
                 at
                 the
                 time
                 of
                 the
                 Major's
                 Death
                 ,
                 the
                 Lands
                 were
                 truely
                 nullius
                 :
                 and
                 so
                 as
                 caduciary
                 ,
                 behoved
                 to
                 sall
                 to
                 the
                 KING
                 ,
                 as
                 
                   ultimus
                   Haeres
                
                 .
                 But
                 if
                 it
                 had
                 been
                 so
                 exprest
                 ,
                 That
                 no
                 place
                 should
                 be
                 to
                 the
                 Heirs
                 of
                 the
                 Major's
                 other
                 Heirs
                 ,
                 till
                 there
                 were
                 no
                 possibility
                 of
                 Heirs
                 of
                 
                   Marion
                   Weir
                
                 ;
                 the
                 defficulty
                 seems
                 the
                 same
                 ,
                 that
                 the
                 Fee
                 should
                 be
                 pendent
                 ,
                 and
                 nullius
                 .
                 It
                 may
                 be
                 answered
                 ;
                 That
                 even
                 in
                 that
                 other
                 Case
                 ,
                 the
                 Major's
                 other
                 Heirs
                 would
                 succeed
                 ,
                 notwithstanding
                 that
                 provision
                 ,
                 which
                 doth
                 but
                 resolve
                 in
                 aPersonalObligation
                 to
                 those
                 Heirs
                 ,
                 to
                 forebear
                 .
                 Yet
                 they
                 were
                 Heirs
                 :
                 and
                 if
                 contrary
                 the
                 provision
                 ,
                 they
                 should
                 enter
                 ,
                 it
                 would
                 give
                 interest
                 to
                 the
                 Heirs
                 of
                 
                   Marion
                   Weir
                
                 ,
                 to
                 compel
                 the
                 Major's
                 Heirs
                 having
                 entered
                 ,
                 to
                 denude
                 themselves
                 in
                 their
                 favour
                 .
                 But
                 there
                 was
                 no
                 such
                 thing
                 in
                 this
                 Case
                 .
                 And
                 as
                 to
                 the
                 Reasons
                 upon
                 the
                 contrary
                 ,
                 though
                 it
                 may
                 seem
                 ,
                 Black-wood's
                 interest
                 ,
                 that
                 the
                 Heirs
                 of
                 his
                 Natural
                 Daughter
                 should
                 be
                 in
                 the
                 second
                 Place
                 ;
                 yet
                 
                   non
                   fuit
                   habilis
                   modus
                
                 to
                 make
                 the
                 Fee
                 pendent
                 and
                 nullius
                 .
                 But
                 to
                 that
                 which
                 is
                 the
                 main
                 Reason
                 ;
                 Otherways
                 the
                 second
                 member
                 behoved
                 to
                 be
                 elusory
                 :
                 it
                 is
                 answerd
                 ,
                 That
                 it
                 is
                 not
                 elusory
                 ,
                 because
                 the
                 most
                 ordinary
                 and
                 hoped
                 Case
                 was
                 ,
                 That
                 there
                 should
                 have
                 been
                 Heirs
                 betwixt
                 the
                 Major
                 and
                 Marion
                 ;
                 who
                 ,
                 if
                 they
                 had
                 died
                 without
                 Issue
                 ,
                 the
                 Lands
                 would
                 have
                 fallen
                 to
                 Marions
                 Heirs
                 by
                 another
                 lawful
                 Husband
                 ,
                 and
                 not
                 to
                 the
                 Major's
                 other
                 Heirs
                 .
                 So
                 that
                 the
                 
                 case
                 which
                 fell
                 out
                 ,
                 that
                 there
                 was
                 no
                 Children
                 procreat
                 betwixt
                 the
                 Major
                 and
                 Marion
                 was
                 not
                 feared
                 ,
                 and
                 so
                 not
                 provided
                 for
                 :
                 as
                 it
                 oft-times
                 fares
                 in
                 such
                 cases
                 .
                 Therefore
                 we
                 conceive
                 it
                 more
                 probable
                 ,
                 that
                 in
                 all
                 cases
                 ,
                 that
                 Person
                 ,
                 who
                 at
                 the
                 time
                 of
                 the
                 Defunct's
                 Death
                 ,
                 is
                 in
                 being
                 born
                 or
                 unborn
                 ,
                 may
                 be
                 Heir
                 ,
                 and
                 immediately
                 enter
                 ,
                 so
                 soon
                 as
                 by
                 the
                 birth
                 it
                 appears
                 who
                 may
                 be
                 Served
                 .
              
               
                 There
                 hath
                 a
                 later
                 Case
                 occurred
                 ,
                 and
                 been
                 determined
                 on
                 that
                 occasion
                 .
                 The
                 late
                 Earl
                 of
                 Leven
                 tailzied
                 his
                 Estate
                 and
                 Dignitie
                 to
                 the
                 Heirs
                 Male
                 of
                 his
                 Body
                 :
                 Which
                 failling
                 ,
                 to
                 the
                 eldest
                 Heir
                 Female
                 ,
                 without
                 Division
                 :
                 Which
                 failling
                 to
                 the
                 second
                 Son
                 of
                 the
                 Earl
                 of
                 Rothess
                 :
                 Which
                 failling
                 to
                 the
                 second
                 Son
                 of
                 the
                 Lord
                 Melvil
                 ,
                 who
                 had
                 Married
                 the
                 Earl
                 of
                 Levens
                 Sister
                 :
                 Which
                 failling
                 to
                 the
                 second
                 Son
                 of
                 the
                 Earl
                 of
                 Weemes
                 ,
                 who
                 had
                 married
                 his
                 Mother
                 .
                 Leven
                 left
                 three
                 Daughters
                 after
                 him
                 ,
                 who
                 died
                 all
                 un-entered
                 .
                 Rothess
                 having
                 no
                 second
                 Son
                 ,
                 
                   David
                   Melvil
                
                 second
                 Son
                 to
                 the
                 Lord
                 Melvil
                 ,
                 took
                 a
                 Brieve
                 out
                 of
                 the
                 Chancery
                 ,
                 to
                 serve
                 himself
                 Heir
                 of
                 Tailzie
                 to
                 the
                 Earl
                 of
                 Leven
                 .
                 The
                 Earl
                 of
                 Rothess
                 took
                 a
                 Gift
                 of
                 the
                 Non-entry
                 ,
                 in
                 the
                 name
                 of
                 
                   Sr.
                   William
                   Bruce
                
                 ,
                 who
                 raised
                 an
                 Advocation
                 of
                 the
                 Brieve
                 ,
                 with
                 a
                 Declarator
                 ,
                 That
                 while
                 there
                 was
                 no
                 hope
                 of
                 a
                 second
                 Son
                 of
                 the
                 Earl
                 of
                 Rothess's
                 Body
                 ,
                 
                   David
                   Melvil
                
                 ,
                 nor
                 no
                 Son
                 of
                 a
                 subsequent
                 Branch
                 could
                 be
                 entered
                 :
                 Or
                 declaring
                 ,
                 That
                 the
                 Lands
                 were
                 in
                 Non-entrie
                 .
                 Both
                 members
                 of
                 the
                 said
                 Declarator
                 the
                 Lords
                 did
                 sustain
                 ,
                 and
                 stopped
                 the
                 Service
                 :
                 albeit
                 many
                 inconveniences
                 were
                 represented
                 ,
                 thence
                 arising
                 .
                 As
                 that
                 there
                 could
                 be
                 no
                 active
                 Title
                 for
                 pursuing
                 the
                 Rights
                 of
                 the
                 Familie
                 ,
                 or
                 for
                 receiving
                 Vassals
                 :
                 nor
                 any
                 Accesse
                 to
                 the
                 Estate
                 passivè
                 by
                 Creditors
                 .
                 But
                 the
                 Lords
                 did
                 reserve
                 to
                 the
                 special
                 Declarator
                 ,
                 how
                 far
                 the
                 Non-entry
                 would
                 reach
                 ,
                 whether
                 to
                 the
                 retoured
                 Duties
                 only
                 ,
                 or
                 to
                 the
                 full
                 Rents
                 .
                 But
                 many
                 of
                 the
                 Lordswerc
                 of
                 opinion
                 ,
                 that
                 
                   David
                   Melvil
                
                 should
                 enter
                 as
                 Heir
                 of
                 Tilzie
                 ;
                 Yet
                 so
                 that
                 if
                 the
                 Chancelor
                 had
                 a
                 second
                 Son
                 ,
                 he
                 or
                 his
                 Issue
                 would
                 succeed
                 ,
                 as
                 Heir
                 of
                 Tailzie
                 to
                 
                   David
                   Melvil
                
                 :
                 and
                 neither
                 his
                 own
                 Heirs
                 of
                 Line
                 ,
                 nor
                 the
                 Earl
                 of
                 Weemes's
                 second
                 Son.
                 Because
                 at
                 the
                 time
                 of
                 
                   David
                   Melvils
                
                 Death
                 ,
                 the
                 Chancelor's
                 second
                 Son
                 would
                 be
                 a
                 nearer
                 Heir
                 of
                 Tailzie
                 to
                 David
                 than
                 his
                 own
                 Son
                 ,
                 as
                 being
                 of
                 a
                 prior
                 Branch
                 of
                 the
                 Tailzie
                 .
                 Feb.
                 22.
                 1677.
                 
                 Sr.
                 
                   William
                   Bruce
                
                 contra
                 
                   David
                   Melvil
                
                 .
                 But
                 the
                 Lords
                 found
                 ,
                 that
                 the
                 Non-entrie
                 by
                 the
                 special
                 Declarator
                 ,
                 could
                 not
                 reach
                 to
                 the
                 full
                 Rents
                 ,
                 but
                 only
                 to
                 the
                 Retoured
                 Duety
                 ;
                 Seing
                 the
                 apparent
                 Heir
                 ,
                 was
                 neither
                 in
                 culpa
                 nor
                 mora
                 ,
                 Which
                 doth
                 only
                 infer
                 the
                 full
                 Duties
                 .
                 And
                 therefore
                 found
                 the
                 Donatar
                 had
                 right
                 to
                 the
                 retoured
                 Duties
                 :
                 and
                 that
                 the
                 remainder
                 continued
                 in
                 
                   haereditate
                   jacente
                
                 ,
                 to
                 be
                 managed
                 by
                 the
                 Lord
                 Malvil
                 ,
                 as
                 Curator
                 
                   datus
                   bonis
                
                 of
                 the
                 Estate
                 of
                 Leven
                 by
                 the
                 King
                 ,
                 having
                 power
                 to
                 manage
                 the
                 Affairs
                 of
                 that
                 Estate
                 as
                 a
                 Tutor
                 ,
                 or
                 as
                 if
                 an
                 Heir
                 had
                 been
                 entred
                 .
                 July
                 24.
                 1677.
                 
                   inter
                   eosdem
                
                 .
              
               
                 51.
                 
                 It
                 cometh
                 oft-times
                 to
                 pass
                 ,
                 that
                 through
                 the
                 unclear
                 conception
                 of
                 Clauses
                 of
                 Provision
                 ,
                 it
                 becomes
                 dubious
                 ,
                 who
                 is
                 thereby
                 constitut
                 Feer
                 ,
                 and
                 who
                 Liferenter
                 :
                 as
                 is
                 ordinary
                 when
                 Sums
                 of
                 Money
                 are
                 lent
                 ,
                 and
                 the
                 Obligement
                 to
                 repay
                 is
                 conceived
                 thus
                 ;
                 To
                 be
                 payed
                 at
                 such
                 a
                 Term
                 to
                 the
                 Lender
                 ,
                 and
                 in
                 case
                 of
                 his
                 Decease
                 ,
                 or
                 failing
                 him
                 by
                 Decease
                 ,
                 or
                 after
                 his
                 Decease
                 to
                 such
                 a
                 Person
                 .
                 Whence
                 these
                 Questions
                 result
                 ;
                 first
                 Whether
                 the
                 Lender
                 be
                 Feer
                 of
                 the
                 Sum
                 ,
                 and
                 the
                 Person
                 substitute
                 Heir
                 of
                 Provision
                 ?
                 Or
                 whether
                 the
                 Person
                 substitute
                 be
                 Heir
                 ;
                 whether
                 he
                 may
                 succeed
                 at
                 any
                 time
                 ,
                 or
                 only
                 if
                 the
                 Lender
                 die
                 before
                 the
                 Term
                 of
                 Payment
                 ?
                 As
                 to
                 the
                 first
                 Question
                 ,
                 the
                 Person
                 substitute
                 is
                 not
                 Feer
                 but
                 Heir
                 :
                 and
                 the
                 Lender
                 is
                 not
                 Liferenter
                 
                 but
                 Feer
                 ;
                 and
                 therefore
                 may
                 dispose
                 of
                 the
                 Sum
                 at
                 pleasure
                 ,
                 by
                 Assignation
                 ,
                 Legacy
                 ,
                 or
                 otherwise
                 ,
                 as
                 other
                 Feers
                 may
                 .
                 February
                 22.
                 1623.
                 
                 Mr.
                 
                   John
                   Leich
                
                 contra
                 Laird
                 of
                 
                   Balnamoon
                   .
                   February
                
                 28.
                 1626.
                 
                 Tulliallan
                 contra
                 Laird
                 of
                 Clackmannan
                 .
                 And
                 where
                 the
                 Clause
                 bare
                 to
                 be
                 payed
                 to
                 Clackmannan
                 and
                 his
                 Spouse
                 ,
                 the
                 longest
                 liver
                 of
                 them
                 two
                 ;
                 and
                 in
                 case
                 of
                 their
                 Decease
                 ,
                 to
                 
                   Alexander
                   Bruce
                
                 their
                 Son
                 in
                 Fee
                 ,
                 with
                 an
                 Obligement
                 to
                 infeft
                 the
                 Spouse
                 in
                 Liferent
                 and
                 the
                 Son
                 in
                 Fee
                 ,
                 in
                 an
                 Annualrent
                 effeirand
                 thereto
                 ;
                 yet
                 the
                 Father
                 was
                 found
                 to
                 have
                 Right
                 to
                 dispose
                 of
                 the
                 Sum.
                 The
                 like
                 was
                 found
                 Feb.
                 20.
                 1629.
                 
                 Laird
                 of
                 Drumkilbo
                 contra
                 Lord
                 Stormount
                 :
                 where
                 the
                 Father
                 surviving
                 the
                 Term
                 of
                 payment
                 ,
                 though
                 he
                 freely
                 and
                 without
                 a
                 Cause
                 onerous
                 ,
                 discharged
                 the
                 Sum
                 provided
                 to
                 be
                 payed
                 to
                 him
                 ,
                 and
                 failing
                 him
                 to
                 his
                 Son
                 ;
                 though
                 it
                 bare
                 a
                 Clause
                 of
                 Infeftment
                 to
                 the
                 Father
                 in
                 Liferent
                 ,
                 and
                 to
                 the
                 Son
                 in
                 Fee
                 ,
                 but
                 no
                 Infeftment
                 followed
                 .
                 The
                 like
                 ,
                 though
                 the
                 Father
                 and
                 the
                 Son
                 subtitute
                 ,
                 were
                 both
                 infeft
                 in
                 one
                 Seasine
                 :
                 July
                 23.
                 1675.
                 
                 Laird
                 of
                 Lamingtoun
                 contra
                 Muire
                 of
                 Annistoun
                 .
              
               
                 As
                 to
                 the
                 second
                 Question
                 ,
                 The
                 more
                 ancient
                 Decisions
                 have
                 interpret
                 such
                 Clauses
                 strictly
                 ,
                 thus
                 ;
                 That
                 the
                 Sum
                 payable
                 at
                 such
                 a
                 Term
                 to
                 the
                 first
                 Person
                 ,
                 should
                 be
                 payed
                 at
                 that
                 Term
                 to
                 the
                 Person
                 substitute
                 ;
                 so
                 that
                 it
                 should
                 be
                 payable
                 at
                 no
                 Term
                 thereafter
                 to
                 the
                 Person
                 substitute
                 :
                 but
                 if
                 the
                 first
                 Person
                 survived
                 the
                 Term
                 of
                 payment
                 ,
                 though
                 he
                 did
                 nothing
                 to
                 alter
                 the
                 Substitution
                 ,
                 the
                 same
                 should
                 not
                 belong
                 to
                 the
                 Person
                 substitute
                 ,
                 but
                 to
                 his
                 heirs
                 .
                 
                   Hope
                   succession
                   .
                   Spots
                   .
                   Assignations
                   ,
                
                 Laird
                 of
                 Bonytoun
                 contra
                 
                   John
                   Keith
                   .
                   Feb.
                
                 22.
                 1623.
                 
                 
                   John
                   Leich
                
                 contra
                 Laird
                 of
                 Balnamoon
                 .
                 Where
                 it
                 was
                 found
                 ,
                 that
                 such
                 Sums
                 came
                 under
                 the
                 first
                 Persons
                 ,
                 surviving
                 the
                 Term
                 ,
                 their
                 Testament
                 ,
                 and
                 belonged
                 to
                 their
                 Executors
                 .
                 But
                 more
                 frequent
                 Decisions
                 have
                 with
                 better
                 reason
                 interpret
                 such
                 Clauses
                 on
                 the
                 contrary
                 ,
                 that
                 the
                 Person
                 substitute
                 is
                 heir
                 of
                 Provision
                 whensoever
                 the
                 Defunct
                 dies
                 ,
                 whether
                 before
                 or
                 after
                 the
                 Term.
                 Because
                 constitution
                 ofheirs
                 is
                 simply
                 ,
                 and
                 not
                 
                   ad
                   diem
                
                 :
                 but
                 mainly
                 because
                 the
                 ordinary
                 intent
                 of
                 such
                 Clauses
                 ,
                 is
                 to
                 appoint
                 Portions
                 for
                 the
                 Bairns
                 named
                 therein
                 ,
                 who
                 therefore
                 are
                 substitute
                 heirs
                 of
                 Provision
                 to
                 their
                 Father
                 ;
                 so
                 that
                 if
                 he
                 do
                 not
                 expressly
                 alter
                 or
                 prejudge
                 the
                 Substitution
                 ,
                 his
                 intent
                 is
                 ,
                 that
                 they
                 succeed
                 him
                 whensoever
                 .
                 
                   Spots
                   .
                   Assignations
                   ,
                   Currie
                
                 contra
                 Nimmo
                 :
                 Relict
                 of
                 
                   John
                   Thomsom
                
                 contra
                 
                   William
                   Thomson
                
                 .
                 The
                 like
                 in
                 a
                 Legacy
                 left
                 to
                 a
                 Person
                 ,
                 and
                 failing
                 her
                 by
                 Decease
                 to
                 another
                 :
                 which
                 was
                 not
                 found
                 
                   à
                   fidei
                   commissum
                
                 ,
                 to
                 be
                 restored
                 by
                 the
                 first
                 Person
                 to
                 the
                 second
                 at
                 her
                 death
                 .
                 And
                 therefore
                 the
                 Assigny
                 of
                 the
                 first
                 Person
                 was
                 preferred
                 .
                 
                   Spots
                   .
                   Disposition
                   ,
                   Sarah
                   Reid
                
                 contra
                 
                   Alexander
                   Downie
                   .
                   January
                
                 18.
                 1625.
                 
                 Wat
                 contra
                 
                   Dobbie
                   .
                   June
                
                 26.
                 1634.
                 
                 Keith
                 contra
                 Innes
                 .
                 Therefore
                 such
                 Sums
                 bearing
                 no
                 Clause
                 of
                 Infeftment
                 ,
                 yet
                 fall
                 under
                 Testament
                 ,
                 neither
                 hath
                 the
                 Relict
                 a
                 third
                 thereof
                 ,
                 
                   Hope
                   ,
                   Successions
                
                 .
              
               
                 In
                 these
                 Substitutions
                 ,
                 though
                 the
                 Person
                 be
                 substitute
                 as
                 heir
                 ,
                 yet
                 he
                 is
                 not
                 properly
                 heir
                 ,
                 and
                 so
                 needs
                 not
                 to
                 be
                 entered
                 by
                 any
                 Service
                 ,
                 because
                 he
                 is
                 nominate
                 ,
                 and
                 there
                 is
                 no
                 other
                 heir
                 .
                 But
                 inTailzies
                 ,
                 though
                 some
                 of
                 the
                 Members
                 of
                 the
                 Tailzie
                 be
                 nominate
                 ;
                 yet
                 because
                 in
                 Lands
                 as
                 is
                 before
                 said
                 ,
                 the
                 Person
                 nominate
                 is
                 never
                 the
                 first
                 heir
                 :
                 therefore
                 there
                 must
                 be
                 a
                 Service
                 ,
                 to
                 enquire
                 whether
                 the
                 first
                 heir
                 fails
                 or
                 not
                 ,
                 which
                 is
                 unnecessary
                 where
                 there
                 is
                 one
                 Person
                 only
                 nominate
                 to
                 be
                 heir
                 ,
                 concerning
                 which
                 ,
                 there
                 needs
                 beno
                 enquiry
                 .
              
               
                 Though
                 the
                 Persons
                 substitute
                 be
                 as
                 heirs
                 ,
                 it
                 followeth
                 not
                 that
                 they
                 must
                 be
                 lyable
                 as
                 heirs
                 of
                 Provision
                 to
                 the
                 first
                 Person
                 's
                 Debt
                 ,
                 contracted
                 before
                 the
                 
                 Substitution
                 :
                 because
                 they
                 are
                 not
                 properly
                 heirs
                 ,
                 not
                 requiring
                 any
                 Service
                 They
                 are
                 interpretativè
                 like
                 to
                 heirs
                 ,
                 because
                 the
                 nature
                 and
                 intent
                 of
                 such
                 Clauses
                 is
                 not
                 to
                 constitute
                 the
                 first
                 Person
                 as
                 a
                 naked
                 Liferenter
                 ,
                 but
                 that
                 they
                 are
                 understood
                 as
                 if
                 they
                 were
                 thus
                 express'd
                 ;
                 
                   With
                   power
                   to
                   the
                   first
                   Person
                   to
                   alter
                   aad
                   dispone
                   at
                   his
                   pleasure
                   during
                   his
                   life
                   .
                
                 So
                 thereafter
                 ,
                 only
                 the
                 heirs
                 substitute
                 take
                 place
                 ,
                 though
                 in
                 these
                 respects
                 as
                 heirs
                 ,
                 yet
                 in
                 reality
                 as
                 secundary
                 ,
                 conditional
                 ,
                 or
                 substitute
                 Feers
                 .
                 But
                 the
                 Substitute
                 is
                 lyable
                 ,
                 other
                 〈◊〉
                 Heirs
                 and
                 Executors
                 being
                 discussed
                 ;
                 unless
                 the
                 Person
                 substitute
                 abstain
                 .
                 Because
                 the
                 Substitution
                 is
                 a
                 gratuitous
                 Deed
                 in
                 prejudice
                 of
                 Creditors
                 ,
                 
                   post
                   contractum
                   debitum
                
                 ,
                 and
                 so
                 annullable
                 ;
                 and
                 the
                 Substitute
                 medling
                 ,
                 is
                 lyable
                 to
                 repay
                 
                   quoad
                   valorem
                
                 only
                 ,
                 but
                 never
                 by
                 an
                 universal
                 passive
                 Title
                 .
                 July
                 3.
                 1666.
                 
                 Fleeming
                 contra
                 Fleeming
                 .
              
               
                 The
                 next
                 difficulty
                 is
                 ,
                 who
                 is
                 Feer
                 in
                 Provisions
                 ,
                 or
                 Tailzies
                 of
                 Sums
                 ,
                 Annualrents
                 ,
                 or
                 Lands
                 in
                 Conjunctfee
                 :
                 wherein
                 these
                 general
                 Rules
                 do
                 ordinarly
                 take
                 place
                 .
                 First
                 ,
                 That
                 the
                 last
                 termination
                 of
                 Heirs
                 whatsoever
                 ,
                 inferreth
                 that
                 Person
                 of
                 the
                 Conjunctfeers
                 ,
                 whose
                 Heirs
                 they
                 are
                 ,
                 to
                 be
                 Feers
                 ,
                 and
                 the
                 other
                 Liferenters
                 .
                 2.
                 
                 When
                 that
                 is
                 not
                 express'd
                 
                   potior
                   est
                   conditio
                   masculi
                
                 ,
                 the
                 Heirs
                 of
                 the
                 Man
                 are
                 understood
                 .
                 But
                 these
                 have
                 their
                 own
                 Limitations
                 ;
                 as
                 first
                 in
                 Moveable
                 Goods
                 ,
                 and
                 Sums
                 provided
                 to
                 a
                 Man
                 and
                 a
                 Wife
                 ,
                 and
                 their
                 Heirs
                 ,
                 without
                 me
                 ntioning
                 ,
                 
                   which
                   failing
                
                 to
                 whose
                 Heirs
                 the
                 same
                 should
                 be
                 due
                 ,
                 were
                 found
                 not
                 to
                 fall
                 to
                 the
                 mans
                 Heirs
                 ,
                 but
                 to
                 divide
                 equally
                 betwixt
                 the
                 Man
                 and
                 Wifes
                 Heirs
                 .
                 February
                 2.
                 1632.
                 
                 Bartholomew
                 contra
                 
                   Hassingtoun
                   .
                   February
                
                 18.
                 1637.
                 
                 Mungle
                 contra
                 
                   John
                   Steill
                
                 .
                 Yea
                 ,
                 a
                 Clause
                 in
                 a
                 Reversion
                 redeemable
                 by
                 a
                 Man
                 and
                 his
                 Wife
                 ,
                 and
                 their
                 Heirs
                 ,
                 was
                 found
                 to
                 constitute
                 the
                 Wife
                 Feer
                 of
                 the
                 Reversion
                 ;
                 because
                 she
                 was
                 Feer
                 of
                 the
                 Land
                 Wadset
                 .
                 
                   Hope
                   ,
                   Liferent
                   ,
                   Kincaid
                
                 contra
                 Menzies
                 of
                 Pitfoddels
                 .
                 But
                 an
                 Assignation
                 to
                 a
                 Reversion
                 provided
                 to
                 a
                 Man
                 and
                 Wife
                 ,
                 the
                 longest
                 liver
                 of
                 them
                 two
                 and
                 their
                 Heirs
                 ,
                 was
                 found
                 to
                 make
                 the
                 Man
                 only
                 Feer
                 .
                 
                   Hope
                   ,
                   Husband
                   and
                   Wife
                   ,
                   Walter
                   Collistoun
                
                 contra
                 Laird
                 of
                 Pitfoddels
                 .
                 A
                 Clause
                 in
                 a
                 Charter
                 providing
                 Lands
                 to
                 a
                 Man
                 and
                 his
                 Wife
                 ,
                 the
                 longest
                 liver
                 of
                 them
                 two
                 ,
                 and
                 the
                 Heirs
                 betwixt
                 them
                 ;
                 Which
                 failing
                 ,
                 to
                 the
                 Heirs
                 of
                 the
                 Mans
                 Body
                 ;
                 Which
                 failing
                 ,
                 to
                 the
                 Wife
                 her
                 Heirs
                 whatsoever
                 :
                 though
                 the
                 last
                 termination
                 was
                 upon
                 the
                 Wife
                 ,
                 yet
                 the
                 Husband
                 was
                 found
                 Feer
                 .
                 July
                 24.
                 1622.
                 
                 Ramsey
                 contra
                 Laird
                 of
                 Conheath
                 .
                 The
                 like
                 in
                 a
                 Clause
                 providing
                 a
                 Sum
                 ,
                 being
                 a
                 Wifes
                 Tocher
                 ,
                 to
                 the
                 Man
                 and
                 Wife
                 ,
                 and
                 the
                 longest
                 liver
                 of
                 them
                 two
                 in
                 Conjunctfee
                 ,
                 and
                 to
                 the
                 Heirs
                 betwixt
                 them
                 ;
                 Which
                 failing
                 ,
                 the
                 Wifes
                 heirs
                 ;
                 yet
                 the
                 Husband
                 was
                 found
                 Feer
                 :
                 and
                 therefore
                 the
                 Creditor
                 apprising
                 ,
                 excluded
                 the
                 Wife
                 and
                 her
                 heirs
                 .
                 January
                 29.
                 1639.
                 graham
                 contra
                 Park
                 and
                 Jarden
                 .
                 And
                 a
                 Bond
                 providing
                 a
                 Sum
                 to
                 a
                 Man
                 and
                 his
                 Wife
                 in
                 Conjunctfee
                 ,
                 and
                 the
                 Bairns
                 procreat
                 betwixt
                 them
                 ;
                 which
                 failing
                 ,
                 to
                 two
                 Bairns
                 of
                 a
                 former
                 Marriage
                 nominatim
                 ,
                 containing
                 a
                 Precept
                 for
                 infefting
                 the
                 Spouse
                 and
                 the
                 two
                 Bairns
                 named
                 ,
                 whereupon
                 all
                 the
                 four
                 were
                 infeft
                 :
                 yet
                 the
                 Father
                 was
                 found
                 Feer
                 ,
                 and
                 all
                 the
                 Bairns
                 of
                 the
                 Family
                 ,
                 Male
                 and
                 Female
                 equally
                 ,
                 were
                 found
                 heirs
                 of
                 Provision
                 ;
                 and
                 the
                 two
                 Bairns
                 named
                 were
                 found
                 Heirs
                 substitute
                 ,
                 failing
                 the
                 Bairns
                 of
                 the
                 Marriage
                 ,
                 January
                 14.
                 1663.
                 
                 
                   Thomas
                   Beg
                
                 contra
                 Sir
                 
                   Thomas
                   Nicolson
                
                 .
                 And
                 a
                 Bond
                 bearing
                 a
                 Sum
                 borrowed
                 from
                 ,
                 and
                 payable
                 to
                 Man
                 and
                 Wife
                 ,
                 and
                 longest
                 liver
                 of
                 them
                 two
                 in
                 Conjunctfee
                 ,
                 and
                 to
                 the
                 heirs
                 ,
                 betwixt
                 them
                 and
                 their
                 Assignys
                 ;
                 Which
                 failing
                 ,
                 to
                 the
                 Heirs
                 and
                 Assignys
                 of
                 the
                 last
                 liver
                 :
                 found
                 to
                 constitute
                 the
                 Husband
                 Feer
                 and
                 the
                 Wife
                 Liferenter
                 ,
                 albeit
                 she
                 was
                 last
                 liver
                 ,
                 and
                 that
                 her
                 heirs
                 of
                 Line
                 were
                 found
                 heirs
                 of
                 Provision
                 to
                 the
                 Husband
                 .
                 January
                 2.
                 1668.
                 
                 
                   John
                   Justice
                
                 contra
                 
                   Mary
                   Barclay
                
                 his
                 Mother
                 .
                 A
                 Tocher
                 provided
                 to
                 the
                 Husband
                 and
                 Wife
                 ,
                 the
                 longest
                 
                 liver
                 in
                 Conjunctfee
                 and
                 Liferent
                 ,
                 and
                 to
                 their
                 Bairns
                 in
                 Fee
                 ;
                 was
                 found
                 to
                 make
                 the
                 Husband
                 Feer
                 ,
                 and
                 that
                 the
                 Father
                 might
                 alter
                 the
                 Substitution
                 .
                 December
                 12.
                 1665.
                 
                 Mr.
                 
                   John
                   Pearson
                
                 contra
                 Martine
                 .
                 And
                 generally
                 in
                 all
                 Infeftments
                 in
                 Conjunctsee
                 betwixt
                 Man
                 and
                 Wife
                 ,
                 the
                 Husband
                 is
                 always
                 interpret
                 to
                 be
                 Feer
                 ,
                 and
                 the
                 Wife
                 Liferenter
                 :
                 albeit
                 the
                 last
                 Termination
                 be
                 the
                 Wifes
                 heirs
                 ;
                 who
                 are
                 heirs
                 of
                 Provision
                 to
                 the
                 Husband
                 ,
                 unless
                 the
                 Right
                 flow
                 from
                 the
                 Wife
                 originally
                 :
                 as
                 if
                 she
                 should
                 resign
                 her
                 Lands
                 in
                 favour
                 of
                 her
                 Husband
                 ,
                 and
                 her self
                 in
                 Conjunctfee
                 ,
                 and
                 the
                 heirs
                 of
                 the
                 Marriage
                 ;
                 which
                 failing
                 ,
                 her
                 heirs
                 :
                 or
                 if
                 the
                 Right
                 did
                 flow
                 from
                 the
                 Wifes
                 Father
                 by
                 a
                 gratuitous
                 Deed.
                 But
                 by
                 the
                 Contract
                 of
                 Marriage
                 ,
                 a
                 Father
                 oblieged
                 himself
                 to
                 infeft
                 the
                 Husband
                 Contracter
                 ,
                 and
                 his
                 Daughter
                 ,
                 in
                 Conjunctfee
                 and
                 Liferent
                 ,
                 and
                 the
                 heirs
                 betwixt
                 them
                 ;
                 which
                 failing
                 ,
                 the
                 Daughters
                 heirs
                 and
                 Assignys
                 whatsoever
                 .
                 And
                 by
                 the
                 same
                 Contract
                 ,
                 the
                 Husband
                 was
                 obliged
                 to
                 provide
                 all
                 Lands
                 that
                 she
                 should
                 acquire
                 or
                 succed
                 to
                 ,
                 to
                 himself
                 and
                 Wife
                 ,
                 the
                 longest
                 liver
                 of
                 them
                 two
                 in
                 Conjunctfee
                 ,
                 and
                 to
                 the
                 heirs
                 betwixt
                 them
                 ;
                 which
                 failing
                 ,
                 the
                 one
                 half
                 to
                 the
                 Husband's
                 heirs
                 ,
                 and
                 the
                 other
                 to
                 the
                 Wifes
                 heirs
                 ,
                 and
                 their
                 Assignys
                 .
                 By
                 both
                 these
                 Clauses
                 the
                 Husband
                 was
                 found
                 to
                 be
                 Feer
                 ,
                 and
                 the
                 Wife
                 Liferenter
                 :
                 albeit
                 the
                 Tenement
                 disponed
                 by
                 the
                 Father
                 was
                 not
                 
                   nomine
                   dotis
                
                 ,
                 yet
                 there
                 was
                 no
                 other
                 Tocher
                 ,
                 July
                 2.
                 1671.
                 
                 
                   Adam
                   Gairns
                
                 contra
                 
                   Isabel
                   Sandilands
                
                 .
                 Yet
                 a
                 Clause
                 in
                 a
                 Minute
                 of
                 a
                 Contract
                 of
                 Marriage
                 ,
                 obliging
                 the
                 Husband
                 to
                 infeft
                 his
                 Wife
                 in
                 Conjunctfee
                 and
                 Liferent
                 in
                 such
                 a
                 Barony
                 named
                 ,
                 and
                 obliging
                 him
                 and
                 his
                 Heirs
                 and
                 Assignys
                 ,
                 that
                 all
                 and
                 whatsoever
                 Lands
                 or
                 Sums
                 of
                 Money
                 should
                 be
                 purchased
                 by
                 him
                 during
                 the
                 Marriage
                 ,
                 that
                 Security
                 should
                 be
                 made
                 in
                 Liferent
                 thereof
                 ,
                 as
                 of
                 theforesaid
                 Barony
                 ,
                 to
                 his
                 future
                 Spouse
                 in
                 case
                 of
                 no
                 Issue
                 of
                 Children
                 ,
                 the
                 one
                 half
                 of
                 the
                 said
                 Conquest
                 to
                 be
                 disponed
                 upon
                 as
                 the
                 Wife
                 shall
                 think
                 fit
                 ;
                 the
                 Conquest
                 was
                 found
                 to
                 be
                 equally
                 to
                 the
                 Husband
                 and
                 Wife
                 ,
                 and
                 that
                 she
                 was
                 Liferenter
                 of
                 the
                 whole
                 ,
                 and
                 Feer
                 of
                 the
                 half
                 :
                 in
                 respect
                 the
                 Minute
                 did
                 not
                 bear
                 whose
                 heirs
                 should
                 succeed
                 ;
                 and
                 that
                 the
                 Conquest
                 was
                 all
                 to
                 be
                 expected
                 by
                 the
                 Wifes
                 Means
                 ,
                 therefore
                 she
                 being
                 Conjunctfeer
                 ,
                 that
                 the
                 one
                 half
                 of
                 the
                 Conquest
                 should
                 be
                 disponed
                 as
                 she
                 pleased
                 ;
                 she
                 was
                 found
                 Feer
                 of
                 that
                 half
                 ,
                 as
                 not
                 being
                 a
                 Faculty
                 ,
                 but
                 a
                 Power
                 of
                 Disposal
                 importing
                 Property
                 .
                 June
                 27.
                 1676.
                 
                 Earl
                 of
                 Dumferling
                 contra
                 Earl
                 of
                 Callendar
                 .
              
               
                 52.
                 
                 There
                 do
                 many
                 questions
                 arise
                 ,
                 as
                 to
                 the
                 Succession
                 of
                 Heirs
                 of
                 Provision
                 ,
                 by
                 Clauses
                 of
                 Conquest
                 in
                 Contracts
                 of
                 Marriage
                 .
                 The
                 main
                 question
                 is
                 ,
                 what
                 is
                 accounted
                 Conquest
                 ;
                 Whether
                 that
                 which
                 is
                 acquired
                 ,
                 and
                 thereafter
                 disponed
                 ,
                 be
                 accounted
                 Conquest
                 ,
                 either
                 as
                 to
                 the
                 Wife
                 ,
                 or
                 to
                 the
                 Heirs
                 ,
                 or
                 Bairns
                 of
                 the
                 Marriage
                 .
                 As
                 to
                 which
                 it
                 hath
                 been
                 shown
                 before
                 ,
                 that
                 such
                 Provisions
                 infer
                 not
                 only
                 a
                 Succession
                 to
                 the
                 Heirs
                 ,
                 or
                 Bairns
                 of
                 the
                 Marriage
                 ,
                 as
                 Heirs
                 of
                 Provision
                 ;
                 but
                 thereby
                 the
                 Wife
                 or
                 Heir
                 ,
                 and
                 Bairn
                 of
                 the
                 Marriage
                 ,
                 have
                 an
                 interest
                 as
                 Creditors
                 that
                 the
                 Husband
                 ,
                 or
                 Father
                 cannot
                 ,
                 
                   ad
                   arbitrium
                
                 ,
                 do
                 Deeds
                 prejudicial
                 to
                 that
                 which
                 is
                 once
                 acquired
                 :
                 but
                 the
                 Husband
                 is
                 not
                 thereby
                 bound
                 up
                 from
                 disponing
                 to
                 Strangers
                 ,
                 for
                 causes
                 onerous
                 ;
                 or
                 to
                 other
                 Wives
                 or
                 Children
                 ,
                 for
                 competent
                 Provisions
                 .
                 But
                 he
                 may
                 not
                 otherways
                 intervert
                 the
                 design
                 of
                 those
                 Provisions
                 ,
                 by
                 taking
                 the
                 Rights
                 to
                 Wives
                 ,
                 or
                 Children
                 of
                 another
                 Marriage
                 ;
                 unlesse
                 he
                 have
                 not
                 means
                 aliunde
                 to
                 provide
                 them
                 .
                 And
                 therefore
                 the
                 Husband
                 being
                 oblieged
                 ,
                 to
                 take
                 all
                 Sums
                 acquired
                 ,
                 during
                 the
                 Marriage
                 to
                 to
                 himself
                 and
                 his
                 Wife
                 inConjunct-fee
                 ;
                 having
                 taken
                 a
                 Sum
                 acquired
                 during
                 the
                 Marriage
                 ,
                 in
                 the
                 name
                 of
                 his
                 second
                 Son
                 :
                 his
                 Relict
                 was
                 found
                 to
                 have
                 Right
                 to
                 the
                 Annualrent
                 thereof
                 .
                 July
                 16.
                 1625.
                 
                 Knox
                 contra
                 Brown.
                 The
                 like
                 ,
                 where
                 the
                 Bonds
                 were
                 taken
                 originally
                 in
                 the
                 name
                 of
                 the
                 Bairns
                 ,
                 leaving
                 
                 out
                 the
                 Wife
                 .
                 March
                 14.
                 
                 Graham
                 contra
                 Representatives
                 of
                 her
                 Husband
                 .
                 But
                 Clauses
                 of
                 Conquest
                 ,
                 of
                 all
                 Lands
                 acquired
                 during
                 the
                 Marriage
                 ,
                 do
                 not
                 extend
                 to
                 Lands
                 ,
                 acquired
                 and
                 disponed
                 during
                 the
                 Marriage
                 .
                 Yea
                 Conquest
                 of
                 Lands
                 was
                 extended
                 where
                 there
                 was
                 Disposition
                 without
                 Infeftment
                 :
                 with
                 a
                 burthen
                 of
                 a
                 part
                 of
                 the
                 Price
                 upon
                 the
                 Disponer
                 .
                 January
                 24
                 1629.
                 
                 Lady
                 Rentoun
                 contra
                 Laird
                 of
                 
                   Rentoun
                   .
                   Spotswood
                   ,
                   Husband
                
                 ,
                 Countess
                 of
                 Dumfermling
                 contra
                 Earl
                 of
                 Dumfermling
                 .
                 And
                 where
                 the
                 Clause
                 of
                 Conquest
                 bare
                 Lands
                 or
                 Annualrents
                 ;
                 the
                 same
                 were
                 extended
                 to
                 Bonds
                 bearing
                 Annualrent
                 ,
                 though
                 without
                 clause
                 of
                 Infeftment
                 .
                 Feb.
                 20
                 1629.
                 
                 Douglas
                 contra
                 White
                 .
                 And
                 these
                 Clauses
                 are
                 interpret
                 strictly
                 ,
                 according
                 to
                 the
                 tenor
                 thereof
                 :
                 for
                 sometimes
                 they
                 only
                 bear
                 Lands
                 Conquest
                 ,
                 sometimes
                 Lands
                 or
                 Annualrents
                 ,
                 sometimes
                 Lands
                 ,
                 Annualrents
                 ,
                 or
                 Sums
                 of
                 Mony
                 ,
                 and
                 sometimes
                 also
                 Goods
                 or
                 Geer
                 :
                 in
                 which
                 case
                 the
                 Executors
                 will
                 be
                 obliged
                 to
                 imploy
                 moveable
                 Goods
                 ,
                 and
                 Sums
                 ;
                 for
                 the
                 Wife
                 in
                 Liferent
                 ,
                 and
                 for
                 the
                 Bairns
                 and
                 Heirs
                 of
                 the
                 Marriage
                 in
                 Fee.
                 These
                 Clauses
                 of
                 Conquest
                 do
                 never
                 extend
                 to
                 any
                 thing
                 ,
                 whereunto
                 the
                 Husband
                 succ
                 eds
                 as
                 Heir
                 ,
                 or
                 Executor
                 ;
                 unless
                 Succession
                 be
                 exprest
                 .
                 A
                 clause
                 of
                 Conquest
                 ,
                 oblieging
                 the
                 Husband
                 to
                 take
                 all
                 Lands
                 ,
                 Annualrents
                 and
                 Sums
                 ,
                 conquest
                 ,
                 during
                 the
                 Marriage
                 to
                 himself
                 ,
                 and
                 the
                 Heirs
                 and
                 Bairns
                 of
                 the
                 Marriage
                 ,
                 one
                 or
                 moe
                 ;
                 found
                 to
                 constitute
                 all
                 the
                 Bairns
                 of
                 the
                 Marriage
                 ,
                 Male
                 and
                 Female
                 ,
                 Heirs
                 Portioners
                 :
                 and
                 that
                 it
                 was
                 not
                 alternative
                 ,
                 that
                 the
                 Husband
                 might
                 either
                 take
                 the
                 Conquest
                 to
                 himself
                 ;
                 and
                 the
                 Heirs
                 of
                 the
                 Marriage
                 ;
                 or
                 to
                 himself
                 ,
                 and
                 Bairns
                 of
                 the
                 Marriage
                 ,
                 at
                 his
                 option
                 .
                 And
                 therefore
                 having
                 taken
                 a
                 considerable
                 Sum
                 ,
                 in
                 favour
                 of
                 himself
                 and
                 the
                 Heir
                 of
                 the
                 Marriage
                 ,
                 who
                 was
                 his
                 only
                 Son
                 ;
                 yet
                 after
                 his
                 Death
                 ,
                 his
                 four
                 Daughters
                 ,
                 of
                 that
                 Marriage
                 ,
                 obtained
                 Decreet
                 against
                 their
                 Brother
                 ,
                 to
                 denude
                 himself
                 of
                 their
                 Shares
                 .
                 January
                 29.
                 1673.
                 
                 Stewart
                 contra
                 Stewart
                 .
                 But
                 Conquest
                 is
                 only
                 understood
                 ,
                 of
                 what
                 the
                 Husband
                 acquired
                 more
                 ,
                 after
                 his
                 Contract
                 of
                 Marriage
                 ,
                 than
                 what
                 he
                 had
                 before
                 .
                 And
                 therefore
                 if
                 he
                 acquired
                 Lands
                 ,
                 Annualrents
                 ,
                 Sums
                 or
                 Goods
                 ;
                 if
                 he
                 instruct
                 ,
                 That
                 he
                 had
                 as
                 much
                 ,
                 (
                 or
                 a
                 part
                 thereof
                 before
                 )
                 as
                 he
                 sold
                 ;
                 the
                 superplus
                 will
                 only
                 be
                 counted
                 Conquest
                 .
                 And
                 though
                 he
                 have
                 not
                 disponed
                 on
                 any
                 thing
                 he
                 had
                 before
                 ,
                 〈◊〉
                 〈◊〉
                 he
                 contract
                 Debt
                 for
                 purchasing
                 the
                 Conquest
                 ;
                 it
                 will
                 be
                 burthered
                 with
                 the
                 Annualrent
                 of
                 the
                 Debt
                 :
                 as
                 was
                 found
                 in
                 the
                 former
                 cases
                 .
                 And
                 the
                 like
                 ,
                 December
                 20.
                 1665.
                 
                 Lady
                 Kilbocho
                 contra
                 Laird
                 of
                 
                   Kilbocho
                   .
                   June
                
                 27.
                 1676.
                 
                 Earl
                 of
                 Dumfermling
                 contra
                 Earl
                 of
                 Callender
                 .
                 The
                 like
                 was
                 found
                 in
                 a
                 Provision
                 of
                 Conquest
                 ,
                 of
                 all
                 the
                 Husband
                 's
                 Goods
                 and
                 Geer
                 acquired
                 during
                 the
                 Marriage
                 ,
                 to
                 the
                 Wife
                 for
                 her
                 Liferent
                 use
                 :
                 which
                 was
                 found
                 to
                 be
                 with
                 the
                 burthen
                 of
                 the
                 Husband's
                 Debt
                 ,
                 contracted
                 before
                 ,
                 or
                 after
                 :
                 and
                 so
                 to
                 import
                 only
                 Liferent
                 of
                 the
                 free
                 Geer
                 .
                 December
                 23.
                 1660
                 
                 
                   Jane
                   Smith
                
                 contra
                 
                   Margaret
                   Muire
                
                 .
                 And
                 where
                 a
                 Husband
                 was
                 obliged
                 to
                 imploy
                 a
                 definite
                 Sum
                 ,
                 for
                 himself
                 ,
                 his
                 Wife
                 ,
                 and
                 Bairns
                 of
                 the
                 Marriage
                 ;
                 and
                 also
                 his
                 Conquest
                 ,
                 and
                 having
                 acquired
                 a
                 Tenement
                 during
                 the
                 Marriage
                 :
                 to
                 himself
                 ,
                 and
                 his
                 Heirs
                 whatsoever
                 ;
                 that
                 Tenement
                 was
                 applyed
                 to
                 the
                 definite
                 Sum
                 ,
                 
                   primo
                   loco
                
                 ,
                 and
                 the
                 superplus
                 as
                 a
                 Conquest
                 ,
                 January
                 4.
                 1672.
                 
                 Beaty
                 contra
                 Roxburgh
                 .
              
               
                 So
                 much
                 for
                 the
                 Being
                 and
                 Interest
                 of
                 Heirs
                 .
                 As
                 for
                 the
                 proving
                 and
                 instructing
                 who
                 are
                 Heirs
                 ,
                 the
                 most
                 ordinary
                 by
                 way
                 of
                 Retour
                 ,
                 or
                 Infefment
                 as
                 Heirs
                 ;
                 or
                 by
                 a
                 Service
                 ,
                 though
                 not
                 Retoured
                 :
                 but
                 those
                 Instructions
                 must
                 be
                 repeted
                 in
                 every
                 several
                 Process
                 .
                 For
                 so
                 an
                 Heir
                 active
                 ,
                 was
                 found
                 not
                 to
                 be
                 instructed
                 ,
                 by
                 a
                 Decreet
                 at
                 his
                 instance
                 ,
                 as
                 Heir
                 ,
                 against
                 the
                 same
                 Defender
                 .
                 and
                 in
                 the
                 same
                 Matter
                 ,
                 without
                 reproduction
                 of
                 the
                 Instructions
                 .
                 Feb.
                 22.
                 
                 1629.
                 
                 Stewart
                 contra
                 Wilson
                 :
                 neither
                 was
                 it
                 instructed
                 passivè
                 by
                 a
                 Decreet
                 of
                 the
                 Comissars
                 ,
                 by
                 production
                 of
                 the
                 Defender's
                 Seisine
                 without
                 〈◊〉
                 thereof
                 ,
                 Had.
                 
              
               
                 Neither
                 was
                 it
                 instructed
                 passivè
                 ,
                 by
                 the
                 Kings
                 gratuitous
                 Restitution
                 of
                 the
                 apparant
                 Heir
                 ,
                 of
                 a
                 forefault
                 Person
                 ;
                 which
                 made
                 him
                 capable
                 of
                 his
                 Father's
                 Rights
                 ,
                 but
                 not
                 Heir
                 nor
                 Successor
                 to
                 him
                 .
                 
                   Hope
                   ,
                   forefaliure
                   ,
                   Halyburton
                
                 contra
                 Lord
                 Balmerino
                 .
                 Neither
                 by
                 a
                 Bond
                 ,
                 wherein
                 the
                 Party
                 designed
                 himself
                 Heir
                 ,
                 or
                 at
                 least
                 apparant
                 Heir
                 ;
                 which
                 relateth
                 nothing
                 to
                 the
                 benefit
                 of
                 Succession
                 .
                 January
                 24.
                 1626.
                 
                 Laird
                 of
                 Glenkindie
                 contra
                 Crawfoord
                 .
                 Neither
                 by
                 an
                 Award
                 of
                 a
                 Town
                 Court
                 ,
                 recognoscing
                 a
                 Burgess
                 ,
                 Heir
                 to
                 his
                 Predecessor
                 .
                 
                   Spotswood
                   Heirs
                   ,
                   Gudelet
                
                 contra
                 
                   John
                   Adamson
                
                 .
              
            
             
               
               
                 TITLE
                 XXVIII
                 .
                 Behaving
                 as
                 Heir
                 .
              
               
                 
                   1.
                   
                   Gestio
                   pro
                   Haerede
                   described
                   .
                
                 
                   2.
                   
                   The
                   time
                   when
                   this
                   
                     passive
                     Title
                  
                   was
                   introduced
                   .
                
                 
                   3.
                   
                   The
                   reasons
                   of
                   introducing
                   it
                   .
                
                 
                   4.
                   
                   The
                   latitude
                   used
                   in
                   this
                   Title
                   .
                
                 
                   5.
                   
                   This
                   Title
                   not
                   competent
                   after
                   the
                   Intromette's
                   Death
                   ,
                   or
                   where
                   there
                   was
                   any
                   colour
                   able
                   Title
                   .
                
                 
                   6.
                   
                   Behaving
                   as
                   Heirs
                   by
                   Intromission
                   with
                   Heirship
                   ,
                   only
                   competent
                   against
                   Heirs
                   of
                   Line
                   .
                
                 
                   7.
                   
                   Intromission
                   of
                   Tutors
                   or
                   Curator's
                   infer
                   not
                   gestionem
                   against
                   the
                   Pupills
                   or
                   Minors
                   .
                
                 
                   8.
                   
                   Cases
                   inferring
                   gestion
                   by
                   Intromission
                   with
                   the
                   Heirship
                   moveables
                   .
                
                 
                   9.
                   
                   Exceptions
                   against
                   this
                   member
                   of
                   the
                   Title
                   .
                   As
                   first
                   ,
                   The
                   Pursuer
                   must
                   instruct
                   that
                   the
                   Defunct
                   was
                   either
                   Barron
                   ,
                   Prelat
                   ,
                   or
                   Burgess
                   ,
                   by
                   Infeftments
                   of
                   Lands
                   ,
                   or
                   〈◊〉
                   .
                
                 
                   10.
                   
                   The
                   2.
                   
                   Defence
                   against
                   Intromission
                   with
                   Heirship
                   Moveables
                   ,
                   and
                   vitious
                   Intromission
                   ,
                   That
                   the
                   Defunct
                   died
                   Rebel
                   ,
                   and
                   his
                   Escheat
                   gifted
                   before
                   intenting
                   the
                   Creditor's
                   pursuit
                   .
                
                 
                   11.
                   
                   The
                   3.
                   
                   Defense
                   ,
                   That
                   the
                   apparant
                   Heir
                   intrometted
                   ,
                   by
                   a
                   Gift
                   to
                   himself
                   ,
                   or
                   to
                   his
                   behoofe
                   .
                
                 
                   12.
                   
                   The
                   4.
                   
                   When
                   Moveables
                   belonging
                   to
                   a
                   Defunct
                   remain
                   in
                   his
                   House
                   ,
                   whereunto
                   his
                   apparant
                   Heir
                   hath
                   right
                   by
                   Infeftment
                   .
                
                 
                   13.
                   
                   Gestion
                   by
                   intrometting
                   with
                   Lands
                   ,
                   Tiends
                   ,
                   or
                   Tacks
                   ,
                   wherein
                   the
                   Intrometter
                   might
                   be
                   Heir
                   .
                
                 
                   14.
                   
                   Defenses
                   against
                   this
                   member
                   .
                
                 
                   15.
                   
                   Gestion
                   by
                   intrometting
                   with
                   the
                   Defunct's
                   Charter
                   Chest.
                   
                
                 
                   
                     16.
                     
                     Item
                  
                   ,
                   by
                   intromission
                   with
                   Sums
                   due
                   to
                   the
                   Defunct
                   ,
                   or
                   doing
                   any
                   Deed
                   ,
                   that
                   may
                   transmit
                   the
                   Defunct's
                   Right
                   .
                
                 
                   
                   17.
                   
                   This
                   passiive
                   Title
                   excluded
                   ,
                   unless
                   established
                   in
                   the
                   behavers
                   in
                   the
                   behavers
                   life-time
                   .
                
                 
                   18.
                   
                   How
                   far
                   Heirs
                   Portioners
                   ,
                   behaveing
                   as
                   Heirs
                   are
                   lyable
                   ,
                   and
                   whether
                   behaving
                   as
                   Heir
                   excluds
                   the
                   benefit
                   of
                   〈◊〉
                   and
                   relief
                   competent
                   to
                   Heirs
                   actually
                   entering
                   .
                
              
               
                 GESTIO
                 PRO
                 HAEREDE
                 ,
                 is
                 the
                 apparant
                 Heirs
                 disorderly
                 Entry
                 ,
                 and
                 immixing
                 himself
                 with
                 the
                 Heritage
                 ,
                 without
                 order
                 of
                 Law
                 :
                 and
                 therefore
                 it
                 gives
                 him
                 no
                 Right
                 nor
                 Active
                 Title
                 ,
                 as
                 Heir
                 ,
                 but
                 makes
                 him
                 only
                 Heir
                 ,
                 〈◊〉
                 ,
                 whereby
                 he
                 represents
                 the
                 Defunct
                 in
                 all
                 his
                 Debts
                 and
                 Burthens
                 ,
                 and
                 is
                 lyable
                 for
                 them
                 all
                 .
              
               
                 2.
                 
                 This
                 passive
                 Title
                 ,
                 as
                 Spots
                 .
                 observes
                 ,
                 was
                 but
                 introduced
                 by
                 the
                 Lords
                 of
                 Session
                 ,
                 and
                 was
                 not
                 before
                 the
                 institution
                 of
                 the
                 Colledge
                 of
                 Justice
                 ;
                 the
                 apparant
                 Heir
                 being
                 only
                 lyable
                 for
                 restitution
                 of
                 the
                 single
                 value
                 formerly
                 .
                 As
                 was
                 found
                 in
                 the
                 case
                 of
                 an
                 Heir's
                 Intromission
                 with
                 the
                 Heirship
                 moveable
                 .
                 November
                 14.
                 1546.
                 
                 
                   Janet
                   Seatoun
                
                 Lady
                 Dirlton
                 contra
                 
                   Anna
                   〈◊〉
                
                 .
              
               
                 3.
                 
                 The
                 reason
                 of
                 introducing
                 this
                 passive
                 Title
                 ,
                 is
                 in
                 favour
                 of
                 Creditors
                 ,
                 that
                 they
                 be
                 not
                 un-satisfied
                 ,
                 or
                 shifted
                 by
                 the
                 heirs
                 of
                 the
                 defunct
                 Debitors
                 :
                 who
                 ,
                 if
                 they
                 might
                 continue
                 possession
                 of
                 their
                 Predecessors
                 Means
                 ,
                 and
                 Estate
                 ,
                 and
                 be
                 but
                 countable
                 ;
                 would
                 rarely
                 enter
                 ,
                 and
                 hundle
                 up
                 their
                 Intromission
                 ,
                 and
                 with
                 time
                 ascribe
                 it
                 to
                 singular
                 Titles
                 ,
                 abstracting
                 their
                 Predecessors
                 Rights
                 .
                 And
                 therefore
                 it
                 is
                 an
                 expedient
                 Custom
                 ,
                 that
                 they
                 should
                 either
                 enter
                 legally
                 ,
                 and
                 for
                 good
                 and
                 all
                 ;
                 or
                 that
                 they
                 should
                 wholly
                 abstain
                 .
                 Especially
                 seing
                 the
                 Law
                 allows
                 them
                 a
                 year
                 ,
                 to
                 enquire
                 into
                 the
                 condition
                 of
                 the
                 Desunct's
                 heretage
                 ,
                 whether
                 it
                 will
                 afford
                 them
                 losse
                 or
                 gain
                 :
                 during
                 which
                 time
                 they
                 may
                 deliberat
                 ;
                 and
                 if
                 they
                 abstain
                 ,
                 can
                 be
                 troubled
                 by
                 none
                 .
                 So
                 that
                 though
                 it
                 may
                 seem
                 rigourous
                 ,
                 for
                 a
                 small
                 Intromission
                 to
                 make
                 the
                 Intrometter
                 lyable
                 for
                 all
                 the
                 Defunct's
                 Debts
                 ,
                 how
                 great
                 soever
                 ;
                 Yet
                 it
                 being
                 so
                 easie
                 to
                 abstain
                 ,
                 and
                 the
                 hazard
                 known
                 ;
                 the
                 Expediency
                 and
                 Favour
                 of
                 the
                 Creditor
                 ,
                 proponderateth
                 the
                 wilfull
                 Disadvantage
                 of
                 the
                 Debitors
                 Heir
                 .
              
               
                 4.
                 
                 In
                 this
                 Title
                 the
                 Lords
                 have
                 always
                 taken
                 great
                 Latitude
                 ,
                 and
                 sometimes
                 have
                 found
                 smal
                 Intromission
                 not
                 relevant
                 ,
                 to
                 infer
                 this
                 Title
                 ,
                 in
                 odions
                 〈◊〉
                 November
                 6.
                 1622.
                 
                 Laird
                 of
                 Dundas
                 contra
                 Hamilton
                 of
                 Peill
                 .
                 Where
                 a
                 Decreet
                 of
                 Spulzie
                 of
                 Tiends
                 being
                 obtained
                 against
                 Peill's
                 〈◊〉
                 ,
                 and
                 never
                 insisted
                 in
                 ,
                 till
                 in
                 his
                 time
                 he
                 was
                 convened
                 as
                 Heir
                 to
                 his
                 Father
                 ,
                 who
                 had
                 behaved
                 himself
                 as
                 Heir
                 to
                 the
                 Good-sire
                 ,
                 in
                 so
                 far
                 as
                 he
                 had
                 entred
                 and
                 dwelt
                 in
                 the
                 house
                 of
                 Peill
                 :
                 and
                 there
                 being
                 ,
                 in
                 the
                 house
                 ,
                 the
                 Goodsire's
                 
                 best
                 Board
                 ,
                 standing
                 Bed
                 ,
                 and
                 brewing
                 Caldron
                 ;
                 he
                 used
                 the
                 same
                 ,
                 by
                 eating
                 at
                 the
                 Board
                 ,
                 lying
                 in
                 the
                 Bed
                 ,
                 and
                 brewing
                 in
                 the
                 Caldron
                 :
                 and
                 desivered
                 the
                 Good
                 sire's
                 Beiff
                 Pot
                 to
                 a
                 Flesher
                 ,
                 for
                 Flesh
                 furnished
                 to
                 the
                 Defender's
                 Father
                 :
                 the
                 Defenders
                 Mother
                 having
                 keeped
                 possession
                 of
                 these
                 Heirship
                 Goods
                 for
                 five
                 years
                 before
                 .
              
               
                 5.
                 
                 Yet
                 this
                 Condescendence
                 was
                 not
                 found
                 relevant
                 in
                 this
                 Case
                 ,
                 The
                 
                   passive
                   Title
                
                 was
                 not
                 established
                 before
                 the
                 Defender's
                 Father's
                 Death
                 .
                 As
                 the
                 Lords
                 lately
                 found
                 ,
                 That
                 these
                 passive
                 Titles
                 ,
                 
                   quae
                   sapiunt
                   delictum
                
                 ,
                 should
                 not
                 be
                 competent
                 after
                 the
                 Intrometter's
                 Death
                 .
                 It
                 was
                 also
                 thought
                 by
                 the
                 whole
                 Lords
                 ,
                 after
                 dispute
                 in
                 presentia
                 upon
                 this
                 Title
                 ,
                 That
                 it
                 takes
                 only
                 place
                 ,
                 where
                 there
                 appeared
                 the
                 apparant
                 Heir's
                 
                   animus
                   immiscendi
                   ,
                   &
                   adeundi
                   haereditatem
                
                 ;
                 and
                 not
                 where
                 he
                 hath
                 any
                 probable
                 ,
                 or
                 colourable
                 Title
                 .
                 
                   Spots
                   .
                   Heirship
                   ,
                   Corser
                
                 contra
                 Durie
                 .
                 Yet
                 in
                 favourable
                 cases
                 ,
                 a
                 smal
                 Intromission
                 was
                 sustained
                 as
                 making
                 use
                 of
                 the
                 Defnuct's
                 chief
                 Bed
                 and
                 Board
                 ,
                 though
                 standing
                 in
                 the
                 Defunct's
                 House
                 :
                 seing
                 the
                 Heir
                 entred
                 the
                 House
                 ,
                 before
                 he
                 obtained
                 Inventary
                 of
                 the
                 Moveables
                 ,
                 made
                 by
                 authority
                 of
                 a
                 Judge
                 ;
                 though
                 the
                 House
                 belonged
                 to
                 himself
                 
                   proprio
                   jure
                   .
                   March
                
                 8.
                 1610.
                 
                 
                   John
                   Bailzie
                
                 contra
                 Hoom
                 of
                 Bassenden
                 .
                 Or
                 by
                 Intromission
                 with
                 a
                 Mazer
                 Cup
                 of
                 the
                 Defunct's
                 ,
                 and
                 drinking
                 therein
                 ;
                 entering
                 in
                 the
                 House
                 when
                 he
                 died
                 ;
                 lying
                 in
                 his
                 Bed
                 and
                 bed
                 Cloaths
                 standing
                 there
                 ;
                 and
                 wearing
                 his
                 Silk
                 Stockings
                 :
                 though
                 all
                 these
                 were
                 undisposed
                 upon
                 ,
                 and
                 that
                 the
                 Defunct's
                 Mother
                 ,
                 who
                 had
                 given
                 them
                 to
                 her
                 Son
                 ,
                 had
                 medled
                 therewith
                 ,
                 who
                 died
                 in
                 a
                 Chamber
                 belonging
                 to
                 his
                 Mother
                 ,
                 and
                 his
                 name
                 was
                 upon
                 the
                 
                   Mazer
                   .
                   January
                
                 15.
                 1630.
                 
                 Cleghorn
                 contra
                 Fairly
                 .
              
               
                 6.
                 
                 There
                 are
                 two
                 Cases
                 of
                 Behaving
                 as
                 Heir
                 ,
                 viz.
                 Intromission
                 with
                 the
                 moveable
                 Heirship
                 ,
                 and
                 Intromission
                 with
                 the
                 Lands
                 ,
                 Teinds
                 ,
                 Tacks
                 ,
                 or
                 other
                 Rights
                 which
                 might
                 have
                 belonged
                 to
                 the
                 Intromitter
                 as
                 Heir
                 .
                 In
                 both
                 which
                 cases
                 the
                 Intromission
                 will
                 not
                 infer
                 this
                 passive
                 Title
                 ,
                 unlesse
                 the
                 Intrometter
                 might
                 succeed
                 in
                 the
                 same
                 particulars
                 .
                 And
                 therefore
                 the
                 apparant
                 Heir
                 of
                 Line
                 and
                 no
                 other
                 ,
                 can
                 be
                 lyable
                 by
                 Intromission
                 with
                 Heirship
                 moveable
                 ,
                 because
                 the
                 same
                 can
                 only
                 belong
                 to
                 the
                 Heir
                 of
                 Line
                 .
                 So
                 the
                 Intromission
                 with
                 Rents
                 of
                 Lands
                 ,
                 Tiends
                 or
                 Tack
                 ,
                 will
                 not
                 infer
                 gestionem
                 ,
                 unless
                 by
                 the
                 apparant
                 Heir
                 ,
                 who
                 would
                 succeed
                 therein
                 ,
                 according
                 as
                 they
                 are
                 provided
                 to
                 Heirs
                 of
                 Line
                 ,
                 of
                 Conquest
                 ,
                 Heirs
                 male
                 ,
                 or
                 of
                 Tailzie
                 ,
                 or
                 Provision
                 .
                 Neither
                 will
                 any
                 other
                 Intromission
                 be
                 relevant
                 ,
                 but
                 what
                 is
                 immediat
                 ,
                 or
                 by
                 express
                 Warrant
                 ,
                 Command
                 ,
                 or
                 Ratihabition
                 .
              
               
                 7.
                 
                 A
                 Tutor
                 or
                 Curator's
                 Intromission
                 will
                 not
                 infer
                 gestionem
                 upon
                 his
                 Pupil
                 ,
                 unless
                 he
                 accept
                 the
                 same
                 from
                 the
                 Tutor
                 in
                 his
                 Accompts
                 .
                 Nor
                 the
                 Intromission
                 of
                 one
                 having
                 a
                 general
                 Commission
                 ,
                 as
                 Factor
                 ,
                 &c.
                 
                 It
                 was
                 so
                 found
                 in
                 the
                 Case
                 of
                 a
                 Tutor's
                 Intromission
                 with
                 the
                 Rents
                 of
                 the
                 Pupil's
                 Predecessor's
                 Lands
                 ,
                 for
                 the
                 restitution
                 whereof
                 he
                 was
                 only
                 found
                 lyable
                 .
                 Nevember
                 3.
                 1665.
                 
                 
                   David
                   Boyd
                
                 contra
                 Tailzfair
                 .
              
               
                 8.
                 
                 Behaving
                 as
                 Heir
                 by
                 Intromission
                 with
                 the
                 moveable
                 Heirship
                 ,
                 is
                 most
                 unquestionable
                 ,
                 when
                 the
                 said
                 moveable
                 is
                 chosen
                 ,
                 drawn
                 ,
                 and
                 separat
                 by
                 the
                 Heir
                 from
                 the
                 remanent
                 moveables
                 .
                 In
                 which
                 case
                 the
                 apparant
                 Heir
                 will
                 not
                 be
                 admitted
                 to
                 alledge
                 ,
                 that
                 the
                 Defunct
                 could
                 not
                 have
                 an
                 Heir
                 or
                 Heirship
                 moveable
                 ,
                 when
                 he
                 formerly
                 drew
                 the
                 same
                 .
                 July
                 13.
                 1631.
                 
                 Laird
                 of
                 of
                 Gadgirth
                 contra
                 Laird
                 of
                 Auchinleck
                 .
                 But
                 it
                 seems
                 very
                 hard
                 where
                 the
                 apparant
                 Heir's
                 choice
                 of
                 such
                 particulars
                 as
                 the
                 best
                 of
                 every
                 Kind
                 for
                 her
                 
                 Heirship
                 ,
                 doth
                 not
                 evidently
                 appear
                 :
                 for
                 that
                 must
                 be
                 accounted
                 the
                 best
                 ,
                 which
                 is
                 such
                 in
                 the
                 opinion
                 of
                 the
                 apparant
                 Heir
                 .
                 And
                 yet
                 in
                 favourable
                 Cases
                 Intromission
                 with
                 any
                 Kind
                 of
                 moveables
                 ,
                 out
                 of
                 which
                 Heirship
                 may
                 be
                 drawn
                 ,
                 will
                 be
                 found
                 sufficient
                 ,
                 and
                 repute
                 as
                 the
                 Heir's
                 choice
                 .
                 As
                 the
                 apparant
                 Heir's
                 making
                 use
                 of
                 his
                 Fathers
                 Board
                 ,
                 lying
                 in
                 his
                 Bed
                 ;
                 though
                 he
                 disposed
                 not
                 thereof
                 ,
                 and
                 though
                 the
                 same
                 were
                 standing
                 in
                 a
                 House
                 disponed
                 to
                 him
                 by
                 his
                 Father
                 before
                 contracting
                 of
                 the
                 Debt
                 pursued
                 on
                 :
                 seing
                 he
                 continued
                 two
                 years
                 in
                 possesion
                 ,
                 and
                 got
                 no
                 Warrant
                 from
                 the
                 Lords
                 ,
                 or
                 made
                 any
                 Inventary
                 thereof
                 .
                 July
                 14.
                 1626.
                 
                 
                   Gilbert
                   Johnston
                
                 and
                 Masson
                 his
                 Spouse
                 contra
                 Masson
                 .
                 The
                 like
                 by
                 making
                 use
                 of
                 the
                 Defunct's
                 Bassin
                 ,
                 Silver
                 Spoons
                 ,
                 Timber
                 Beds
                 and
                 Boards
                 ,
                 without
                 alienation
                 thereof
                 :
                 though
                 the
                 beginning
                 of
                 the
                 Intromission
                 was
                 ,
                 when
                 the
                 Intrometter
                 was
                 not
                 apparant
                 Heir
                 himself
                 ,
                 but
                 was
                 Tutor
                 to
                 another
                 Heir
                 who
                 was
                 Idiot
                 :
                 seing
                 he
                 continued
                 five
                 years
                 after
                 the
                 Idiot's
                 Death
                 ,
                 himself
                 being
                 then
                 apparant
                 Heir
                 .
                 January
                 17.
                 1627.
                 
                 Frazer
                 contra
                 Monimusk
                 .
                 Yet
                 the
                 contrary
                 was
                 found
                 ,
                 where
                 the
                 Intromission
                 began
                 before
                 the
                 Intrometter
                 was
                 apparant
                 Heir
                 ,
                 there
                 being
                 a
                 nearer
                 apparant
                 Heir
                 :
                 though
                 it
                 continued
                 after
                 that
                 nearer
                 apparant
                 Heir's
                 Death
                 ,
                 when
                 the
                 Intrometter
                 was
                 apparant
                 Heir
                 .
                 July
                 〈◊〉
                 1629.
                 
                 Mr.
                 
                   Robert
                   Cuuingham
                
                 contra
                 Moultry
                 .
                 Yea
                 ,
                 Behaving
                 as
                 Heir
                 was
                 sustained
                 by
                 Intromission
                 with
                 certain
                 Goods
                 of
                 the
                 Defunct
                 which
                 might
                 have
                 been
                 Heirship
                 ,
                 though
                 they
                 were
                 confirmed
                 promiscously
                 by
                 an
                 Executor
                 ,
                 and
                 bought
                 from
                 him
                 by
                 the
                 apparant
                 Heir
                 .
                 But
                 this
                 Executor
                 was
                 his
                 own
                 domestick
                 Servant
                 ,
                 and
                 confirmed
                 to
                 his
                 own
                 behoof
                 .
                 December
                 16.
                 1630.
                 
                 Weir
                 contra
                 Ker
                 of
                 Cavers
                 .
                 The
                 like
                 where
                 the
                 Heirship
                 Goods
                 were
                 sold
                 to
                 the
                 apparant
                 Heir
                 by
                 a
                 stranger
                 :
                 seing
                 they
                 were
                 not
                 delivered
                 to
                 that
                 stranger
                 ,
                 but
                 possest
                 by
                 the
                 Defunct
                 till
                 his
                 Decease
                 ,
                 but
                 his
                 possession
                 continued
                 by
                 the
                 apparant
                 Heir
                 .
                 
                   Nicol.
                   Plus
                   valet
                   quod
                   agitur
                   .
                   Feb.
                
                 9.
                 1621.
                 
                 Melvil
                 contra
                 Melvil
                 .
                 But
                 the
                 contrary
                 was
                 found
                 ,
                 the
                 Goods
                 being
                 disponed
                 by
                 the
                 Defunct
                 to
                 the
                 apparant
                 Heir
                 ,
                 albeit
                 not
                 delivered
                 before
                 his
                 death
                 ,
                 otherways
                 than
                 that
                 the
                 Defunct
                 being
                 un-married
                 ,
                 came
                 to
                 his
                 Son's
                 House
                 ,
                 and
                 lived
                 with
                 him
                 till
                 his
                 death
                 .
                 January
                 30.
                 1630.
                 
                 Calderwood
                 contra
                 Porteous
                 .
                 Neither
                 was
                 the
                 same
                 inferred
                 by
                 a
                 Disposition
                 of
                 the
                 Defunct
                 to
                 his
                 apparant
                 Heir
                 of
                 certain
                 moveables
                 ,
                 in
                 satisfaction
                 of
                 his
                 Heirship
                 moveables
                 whereunto
                 he
                 might
                 succeed
                 .
                 Feb.
                 24.
                 1636.
                 
                 Meidhope
                 contra
                 Hepburn
                 .
              
               
                 9.
                 
                 The
                 ordinary
                 Objections
                 and
                 Exceptions
                 against
                 Behaving
                 as
                 Heir
                 by
                 Intromission
                 with
                 the
                 Heirship
                 moveable
                 are
                 ;
                 First
                 ,
                 That
                 the
                 Defunct
                 was
                 neither
                 Prelat
                 ,
                 Baron
                 ,
                 nor
                 Burgess
                 ,
                 to
                 whose
                 Heirs
                 only
                 Heirship
                 moveable
                 is
                 competent
                 by
                 the
                 Act
                 of
                 Parliament
                 :
                 the
                 extent
                 whereof
                 is
                 shown
                 in
                 the
                 former
                 Title
                 .
                 And
                 therefore
                 the
                 Pursuer
                 must
                 condescend
                 ,
                 and
                 instruct
                 that
                 the
                 Defunct
                 was
                 either
                 Baron
                 ,
                 Prelat
                 or
                 Burgess
                 :
                 which
                 would
                 besufficiently
                 instructed
                 by
                 the
                 Defunct's
                 Infeftments
                 of
                 Lands
                 or
                 Annualrents
                 ,
                 at
                 any
                 time
                 :
                 for
                 thence
                 it
                 would
                 be
                 presumed
                 that
                 he
                 continued
                 undenuded
                 till
                 his
                 death
                 ,
                 
                   semel
                   baro
                   semper
                   baro
                   presumptivè
                
                 .
                 And
                 this
                 will
                 be
                 elided
                 by
                 this
                 Exception
                 ,
                 That
                 the
                 Defunct
                 was
                 denuded
                 before
                 his
                 Death
                 .
                 For
                 though
                 some
                 have
                 been
                 of
                 opinion
                 that
                 
                   semel
                   baro
                   semper
                   baro
                
                 is
                 meant
                 ,
                 that
                 though
                 a
                 Person
                 once
                 infeft
                 were
                 denuded
                 ;
                 yet
                 his
                 Heir
                 would
                 have
                 Heirship
                 as
                 a
                 Baron
                 .
                 For
                 which
                 I
                 find
                 neither
                 Reason
                 nor
                 Decision
                 :
                 But
                 it
                 is
                 most
                 reasonable
                 that
                 he
                 who
                 is
                 once
                 proven
                 to
                 be
                 a
                 Baron
                 ,
                 should
                 be
                 presumed
                 so
                 to
                 continue
                 ,
                 unless
                 the
                 contrary
                 were
                 proven
                 ,
                 that
                 he
                 was
                 denuded
                 ,
                 It
                 was
                 so
                 found
                 January
                 27.
                 1636.
                 
                 Straiton
                 contra
                 Chirnside
                 .
                 But
                 if
                 the
                 Legal
                 was
                 not
                 expired
                 at
                 the
                 Defunct's
                 Death
                 ,
                 he
                 is
                 not
                 esteemed
                 denuded
                 :
                 and
                 therefore
                 his
                 Heir
                 hath
                 Heirship
                 .
                 Feb.
                 26.
                 1663.
                 
                 Cuthbert
                 of
                 Drakies
                 contra
                 Monro
                 of
                 
                   Foulis
                   .
                   July
                
                 8.
                 
                 1628.
                 
                 Dumbar
                 contra
                 Lesly
                 .
                 Neither
                 will
                 it
                 be
                 sufficient
                 that
                 the
                 Defunct
                 was
                 once
                 Burgess
                 ,
                 but
                 itmust
                 be
                 proven
                 that
                 when
                 he
                 died
                 he
                 was
                 acting
                 as
                 a
                 Burgess
                 .
                 So
                 that
                 neither
                 the
                 Heirs
                 of
                 honorary
                 Burgesses
                 ,
                 nor
                 they
                 who
                 once
                 were
                 trafficking
                 Burgesses
                 and
                 take
                 themselves
                 to
                 a
                 Country
                 Life
                 ,
                 their
                 heirs
                 ,
                 will
                 have
                 heirship
                 moveable
                 .
                 And
                 therefore
                 
                   semel
                   civis
                   semper
                   civis
                
                 is
                 not
                 presumed
                 .
                 Neither
                 
                   semel
                   paerlatus
                   semper
                   praelatus
                
                 :
                 for
                 if
                 a
                 beneficed
                 Person
                 were
                 deprived
                 or
                 demitted
                 before
                 the
                 Death
                 ,
                 his
                 heir
                 would
                 have
                 no
                 heirship
                 moveable
                 .
              
               
                 10.
                 
                 The
                 second
                 Defense
                 against
                 Intromission
                 with
                 heirship
                 moveable
                 ,
                 and
                 which
                 is
                 also
                 competent
                 against
                 Vitious
                 Intromission
                 ,
                 is
                 ,
                 That
                 the
                 Defunct
                 died
                 Rebel
                 ,
                 and
                 his
                 Escheat
                 was
                 gifxted
                 and
                 declared
                 before
                 intenting
                 of
                 the
                 Creditor's
                 Pursuit
                 .
                 June
                 10.
                 1663.
                 
                 
                   Gordon
                   of
                   Lismoir
                
                 contra
                 
                   Keith
                   .
                   June
                
                 10.
                 1674.
                 
                 Lady
                 Spenserfield
                 contra
                 Hamilton
                 of
                 
                   Kilbrachmount
                   .
                   December
                
                 22.
                 1674.
                 
                 Heirs
                 of
                 Seatoun
                 of
                 Blair
                 contra
                 Sr
                 
                   Alexander
                   Seatoun
                
                 .
                 And
                 It
                 is
                 not
                 necessary
                 to
                 alledge
                 ,
                 That
                 the
                 apparent
                 heir
                 had
                 any
                 Right
                 or
                 Tollerance
                 from
                 the
                 Donatar
                 .
                 For
                 the
                 Exception
                 is
                 equiparat
                 to
                 Executors
                 confirmed
                 ,
                 against
                 Vitious
                 Intromission
                 :
                 whereby
                 Vitious
                 Intromission
                 is
                 excluded
                 ,
                 albeit
                 the
                 Intromission
                 was
                 before
                 another
                 was
                 confirmed
                 Executor
                 ,
                 if
                 the
                 Confirmation
                 was
                 before
                 intenting
                 of
                 the
                 Creditor's
                 Cause
                 .
                 But
                 it
                 is
                 no
                 relevant
                 Defense
                 ,
                 That
                 the
                 Defunct
                 died
                 Rebel
                 ,
                 and
                 so
                 had
                 no
                 moveables
                 ,
                 but
                 that
                 they
                 were
                 confiscat
                 .
                 Neither
                 was
                 it
                 sufficient
                 that
                 the
                 Escheat
                 was
                 gifted
                 ,
                 not
                 being
                 also
                 declared
                 ,
                 before
                 the
                 Creditor's
                 Pursuit
                 .
                 As
                 was
                 found
                 in
                 the
                 said
                 two
                 first
                 Cases
                 .
              
               
                 11.
                 
                 The
                 third
                 Defense
                 is
                 ,
                 That
                 the
                 apparant
                 Heir
                 intrometted
                 by
                 a
                 Gift
                 to
                 himself
                 ,
                 or
                 to
                 his
                 behoofe
                 ;
                 or
                 by
                 a
                 Right
                 or
                 Tollerance
                 from
                 a
                 Donatar
                 .
                 These
                 being
                 prior
                 to
                 the
                 Creditor's
                 Pursuit
                 ,
                 although
                 posterior
                 to
                 his
                 Intromission
                 ,
                 albeit
                 not
                 declared
                 ,
                 are
                 relevant
                 :
                 because
                 the
                 Donatar
                 thereby
                 is
                 in
                 possession
                 ,
                 and
                 needs
                 no
                 Declarator
                 .
                 Feb.
                 26.
                 1663.
                 
                 Cuthbirt
                 of
                 Drakies
                 contra
                 Monro
                 of
                 
                   〈◊〉
                   .
                   June
                
                 10.
                 1663.
                 
                 Gordon
                 of
                 Lismoir
                 contra
                 
                   Keith
                   .
                   July
                
                 4.
                 1674.
                 
                 Mr.
                 
                   William
                   Innes
                
                 contra
                 
                   George
                   Wilson
                   .
                   June
                
                 10.
                 1674.
                 
                 Lady
                 Spenserfield
                 contra
                 Hamilton
                 .
                 of
                 
                   Kilbrachmont
                   .
                   Feb.
                
                 10.
                 1676.
                 
                 Grant
                 contra
                 Grant.
                 
              
               
                 12.
                 
                 The
                 fourth
                 Exception
                 is
                 ,
                 When
                 Moveables
                 belonging
                 to
                 a
                 Defunct
                 ,
                 remain
                 in
                 his
                 House
                 whereunto
                 his
                 apparant
                 Heir
                 hath
                 Right
                 by
                 Infeftment
                 ,
                 wherein
                 the
                 Defunct
                 had
                 his
                 Liferent
                 or
                 Tollerance
                 :
                 if
                 the
                 Heir
                 enter
                 in
                 possession
                 of
                 the
                 House
                 ,
                 if
                 at
                 his
                 entry
                 he
                 represent
                 to
                 any
                 competent
                 Judge
                 ,
                 that
                 there
                 are
                 Moveables
                 in
                 or
                 about
                 the
                 House
                 belonging
                 to
                 the
                 Defunct
                 ,
                 which
                 he
                 desires
                 to
                 be
                 inventaried
                 ,
                 or
                 that
                 such
                 as
                 cannot
                 be
                 preserved
                 may
                 be
                 sold
                 ,
                 that
                 the
                 price
                 may
                 be
                 made
                 forthcoming
                 to
                 all
                 parties
                 having
                 interest
                 ;
                 if
                 Inventary
                 or
                 Sale
                 be
                 made
                 by
                 warrant
                 of
                 that
                 Judge
                 ,
                 the
                 continuing
                 of
                 these
                 Moveables
                 in
                 the
                 House
                 ,
                 or
                 the
                 Sale
                 of
                 those
                 which
                 cannot
                 be
                 preserved
                 ,
                 will
                 not
                 infer
                 Behaving
                 as
                 Heir
                 .
                 Yet
                 the
                 making
                 use
                 of
                 the
                 things
                 in
                 the
                 Inventary
                 ,
                 or
                 the
                 Sale
                 of
                 that
                 which
                 is
                 not
                 warranted
                 ;
                 yea
                 the
                 ommission
                 out
                 of
                 the
                 Inventary
                 of
                 Moveables
                 of
                 any
                 considerable
                 value
                 ,
                 was
                 found
                 to
                 infer
                 Behaviour
                 .
                 January
                 25.
                 1632.
                 
                 
                   Helen
                   Scarlet
                
                 contra
                 
                   John
                   Paterson
                
                 .
              
               
                 13.
                 
                 The
                 other
                 ordinary
                 member
                 of
                 Behaving
                 as
                 Heir
                 ,
                 is
                 by
                 Intromission
                 with
                 the
                 Rents
                 of
                 Lands
                 ,
                 or
                 Tiends
                 ,
                 whereunto
                 the
                 Defunct
                 had
                 Right
                 by
                 Infeftment
                 ;
                 or
                 entering
                 in
                 possession
                 of
                 these
                 Lands
                 and
                 Tiends
                 unto
                 which
                 the
                 apparent
                 Heir
                 would
                 succeed
                 ,
                 which
                 is
                 the
                 most
                 direct
                 Behaviour
                 as
                 Heir
                 ;
                 
                 and
                 is
                 only
                 competent
                 against
                 such
                 persons
                 as
                 might
                 be
                 Heirs
                 in
                 that
                 whereinto
                 they
                 immix
                 themselves
                 .
                 And
                 so
                 an
                 Heir
                 of
                 line
                 poslessing
                 or
                 intrometting
                 with
                 the
                 Rents
                 of
                 Lands
                 provided
                 to
                 Heirs
                 male
                 ,
                 or
                 to
                 Heirs
                 of
                 Tailzie
                 or
                 Provision
                 ;
                 or
                 the
                 Intromission
                 of
                 these
                 with
                 the
                 profits
                 of
                 Lands
                 or
                 Tiends
                 befalling
                 to
                 Heirs
                 of
                 line
                 ;
                 will
                 only
                 infer
                 Restitution
                 or
                 Reparation
                 :
                 but
                 will
                 not
                 infer
                 a
                 general
                 passive
                 Title
                 ,
                 making
                 the
                 partie
                 lyable
                 to
                 all
                 the
                 Defunct's
                 Debts
                 .
              
               
                 14.
                 
                 There
                 are
                 many
                 Defenses
                 which
                 use
                 to
                 be
                 proponed
                 against
                 this
                 species
                 of
                 Behaviour
                 .
                 As
                 first
                 ,
                 it
                 was
                 an
                 ordinary
                 custom
                 to
                 shun
                 this
                 passive
                 Title
                 ,
                 that
                 the
                 apparant
                 Heir
                 granted
                 a
                 Bond
                 of
                 purpose
                 to
                 adjudge
                 the
                 Defunct's
                 Right
                 ,
                 upon
                 the
                 apparant
                 Heirs
                 Renounciation
                 ,
                 and
                 then
                 take
                 Right
                 to
                 the
                 Adjudication
                 :
                 till
                 the
                 Lords
                 by
                 an
                 Act
                 of
                 Sederunt
                 ,
                 Feb.
                 28.
                 1662.
                 did
                 declare
                 ,
                 that
                 if
                 apparant
                 Heirs
                 should
                 in
                 time
                 coming
                 ,
                 take
                 Right
                 to
                 any
                 Appryzing
                 or
                 Adjudication
                 of
                 their
                 Predecessors
                 Rights
                 for
                 their
                 own
                 Debt
                 ,
                 and
                 did
                 〈◊〉
                 thereby
                 ,
                 whether
                 before
                 or
                 after
                 expyring
                 of
                 the
                 Legal
                 ;
                 they
                 should
                 be
                 lyable
                 as
                 behaving
                 as
                 Heirs
                 :
                 which
                 hath
                 always
                 since
                 been
                 followed
                 .
                 And
                 therefore
                 no
                 Defense
                 for
                 such
                 Rights
                 will
                 be
                 sustained
                 ,
                 albeit
                 it
                 were
                 a
                 true
                 Debt
                 of
                 the
                 apparant
                 Heirs
                 ,
                 and
                 not
                 a
                 simulat
                 Bond
                 granted
                 of
                 designe
                 to
                 adjudge
                 or
                 apprise
                 .
              
               
                 Neither
                 is
                 it
                 a
                 relevant
                 Defense
                 ,
                 That
                 the
                 Lands
                 or
                 Teinds
                 were
                 appryzed
                 or
                 adjudged
                 from
                 the
                 Defunct
                 ,
                 albeit
                 Infeftment
                 had
                 followed
                 thereupon
                 ;
                 if
                 the
                 heir
                 apparant
                 intromet
                 without
                 Right
                 ,
                 or
                 Warrant
                 from
                 the
                 Appryser
                 or
                 Adjudger
                 ,
                 within
                 the
                 Legal
                 .
                 Feb.
                 21.
                 1663.
                 
                 
                   Henrie
                   Hamilton
                
                 contra
                 
                   William
                   Hamilton
                
                 .
                 But
                 it
                 is
                 a
                 relevant
                 Exception
                 ,
                 That
                 the
                 apparant
                 heir's
                 Intromission
                 or
                 possession
                 was
                 by
                 Right
                 from
                 an
                 Appryser
                 or
                 Adjudger
                 ,
                 though
                 the
                 Legal
                 was
                 not
                 expired
                 :
                 unless
                 the
                 Sum
                 were
                 fully
                 satisfied
                 by
                 Intromission
                 or
                 otherways
                 .
                 January
                 10.
                 1662.
                 
                 Barclay
                 contra
                 Laird
                 of
                 Cragievar
                 .
                 The
                 like
                 though
                 the
                 apparant
                 heir
                 continued
                 to
                 possesse
                 ,
                 for
                 some
                 time
                 after
                 the
                 Apprysing
                 was
                 satisfied
                 by
                 Intromission
                 .
                 Feb.
                 26.
                 1663.
                 
                 Cuthbert
                 of
                 Drakies
                 contra
                 Monro
                 of
                 Foulis
                 .
                 Yea
                 Intromission
                 with
                 the
                 Rents
                 of
                 the
                 Defunct's
                 Land
                 by
                 his
                 apparant
                 heir
                 ,
                 waselided
                 by
                 a
                 Tollerance
                 from
                 a
                 Donatar
                 of
                 Recognition
                 ,
                 albeit
                 not
                 declared
                 till
                 after
                 his
                 Intromission
                 ;
                 the
                 apparant
                 heir
                 paying
                 the
                 single
                 value
                 of
                 his
                 Intromission
                 .
                 July
                 17.
                 1666.
                 
                 
                   Thomas
                   Ogilvie
                
                 contra
                 Lord
                 Gray
                 .
                 But
                 a
                 Tollerance
                 from
                 Apprysers
                 after
                 their
                 Intromission
                 ,
                 was
                 not
                 found
                 relevant
                 ,
                 July
                 11.
                 1671.
                 
                 Sr.
                 
                   George
                   Maxvell
                
                 contra
                 Maxvel
                 .
                 Yet
                 the
                 apparant
                 heir's
                 Intromission
                 was
                 elided
                 ,
                 because
                 the
                 Defunct's
                 Rights
                 were
                 improven
                 ,
                 though
                 after
                 the
                 Intromission
                 .
                 March
                 22.
                 1628.
                 
                 
                   Roderick
                   Farquhar
                
                 contra
                 Campbel
                 of
                 Kingingcluch
                 .
                 And
                 an
                 apparant
                 heir's
                 Intromission
                 was
                 elided
                 by
                 a
                 colourable
                 Title
                 ,
                 though
                 not
                 valid
                 ,
                 whereby
                 the
                 heir
                 of
                 a
                 Marriage
                 being
                 entered
                 and
                 infeft
                 as
                 heir
                 to
                 her
                 Mother
                 ,
                 yet
                 her
                 Infeftment
                 being
                 reduced
                 ,
                 and
                 her
                 Father
                 being
                 found
                 Feer
                 in
                 a
                 dubious
                 provision
                 of
                 Conjunct-fee
                 ;
                 the
                 heir
                 so
                 served
                 ,
                 was
                 not
                 found
                 liable
                 ,
                 as
                 behaving
                 as
                 heir
                 to
                 her
                 Father
                 :
                 but
                 only
                 
                   quoad
                   valorem
                
                 of
                 her
                 Intromission
                 .
                 July
                 12.
                 1671.
                 
                 
                   Adam
                   Gairns
                
                 contra
                 
                   〈◊〉
                   Sandielands
                
                 .
                 But
                 it
                 was
                 not
                 elided
                 because
                 the
                 apparant
                 heir
                 past
                 by
                 his
                 Father
                 ,
                 and
                 was
                 infeft
                 as
                 heir
                 to
                 his
                 Good-sire
                 ,
                 though
                 his
                 Father
                 was
                 infeft
                 :
                 that
                 colourable
                 Title
                 was
                 not
                 sustained
                 the
                 apparant
                 heir
                 being
                 
                   in
                   mala
                   fide
                
                 ,
                 having
                 the
                 Evidents
                 in
                 his
                 hands
                 .
                 November
                 23.
                 1671.
                 
                 Rorieson
                 contra
                 〈◊〉
                 .
                 Yet
                 Behaving
                 as
                 heir
                 was
                 not
                 inferred
                 by
                 the
                 heir
                 apparant's
                 intrometting
                 with
                 the
                 Rents
                 of
                 Lands
                 ,
                 which
                 his
                 predecessor
                 had
                 disponed
                 in
                 trust
                 to
                 a
                 third
                 party
                 ,
                 for
                 the
                 behoofe
                 of
                 the
                 apparant
                 heir
                 ,
                 and
                 whereupon
                 the
                 Intrusted
                 was
                 infeft
                 .
                 January
                 14.
                 1662.
                 
                 Nicol
                 contra
                 Home
                 of
                 Plandergest
                 .
                 
                 But
                 Intromission
                 by
                 the
                 apparant
                 heir
                 was
                 elided
                 by
                 a
                 Disposition
                 by
                 a
                 Defunct
                 to
                 the
                 apparant
                 Heir's
                 Son
                 ,
                 his
                 Oye
                 ,
                 though
                 without
                 Infeftment
                 :
                 or
                 by
                 a
                 Tack
                 to
                 the
                 apparant
                 Heir's
                 Husband
                 ,
                 though
                 expired
                 before
                 the
                 Defunct's
                 Death
                 ;
                 as
                 being
                 continued
                 
                   per
                   tacitam
                   〈◊〉
                   .
                   January
                
                 16.
                 1667.
                 
                 Reid
                 contra
                 Salmond
                 .
              
               
                 Behaving
                 as
                 Heir
                 was
                 inferred
                 by
                 the
                 apparant
                 Heir's
                 entering
                 in
                 possession
                 of
                 a
                 Coal-heugh
                 ,
                 whereof
                 the
                 Defunct
                 had
                 Tacks
                 for
                 Terms
                 to
                 run
                 :
                 albeit
                 the
                 apparant
                 Heir
                 took
                 a
                 new
                 Tack
                 .
                 June
                 26.
                 1610.
                 
                 Atchison
                 contra
                 Laird
                 of
                 Cockpen
                 .
                 The
                 like
                 though
                 the
                 apparant
                 Heir
                 took
                 a
                 Gist
                 of
                 the
                 Defunct's
                 Escheat
                 ,
                 who
                 had
                 an
                 unexpired
                 Tack
                 of
                 the
                 Lands
                 ,
                 and
                 pretended
                 to
                 possess
                 as
                 Donatar
                 to
                 the
                 single
                 Escheat
                 .
                 June
                 28.
                 1610.
                 
                 Crawford
                 contra
                 Cockpen
                 .
              
               
                 15.
                 
                 Behaving
                 as
                 Heir
                 was
                 also
                 inferred
                 by
                 the
                 apparant
                 Heir's
                 giving
                 a
                 Receipt
                 of
                 the
                 Defunct's
                 Charter
                 Chest
                 ,
                 and
                 keeping
                 it
                 two
                 Years
                 without
                 Protestation
                 ,
                 or
                 Inventary
                 .
                 June
                 28.
                 1670.
                 
                 Ellis
                 of
                 Southside
                 contra
                 Carse
                 .
              
               
                 16.
                 
                 Behaving
                 as
                 Heir
                 will
                 also
                 be
                 inferred
                 by
                 Uplifting
                 or
                 Discharging
                 Sums
                 ,
                 Principal
                 or
                 Annual
                 ,
                 which
                 would
                 befall
                 to
                 the
                 Party
                 Heir
                 :
                 or
                 by
                 doing
                 any
                 Deed
                 that
                 might
                 transmit
                 the
                 Defunct's
                 Right
                 .
                 But
                 it
                 was
                 not
                 found
                 inferred
                 by
                 the
                 apparant
                 Heir's
                 Renouncing
                 to
                 be
                 Heir
                 in
                 favour
                 of
                 the
                 Heir
                 Male
                 ,
                 to
                 whom
                 their
                 Father
                 had
                 disponed
                 :
                 seing
                 they
                 gave
                 no
                 Right
                 thereby
                 hurtful
                 to
                 Creditors
                 ;
                 though
                 they
                 got
                 a
                 Sum
                 for
                 their
                 Kindness
                 and
                 willing
                 Renounciation
                 .
                 July
                 5.
                 1666.
                 
                 
                   Lawrence
                   Scot
                
                 contra
                 Heirs
                 of
                 Auchinleck
                 .
                 Neither
                 by
                 the
                 apparant
                 Heir's
                 getting
                 benefit
                 by
                 a
                 Transaction
                 with
                 a
                 Party
                 having
                 Right
                 from
                 the
                 Defunct
                 ,
                 granted
                 on
                 Death-bed
                 ,
                 and
                 being
                 obliged
                 to
                 acquire
                 the
                 Defunct's
                 Debts
                 ,
                 and
                 apprise
                 thereon
                 ,
                 and
                 to
                 communicate
                 the
                 benefit
                 of
                 the
                 Apprising
                 :
                 unless
                 a
                 Deed
                 had
                 been
                 done
                 communicating
                 any
                 Right
                 of
                 the
                 Defunct
                 .
                 July
                 19.
                 1666.
                 
                 
                   Margaret
                   Nevoy
                
                 contra
                 Lord
                 Balmerino
                 .
              
               
                 But
                 Behaviour
                 was
                 not
                 inferred
                 by
                 the
                 apparant
                 Heir's
                 taking
                 out
                 of
                 Brieves
                 :
                 seing
                 the
                 same
                 were
                 not
                 served
                 .
                 June
                 28.
                 1670.
                 
                 Ellis
                 of
                 Southside
                 contra
                 Carse
                 .
                 Neither
                 was
                 it
                 inferred
                 by
                 proponing
                 Payment
                 of
                 the
                 Defunct's
                 Debts
                 ,
                 and
                 succumbing
                 :
                 which
                 is
                 only
                 effectual
                 as
                 to
                 that
                 Process
                 .
                 July
                 16.
                 1629.
                 
                 Murray
                 contra
                 
                   Ross.
                   January
                
                 21.
                 1675.
                 
                 
                   James
                   Tailzifer
                
                 contra
                 
                   John
                   Corsan
                
                 .
                 Neither
                 was
                 it
                 inferred
                 by
                 the
                 apparant
                 Heirs
                 voluntary
                 Payment
                 of
                 their
                 Predecessor's
                 Debt
                 .
                 January
                 26.
                 1628.
                 
                 Commissar
                 of
                 Dunkel
                 contra
                 Abercromby
                 .
              
               
                 17.
                 
                 There
                 is
                 the
                 same
                 ground
                 for
                 excluding
                 this
                 passive
                 Title
                 ,
                 unless
                 it
                 were
                 established
                 against
                 the
                 apparant
                 Heir
                 in
                 his
                 own
                 life
                 ,
                 as
                 to
                 exclude
                 vitious
                 Intromission
                 :
                 which
                 hath
                 frequently
                 been
                 repelled
                 when
                 not
                 established
                 in
                 the
                 Intrometter's
                 life
                 .
              
               
                 18.
                 
                 It
                 remains
                 now
                 to
                 consider
                 ,
                 Whether
                 Behaving
                 as
                 Heir
                 being
                 a
                 vitious
                 passive
                 Title
                 ,
                 will
                 import
                 more
                 than
                 if
                 the
                 apparant
                 Heir
                 had
                 been
                 actually
                 entered
                 :
                 which
                 may
                 occur
                 in
                 two
                 Cases
                 ;
                 First
                 ,
                 where
                 Heirs-portioners
                 behave
                 themselves
                 as
                 Heirs
                 ,
                 whether
                 they
                 will
                 be
                 lyable
                 in
                 solidum
                 ,
                 or
                 only
                 
                   pro
                   rata
                
                 ?
                 2.
                 
                 Whether
                 those
                 who
                 behave
                 themselves
                 as
                 Heirs
                 ,
                 will
                 have
                 the
                 same
                 benefit
                 of
                 the
                 order
                 of
                 Discussing
                 and
                 Relief
                 ,
                 as
                 if
                 they
                 were
                 actually
                 entered
                 .
              
               
                 As
                 to
                 the
                 first
                 Case
                 ,
                 the
                 Behaviour
                 of
                 Heirs-portioners
                 cannot
                 oblige
                 them
                 in
                 solidum
                 ,
                 but
                 in
                 so
                 far
                 only
                 as
                 if
                 they
                 were
                 actually
                 entered
                 Heirs
                 :
                 which
                 is
                 always
                 
                   pro
                   rata
                   parte
                
                 ,
                 according
                 to
                 the
                 number
                 of
                 the
                 Heirs-portioners
                 ,
                 
                   non
                   
                   per
                   capita
                   ,
                   sed
                   per
                   stirpes
                   ,
                
                 But
                 as
                 it
                 hath
                 been
                 yet
                 undetermined
                 whether
                 Heirs-portioners
                 may
                 be
                 lyable
                 for
                 more
                 than
                 their
                 share
                 of
                 the
                 Debt
                 ,
                 not
                 exceeding
                 their
                 share
                 of
                 the
                 benefit
                 to
                 which
                 they
                 have
                 succeeded
                 ;
                 there
                 is
                 no
                 question
                 but
                 if
                 Heirs-portioners
                 behave
                 as
                 heirs
                 ,
                 they
                 would
                 be
                 made
                 lyable
                 
                   quoad
                   valorem
                
                 of
                 their
                 Intromission
                 ,
                 if
                 it
                 did
                 exceed
                 their
                 share
                 .
              
               
                 As
                 to
                 the
                 other
                 Case
                 ,
                 Behaving
                 as
                 heir
                 being
                 a
                 vitious
                 passive
                 Title
                 ,
                 they
                 will
                 not
                 have
                 the
                 〈◊〉
                 of
                 Discussing
                 :
                 which
                 is
                 only
                 competent
                 to
                 heirs
                 lawfully
                 entered
                 .
                 Yea
                 they
                 will
                 not
                 have
                 Relief
                 from
                 the
                 heirs
                 who
                 are
                 lyable
                 before
                 them
                 :
                 because
                 they
                 have
                 in
                 their
                 Person
                 no
                 active
                 Title
                 .
                 Yet
                 it
                 is
                 in
                 
                   arbitrio
                   judicis
                
                 to
                 ordain
                 the
                 Creditor
                 ,
                 on
                 satisfaction
                 to
                 assign
                 his
                 Right
                 ,
                 by
                 which
                 the
                 heir
                 behaving
                 may
                 indirectly
                 attain
                 Relief
                 ,
                 as
                 Assigny
                 by
                 the
                 Creditor
                 This
                 favour
                 will
                 not
                 be
                 refused
                 ,
                 unless
                 the
                 manner
                 of
                 Behaviour
                 be
                 very
                 odious
                 :
                 as
                 when
                 it
                 is
                 fraudulent
                 ,
                 by
                 concealing
                 the
                 Immixtion
                 ;
                 or
                 that
                 the
                 Creditor
                 himself
                 having
                 an
                 other
                 Interest
                 ,
                 may
                 be
                 prejudged
                 by
                 his
                 Assignation
                 .
                 And
                 therefore
                 heirs
                 behaving
                 ,
                 if
                 distress'd
                 for
                 moveable
                 Debts
                 ,
                 they
                 have
                 no
                 direct
                 recourse
                 against
                 Executors
                 .
                 And
                 if
                 the
                 Executory
                 be
                 mean
                 ,
                 so
                 that
                 there
                 be
                 small
                 provisions
                 for
                 the
                 Wife
                 and
                 Children
                 ;
                 the
                 Creditor
                 would
                 not
                 be
                 ordained
                 to
                 assign
                 .
                 And
                 it
                 may
                 so
                 fall
                 out
                 in
                 other
                 Cases
                 .
                 The
                 same
                 Reason
                 may
                 occur
                 ,
                 where
                 heirs
                 of
                 Conquest
                 ,
                 or
                 heirs
                 Male
                 ,
                 of
                 Tailzie
                 ,
                 or
                 Provision
                 behave
                 ;
                 if
                 the
                 prior
                 heirs
                 who
                 are
                 nearer
                 of
                 Blood
                 have
                 little
                 benefit
                 and
                 provision
                 .
              
            
             
               
               
                 TITLE
                 XXIX
                 .
                 Lucrative
                 Successors
                 .
              
               
                 
                   1.
                   
                   The
                   rise
                   of
                   this
                   passive
                   Title
                   .
                
                 
                   2.
                   
                   It
                   takès
                   place
                   though
                   the
                   Disposition
                   bear
                   Cause
                   onerous
                   ,
                   〈◊〉
                   it
                   be
                   otherwise
                   instructed
                   .
                
                 
                   3.
                   
                   It
                   is
                   extended
                   to
                   Dispositions
                   in
                   Contracts
                   of
                   Marriage
                   ,
                   in
                   some
                   Cases
                   .
                
                 
                   4.
                   
                   Lucrative
                   Dispositions
                   of
                   any
                   part
                   of
                   the
                   Heritage
                   inferre
                   this
                   passive
                   Title
                   .
                
                 
                   5.
                   
                   This
                   Title
                   is
                   extended
                   to
                   Dispositions
                   made
                   to
                   Oyes
                   ,
                   though
                   then
                   not
                   immediate
                   apparant
                   Heirs
                   ;
                   but
                   not
                   to
                   Brothers
                   ,
                   though
                   none
                   then
                   nearer
                   .
                
                 
                   6.
                   
                   Whether
                   it
                   suffiseth
                   to
                   infer
                   this
                   Title
                   ,
                   that
                   the
                   Infeftment
                   was
                   after
                   the
                   Debt
                   ;
                   or
                   if
                   the
                   Disposition
                   whereon
                   the
                   Infeftment
                   proceeds
                   ,
                   must
                   also
                   be
                   after
                   .
                
                 
                   7.
                   
                   Cases
                   in
                   which
                   this
                   Title
                   takes
                   no
                   place
                   .
                
              
               
                 THERE
                 is
                 no
                 Nation
                 hath
                 been
                 more
                 favourable
                 to
                 Creditors
                 ,
                 or
                 more
                 studious
                 of
                 their
                 satisfactions
                 than
                 this
                 ;
                 which
                 hath
                 anticipate
                 all
                 Conveyances
                 ,
                 Devices
                 ,
                 and
                 Frauds
                 prejudicial
                 to
                 Creditors
                 ,
                 either
                 in
                 favour
                 of
                 singular
                 Successors
                 by
                 simulate
                 Assignations
                 or
                 Dispositions
                 ,
                 without
                 equivalent
                 onerous
                 Causes
                 :
                 or
                 in
                 favour
                 of
                 apparant
                 heirs
                 ,
                 that
                 they
                 might
                 in
                 no
                 way
                 enjoy
                 their
                 Predecessors
                 〈◊〉
                 ,
                 without
                 satisfying
                 their
                 Debt
                 ;
                 which
                 hath
                 given
                 the
                 rise
                 to
                 this
                 passive
                 Title
                 ,
                 whereby
                 apparant
                 heirs
                 accepting
                 Dispositions
                 from
                 their
                 Predecessors
                 ,
                 of
                 their
                 Heretage
                 wherein
                 they
                 would
                 have
                 succeeded
                 ,
                 or
                 any
                 part
                 thereof
                 ,
                 are
                 made
                 lyable
                 to
                 all
                 their
                 Predecessors
                 Debts
                 ,
                 contracted
                 before
                 such
                 Disposition
                 or
                 Right
                 .
                 And
                 the
                 acceptance
                 thereof
                 is
                 accounted
                 
                   praeceptio
                   haereditatis
                
                 ,
                 and
                 as
                 an
                 Immixtion
                 
                 with
                 the
                 Inheritance
                 ,
                 makes
                 the
                 apparant
                 heir
                 to
                 represent
                 the
                 Defunct
                 passivè
                 .
                 Yet
                 with
                 this
                 temperament
                 ,
                 that
                 he
                 shall
                 be
                 lyable
                 only
                 to
                 the
                 Debt
                 contracted
                 before
                 the
                 Disposition
                 or
                 Right
                 made
                 to
                 him
                 by
                 the
                 Defunct
                 ,
                 in
                 which
                 Right
                 he
                 might
                 have
                 succeeded
                 .
                 Wherein
                 apparant
                 heirs
                 are
                 most
                 expediently
                 differenced
                 from
                 the
                 other
                 singular
                 Successors
                 without
                 onerous
                 Causes
                 ,
                 that
                 these
                 are
                 not
                 ordinarly
                 personally
                 lyable
                 ,
                 except
                 in
                 so
                 far
                 as
                 they
                 have
                 disposed
                 of
                 such
                 Rights
                 as
                 were
                 fraudulently
                 disponed
                 to
                 them
                 in
                 Trust
                 ,
                 and
                 in
                 which
                 they
                 were
                 interposed
                 Persons
                 to
                 the
                 behoof
                 of
                 the
                 Disponer
                 or
                 his
                 Children
                 ;
                 but
                 these
                 Rights
                 are
                 alwayes
                 reduceable
                 at
                 the
                 instance
                 of
                 anterior
                 Creditors
                 .
                 But
                 because
                 such
                 Fraud
                 is
                 more
                 incident
                 to
                 apparant
                 Heirs
                 ,
                 therefore
                 these
                 are
                 personally
                 lyable
                 for
                 the
                 whole
                 anterior
                 Debts
                 ,
                 and
                 the
                 Right
                 granted
                 by
                 them
                 may
                 also
                 be
                 reduced
                 upon
                 the
                 Statute
                 1621.
                 
                 Yet
                 the
                 personal
                 Obligement
                 doth
                 remain
                 and
                 both
                 are
                 compatible
                 :
                 
                   Hope
                   ,
                   Successor
                   Lucrative
                   ,
                   Gray
                
                 contra
                 
                   William
                   Burgh
                
                 .
              
               
                 2.
                 
                 This
                 passive
                 Title
                 is
                 not
                 only
                 extended
                 to
                 Dispositions
                 of
                 Lands
                 bearing
                 expressly
                 a
                 lucrative
                 Title
                 ,
                 as
                 
                   for
                   Love
                   and
                   Favour
                
                 ,
                 &c.
                 but
                 though
                 the
                 Narrative
                 thereof
                 bear
                 expressly
                 a
                 Cause
                 onerous
                 ,
                 which
                 being
                 betwixt
                 the
                 Disponer
                 and
                 his
                 apparant
                 heir
                 proves
                 not
                 :
                 and
                 therefore
                 the
                 Cause
                 onerous
                 must
                 be
                 proven
                 
                   aliunde
                   .
                   Vide
                
                 Title
                 Reparation
                 upon
                 Circumvention
                 :
                 where
                 the
                 Narrative
                 of
                 Writs
                 amongst
                 conjunct
                 and
                 confident
                 Persons
                 ,
                 proves
                 not
                 the
                 Cause
                 to
                 be
                 onerous
                 .
                 And
                 though
                 there
                 be
                 a
                 Cause
                 onerous
                 instructed
                 ,
                 it
                 will
                 not
                 be
                 sufficient
                 ,
                 unless
                 it
                 be
                 equivalent
                 to
                 the
                 worth
                 of
                 the
                 Lands
                 ,
                 to
                 substain
                 it
                 against
                 Reduction
                 :
                 but
                 if
                 the
                 Cause
                 onerous
                 be
                 considerable
                 ,
                 the
                 heir
                 will
                 not
                 be
                 lyable
                 simply
                 ,
                 or
                 personally
                 ,
                 but
                 the
                 Right
                 may
                 be
                 reduced
                 ,
                 and
                 the
                 heir
                 may
                 be
                 lyble
                 
                   in
                   quantum
                   est
                   lucratus
                
                 .
                 And
                 therefore
                 an
                 apparant
                 heir
                 having
                 accepted
                 the
                 benefit
                 of
                 a
                 Disposition
                 and
                 Infeftment
                 ,
                 granted
                 by
                 his
                 Predecessor
                 to
                 a
                 third
                 Party
                 ,
                 but
                 to
                 the
                 apparant
                 〈◊〉
                 behoofe
                 ;
                 the
                 Lords
                 before
                 answer
                 ordained
                 the
                 Cause
                 onerous
                 of
                 the
                 Disposition
                 to
                 be
                 instructed
                 ,
                 reserving
                 to
                 their
                 consideration
                 how
                 far
                 the
                 apparant
                 heir
                 should
                 be
                 lyable
                 personally
                 thereby
                 .
                 January
                 14.
                 1662.
                 
                 
                   Nichol
                   Harper
                
                 contra
                 Hume
                 of
                 Planergest
                 .
                 The
                 like
                 of
                 a
                 Disposition
                 of
                 Lands
                 by
                 a
                 Mother
                 to
                 her
                 apparant
                 Heir
                 ,
                 though
                 it
                 did
                 bear
                 a
                 Sum
                 of
                 Money
                 :
                 which
                 did
                 not
                 prove
                 betwixt
                 Mother
                 and
                 Son.
                 February
                 15.
                 1676.
                 
                 
                   Patrick
                   Hadden
                
                 contra
                 
                   George
                   〈◊〉
                
                 .
                 The
                 like
                 was
                 found
                 of
                 a
                 Disposition
                 by
                 a
                 Father
                 to
                 his
                 Son
                 and
                 apparant
                 heir
                 ,
                 though
                 the
                 Son
                 offered
                 to
                 prove
                 it
                 was
                 for
                 equivalent
                 onerous
                 Cause
                 :
                 seing
                 the
                 Disposition
                 it self
                 did
                 bear
                 
                   for
                   love
                   and
                   favour
                   and
                   other
                   good
                   Considerations
                   .
                   November
                
                 22.
                 1671.
                 
                 Beaty
                 contra
                 Roxlurgh
                 .
                 But
                 Bonds
                 of
                 Provision
                 by
                 Parents
                 to
                 Children
                 infer
                 no
                 passive
                 Title
                 ,
                 though
                 the
                 Children
                 be
                 Heirs
                 apparant
                 .
                 As
                 when
                 the
                 Bonds
                 are
                 granted
                 to
                 the
                 eldest
                 Son
                 ,
                 or
                 Bonds
                 of
                 Provision
                 ,
                 or
                 a
                 Tocher
                 to
                 Daughters
                 ,
                 when
                 there
                 are
                 no
                 Sons
                 ,
                 though
                 in
                 that
                 Case
                 the
                 Daughters
                 might
                 be
                 esteemed
                 heirs
                 apparant
                 ,
                 although
                 truly
                 they
                 be
                 not
                 ;
                 for
                 a
                 man
                 is
                 ever
                 understood
                 to
                 be
                 capable
                 of
                 having
                 a
                 Son
                 :
                 and
                 therefore
                 Daughters
                 are
                 little
                 more
                 heirs
                 apparant
                 than
                 Brothers
                 .
                 Yet
                 Bonds
                 of
                 Provision
                 or
                 Tochers
                 are
                 reducible
                 by
                 anterior
                 Creditors
                 ,
                 if
                 the
                 Defunct
                 had
                 not
                 a
                 visible
                 Estate
                 sufficient
                 for
                 these
                 Portions
                 and
                 his
                 whole
                 anterior
                 Debts
                 .
                 And
                 therefore
                 accepting
                 a
                 Tocher
                 did
                 not
                 make
                 a
                 Daughter
                 lyable
                 as
                 lucrative
                 Successor
                 ,
                 though
                 there
                 was
                 no
                 Son
                 ;
                 yet
                 the
                 Daughter
                 and
                 her
                 Husband
                 were
                 found
                 lyble
                 to
                 the
                 Father's
                 anterior
                 Creditors
                 ,
                 for
                 what
                 was
                 above
                 a
                 competent
                 Tocher
                 ,
                 suteable
                 to
                 the
                 Parties
                 .
                 December
                 23.
                 1665.
                 
                 Dame
                 
                   Rachel
                   Burnet
                
                 contra
                 Lepers
                 .
                 Neither
                 will
                 taking
                 Bonds
                 in
                 the
                 name
                 of
                 the
                 Daughters
                 ,
                 or
                 assigning
                 Bonds
                 to
                 them
                 ,
                 make
                 them
                 lyable
                 as
                 lucrative
                 Successors
                 .
                 And
                 yet
                 the
                 accepting
                 of
                 Assignations
                 to
                 heretable
                 Bonds
                 by
                 a
                 Father
                 to
                 his
                 eldest
                 
                 Son
                 ,
                 in
                 which
                 the
                 Son
                 would
                 succeed
                 as
                 Heir
                 ,
                 may
                 inferre
                 this
                 passive
                 Title
                 .
                 December
                 2.
                 1665.
                 
                 Edgar
                 contra
                 Colvil
                 .
                 But
                 where
                 the
                 Father
                 in
                 his
                 Contract
                 of
                 Marriage
                 provided
                 his
                 Son
                 to
                 several
                 Bonds
                 ,
                 which
                 before
                 any
                 Creditor
                 pursued
                 ,
                 were
                 payed
                 and
                 cancelled
                 ,
                 and
                 it
                 did
                 not
                 appear
                 by
                 the
                 Contract
                 whether
                 they
                 were
                 heretable
                 or
                 moveable
                 ;
                 the
                 Lords
                 did
                 not
                 sustain
                 the
                 passive
                 Title
                 ,
                 but
                 found
                 the
                 Son
                 lyable
                 
                   in
                   quantum
                   〈◊〉
                
                 :
                 and
                 did
                 presume
                 the
                 Bonds
                 to
                 be
                 heretable
                 ,
                 unless
                 they
                 were
                 proven
                 to
                 be
                 moveable
                 .
                 January
                 7.
                 1679.
                 
                 Hamilton
                 of
                 Burdowie
                 contra
                 Mr.
                 
                   Andrew
                   Hay
                
                 .
                 But
                 a
                 Disposition
                 of
                 Lands
                 to
                 the
                 eldest
                 Son
                 ,
                 was
                 found
                 to
                 make
                 him
                 lucrative
                 Successor
                 ,
                 although
                 by
                 his
                 Father's
                 Contract
                 of
                 Marriage
                 with
                 his
                 Mother
                 ,
                 his
                 second
                 Wife
                 ,
                 the
                 Father
                 was
                 obliged
                 to
                 infeft
                 the
                 eldest
                 Son
                 of
                 the
                 Marriage
                 in
                 the
                 said
                 Lands
                 ;
                 which
                 did
                 import
                 a
                 Succession
                 :
                 seing
                 the
                 Obligement
                 contained
                 no
                 determinate
                 time
                 ,
                 and
                 so
                 might
                 be
                 performed
                 by
                 the
                 Father
                 any
                 time
                 in
                 his
                 life
                 .
                 November
                 29.
                 1678.
                 
                 Hagens
                 contra
                 Maxwell
                 .
                 The
                 like
                 was
                 found
                 in
                 a
                 Disposition
                 of
                 Lands
                 or
                 Annualrents
                 to
                 the
                 eldest
                 Son
                 of
                 the
                 Marriage
                 :
                 seing
                 these
                 were
                 provided
                 to
                 the
                 Heir
                 of
                 the
                 Marriage
                 .
                 February
                 22.
                 1681.
                 
                 
                   Grizel
                   More
                
                 contra
                 Ferguson
                 .
                 The
                 Disponer's
                 Bairns
                 Portions
                 are
                 not
                 a
                 Cause
                 onerous
                 ,
                 being
                 granted
                 after
                 the
                 Creditors
                 Debts
                 ;
                 albeit
                 undertaken
                 and
                 secured
                 by
                 the
                 apparant
                 Heir
                 ,
                 
                   bona
                   fide
                
                 ,
                 before
                 any
                 Diligence
                 at
                 the
                 Creditors
                 instance
                 ;
                 not
                 being
                 payed
                 before
                 the
                 Pursuit
                 :
                 ibid.
                 because
                 the
                 Heir
                 may
                 suspend
                 upon
                 double
                 Poynding
                 ,
                 and
                 will
                 not
                 be
                 made
                 to
                 pay
                 both
                 the
                 Bairns
                 and
                 Creditors
                 .
              
               
                 3.
                 
                 This
                 Title
                 is
                 extended
                 to
                 Dispositions
                 granted
                 in
                 the
                 apparant
                 Heirs
                 Contracts
                 of
                 Marriage
                 ,
                 which
                 in
                 many
                 respects
                 is
                 accounted
                 a
                 Cause
                 onerous
                 .
                 July
                 8.
                 1625.
                 
                 Gray
                 contra
                 
                   William
                   Burgh
                
                 .
                 Where
                 the
                 Son
                 was
                 not
                 liberat
                 ,
                 though
                 he
                 offered
                 to
                 renounce
                 the
                 Lands
                 he
                 had
                 by
                 Contract
                 .
                 And
                 it
                 was
                 found
                 that
                 Lands
                 being
                 disponed
                 and
                 resigned
                 by
                 the
                 Father
                 in
                 favour
                 of
                 the
                 Son
                 ,
                 by
                 his
                 Contract
                 of
                 Marriage
                 ,
                 though
                 they
                 were
                 for
                 the
                 present
                 wadset
                 and
                 disponed
                 with
                 that
                 burthen
                 ,
                 and
                 thereafter
                 redeemed
                 by
                 the
                 Son
                 by
                 his
                 own
                 means
                 ,
                 so
                 that
                 there
                 remained
                 nothing
                 in
                 the
                 Father
                 ,
                 but
                 the
                 Superiority
                 and
                 the
                 〈◊〉
                 ;
                 yet
                 the
                 Contract
                 of
                 Marriage
                 was
                 found
                 onerous
                 as
                 to
                 the
                 Wife
                 's
                 Luerent
                 .
                 And
                 in
                 respect
                 the
                 Son
                 was
                 Minor
                 and
                 presently
                 revoked
                 the
                 Disposition
                 ,
                 and
                 renounced
                 all
                 other
                 Rights
                 ,
                 except
                 that
                 of
                 the
                 Wadset
                 which
                 he
                 had
                 redeemed
                 ;
                 he
                 was
                 liberat
                 of
                 the
                 passive
                 Title
                 ,
                 and
                 the
                 Lands
                 declared
                 redeemable
                 by
                 any
                 Creditor
                 anterior
                 to
                 the
                 Contract
                 .
                 January
                 14.
                 1634.
                 
                 Mr.
                 
                   David
                   Courtney
                
                 Minister
                 contra
                 Weems
                 of
                 Lothoker
                 .
                 In
                 the
                 like
                 Case
                 ,
                 where
                 Lands
                 were
                 disponed
                 by
                 a
                 Father
                 to
                 the
                 Son
                 in
                 his
                 Contract
                 of
                 Marriage
                 ,
                 for
                 a
                 Tocher
                 payed
                 to
                 the
                 Father
                 for
                 some
                 Debts
                 and
                 Bairns
                 Portions
                 far
                 within
                 the
                 worth
                 of
                 the
                 Land
                 ;
                 the
                 Son
                 was
                 not
                 found
                 lyable
                 in
                 solidum
                 as
                 lucrative
                 Successor
                 ,
                 nor
                 yet
                 the
                 Pursuer
                 put
                 to
                 a
                 Reduction
                 :
                 but
                 the
                 Son
                 was
                 in
                 
                   hoc
                   processu
                
                 put
                 to
                 compt
                 and
                 pay
                 the
                 superplus
                 of
                 the
                 true
                 price
                 of
                 the
                 Land.
                 June
                 17.
                 1664.
                 
                 Lyon
                 of
                 Murask
                 contra
                 Bannerman
                 .
              
               
                 4.
                 
                 This
                 Title
                 takes
                 place
                 not
                 only
                 in
                 universal
                 Dispositions
                 ,
                 of
                 the
                 Predecessor's
                 whole
                 Estate
                 ;
                 but
                 a
                 Disposition
                 of
                 any
                 part
                 thereof
                 ,
                 is
                 sufficient
                 :
                 seing
                 the
                 least
                 as
                 well
                 as
                 the
                 most
                 ,
                 is
                 
                   praeceptio
                   haereditatis
                
                 .
              
               
                 5.
                 
                 This
                 Title
                 is
                 extended
                 also
                 not
                 only
                 to
                 Dispositions
                 made
                 to
                 ,
                 and
                 accepted
                 by
                 the
                 immediate
                 apparant
                 Heir
                 ;
                 but
                 also
                 to
                 the
                 mediate
                 apparant
                 Heir
                 ,
                 so
                 that
                 he
                 be
                 
                   alioqui
                   successurus
                
                 ,
                 by
                 the
                 course
                 of
                 Law
                 ,
                 necessarly
                 :
                 as
                 what
                 is
                 granted
                 to
                 the
                 eldest
                 Son
                 of
                 the
                 apparant
                 Heir
                 .
                 Because
                 the
                 ground
                 of
                 this
                 Title
                 being
                 to
                 prevent
                 Deeds
                 in
                 favour
                 of
                 the
                 Disponer's
                 Successors
                 ,
                 prejudicial
                 to
                 the
                 Disponer's
                 Creditors
                 ,
                 whose
                 Debts
                 are
                 anterior
                 ;
                 the
                 reason
                 holds
                 as
                 much
                 where
                 
                 he
                 dispones
                 to
                 his
                 Oye
                 ,
                 who
                 by
                 the
                 course
                 of
                 Law
                 is
                 to
                 succeed
                 to
                 him
                 ,
                 as
                 to
                 his
                 Son.
                 2.
                 
                 It
                 is
                 
                   Praeceptio
                   haereditatis
                
                 in
                 the
                 Oye
                 aswell
                 as
                 in
                 the
                 Son.
                 And
                 therefore
                 the
                 Rule
                 in
                 this
                 Title
                 is
                 not
                 ,
                 that
                 the
                 Accepter
                 be
                 that
                 Person
                 who
                 would
                 succeed
                 at
                 the
                 time
                 of
                 the
                 Disposition
                 ,
                 and
                 so
                 may
                 seem
                 to
                 be
                 immediat
                 apparant
                 Heir
                 
                   pro
                   tempore
                
                 :
                 for
                 so
                 a
                 Disposition
                 by
                 one
                 Brother
                 to
                 another
                 ,
                 or
                 to
                 a
                 Brother's
                 Son
                 ,
                 the
                 Disponer
                 for
                 the
                 time
                 having
                 no
                 Children
                 ;
                 will
                 not
                 inferre
                 this
                 Title
                 .
                 November
                 22.
                 1662.
                 
                 
                   Lawrence
                   Scot
                
                 contra
                 
                   David
                   Beswell
                
                 of
                 Auchinleck
                 ,
                 Nephew
                 to
                 umwhile
                 
                   Auchinleck
                   .
                   December
                
                 22.
                 1674.
                 
                 Heirs
                 of
                 Seatoun
                 of
                 Blair
                 contra
                 Sir
                 
                   Alexander
                   Seatoun
                
                 .
                 The
                 like
                 though
                 the
                 Disponer
                 was
                 an
                 old
                 man
                 ,
                 the
                 time
                 of
                 the
                 Disposition
                 ,
                 and
                 had
                 little
                 hope
                 of
                 Issue
                 .
                 December
                 17.
                 1632.
                 
                 Lady
                 Spenserfield
                 contra
                 Laird
                 of
                 Kilbrachmont
                 .
                 The
                 reason
                 is
                 ,
                 because
                 the
                 Brother
                 or
                 Brother's
                 Son
                 is
                 not
                 
                   alioqui
                   successurus
                
                 by
                 the
                 course
                 of
                 Law
                 ,
                 while
                 the
                 Brother's
                 Children
                 are
                 in
                 spe
                 :
                 and
                 therefore
                 such
                 are
                 never
                 called
                 apparant
                 Heirs
                 ;
                 neither
                 is
                 the
                 presumption
                 in
                 them
                 ,
                 that
                 the
                 Defunct
                 would
                 ,
                 in
                 prejudice
                 of
                 his
                 Creditors
                 ,
                 adventure
                 simply
                 to
                 dispone
                 to
                 such
                 ,
                 while
                 he
                 had
                 hope
                 of
                 Issue
                 :
                 but
                 all
                 this
                 holds
                 in
                 Oyes
                 .
                 And
                 it
                 was
                 so
                 decided
                 January
                 29.
                 1639.
                 
                 Lady
                 Smeatoun
                 contra
                 Richardson
                 of
                 Smeatoun
                 :
                 where
                 an
                 Infeftment
                 was
                 granted
                 by
                 the
                 Good
                 fire
                 to
                 the
                 Oye
                 ,
                 reserving
                 his
                 Son
                 's
                 Liferent
                 .
                 And
                 in
                 the
                 like
                 Case
                 ,
                 the
                 Father
                 who
                 was
                 but
                 Liferenter
                 ,
                 and
                 his
                 Oye
                 Feer
                 ,
                 by
                 the
                 Grandfather's
                 Disposition
                 ,
                 was
                 found
                 lucrative
                 Successor
                 .
                 February
                 23.
                 1637.
                 
                 Lightoun
                 contra
                 Laird
                 of
                 Kinaber
                 .
                 But
                 this
                 Decision
                 was
                 stopped
                 to
                 be
                 further
                 heard
                 .
              
               
                 6.
                 
                 But
                 here
                 occurreth
                 the
                 Question
                 ,
                 If
                 the
                 Disposition
                 be
                 anterior
                 to
                 the
                 Debt
                 contracted
                 ,
                 but
                 the
                 Infeftment
                 posterior
                 to
                 the
                 said
                 Debt
                 ;
                 
                   quid
                   juris
                
                 ?
                 The
                 ground
                 of
                 Doubt
                 is
                 ,
                 that
                 though
                 the
                 Defender
                 had
                 a
                 prior
                 Disposition
                 ,
                 yet
                 by
                 the
                 Infeftment
                 only
                 ,
                 he
                 was
                 Successor
                 :
                 seing
                 Lands
                 pass
                 not
                 by
                 Dispositions
                 ,
                 but
                 by
                 Infeftments
                 :
                 and
                 therefore
                 he
                 was
                 clearly
                 Successor
                 
                   post
                   contractum
                   debitum
                
                 ,
                 and
                 also
                 
                   ex
                   causa
                   lucrativa
                
                 .
                 2.
                 
                 If
                 this
                 were
                 not
                 the
                 meaning
                 ,
                 the
                 intent
                 of
                 the
                 Law
                 would
                 be
                 frustrate
                 :
                 for
                 it
                 were
                 easy
                 to
                 make
                 Dispositions
                 and
                 to
                 keep
                 them
                 up
                 ,
                 and
                 in
                 the
                 mean
                 time
                 to
                 contract
                 Debts
                 ,
                 when
                 the
                 Creditors
                 could
                 not
                 know
                 the
                 Debitor's
                 condition
                 ,
                 and
                 so
                 contracted
                 bonafide
                 .
                 This
                 Case
                 was
                 not
                 decided
                 :
                 but
                 the
                 like
                 Case
                 was
                 formerly
                 decided
                 negativè
                 ,
                 that
                 the
                 Infeftment
                 though
                 posterior
                 to
                 the
                 Debt
                 ,
                 did
                 not
                 inferre
                 this
                 Title
                 ;
                 being
                 upon
                 a
                 Disposition
                 anterior
                 to
                 the
                 Debt
                 .
                 February
                 23.
                 1637.
                 
                 Lightoun
                 contra
                 Laird
                 of
                 Kinaber
                 .
                 The
                 like
                 was
                 found
                 ,
                 where
                 there
                 was
                 an
                 Obligement
                 in
                 a
                 Contract
                 of
                 Marriage
                 ,
                 to
                 dispone
                 Lands
                 ,
                 prior
                 to
                 the
                 Debt
                 contracted
                 :
                 albeit
                 both
                 the
                 Disposition
                 and
                 Infeftment
                 were
                 posterior
                 to
                 the
                 Debt
                 ,
                 and
                 did
                 not
                 bear
                 expressly
                 
                   in
                   implement
                   of
                   the
                   Contract
                
                 ;
                 which
                 was
                 presumed
                 ,
                 seing
                 no
                 other
                 Cause
                 was
                 showen
                 .
                 July
                 27.
                 1678.
                 
                 
                   Thomas
                   Ferguson
                
                 contra
                 Lindsay
                 of
                 Wauchope
                 .
                 For
                 answer
                 to
                 the
                 contrary
                 Reasons
                 ;
                 the
                 first
                 is
                 upon
                 misapplication
                 of
                 the
                 words
                 ,
                 
                   post
                   contractum
                   debitum
                
                 :
                 which
                 are
                 not
                 to
                 be
                 referred
                 to
                 Successor
                 thus
                 ,
                 
                   successor
                   post
                   contractum
                   debitum
                   ex
                   causa
                   lucrativa
                
                 ;
                 but
                 
                   successor
                   ex
                   titulo
                   lucrativo
                   ,
                   qui
                   titulus
                   est
                   post
                   contractum
                   debitum
                   .
                
                 So
                 that
                 if
                 the
                 lucrative
                 Title
                 be
                 not
                 after
                 the
                 Debt
                 ,
                 this
                 Title
                 takes
                 no
                 place
                 .
                 As
                 to
                 the
                 other
                 reason
                 ,
                 the
                 same
                 inconveniency
                 will
                 be
                 of
                 Dispositions
                 to
                 Strangers
                 ,
                 which
                 being
                 keeped
                 up
                 ,
                 Creditors
                 may
                 contract
                 
                   bona
                   fide
                
                 .
                 And
                 yet
                 Inhibition
                 before
                 Infeftment
                 will
                 not
                 be
                 effectual
                 ,
                 unless
                 it
                 preceed
                 the
                 Infeftment
                 and
                 the
                 Disposition
                 :
                 which
                 will
                 also
                 be
                 effectual
                 against
                 the
                 apparant
                 Heir
                 .
                 But
                 if
                 there
                 be
                 fraud
                 in
                 keeping
                 up
                 such
                 Dispositions
                 ,
                 which
                 will
                 be
                 easilier
                 presumed
                 in
                 the
                 person
                 of
                 the
                 apparant
                 Heir
                 ,
                 than
                 a
                 Stranger
                 ;
                 it
                 will
                 be
                 sufficient
                 upon
                 the
                 common
                 reason
                 of
                 fraud
                 ,
                 to
                 reduce
                 the
                 Infeftment
                 ,
                 though
                 the
                 general
                 passive
                 Title
                 be
                 not
                 inferred
                 .
                 The
                 like
                 was
                 found
                 where
                 there
                 was
                 an
                 Obligement
                 in
                 a
                 Contract
                 
                 of
                 Marriage
                 ,
                 to
                 dispone
                 Lands
                 ,
                 prior
                 to
                 the
                 Debt
                 contracted
                 :
                 albeit
                 both
                 the
                 Disposition
                 and
                 Infeftment
                 were
                 posterior
                 to
                 the
                 Debt
                 ,
                 and
                 did
                 not
                 bear
                 expressly
                 
                   in
                   implement
                   of
                   the
                   Contract
                
                 ;
                 which
                 was
                 presumed
                 seing
                 no
                 other
                 Cause
                 was
                 showen
                 .
                 July
                 23.
                 1678.
                 
                 
                   Thomas
                   Ferguson
                
                 contra
                 Lindsay
                 of
                 Wauchope
                 .
                 And
                 lucrative
                 Successor
                 was
                 not
                 found
                 inferred
                 by
                 the
                 Infeftment
                 of
                 a
                 Father
                 to
                 his
                 apparant
                 Heir
                 after
                 the
                 Debt
                 contracted
                 :
                 seing
                 there
                 was
                 an
                 anterior
                 Obligement
                 in
                 the
                 apparant
                 Heir's
                 Contract
                 of
                 Marriage
                 ,
                 to
                 grant
                 the
                 Infeftment
                 ,
                 and
                 Inhibition
                 thereupon
                 .
                 
                   Nicol.
                   de
                   haereditariis
                   actionibus
                   .
                   March
                
                 31.
                 1626.
                 
                 Ker
                 contra
                 Sterling
                 .
              
               
                 7.
                 
                 This
                 Title
                 can
                 take
                 no
                 place
                 ,
                 first
                 ,
                 where
                 the
                 Party
                 to
                 whom
                 the
                 Right
                 is
                 granted
                 is
                 not
                 
                   alioqui
                   successurus
                
                 in
                 that
                 same
                 Right
                 :
                 because
                 it
                 cannot
                 be
                 
                   praeceptio
                   haereditatis
                
                 where
                 there
                 can
                 be
                 no
                 haereditas
                 .
                 And
                 so
                 a
                 Disposition
                 to
                 an
                 heir
                 of
                 Tailzie
                 ,
                 of
                 Lands
                 not
                 provided
                 to
                 that
                 heir
                 of
                 Tailzie
                 ,
                 cannot
                 inferre
                 this
                 Title
                 :
                 though
                 it
                 may
                 be
                 reducible
                 ,
                 as
                 without
                 a
                 Cause
                 onerous
                 .
                 Neither
                 will
                 a
                 Disposition
                 of
                 tailzied
                 Lands
                 to
                 an
                 heir
                 of
                 line
                 ,
                 inferr
                 this
                 Title
                 .
                 For
                 in
                 that
                 case
                 it
                 cannot
                 be
                 
                   praeceptio
                   haereditatis
                
                 :
                 albeit
                 the
                 Disposition
                 will
                 be
                 reducible
                 ,
                 as
                 without
                 a
                 Cause
                 onerous
                 .
                 But
                 there
                 is
                 more
                 reason
                 ,
                 that
                 Rights
                 acquired
                 originally
                 by
                 Predecessors
                 ,
                 in
                 name
                 of
                 their
                 apparant
                 heirs
                 ,
                 cannot
                 infer
                 this
                 Title
                 :
                 because
                 the
                 Predecessor
                 himself
                 never
                 being
                 Feer
                 in
                 that
                 Right
                 ,
                 the
                 apparant
                 heir
                 could
                 not
                 be
                 his
                 Heir
                 therein
                 .
                 Neither
                 can
                 such
                 Rights
                 be
                 reducible
                 by
                 the
                 Act
                 of
                 Parliament
                 ,
                 1621.
                 because
                 the
                 falling
                 thereof
                 ,
                 will
                 not
                 make
                 the
                 Fee
                 return
                 to
                 thePredecessor
                 who
                 never
                 had
                 it
                 :
                 but
                 the
                 same
                 can
                 only
                 be
                 reached
                 by
                 a
                 Declarator
                 ,
                 That
                 it
                 was
                 acquired
                 by
                 that
                 Predecessor's
                 means
                 ,
                 after
                 the
                 Debt
                 contracted
                 ;
                 and
                 therefore
                 ought
                 to
                 be
                 affectable
                 ,
                 as
                 if
                 it
                 were
                 in
                 the
                 person
                 of
                 the
                 Debitor
                 ,
                 or
                 his
                 heir
                 :
                 which
                 hath
                 frequently
                 been
                 found
                 relevant
                 .
              
            
             
               
               
                 TITLE
                 XXX
                 .
                 Executorie
                 ,
                 Where
                 ,
                 of
                 Testaments
                 ,
                 Codicills
                 ,
                 Legacies
                 ,
                 Relict's
                 part
                 ,
                 Bairns
                 part
                 ,
                 Dead
                 's
                 part
                 ,
                 Confirmations
                 ,
                 and
                 Office
                 of
                 Executorie
                 .
              
               
                 
                   1.
                   
                   The
                   Romans
                   carfeulnesse
                   to
                   preserve
                   the
                   freedom
                   of
                   Testing
                   .
                
                 
                   2.
                   
                   The
                   ancient
                   form
                   of
                   Testing
                   amongst
                   the
                   Romans
                   .
                
                 
                   3.
                   
                   The
                   modern
                   form
                   of
                   Roman
                   solemn
                   Testaments
                   .
                
                 
                   4.
                   
                   Their
                   nuncupative
                   Testaments
                   .
                
                 
                   5.
                   
                   Their
                   military
                   Testaments
                   .
                
                 
                   6.
                   
                   Requisits
                   for
                   Roman
                   Testaments
                   .
                
                 
                   7.
                   
                   How
                   far
                   Sons
                   
                     in
                     familia
                  
                   could
                   Test.
                   
                
                 
                   8.
                   
                   Persons
                   who
                   could
                   not
                   Test.
                   
                
                 
                   9.
                   
                   Persons
                   who
                   could
                   not
                   be
                   institute
                   ,
                   or
                   substitute
                   .
                
                 
                   10.
                   
                   Restriction
                   of
                   the
                   freedom
                   of
                   Testing
                   ,
                   in
                   favour
                   of
                   Children
                   .
                
                 
                   11.
                   
                   The
                   Legittimes
                   ofChildren
                   .
                
                 
                   12.
                   
                   The
                   Falcidian
                   portion
                   .
                
                 
                   13.
                   
                   The
                   difference
                   of
                   the
                   Legittime
                   and
                   Falcidian
                   .
                
                 
                   14.
                   
                   The
                   Trebellianica
                   .
                
                 
                   15.
                   
                   Fidiecomissa
                   .
                
                 
                   16.
                   
                   Codicills
                   .
                
                 
                   
                   17.
                   
                   Institution
                   of
                   Heirs
                   .
                
                 
                   18.
                   
                   Substitution
                   .
                
                 
                   19.
                   
                   Substitutions
                   vulgar
                   and
                   pupillar
                
                 
                   20.
                   
                   Legacies
                   .
                
                 
                   21.
                   
                   Legacies
                   are
                   void
                   if
                   the
                   Legatar
                   die
                   before
                   the
                   Testator
                   ,
                   or
                   if
                   the
                   Testament
                   be
                   void
                   ;
                   unless
                   there
                   be
                   therein
                   a
                   codicillar
                   Clause
                   .
                
                 
                   22.
                   
                   The
                   Kinds
                   and
                   Effects
                   of
                   conditional
                   Legacies
                   ,
                   or
                   Fideicommissa
                   .
                
                 
                   23.
                   
                   Special
                   Legacies
                   .
                
                 
                   24.
                   
                   Conditions
                   adjected
                   to
                   Legacies
                   in
                   Fideicommissa
                   .
                
                 
                   25.
                   
                   The
                   Inventary
                   .
                
                 
                   26.
                   
                   Collation
                   .
                
                 
                   27.
                   
                   Jus
                   accrescendi
                   .
                
                 
                   28.
                   
                   The
                   Power
                   of
                   Testing
                   with
                   us
                   may
                   be
                   restricted
                   by
                   Contract
                   or
                   Portion
                   .
                
                 
                   29.
                   
                   It
                   is
                   restricted
                   to
                   Moveables
                   ,
                   and
                   extends
                   to
                   no
                   heritable
                   Right
                   .
                
                 
                   30.
                   
                   Wherein
                   the
                   Office
                   of
                   Executors
                   consists
                   .
                
                 
                   31.
                   
                   The
                   nearest
                   Agnats
                   are
                   Successors
                   in
                   Moveables
                   to
                   the
                   Intestat
                   .
                
                 
                   32
                   The
                   line
                   of
                   Succession
                   in
                   Moveables
                   .
                
                 
                   33.
                   
                   The
                   Nomination
                   of
                   Executors
                   ,
                   and
                   Codicills
                   .
                
                 
                   34.
                   
                   Solemnities
                   requisit
                   in
                   Testaments
                   with
                   us
                   .
                
                 
                   35.
                   
                   The
                   Effects
                   of
                   Testaments
                   made
                   abroad
                   .
                
                 
                   36
                   Verbal
                   Legacies
                   .
                
                 
                   37.
                   
                   The
                   Power
                   of
                   Testing
                   is
                   competent
                   to
                   Minors
                   having
                   Curator
                   ,
                   without
                   their
                   Consents
                   ,
                   and
                   to
                   Wives
                   without
                   their
                   Husbands
                   Consent
                   :
                   but
                   not
                   to
                   Pupills
                   ,
                   Idiots
                   or
                   furious
                   persons
                   .
                
                 
                   38.
                   
                   Legacies
                   with
                   us
                   .
                
                 
                   39.
                   
                   Legacies
                   and
                   Donations
                   
                     mortis
                     causâ
                  
                   are
                   proportionally
                   abated
                   if
                   they
                   exceed
                   Dead
                   's
                   part
                   .
                
                 
                   40.
                   
                   Whether
                   special
                   Legacies
                   will
                   be
                   so
                   abated
                   .
                
                 
                   41.
                   
                   The
                   Effect
                   of
                   Legacies
                   of
                   things
                   not
                   in
                   the
                   power
                   of
                   the
                   Testator
                   .
                
                 
                   42.
                   
                   The
                   Effect
                   of
                   Legacies
                   left
                   siverally
                   .
                
                 
                   43.
                   
                   The
                   Relist's
                   part
                   of
                   the
                   Executory
                   .
                
                 
                   44.
                   
                   The
                   Bairns
                   part
                   .
                
                 
                   45.
                   
                   What
                   Foris-familiation
                   is
                   .
                
                 
                   46.
                   
                   Collation
                   by
                   our
                   Custom
                   .
                
                 
                   47.
                   
                   Sums
                   bearing
                   Annualrent
                   without
                   Clause
                   of
                   Infefiment
                   ,
                   fallin
                   Executory
                   as
                   to
                   the
                   Defunct
                   and
                   his
                   Children
                   ,
                   but
                   not
                   as
                   to
                   the
                   Relict
                   .
                
                 
                   48.
                   
                   Heirs
                   have
                   no
                   benefit
                   of
                   the
                   Bairns
                   part
                   ,
                   except
                   they
                   renounce
                   in
                   favour
                   of
                   the
                   remainent
                   Bairns
                   .
                
                 
                   49.
                   
                   If
                   there
                   be
                   but
                   one
                   Childeun-forisfamiliat
                   ,
                   the
                   same
                   is
                   both
                   Heir
                   and
                   Executor
                   ,
                   and
                   has
                   the
                   full
                   Bairns
                   part
                   .
                
                 
                   50.
                   
                   The
                   Executory
                   is
                   divided
                   as
                   it
                   was
                   at
                   the
                   Defunct's
                   Death
                   ,
                   and
                   the
                   time
                   of
                   the
                   Confirmation
                   .
                
                 
                   51.
                   
                   The
                   interest
                   of
                   the
                   nearest
                   of
                   Kinne
                
                 
                   52.
                   
                   Dead
                   's
                   part
                   .
                
                 
                   53.
                   
                   The
                   interest
                   of
                   Executors
                   nominat
                   ,
                   and
                   Dative
                   .
                
                 
                   54.
                   
                   The
                   Order
                   of
                   confirming
                   Executors
                   .
                
                 
                   55.
                   
                   How
                   Executors
                   nominat
                   in
                   England
                   are
                   admitted
                   here
                   .
                
                 
                   56.
                   
                   Licences
                   to
                   pursue
                   .
                
                 
                   57.
                   
                   Executors
                   interest
                   ,
                   as
                   to
                   the
                   Rent
                   the
                   year
                   the
                   Defunct
                   died
                   .
                
                 
                   58.
                   
                   Executors
                   have
                   Right
                   to
                   Steellhow
                   Goods
                   .
                
                 
                   59.
                   
                   Co-executors
                   and
                   their
                   power
                   .
                
                 
                   60.
                   
                   The
                   Effect
                   of
                   Executors
                   Assignations
                   before
                   Sentence
                   .
                
                 
                   
                   61.
                   
                   Executors
                   ad
                   non
                   executa
                   .
                
                 
                   62.
                   
                   Executors
                   ad
                   ommissa
                   &
                   malè
                   appretiata
                   .
                
                 
                   63.
                   
                   Executors
                   Creditors
                   .
                
                 
                   64.
                   
                   How
                   far
                   Executors
                   are
                   lyable
                   passivè
                   ,
                   and
                   of
                   their
                   Diligence
                   .
                
                 
                   65.
                   
                   The
                   Releef
                   betwixt
                   Heirs
                   and
                   Executors
                   .
                
                 
                   66.
                   
                   How
                   Executors
                   may
                   safely
                   pay
                   Creditors
                   .
                
                 
                   67.
                   
                   What
                   time
                   Executors
                   have
                   to
                   do
                   Diligence
                   ,
                   before
                   they
                   be
                   lyable
                   to
                   Creditors
                   .
                
                 
                   68.
                   
                   All
                   Executors
                   ,
                   and
                   Creditors
                   doing
                   Diligence
                   within
                   six
                   months
                   
                     ofthe
                     
                       of
                       the
                    
                  
                   Defunct's
                   Death
                   ,
                   come
                   in
                   
                     pari
                     passu
                  
                   .
                
                 
                   69.
                   
                   After
                   six
                   moneths
                   ,
                   Creditors
                   come
                   in
                   according
                   to
                   the
                   priority
                   of
                   their
                   Diligence
                   .
                
                 
                   70.
                   
                   Executors
                   paying
                   Relicts
                   ,
                   Bairns
                   and
                   Legatars
                   ,
                   after
                   6.
                   monethes
                   ,
                   and
                   before
                   Citation
                   of
                   Creditors
                   ,
                   are
                   secure
                   ;
                   and
                   the
                   Creditors
                   have
                   only
                   Repetition
                   against
                   these
                   .
                
                 
                   71.
                   
                   Executors
                   after
                   obtaining
                   Bond
                   or
                   Decreet
                   ,
                   are
                   not
                   in
                   
                     Pleno
                     dominio
                  
                   ,
                   of
                   the
                   Defunct's
                   goods
                   :
                   nor
                   do
                   they
                   fall
                   under
                   the
                   Executors
                   Escheat
                   ,
                   but
                   the
                   Defuuct's
                   Creditors
                   are
                   preferable
                   to
                   the
                   Executors
                   proper
                   Creditors
                   .
                
                 
                   72.
                   
                   Executors
                   may
                   pay
                   priviledged
                   Debts
                   ,
                   at
                   any
                   time
                   .
                
                 
                   73.
                   
                   Arrestments
                   hinder
                   the
                   Executor
                   to
                   prefer
                   any
                   other
                   Creditor
                   .
                
                 
                   74.
                   
                   Compensation
                   is
                   not
                   competent
                   to
                   the
                   Defuncts
                   Debitors
                   ,
                   upon
                   Debts
                   due
                   by
                   the
                   Defunct
                   ,
                   assigned
                   after
                   the
                   Defunct's
                   Death
                   .
                
                 
                   75.
                   
                   Exoneration
                   of
                   Executors
                   .
                
                 
                   76.
                   
                   Exhaustine
                   ofExecutors
                   ,
                   how
                   competent
                   .
                
                 
                   77.
                   
                   The
                   Diligence
                   necessary
                   to
                   liberate
                   Executors
                   :
                   Executors
                   are
                   not
                   obliged
                   to
                   depone
                   upon
                   their
                   Knowledge
                   of
                   the
                   Defunct's
                   Debt
                   ,
                   except
                   as
                   to
                   their
                   own
                   Share
                   .
                
                 
                   78.
                   
                   How
                   farCo-executors
                   are
                   conveenable
                   severally
                   .
                
                 
                   80.
                   
                   Executors
                   furviving
                   ,
                   are
                   not
                   lyable
                   for
                   the
                   Share
                   of
                   the
                   deceassed
                   in
                   so
                   far
                   as
                   they
                   executed
                   the
                   Testament
                   ,
                   and
                   lifted
                   their
                   part
                   .
                
                 
                   81.
                   
                   Executors
                   are
                   lyable
                   for
                   the
                   Inventary
                   ,
                   without
                   proving
                   their
                   Intromission
                   .
                
                 
                   82.
                   
                   Where
                   Testaments
                   are
                   to
                   be
                   confirmed
                   .
                
              
               
                 REMAINS
                 now
                 the
                 other
                 Branch
                 of
                 Succession
                 ,
                 viz.
                 in
                 Moveables
                 :
                 which
                 is
                 of
                 two
                 Kinds
                 ,
                 The
                 one
                 of
                 Executors
                 ,
                 which
                 is
                 the
                 only
                 lawful
                 Succession
                 in
                 Moveables
                 ,
                 and
                 therefore
                 is
                 both
                 an
                 active
                 and
                 passive
                 Title
                 ;
                 the
                 other
                 illegal
                 and
                 Vitious
                 ,
                 and
                 is
                 therefore
                 called
                 Vitious
                 Intromission
                 ,
                 and
                 is
                 only
                 a
                 
                   passive
                   Title
                
                 .
                 Of
                 the
                 former
                 in
                 this
                 Title
                 ,
                 and
                 of
                 the
                 later
                 in
                 the
                 next
                 .
              
               
                 The
                 whole
                 interest
                 of
                 the
                 moveable
                 Goods
                 and
                 Rights
                 of
                 Defuncts
                 ,
                 is
                 comprehended
                 under
                 the
                 term
                 of
                 Executory
                 ,
                 wherein
                 not
                 only
                 that
                 which
                 proper
                 to
                 the
                 Executor
                 by
                 his
                 Office
                 ,
                 or
                 Succession
                 ,
                 is
                 contained
                 ;
                 but
                 also
                 
                 
                 
                 that
                 which
                 befalleth
                 to
                 the
                 Defunct's
                 Relict
                 ,
                 Children
                 ,
                 and
                 nearest
                 of
                 Kinne
                 and
                 to
                 his
                 Legatars
                 and
                 Creditors
                 .
                 We
                 shall
                 not
                 here
                 repeet
                 what
                 hath
                 been
                 said
                 of
                 Succession
                 in
                 general
                 ,
                 of
                 which
                 at
                 large
                 in
                 its
                 proper
                 place
                 ,
                 Tit.
                 26.
                 
                 Where
                 the
                 rise
                 and
                 rule
                 of
                 Succession
                 ,
                 both
                 according
                 to
                 Equity
                 and
                 the
                 Law
                 of
                 Nature
                 ;
                 and
                 according
                 to
                 the
                 positive
                 Law
                 ,
                 and
                 Custom
                 of
                 this
                 and
                 other
                 Nations
                 ,
                 is
                 held
                 forth
                 .
                 This
                 much
                 only
                 in
                 general
                 ;
                 that
                 the
                 Will
                 of
                 the
                 Owner
                 is
                 effectual
                 in
                 equity
                 to
                 dispose
                 upon
                 his
                 Rights
                 ,
                 either
                 to
                 take
                 effect
                 during
                 his
                 Life
                 ,
                 or
                 after
                 his
                 Death
                 .
                 The
                 former
                 being
                 compleat
                 ,
                 constitutes
                 a
                 present
                 Right
                 ,
                 irrevocable
                 by
                 the
                 Disponer
                 :
                 the
                 later
                 is
                 ambulatory
                 ,
                 and
                 dependent
                 upon
                 the
                 Owner's
                 Will
                 ,
                 and
                 hath
                 alwayes
                 implyed
                 in
                 it
                 the
                 Condition
                 of
                 his
                 Death
                 ;
                 and
                 therefore
                 may
                 be
                 altered
                 ,
                 abrogat
                 ,
                 and
                 derogat
                 by
                 a
                 posterior
                 Will.
                 And
                 thence
                 it
                 is
                 called
                 the
                 Later-will
                 of
                 the
                 Defunct
                 :
                 because
                 the
                 Later-will
                 is
                 alwayes
                 effectual
                 ,
                 and
                 preferable
                 to
                 the
                 former
                 Will.
                 It
                 is
                 also
                 more
                 favourablie
                 interpret
                 and
                 extended
                 ,
                 than
                 Contracts
                 or
                 Dispositions
                 amongst
                 the
                 Living
                 .
                 And
                 if
                 there
                 were
                 no
                 positive
                 Law
                 ,
                 the
                 expresse
                 or
                 presumed
                 Will
                 of
                 theDefunct
                 would
                 be
                 the
                 adequat
                 Rule
                 of
                 his
                 whole
                 Succession
                 .
              
               
                 But
                 Succession
                 being
                 of
                 great
                 consequence
                 ,
                 whereby
                 all
                 the
                 Rights
                 of
                 men
                 are
                 at
                 least
                 once
                 ,
                 and
                 many
                 times
                 oftner
                 ,
                 transmitted
                 in
                 every
                 generation
                 ;
                 therefore
                 positive
                 Law
                 for
                 utilitie's
                 sake
                 ,
                 hath
                 justly
                 and
                 fitly
                 preicribed
                 the
                 forms
                 and
                 solemnities
                 thereof
                 ,
                 that
                 it
                 may
                 be
                 clear
                 and
                 sure
                 :
                 and
                 hath
                 applyed
                 remedies
                 to
                 make
                 it
                 effectual
                 .
                 And
                 hath
                 restrained
                 the
                 power
                 of
                 the
                 Defunct's
                 Will
                 in
                 some
                 cases
                 ,
                 especially
                 in
                 favour
                 of
                 the
                 Defunct's
                 Wife
                 and
                 Children
                 ,
                 whom
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 he
                 is
                 obliged
                 to
                 provide
                 .
                 And
                 hath
                 also
                 declared
                 the
                 Degrees
                 of
                 Succession
                 ,
                 Meaning
                 ,
                 and
                 Presumption
                 of
                 the
                 Will
                 of
                 Defuncts
                 .
              
               
                 1.
                 
                 The
                 Romans
                 of
                 all
                 Nations
                 ,
                 were
                 most
                 solicitous
                 in
                 this
                 matter
                 ,
                 and
                 accounted
                 it
                 a
                 publict
                 interest
                 ;
                 
                   reipublicae
                   interest
                   ,
                   voluntates
                   defunctorum
                   effectum
                   sortiri
                   .
                
                 And
                 therefore
                 they
                 did
                 exactly
                 guard
                 the
                 power
                 of
                 testing
                 ,
                 not
                 only
                 against
                 Violence
                 and
                 Fraud
                 ,
                 by
                 severe
                 Punishments
                 ,
                 and
                 exclusion
                 from
                 all
                 benefit
                 of
                 Succession
                 ;
                 but
                 also
                 they
                 rejected
                 and
                 annulled
                 all
                 Pactions
                 ,
                 restraining
                 the
                 power
                 of
                 testing
                 ,
                 as
                 
                   pactum
                   corvinum
                   de
                   haereditate
                   viventis
                
                 .
                 Which
                 was
                 not
                 only
                 extended
                 to
                 Pactions
                 made
                 by
                 Persons
                 disposing
                 of
                 the
                 Heretage
                 of
                 Persons
                 ,
                 to
                 whom
                 they
                 might
                 succeed
                 ,
                 but
                 even
                 to
                 Pactions
                 of
                 Persons
                 in
                 relation
                 to
                 their
                 own
                 Heritage
                 .
                 They
                 did
                 also
                 clearly
                 determine
                 what
                 Persons
                 had
                 not
                 the
                 power
                 of
                 testing
                 ;
                 and
                 in
                 whose
                 favour
                 Testaments
                 might
                 not
                 be
                 made
                 ;
                 and
                 the
                 manner
                 of
                 all
                 Kindes
                 of
                 Testaments
                 ,
                 Institutions
                 ,
                 and
                 Substitutions
                 of
                 Heirs
                 ,
                 Legacies
                 ,
                 Fideicommisses
                 ,
                 and
                 the
                 sense
                 of
                 most
                 ordinary
                 Clauses
                 in
                 all
                 these
                 :
                 and
                 also
                 the
                 Succession
                 of
                 the
                 intestat
                 .
                 Which
                 hath
                 made
                 the
                 matter
                 of
                 Succession
                 swel
                 into
                 a
                 mighty
                 bulk
                 ,
                 and
                 to
                 make
                 the
                 chief
                 Integral
                 of
                 the
                 Civil
                 Law
                 ;
                 wherein
                 to
                 insist
                 here
                 ,
                 would
                 neither
                 be
                 necessary
                 nor
                 profitable
                 for
                 our
                 purpose
                 :
                 but
                 as
                 in
                 other
                 cases
                 ,
                 a
                 short
                 Sum
                 ,
                 without
                 Ampliations
                 or
                 Citations
                 ,
                 will
                 suffice
                 .
              
               
                 2.
                 
                 Succession
                 amongst
                 the
                 Romans
                 ,
                 was
                 either
                 by
                 Testament
                 ,
                 or
                 from
                 the
                 intestat
                 .
                 The
                 ancient
                 way
                 of
                 testing
                 amongst
                 the
                 Romans
                 ,
                 was
                 either
                 in
                 peace
                 and
                 solemne
                 ,
                 which
                 was
                 done
                 in
                 presence
                 of
                 the
                 People
                 ,
                 being
                 convocat
                 
                   callatis
                   comitiis
                
                 :
                 or
                 otherways
                 by
                 a
                 simulat
                 Sale
                 ,
                 
                   per
                   aes
                   &
                   libram
                
                 ;
                 wherein
                 the
                 Testator
                 ,
                 in
                 presence
                 of
                 five
                 Witnesses
                 Romans
                 ,
                 did
                 hold
                 a
                 Ballance
                 ,
                 and
                 weighed
                 Money
                 therein
                 ,
                 and
                 under
                 that
                 form
                 ,
                 as
                 it
                 were
                 ,
                 sold
                 his
                 Inheritance
                 for
                 the
                 Money
                 ,
                 and
                 asked
                 Witnesses
                 .
                 Or
                 otherwayes
                 Testaments
                 
                 were
                 made
                 
                   in
                   precinctu
                
                 ,
                 when
                 they
                 were
                 standing
                 in
                 Battaile
                 before
                 the
                 Fight
                 ,
                 without
                 other
                 Solemnity
                 than
                 three
                 or
                 four
                 Witnesses
                 .
              
               
                 This
                 was
                 the
                 ancient
                 form
                 of
                 testing
                 .
                 The
                 matter
                 and
                 power
                 of
                 testing
                 was
                 very
                 absolute
                 ,
                 according
                 to
                 Equity
                 :
                 concerning
                 which
                 ,
                 this
                 was
                 the
                 Law
                 of
                 the
                 twelve
                 Tables
                 
                   uti
                   quisque
                   rei
                   suae
                   legasset
                   ita
                   jus
                   esto
                   .
                
              
               
                 But
                 the
                 after-course
                 of
                 the
                 Civil
                 Law
                 ,
                 changed
                 both
                 this
                 ancient
                 manner
                 and
                 power
                 of
                 testing
                 ,
                 and
                 redacted
                 Testaments
                 into
                 three
                 kindes
                 ,
                 Solemne
                 ,
                 Nuncupative
                 ,
                 and
                 Military
                 .
              
               
                 3.
                 
                 Solemne
                 Testaments
                 were
                 so
                 called
                 ,
                 because
                 they
                 required
                 the
                 most
                 Solemnities
                 :
                 as
                 First
                 ,
                 That
                 the
                 Testaments
                 were
                 in
                 writ
                 ,
                 the
                 Name
                 of
                 the
                 Heir
                 ,
                 at
                 least
                 ,
                 being
                 written
                 by
                 the
                 Testator
                 ,
                 or
                 one
                 of
                 the
                 Witnesses
                 .
                 Secondly
                 ,
                 There
                 behoved
                 to
                 be
                 seven
                 Witnesses
                 ,
                 specially
                 required
                 ,
                 all
                 present
                 ,
                 and
                 subscribing
                 by
                 themselves
                 ,
                 or
                 another
                 ,
                 and
                 sealing
                 the
                 Testament
                 at
                 the
                 foot
                 thereof
                 :
                 none
                 of
                 which
                 might
                 be
                 Women
                 ,
                 Pupills
                 ,
                 Servants
                 ,
                 Prodigalls
                 ,
                 or
                 furious
                 Persons
                 ;
                 neither
                 the
                 Heir
                 himself
                 ,
                 or
                 any
                 of
                 his
                 Domesticks
                 :
                 each
                 Subscription
                 bearing
                 .
                 
                   I
                   Titus
                
                 ,
                 &c.
                 
                   being
                   called
                   and
                   required
                   to
                   be
                   a
                   Witnesse
                   to
                   this
                   Testament
                   ,
                   which
                   is
                   contained
                   in
                   this
                   Schedule
                   ,
                   have
                   subscribed
                   it
                   with
                   my
                   hand
                   ,
                   and
                   sealed
                   it
                   with
                   such
                   a
                   Seal
                   .
                
                 Thirdly
                 .
                 The
                 Testator
                 also
                 behoved
                 to
                 subscribe
                 thus
                 ,
                 
                   I
                   Mevius
                
                 ,
                 &c.
                 
                   declare
                   this
                   Schedule
                   to
                   be
                   my
                   Testament
                   ,
                   and
                   I
                   have
                   tested
                   as
                   is
                   contained
                   therein
                   :
                
                 or
                 by
                 another
                 if
                 he
                 could
                 not
                 write
                 ,
                 who
                 stood
                 as
                 the
                 eighth
                 Witnesse
                 .
                 Fourthly
                 ,
                 The
                 Testament
                 behoved
                 to
                 be
                 made
                 by
                 one
                 continued
                 Act
                 ,
                 without
                 interruption
                 of
                 any
                 extraneous
                 act
                 ,
                 least
                 by
                 extraneous
                 acts
                 the
                 mind
                 might
                 be
                 diverted
                 ,
                 or
                 inconsiderat
                 ,
                 in
                 so
                 solemne
                 an
                 Act.
                 So
                 the
                 Testament
                 was
                 closed
                 up
                 ,
                 and
                 sealed
                 .
                 And
                 if
                 the
                 Testator
                 opened
                 the
                 Testament
                 ,
                 it
                 was
                 presumed
                 he
                 changed
                 his
                 mind
                 .
                 But
                 after
                 his
                 Death
                 ,
                 the
                 Witnesses
                 were
                 called
                 together
                 ,
                 to
                 acknowledge
                 their
                 Seals
                 and
                 Subscriptions
                 ,
                 at
                 the
                 opening
                 thereof
                 .
                 Or
                 otherwayes
                 it
                 was
                 opened
                 by
                 the
                 authority
                 of
                 a
                 Judge
                 ,
                 before
                 other
                 honest
                 Witnesses
                 .
                 And
                 if
                 any
                 of
                 the
                 Witnesses
                 acknowledged
                 not
                 their
                 Subscriptions
                 ,
                 the
                 Testament
                 was
                 held
                 suspect
                 .
              
               
                 4.
                 
                 A
                 Nuncupative
                 Testament
                 is
                 that
                 which
                 was
                 by
                 Word
                 only
                 ,
                 before
                 seven
                 Witnesses
                 qualified
                 as
                 aforesaid
                 .
                 Yet
                 two
                 Witnesses
                 were
                 sufficient
                 in
                 a
                 Father's
                 Testement
                 amongst
                 his
                 Children
                 ;
                 and
                 a
                 Woman
                 might
                 be
                 Witness
                 therein
                 .
                 Or
                 in
                 a
                 Testament
                 for
                 pious
                 Uses
                 ,
                 five
                 Witnesses
                 did
                 suffice
                 ,
                 where
                 there
                 was
                 penurie
                 of
                 Witnesses
                 .
              
               
                 5.
                 
                 A
                 Military
                 Testament
                 ,
                 was
                 that
                 which
                 was
                 made
                 by
                 the
                 Souldiers
                 in
                 Warre
                 :
                 wherein
                 they
                 had
                 these
                 Priviledges
                 .
                 First
                 ,
                 when
                 they
                 were
                 
                   in
                   procinctu
                
                 ,
                 ready
                 to
                 joyn
                 Battaile
                 ,
                 any
                 declaration
                 of
                 their
                 mind
                 ,
                 by
                 word
                 or
                 writ
                 ,
                 though
                 it
                 were
                 written
                 but
                 in
                 the
                 sand
                 ,
                 was
                 sufficient
                 .
                 It
                 was
                 also
                 valid
                 ,
                 if
                 made
                 during
                 the
                 Expedition
                 ,
                 with
                 such
                 Solemnities
                 as
                 can
                 be
                 had
                 for
                 the
                 time
                 :
                 Yet
                 so
                 ,
                 that
                 if
                 the
                 Testator
                 lived
                 a
                 year
                 ,
                 in
                 which
                 he
                 might
                 make
                 it
                 more
                 Solemn
                 ;
                 it
                 became
                 void
                 .
                 Military
                 Testaments
                 have
                 this
                 further
                 Priviledge
                 ,
                 that
                 the
                 Testator
                 may
                 institute
                 for
                 a
                 time
                 ,
                 and
                 may
                 institute
                 in
                 a
                 part
                 ,
                 and
                 so
                 die
                 partly
                 testat
                 ,
                 and
                 partly
                 intestate
                 :
                 which
                 is
                 against
                 a
                 Principle
                 of
                 their
                 common
                 Law.
                 
              
               
                 6.
                 
                 The
                 ancient
                 absolute
                 power
                 of
                 testing
                 ,
                 was
                 by
                 the
                 subsequent
                 course
                 of
                 Law
                 ,
                 cleared
                 and
                 restrained
                 ,
                 not
                 only
                 by
                 the
                 declaratory
                 Laws
                 ,
                 finding
                 
                 testing
                 ,
                 and
                 otheracts
                 invalide
                 ,
                 as
                 done
                 by
                 furious
                 Persons
                 out
                 of
                 their
                 
                   lucid
                   intervalls
                
                 ,
                 and
                 by
                 Idiots
                 ,
                 and
                 by
                 Pupills
                 ,
                 who
                 have
                 not
                 the
                 use
                 of
                 reason
                 ;
                 or
                 those
                 made
                 by
                 Fraud
                 ,
                 or
                 Error
                 in
                 the
                 Substantialls
                 ,
                 or
                 by
                 extortion
                 :
                 but
                 more
                 particularly
                 it
                 is
                 limited
                 in
                 these
                 particulars
                 .
              
               
                 7.
                 
                 First
                 ,
                 
                   Filii
                   familiâs
                
                 ,
                 Persons
                 in
                 the
                 power
                 and
                 family
                 of
                 their
                 Fathers
                 ,
                 could
                 not
                 test
                 upon
                 their
                 Goods
                 ;
                 whether
                 profectitious
                 from
                 their
                 Father
                 ,
                 or
                 
                   adventitious
                   aliunaè
                
                 ;
                 even
                 though
                 their
                 Father
                 consented
                 :
                 but
                 only
                 on
                 their
                 
                   bona
                   castrensia
                
                 ,
                 acquired
                 in
                 Warre
                 ;
                 or
                 
                   quasi
                   casirensia
                
                 ,
                 as
                 in
                 
                   militia
                   togata
                
                 .
              
               
                 8.
                 
                 Secondly
                 ,
                 Captives
                 with
                 publict
                 enemies
                 ,
                 or
                 Persons
                 given
                 in
                 pledge
                 to
                 them
                 ;
                 or
                 Persons
                 condemned
                 to
                 capital
                 Punishment
                 ,
                 whose
                 goods
                 are
                 con
                 fiscat
                 ;
                 or
                 those
                 condemned
                 of
                 Infamy
                 ;
                 could
                 not
                 test
                 .
              
               
                 9.
                 
                 Thirdly
                 ,
                 by
                 Testament
                 some
                 Persons
                 can
                 neither
                 be
                 institute
                 nor
                 substitute
                 Heirs
                 ,
                 such
                 as
                 the
                 spurious
                 Children
                 of
                 the
                 Defunct
                 :
                 to
                 put
                 a
                 restraint
                 upon
                 such
                 unlawful
                 Procreations
                 .
                 But
                 Children
                 begotten
                 on
                 Concubins
                 ,
                 while
                 those
                 were
                 tollerat
                 ,
                 could
                 not
                 be
                 institute
                 or
                 substitute
                 ,
                 (
                 these
                 being
                 lawful
                 Children
                 )
                 in
                 more
                 then
                 a
                 sixth
                 part
                 of
                 the
                 heretage
                 .
                 Only
                 there
                 could
                 be
                 left
                 to
                 spurious
                 Children
                 ,
                 Legacies
                 for
                 their
                 necessary
                 Aliment
                 .
                 Neither
                 could
                 Persons
                 guilty
                 or
                 condemned
                 of
                 Treason
                 ,
                 be
                 institute
                 or
                 substitute
                 Heirs
                 .
              
               
                 10.
                 
                 Fourthly
                 ,
                 power
                 of
                 Testing
                 is
                 restrained
                 in
                 those
                 who
                 have
                 lawful
                 Children
                 :
                 who
                 were
                 necessitat
                 ,
                 either
                 to
                 institute
                 their
                 Children
                 their
                 Heirs
                 ,
                 or
                 expresly
                 to
                 exheredat
                 or
                 disheirish
                 them
                 ,
                 expressing
                 the
                 Cause
                 of
                 so
                 doing
                 .
                 For
                 if
                 these
                 institute
                 others
                 ,
                 and
                 past
                 over
                 their
                 Children
                 in
                 silence
                 ,
                 the
                 Testament
                 was
                 void
                 .
                 And
                 if
                 they
                 unjustly
                 exheredated
                 them
                 ,
                 they
                 had
                 
                   Quaerelam
                   inofficiosi
                   testamenti
                
                 ,
                 to
                 annul
                 the
                 Testament
                 ,
                 as
                 done
                 against
                 the
                 natural
                 Dutie
                 of
                 Fathers
                 ,
                 without
                 just
                 Cause
                 .
              
               
                 11.
                 
                 Fiftly
                 ,
                 the
                 power
                 of
                 Testing
                 was
                 restrained
                 in
                 favour
                 of
                 lawful
                 Children
                 ,
                 that
                 the
                 Testator
                 could
                 not
                 by
                 Legacy
                 or
                 
                   fidei
                   commissum
                
                 abate
                 from
                 the
                 Children
                 their
                 Portions
                 natural
                 ,
                 due
                 to
                 them
                 by
                 the
                 Law
                 of
                 Nature
                 ,
                 obliging
                 Parents
                 to
                 entertain
                 their
                 Children
                 :
                 which
                 the
                 Law
                 defyned
                 to
                 be
                 the
                 fourth
                 part
                 of
                 the
                 Inheritance
                 ,
                 Debts
                 deduced
                 ,
                 when
                 there
                 were
                 fewer
                 than
                 four
                 Children
                 ;
                 a
                 third
                 part
                 ,
                 when
                 four
                 ;
                 and
                 a
                 half
                 when
                 more
                 .
                 If
                 there
                 be
                 no
                 Children
                 ,
                 this
                 Legittima
                 is
                 due
                 to
                 the
                 Parents
                 ,
                 Grand
                 Father
                 ,
                 and
                 Grand
                 Mother
                 ;
                 but
                 not
                 to
                 Brethren
                 ,
                 unlesse
                 a
                 base
                 Person
                 be
                 institute
                 .
                 Which
                 Portion
                 natural
                 the
                 Testator
                 could
                 not
                 prohibite
                 the
                 Children
                 to
                 withdraw
                 from
                 the
                 Heretage
                 .
              
               
                 12.
                 
                 Sixthly
                 ,
                 the
                 Falcidian
                 Law
                 did
                 restrain
                 Legacies
                 ,
                 that
                 they
                 might
                 not
                 exceed
                 three
                 fourth
                 parts
                 of
                 the
                 Inheritance
                 :
                 so
                 that
                 there
                 behoved
                 to
                 remaine
                 one
                 fourth
                 part
                 to
                 the
                 Heir
                 ,
                 which
                 therefore
                 was
                 called
                 
                   portio
                   Falcidia
                
                 .
                 And
                 therefore
                 if
                 the
                 Legacies
                 did
                 exceed
                 three
                 Quarters
                 of
                 the
                 free
                 Inheritance
                 ,
                 Debts
                 being
                 deduced
                 ;
                 they
                 were
                 abated
                 proportionally
                 ,
                 that
                 the
                 Falcidia
                 might
                 remain
                 to
                 the
                 Heir
                 .
              
               
                 13.
                 
                 This
                 
                   Portio
                   Falcidia
                
                 differs
                 from
                 the
                 natural
                 Portion
                 in
                 this
                 ,
                 that
                 the
                 Testator
                 could
                 not
                 prohibite
                 the
                 Heir
                 to
                 take
                 the
                 benefit
                 of
                 the
                 Portion
                 natural
                 ;
                 but
                 he
                 could
                 effectually
                 prohibite
                 the
                 Heir
                 to
                 take
                 his
                 Falcidia
                 .
                 The
                 Reason
                 whereof
                 was
                 ,
                 because
                 the
                 Falcidia
                 was
                 introduced
                 ,
                 to
                 the
                 effect
                 that
                 
                 the
                 Wills
                 of
                 the
                 Defuncts
                 might
                 be
                 execute
                 :
                 which
                 could
                 not
                 be
                 ,
                 if
                 the
                 Legacies
                 left
                 nothing
                 to
                 the
                 Heir
                 considerable
                 ,
                 but
                 trouble
                 ,
                 as
                 oft-times
                 it
                 falls
                 out
                 .
                 So
                 that
                 this
                 being
                 a
                 Remedy
                 in
                 favour
                 of
                 the
                 Testator
                 ,
                 to
                 make
                 his
                 Will
                 effectual
                 ;
                 he
                 might
                 prohibite
                 it
                 :
                 and
                 could
                 not
                 be
                 presumed
                 so
                 irrational
                 as
                 to
                 prohibite
                 it
                 ,
                 if
                 he
                 had
                 not
                 good
                 ground
                 to
                 know
                 that
                 his
                 Heirs
                 would
                 enter
                 without
                 it
                 .
                 Or
                 indirectly
                 ,
                 if
                 the
                 Testator
                 prohibite
                 the
                 alienation
                 of
                 the
                 Heretage
                 ,
                 the
                 Law
                 esteemed
                 it
                 as
                 a
                 prohibition
                 of
                 the
                 Falcidia
                 .
              
               
                 The
                 Falcidia
                 had
                 no
                 place
                 in
                 Military
                 Testaments
                 ,
                 or
                 in
                 Legacies
                 left
                 to
                 Pious
                 Uses
                 ,
                 or
                 left
                 to
                 the
                 Relict
                 of
                 the
                 Testator
                 ,
                 
                   nomine
                   dotis
                
                 .
                 The
                 reason
                 of
                 these
                 exceptions
                 was
                 in
                 favour
                 of
                 Souldiers
                 ,
                 Pious
                 Causes
                 ,
                 and
                 Tochers
                 .
                 And
                 if
                 the
                 Heir
                 ommitted
                 to
                 make
                 Inventary
                 ,
                 he
                 lost
                 the
                 benefit
                 of
                 his
                 Falcidia
              
               
                 14.
                 
                 When
                 the
                 fiduciary
                 Succession
                 became
                 in
                 use
                 ,
                 whereby
                 Heirs
                 were
                 institute
                 or
                 substitute
                 ,
                 to
                 the
                 use
                 and
                 behoofe
                 of
                 others
                 ,
                 to
                 whom
                 they
                 were
                 to
                 restore
                 the
                 Inheritance
                 ,
                 or
                 some
                 part
                 thereof
                 ,
                 or
                 thing
                 therein
                 ;
                 which
                 therefore
                 was
                 called
                 fideicommissum
                 ,
                 as
                 being
                 committed
                 to
                 the
                 trust
                 and
                 faithfulnesse
                 of
                 the
                 Heir
                 :
                 the
                 
                   Senatusconsultum
                   Trebellianum
                
                 did
                 introduce
                 the
                 reservation
                 of
                 a
                 fourth
                 part
                 to
                 the
                 Heir
                 ,
                 institute
                 or
                 substitute
                 by
                 these
                 fideicommisses
                 ,
                 in
                 the
                 same
                 way
                 that
                 the
                 Falcidia
                 was
                 a
                 reservation
                 from
                 Legacies
                 .
                 And
                 therefore
                 this
                 fourth
                 part
                 was
                 called
                 Trebellianica
                 :
                 which
                 therefore
                 ,
                 hath
                 the
                 same
                 exception
                 with
                 the
                 Falicidia
                 ,
                 of
                 which
                 in
                 the
                 former
                 Paragraph
                 .
                 And
                 this
                 further
                 ,
                 if
                 the
                 Heir
                 were
                 forced
                 by
                 Law
                 to
                 enter
                 ,
                 or
                 if
                 within
                 a
                 year
                 thereafter
                 ,
                 he
                 do
                 not
                 fulfil
                 the
                 Will
                 of
                 the
                 Defunct
                 ;
                 he
                 lost
                 the
                 benefit
                 of
                 his
                 Trebellianica
                 .
                 And
                 if
                 he
                 had
                 either
                 Legacy
                 or
                 Portion
                 of
                 the
                 Inheritance
                 ,
                 it
                 was
                 reckoned
                 to
                 him
                 as
                 a
                 part
                 of
                 his
                 Trebellianica
                 .
              
               
                 15.
                 
                 The
                 use
                 of
                 these
                 Fideicommissary
                 Trusts
                 was
                 ,
                 when
                 the
                 Testator
                 designed
                 his
                 Inheritance
                 ,
                 or
                 some
                 of
                 his
                 Goods
                 ,
                 either
                 for
                 Persons
                 that
                 were
                 not
                 capable
                 to
                 be
                 Heirs
                 ,
                 or
                 not
                 fit
                 to
                 manage
                 ;
                 as
                 through
                 Pupilarity
                 ,
                 prodidigality
                 ,
                 or
                 some
                 other
                 defect
                 ;
                 then
                 he
                 institute
                 other
                 Heirs
                 fit
                 for
                 the
                 present
                 managment
                 ;
                 and
                 desired
                 ,
                 or
                 required
                 them
                 by
                 his
                 Testament
                 ,
                 to
                 restore
                 the
                 Inheritance
                 ,
                 or
                 some
                 part
                 of
                 it
                 ,
                 to
                 such
                 Persons
                 .
                 And
                 that
                 either
                 simply
                 to
                 a
                 day
                 ,
                 or
                 conditionally
                 .
                 And
                 oft
                 times
                 the
                 day
                 of
                 Restitution
                 ,
                 was
                 after
                 the
                 Heirs
                 own
                 Death
                 ,
                 whereby
                 he
                 had
                 his
                 Liferent
                 or
                 Vsufruct
                 thereof
                 .
                 At
                 first
                 this
                 was
                 wholly
                 left
                 to
                 the
                 trust
                 and
                 faithfulness
                 of
                 the
                 Heir
                 ,
                 without
                 any
                 legal
                 Remedy
                 or
                 Compulsion
                 :
                 which
                 afterward
                 were
                 adhibite
                 ,
                 with
                 the
                 Reservation
                 of
                 the
                 Trebellianica
                 ,
                 as
                 hath
                 been
                 shown
                 .
                 But
                 where
                 the
                 Persons
                 in
                 whose
                 favour
                 the
                 Trust
                 was
                 ,
                 were
                 such
                 as
                 could
                 not
                 be
                 Heirs
                 ,
                 or
                 succeed
                 ,
                 as
                 spurious
                 Persons
                 ;
                 then
                 those
                 Heirs
                 were
                 not
                 compelled
                 to
                 restore
                 .
              
               
                 The
                 essential
                 and
                 chief
                 poynt
                 of
                 a
                 Testament
                 is
                 ,
                 the
                 Nomination
                 of
                 an
                 Heir
                 ,
                 either
                 by
                 Institution
                 ,
                 or
                 Substitution
                 :
                 without
                 which
                 it
                 was
                 not
                 allowed
                 the
                 name
                 of
                 a
                 Testament
                 ,
                 but
                 only
                 a
                 Legacy
                 ,
                 or
                 at
                 best
                 the
                 name
                 of
                 Codicills
                 ,
                 which
                 is
                 called
                 by
                 some
                 an
                 imperfect
                 Testament
                 .
              
               
                 16.
                 
                 Codicills
                 might
                 be
                 made
                 before
                 five
                 Witnesses
                 ,
                 either
                 in
                 writ
                 or
                 nuncupative
                 :
                 and
                 they
                 were
                 ordinarly
                 additions
                 to
                 Testaments
                 .
                 Yea
                 because
                 ,
                 if
                 when
                 Testaments
                 ,
                 through
                 want
                 of
                 Solemnity
                 ,
                 became
                 voyd
                 ,
                 the
                 Legacies
                 failled
                 ;
                 therefore
                 there
                 used
                 to
                 be
                 adjoyned
                 this
                 Clause
                 ,
                 
                   If
                   this
                   be
                   not
                   valid
                   as
                   a
                   Testament
                   ,
                   Let
                   it
                   be
                   valid
                   as
                   a
                   Codicill
                   ,
                
                 which
                 thence
                 is
                 called
                 
                   Clausula
                   codicillaris
                
                 .
              
               
               
                 17.
                 
                 The
                 form
                 of
                 Institution
                 of
                 Heirs
                 ,
                 was
                 in
                 plain
                 and
                 short
                 terms
                 ,
                 thus
                 ;
                 
                   Titius
                   haeres
                   esto
                
                 .
                 These
                 were
                 either
                 institute
                 solly
                 ,
                 or
                 joyntly
                 :
                 and
                 that
                 either
                 equally
                 ,
                 or
                 indefinitely
                 ,
                 which
                 is
                 understood
                 equally
                 ;
                 or
                 otherways
                 by
                 certain
                 Portions
                 .
                 No
                 Institution
                 can
                 be
                 conditional
                 ,
                 or
                 to
                 a
                 day
                 :
                 or
                 if
                 it
                 be
                 ,
                 it
                 is
                 presently
                 effectual
                 .
                 Because
                 the
                 Heritage
                 cannot
                 hing
                 in
                 the
                 air
                 ,
                 and
                 belong
                 to
                 none
                 :
                 else
                 it
                 would
                 prove
                 caduciary
                 .
                 Yet
                 in
                 military
                 Testaments
                 this
                 Priviledge
                 is
                 indulged
                 ,
                 as
                 hath
                 been
                 said
                 .
              
               
                 18.
                 
                 Substitution
                 is
                 the
                 Nomination
                 of
                 substitute
                 Heirs
                 ,
                 who
                 take
                 place
                 failing
                 the
                 institute
                 .
                 There
                 may
                 be
                 as
                 many
                 subordinate
                 Members
                 of
                 Substitution
                 as
                 the
                 Testator
                 pleaseth
                 .
                 The
                 Institute
                 or
                 prior
                 Substitute
                 ,
                 is
                 found
                 to
                 fail
                 ,
                 when
                 either
                 he
                 cannot
                 ,
                 or
                 will
                 not
                 enter
                 :
                 but
                 if
                 once
                 he
                 enter
                 ,
                 the
                 Substitution
                 for
                 ever
                 evanisheth
                 .
                 And
                 if
                 he
                 or
                 his
                 should
                 be
                 extinct
                 who
                 was
                 institute
                 ,
                 the
                 Heretage
                 becomes
                 his
                 Patrimony
                 ,
                 and
                 no
                 more
                 the
                 first
                 Defunct's
                 Heretage
                 :
                 and
                 so
                 falls
                 not
                 to
                 the
                 Substitute
                 ,
                 who
                 is
                 Heir
                 of
                 the
                 first
                 Defunct
                 ;
                 but
                 to
                 the
                 Heirs
                 of
                 the
                 Institute
                 .
                 It
                 is
                 otherways
                 with
                 us
                 ,
                 in
                 Tailzies
                 ,
                 or
                 other
                 Substitutions
                 ,
                 as
                 hereafter
                 will
                 appear
                 .
              
               
                 19.
                 
                 Substitution
                 was
                 of
                 two
                 kindes
                 ,
                 vulgar
                 and
                 pupillar
                 .
                 Pupillar
                 is
                 that
                 ,
                 whereby
                 Fathers
                 were
                 allowed
                 in
                 their
                 Testament
                 ,
                 having
                 named
                 their
                 Children
                 being
                 Pupils
                 ,
                 to
                 be
                 their
                 Heirs
                 ,
                 to
                 substitute
                 Heirs
                 to
                 them
                 :
                 which
                 Substitutes
                 had
                 not
                 only
                 the
                 Father's
                 Heretage
                 ,
                 but
                 the
                 Son
                 's
                 ,
                 dying
                 in
                 Pupillarity
                 .
                 Under
                 which
                 is
                 comprehended
                 that
                 which
                 is
                 called
                 
                   substitutio
                   exemplaris
                
                 :
                 whereby
                 Parents
                 having
                 institute
                 their
                 Children
                 ,
                 being
                 Idiots
                 ,
                 their
                 Heirs
                 ;
                 did
                 substitute
                 other
                 Heirs
                 to
                 them
                 ,
                 if
                 they
                 entered
                 not
                 ,
                 and
                 died
                 Idiots
                 ,
                 or
                 Furious
                 .
                 And
                 in
                 military
                 Testaments
                 ,
                 the
                 pupillar
                 Substitution
                 is
                 not
                 only
                 effectual
                 ,
                 if
                 the
                 Testator
                 make
                 his
                 own
                 Will
                 ,
                 and
                 institute
                 his
                 Children
                 :
                 but
                 though
                 he
                 only
                 substitute
                 .
                 And
                 though
                 the
                 Children
                 survive
                 their
                 Pupillarity
                 ;
                 yet
                 if
                 they
                 entet
                 not
                 ,
                 the
                 Substitution
                 is
                 valid
                 .
                 All
                 other
                 Substitutions
                 are
                 ordinary
                 ,
                 or
                 vulgar
                 ;
                 when
                 the
                 Testator
                 institutes
                 Heirs
                 ,
                 and
                 substitutes
                 others
                 :
                 but
                 hath
                 only
                 effect
                 as
                 to
                 the
                 Testator's
                 own
                 Goods
                 ,
                 if
                 those
                 institute
                 enter
                 not
                 ;
                 but
                 not
                 as
                 to
                 the
                 Goods
                 of
                 Heirs
                 institute
                 .
              
               
                 20.
                 
                 The
                 matter
                 of
                 next
                 moment
                 to
                 the
                 Institution
                 or
                 Substitution
                 of
                 Heirs
                 ,
                 is
                 the
                 leaving
                 of
                 Legacies
                 ;
                 which
                 may
                 be
                 left
                 in
                 Testements
                 ,
                 or
                 Codicills
                 ,
                 and
                 without
                 either
                 in
                 some
                 cases
                 .
                 Any
                 thing
                 may
                 be
                 legat
                 ,
                 which
                 is
                 in
                 the
                 Defunct's
                 Goods
                 ,
                 alienable
                 ;
                 except
                 in
                 so
                 far
                 as
                 is
                 restrained
                 in
                 the
                 
                   Legittima
                   ,
                   Falcidia
                   ,
                   &
                   Trebellianica
                   :
                
                 of
                 which
                 formerly
                 .
                 Yea
                 though
                 the
                 thing
                 legat
                 be
                 not
                 the
                 Testator's
                 ,
                 the
                 Heir
                 is
                 obliged
                 to
                 purchase
                 it
                 to
                 the
                 Legatar
                 ,
                 or
                 the
                 value
                 of
                 it
                 ,
                 if
                 the
                 Testator
                 knew
                 it
                 was
                 another's
                 :
                 for
                 then
                 his
                 mind
                 is
                 followed
                 ,
                 to
                 make
                 it
                 effectual
                 ;
                 at
                 least
                 by
                 the
                 value
                 .
                 But
                 if
                 the
                 Testator
                 legat
                 any
                 thing
                 ,
                 thinking
                 it
                 to
                 be
                 his
                 own
                 ,
                 which
                 is
                 not
                 his
                 own
                 ;
                 the
                 Legacy
                 is
                 ineffectual
                 For
                 Legacies
                 being
                 Donations
                 ,
                 they
                 are
                 undestood
                 to
                 be
                 given
                 ,
                 but
                 so
                 far
                 as
                 the
                 Giver
                 hath
                 Right
                 :
                 and
                 therefore
                 there
                 is
                 no
                 Warrandice
                 of
                 them
                 ,
                 as
                 to
                 the
                 Testator's
                 Right
                 .
                 But
                 if
                 the
                 Heir
                 deliver
                 any
                 thing
                 ,
                 not
                 specially
                 legat
                 ,
                 in
                 satisfaction
                 of
                 the
                 Legacy
                 ;
                 if
                 that
                 be
                 evicted
                 upon
                 defect
                 of
                 the
                 Heir
                 's
                 Right
                 ,
                 he
                 is
                 lyable
                 for
                 Warrandice
                 .
                 As
                 if
                 an
                 Heir
                 were
                 appointed
                 to
                 give
                 in
                 Legacy
                 ,
                 a
                 Horse
                 worth
                 such
                 a
                 price
                 ,
                 not
                 being
                 in
                 the
                 Heretage
                 ,
                 but
                 delivered
                 by
                 the
                 Heir
                 ,
                 to
                 satisfie
                 the
                 Legacy
                 ;
                 if
                 the
                 Horse
                 be
                 evicted
                 ,
                 the
                 Legatar
                 hath
                 Warrandice
                 against
                 the
                 Heir
                 :
                 because
                 it
                 is
                 not
                 the
                 Defunct's
                 Right
                 ,
                 but
                 the
                 Heir
                 's
                 Right
                 that
                 fails
                 .
              
               
               
                 Legacies
                 ,
                 and
                 particular
                 Fideicommisses
                 ,
                 not
                 being
                 for
                 Restitution
                 of
                 the
                 whole
                 Heretage
                 ,
                 or
                 any
                 special
                 Part
                 ,
                 or
                 Quota
                 thereof
                 ;
                 are
                 equiparat
                 :
                 as
                 Fideicommisses
                 of
                 the
                 Heretage
                 ,
                 or
                 a
                 Quota
                 thereof
                 are
                 equivalent
                 to
                 the
                 Institution
                 ,
                 or
                 Substitution
                 of
                 Heirs
                 .
                 And
                 either
                 Legacies
                 ,
                 or
                 Fideicommisses
                 may
                 be
                 general
                 ,
                 whereby
                 a
                 quantity
                 is
                 left
                 ;
                 or
                 special
                 ,
                 whereby
                 an
                 individual
                 Body
                 is
                 left
                 ,
                 as
                 such
                 a
                 Horse
                 ,
                 &c.
                 so
                 may
                 they
                 either
                 be
                 left
                 purely
                 ,
                 or
                 conditionally
                 ,
                 or
                 to
                 a
                 day
                 .
              
               
                 21.
                 
                 This
                 is
                 common
                 to
                 all
                 Legacies
                 ,
                 that
                 if
                 the
                 Legatar
                 die
                 before
                 the
                 Testator
                 ,
                 the
                 Legacy
                 becomes
                 void
                 ,
                 and
                 is
                 not
                 transmitted
                 to
                 the
                 Heirs
                 ,
                 and
                 Successors
                 of
                 the
                 Legatar
                 .
                 Neither
                 doth
                 the
                 Legacy
                 belong
                 to
                 the
                 Legatar
                 ordinarly
                 ,
                 if
                 the
                 Testament
                 wherein
                 it
                 is
                 left
                 be
                 void
                 ,
                 for
                 want
                 of
                 the
                 requisit
                 〈◊〉
                 ,
                 (
                 of
                 which
                 formerly
                 ;
                 )
                 unless
                 it
                 have
                 the
                 codicillar
                 Clause
                 ,
                 or
                 if
                 the
                 Heir
                 do
                 not
                 enter
                 ,
                 or
                 if
                 the
                 Codicills
                 in
                 which
                 it
                 is
                 left
                 ,
                 or
                 if
                 the
                 Testament
                 ,
                 having
                 the
                 codicillar
                 Clause
                 ,
                 want
                 the
                 Solemnities
                 requisit
                 to
                 Codicills
                 .
              
               
                 22.
                 
                 If
                 the
                 Legacy
                 ,
                 or
                 Fideicommisses
                 be
                 conditional
                 ,
                 the
                 Legatar
                 dying
                 before
                 the
                 existence
                 of
                 the
                 Condition
                 ,
                 loseth
                 the
                 Legacy
                 ;
                 and
                 doth
                 not
                 transmit
                 it
                 to
                 his
                 Heir
                 ,
                 if
                 it
                 be
                 a
                 casual
                 Condition
                 :
                 but
                 if
                 it
                 be
                 a
                 potestative
                 Condition
                 depending
                 upon
                 the
                 power
                 of
                 the
                 Legatar
                 ,
                 and
                 not
                 upon
                 accident
                 without
                 his
                 power
                 ;
                 or
                 if
                 left
                 to
                 an
                 uncertain
                 day
                 ,
                 which
                 is
                 equivalent
                 to
                 a
                 casual
                 Condition
                 :
                 if
                 so
                 the
                 Condition
                 be
                 in
                 the
                 Legatar's
                 power
                 ,
                 (
                 unless
                 he
                 did
                 all
                 diligence
                 to
                 satisfie
                 the
                 same
                 )
                 he
                 loseth
                 the
                 Legacy
                 .
                 But
                 if
                 the
                 Condition
                 fail
                 not
                 through
                 his
                 fault
                 ,
                 as
                 being
                 offered
                 and
                 not
                 accepted
                 ,
                 or
                 being
                 impeded
                 by
                 any
                 third
                 party
                 ;
                 the
                 Legacy
                 is
                 thereby
                 transmitted
                 to
                 the
                 Legatar's
                 Heirs
                 ,
                 who
                 are
                 only
                 lyable
                 for
                 the
                 interest
                 of
                 the
                 Condition
                 .
              
               
                 Legacies
                 pure
                 or
                 
                   to
                   a
                   certain
                   day
                
                 ,
                 are
                 transmitted
                 by
                 the
                 Death
                 of
                 the
                 Testator
                 ;
                 especially
                 if
                 the
                 Heir
                 be
                 entered
                 ,
                 though
                 the
                 day
                 be
                 not
                 come
                 :
                 
                   quia
                   cessit
                   dies
                   ,
                   sed
                   non
                   venit
                   .
                
              
               
                 23.
                 
                 In
                 the
                 several
                 Cases
                 ,
                 by
                 which
                 Legacies
                 are
                 established
                 ,
                 and
                 transmissible
                 ,
                 the
                 property
                 thereof
                 is
                 in
                 the
                 Person
                 of
                 the
                 Legatar
                 ,
                 if
                 it
                 be
                 a
                 special
                 Legacy
                 :
                 but
                 the
                 possession
                 thereof
                 remains
                 in
                 the
                 Heir
                 ,
                 against
                 whom
                 the
                 Legatar
                 hath
                 not
                 only
                 a
                 personal
                 Action
                 ,
                 for
                 payment
                 or
                 delivery
                 of
                 the
                 Legacy
                 ;
                 but
                 hath
                 also
                 a
                 real
                 Action
                 of
                 vendication
                 ,
                 against
                 him
                 ,
                 and
                 all
                 other
                 havers
                 thereof
                 ,
                 for
                 delivety
                 of
                 the
                 same
                 .
                 So
                 fideicommisses
                 ,
                 which
                 are
                 not
                 conditional
                 ,
                 are
                 not
                 alienable
                 by
                 the
                 Heir
                 ,
                 but
                 are
                 recoverable
                 from
                 every
                 singular
                 Successor
                 .
              
               
                 24.
                 
                 Conditions
                 adjected
                 to
                 Legacies
                 ,
                 or
                 fideicommisses
                 ,
                 are
                 of
                 diverse
                 kinds
                 ;
                 of
                 which
                 shortly
                 observe
                 ;
                 1.
                 
                 That
                 when
                 Conditions
                 are
                 copulative
                 ,
                 they
                 must
                 all
                 be
                 joyntly
                 performed
                 :
                 or
                 when
                 diverse
                 Conditions
                 are
                 severally
                 set
                 down
                 in
                 several
                 places
                 of
                 the
                 Testament
                 .
                 But
                 if
                 they
                 be
                 disjunctive
                 ,
                 the
                 〈◊〉
                 formance
                 of
                 any
                 of
                 them
                 is
                 sufficient
                 .
                 2.
                 
                 If
                 the
                 Condition
                 be
                 divisible
                 ,
                 and
                 performable
                 by
                 more
                 persons
                 ;
                 each
                 performing
                 his
                 part
                 ,
                 hath
                 access
                 to
                 his
                 Legacy
                 .
                 But
                 if
                 it
                 be
                 imposed
                 upon
                 one
                 person
                 ,
                 the
                 performance
                 of
                 a
                 part
                 thereof
                 ,
                 doth
                 not
                 give
                 access
                 to
                 a
                 proportionable
                 part
                 of
                 the
                 Legacy
                 :
                 but
                 the
                 Condition
                 must
                 be
                 wholly
                 performed
                 ,
                 otherways
                 there
                 is
                 no
                 part
                 of
                 the
                 Legacy
                 due
                 .
                 3.
                 
                 Conditions
                 impossible
                 
                   in
                   facto
                
                 ,
                 as
                 not
                 being
                 lawful
                 ,
                 regularly
                 are
                 void
                 ,
                 and
                 as
                 not
                 adjected
                 .
                 Amongst
                 which
                 that
                 is
                 accounted
                 one
                 ,
                 if
                 Marriage
                 be
                 absolutely
                 prohibited
                 :
                 which
                 the
                 Authenticks
                 restricted
                 only
                 to
                 
                 
                 
                 Maids
                 ,
                 and
                 found
                 it
                 lawful
                 in
                 the
                 case
                 of
                 Widows
                 ,
                 to
                 adject
                 such
                 a
                 Condition
                 ,
                 
                   si
                   Titionubat
                
                 ;
                 and
                 therefore
                 if
                 the
                 Legater
                 married
                 not
                 to
                 that
                 Person
                 ,
                 the
                 Legacy
                 was
                 not
                 due
                 .
              
               
                 In
                 Legacies
                 and
                 fideicommissis
                 ,
                 a
                 false
                 Narrative
                 vitiats
                 not
                 :
                 as
                 when
                 the
                 
                   efficient
                   Cause
                
                 ,
                 mentioned
                 therein
                 ,
                 was
                 not
                 true
                 .
                 for
                 example
                 ;
                 if
                 a
                 Legacy
                 be
                 left
                 ,
                 bearing
                 to
                 have
                 been
                 for
                 Services
                 done
                 ,
                 generally
                 or
                 particularly
                 ;
                 albeit
                 these
                 were
                 not
                 done
                 ,
                 it
                 is
                 valid
                 .
                 But
                 the
                 expression
                 of
                 the
                 
                   final
                   Cause
                
                 implys
                 a
                 condition
                 :
                 and
                 if
                 it
                 be
                 not
                 performed
                 ,
                 the
                 Legacy
                 ceaseth
                 ,
                 
                   causâ
                   non
                   sequntâ
                
                 ,
                 As
                 when
                 Legacies
                 are
                 left
                 for
                 such
                 Uses
                 ,
                 Services
                 ,
                 or
                 Deeds
                 
                   to
                   be
                   done
                
                 .
                 Legacies
                 being
                 gratuitous
                 ,
                 are
                 of
                 the
                 nature
                 of
                 Donations
                 :
                 and
                 therefore
                 are
                 revocked
                 by
                 Ingratitude
                 ,
                 
                   Ipso
                   facto
                
                 ;
                 not
                 only
                 in
                 reaching
                 the
                 Defunct
                 ,
                 as
                 if
                 Inimity
                 rose
                 betwixt
                 him
                 and
                 the
                 Legatar
                 ;
                 but
                 even
                 after
                 his
                 Death
                 ,
                 as
                 if
                 he
                 curse
                 him
                 ,
                 or
                 endeavour
                 to
                 make
                 him
                 infamous
                 .
                 Yea
                 ,
                 those
                 things
                 against
                 the
                 Heir
                 ,
                 will
                 be
                 sufficient
                 to
                 take
                 away
                 the
                 Legacy
                 .
              
               
                 So
                 much
                 may
                 serve
                 for
                 a
                 Summary
                 of
                 the
                 Roman
                 Law
                 ,
                 in
                 the
                 matter
                 of
                 Testaments
                 .
                 As
                 for
                 the
                 Succession
                 of
                 the
                 Intestat
                 ,
                 it
                 being
                 one
                 ,
                 without
                 distinction
                 of
                 heretable
                 and
                 moveable
                 Rights
                 ,
                 we
                 have
                 spoken
                 thereof
                 before
                 ,
                 
                   Title
                   Succession
                
                 .
                 We
                 shall
                 therefore
                 only
                 touch
                 on
                 those
                 points
                 which
                 are
                 common
                 ,
                 in
                 all
                 Successions
                 ,
                 by
                 the
                 Roman
                 Law
                 ;
                 viz.
                 of
                 the
                 
                   Inventary
                   ,
                   Collation
                
                 of
                 Goods
                 ,
                 and
                 Right
                 of
                 Accrescence
                 .
              
               
                 25.
                 
                 The
                 Inventary
                 of
                 Heretage
                 ,
                 was
                 a
                 Repertory
                 of
                 every
                 Particular
                 contained
                 therein
                 :
                 and
                 was
                 contrary
                 to
                 the
                 Rules
                 of
                 the
                 ancient
                 Roman
                 Law
                 ,
                 
                   l.
                   si
                   dotis
                   nomine
                
                 ,
                 33.
                 
                   ff
                   .
                   soluto
                   matrimonio
                
                 ;
                 by
                 which
                 there
                 was
                 neither
                 a
                 Duty
                 nor
                 Benefit
                 to
                 the
                 Heir
                 by
                 an
                 Inventary
                 .
                 But
                 the
                 use
                 thereof
                 was
                 introduced
                 by
                 Justinian
                 in
                 favour
                 mainly
                 of
                 Heirs
                 ,
                 and
                 in
                 some
                 cases
                 of
                 Creditors
                 ,
                 and
                 Legatars
                 .
                 Of
                 Heirs
                 ,
                 that
                 they
                 might
                 not
                 be
                 lyable
                 for
                 the
                 Defunct's
                 Debts
                 
                   in
                   solidum
                
                 ,
                 but
                 
                   secundim
                   vires
                   inventarij
                
                 ,
                 according
                 to
                 the
                 value
                 of
                 the
                 Inheritance
                 .
                 And
                 this
                 much
                 in
                 favour
                 of
                 the
                 Creditors
                 and
                 Legatars
                 ,
                 that
                 the
                 Inheritance
                 might
                 not
                 be
                 imbesled
                 .
                 And
                 therefore
                 the
                 making
                 of
                 the
                 Inventary
                 was
                 appointed
                 to
                 be
                 with
                 great
                 Solemnity
                 ,
                 before
                 a
                 Judge
                 ,
                 upon
                 Citation
                 of
                 the
                 Creditors
                 ,
                 and
                 Legatars
                 ,
                 so
                 far
                 as
                 they
                 were
                 certain
                 ;
                 and
                 publick
                 Proclamation
                 for
                 the
                 rest
                 :
                 and
                 before
                 famous
                 Witnesses
                 .
                 And
                 in
                 place
                 of
                 the
                 absent
                 Legatars
                 and
                 Creditors
                 ,
                 three
                 persons
                 were
                 to
                 be
                 present
                 ,
                 besides
                 the
                 Witnesses
                 ,
                 of
                 good
                 Fame
                 and
                 Means
                 .
                 The
                 Inventary
                 behoved
                 to
                 be
                 made
                 within
                 30
                 dayes
                 ,
                 after
                 the
                 Heir
                 knew
                 and
                 could
                 enter
                 to
                 the
                 Heretage
                 ;
                 and
                 behoved
                 to
                 be
                 compleat
                 within
                 60.
                 dayes
                 after
                 the
                 beginning
                 thereof
                 .
                 The
                 Inventary
                 not
                 being
                 thus
                 made
                 ,
                 the
                 Heir
                 was
                 lyable
                 to
                 the
                 Creditors
                 for
                 their
                 whole
                 Debts
                 ,
                 and
                 to
                 the
                 Legatars
                 for
                 their
                 Legacies
                 ;
                 without
                 deduction
                 of
                 his
                 Falcidia
                 .
                 Neither
                 could
                 the
                 Testator
                 dispense
                 with
                 ,
                 or
                 prohibite
                 the
                 making
                 of
                 the
                 Inventary
                 ,
                 in
                 prejudice
                 of
                 the
                 Creditors
                 :
                 but
                 he
                 might
                 in
                 prejudice
                 of
                 the
                 Legatars
                 ,
                 so
                 as
                 the
                 Falcidia
                 would
                 be
                 due
                 ,
                 in
                 that
                 case
                 ,
                 though
                 the
                 Inventary
                 were
                 not
                 made
                 .
              
               
                 26.
                 
                 Collation
                 is
                 the
                 Obligation
                 of
                 the
                 nearest
                 Heirs
                 descending
                 ,
                 to
                 communicate
                 what
                 the
                 Defunct
                 Parent
                 bestowed
                 upon
                 them
                 ,
                 by
                 Donation
                 ,
                 or
                 Tocher
                 ,
                 unto
                 the
                 Inheritance
                 :
                 that
                 an
                 equal
                 Proportion
                 or
                 Division
                 might
                 be
                 of
                 the
                 whole
                 ,
                 amongst
                 the
                 Co-heirs
                 .
              
               
                 The
                 reason
                 of
                 this
                 Collation
                 was
                 ,
                 the
                 equality
                 of
                 interest
                 and
                 affection
                 of
                 Parents
                 ,
                 to
                 their
                 Children
                 ,
                 of
                 the
                 same
                 Degree
                 ,
                 and
                 thence
                 their
                 presumed
                 
                 Will
                 ,
                 that
                 these
                 should
                 enjoy
                 equal
                 benefite
                 by
                 their
                 Parents
                 .
                 And
                 therefore
                 if
                 it
                 appeared
                 ,
                 not
                 to
                 have
                 been
                 the
                 Parents
                 Will
                 ,
                 Collation
                 had
                 no
                 place
                 .
                 As
                 if
                 the
                 thing
                 were
                 bestowed
                 ,
                 with
                 express
                 exemption
                 ,
                 ot
                 prohibition
                 of
                 Collation
                 ,
                 or
                 if
                 it
                 were
                 left
                 as
                 a
                 Legacy
                 ,
                 or
                 Donation
                 ,
                 
                   mortis
                   causa
                
                 :
                 for
                 thereby
                 the
                 Parents
                 purpose
                 appeared
                 ,
                 to
                 prefer
                 that
                 Child
                 to
                 the
                 rest
                 ,
                 even
                 after
                 the
                 Parents
                 Death
                 .
              
               
                 Collation
                 was
                 competent
                 amongst
                 no
                 other
                 Heirs
                 ,
                 than
                 Descendents
                 in
                 the
                 same
                 Degree
                 ;
                 and
                 not
                 amongst
                 extraneous
                 Heirs
                 ,
                 institute
                 ,
                 or
                 substitute
                 ;
                 or
                 amongst
                 Ascendents
                 ,
                 or
                 collateral
                 Heirs
                 :
                 but
                 only
                 when
                 the
                 Co-heirs
                 were
                 by
                 Testament
                 ,
                 or
                 from
                 the
                 Intestat
                 ,
                 who
                 are
                 in
                 the
                 same
                 Degree
                 ,
                 as
                 being
                 all
                 Children
                 ,
                 or
                 all
                 Oyes
                 ,
                 &c.
                 
                 But
                 if
                 Children
                 ,
                 or
                 Grand-children
                 were
                 institute
                 or
                 substitute
                 together
                 ,
                 there
                 was
                 no
                 Collation
                 .
              
               
                 Amongst
                 things
                 bestowed
                 upon
                 Children
                 by
                 their
                 Parents
                 ,
                 their
                 peculiar
                 Provisions
                 and
                 Tochers
                 were
                 comprehended
                 :
                 but
                 not
                 their
                 Entertainment
                 ,
                 or
                 Expense
                 of
                 their
                 Education
                 .
                 And
                 therefore
                 though
                 one
                 Child
                 were
                 elder
                 ,
                 or
                 longer
                 entertained
                 than
                 the
                 rest
                 ,
                 or
                 though
                 more
                 sumptuously
                 ;
                 or
                 though
                 educated
                 with
                 more
                 noble
                 Accomplishments
                 ,
                 and
                 at
                 a
                 greater
                 Rate
                 ,
                 as
                 being
                 bred
                 at
                 Schools
                 ,
                 Trades
                 ,
                 Exercises
                 ,
                 &c.
                 neither
                 the
                 Instruments
                 requisite
                 for
                 these
                 as
                 Books
                 ,
                 Cloaths
                 ,
                 or
                 the
                 like
                 ,
                 came
                 under
                 Collation
                 ,
                 or
                 was
                 there
                 any
                 estimate
                 or
                 consideration
                 thereof
                 .
                 The
                 reason
                 is
                 ,
                 because
                 Entertainment
                 and
                 Education
                 is
                 presumed
                 to
                 be
                 according
                 to
                 the
                 fitness
                 and
                 capacity
                 of
                 the
                 Persons
                 ,
                 whereunto
                 a
                 proportion
                 is
                 observed
                 in
                 all
                 Societies
                 and
                 Communions
                 .
                 And
                 therefore
                 the
                 Parents
                 are
                 presumed
                 to
                 have
                 expended
                 upon
                 their
                 Children
                 proportionally
                 ,
                 according
                 to
                 the
                 capacity
                 and
                 excellency
                 of
                 their
                 Spirits
                 ,
                 and
                 to
                 render
                 them
                 fit
                 to
                 the
                 services
                 of
                 their
                 Generation
                 :
                 which
                 as
                 they
                 have
                 a
                 Benefit
                 ,
                 so
                 have
                 with
                 them
                 a
                 large
                 Burthen
                 ,
                 and
                 oft-times
                 Hazard
                 .
                 Neither
                 do
                 Donations
                 to
                 Children
                 for
                 any
                 special
                 Service
                 done
                 to
                 the
                 Parents
                 ,
                 come
                 under
                 Collarion
                 :
                 because
                 these
                 are
                 not
                 properly
                 Donations
                 ,
                 but
                 Remunerations
                 .
              
               
                 27.
                 
                 The
                 Right
                 of
                 Accrescence
                 ,
                 is
                 that
                 whereby
                 the
                 Portion
                 of
                 an
                 Heir
                 ,
                 Legatar
                 ,
                 or
                 fideicommissar
                 ,
                 befalleth
                 to
                 another
                 :
                 not
                 by
                 a
                 new
                 and
                 several
                 Succession
                 ,
                 but
                 by
                 the
                 first
                 Succession
                 ,
                 and
                 as
                 a
                 part
                 thereof
                 .
                 We
                 have
                 litle
                 use
                 of
                 this
                 :
                 and
                 therefore
                 I
                 shall
                 be
                 shorter
                 ,
                 in
                 the
                 many
                 and
                 subtile
                 Debates
                 ,
                 agitat
                 amongst
                 the
                 Doctors
                 thereupon
                 .
                 For
                 taking
                 clearly
                 up
                 this
                 Right
                 ,
                 we
                 must
                 take
                 notice
                 ,
                 that
                 Co-heirs
                 by
                 Testament
                 ,
                 or
                 Legatars
                 ,
                 or
                 〈◊〉
                 ,
                 are
                 either
                 appoynted
                 conjunct
                 by
                 the
                 words
                 of
                 the
                 Testator
                 ,
                 or
                 by
                 the
                 matter
                 :
                 or
                 conjunct
                 as
                 to
                 the
                 words
                 ,
                 but
                 〈◊〉
                 as
                 to
                 the
                 matter
                 :
                 or
                 wholly
                 several
                 ,
                 both
                 as
                 to
                 words
                 and
                 matter
                 .
                 As
                 if
                 the
                 Testator
                 say
                 ,
                 
                   Titius
                   and
                   Mevius
                   shall
                   be
                   my
                   Heirs
                   :
                
                 there
                 the
                 copulative
                 conjunction
                 joyns
                 them
                 in
                 the
                 same
                 Sentence
                 ,
                 and
                 they
                 are
                 joynt
                 in
                 the
                 same
                 Inheritance
                 ,
                 without
                 expressing
                 their
                 distinct
                 Portions
                 ;
                 in
                 which
                 the
                 Law
                 interprets
                 them
                 equally
                 institute
                 .
                 The
                 like
                 is
                 ,
                 if
                 he
                 leave
                 a
                 Legacy
                 ,
                 or
                 fideicommissum
                 ,
                 in
                 the
                 like
                 terms
                 .
                 But
                 where
                 the
                 Proportion
                 is
                 express
                 ,
                 equal
                 ,
                 or
                 unequal
                 ,
                 thus
                 ;
                 Let
                 
                   Titius
                   and
                   Maevius
                   be
                   my
                   Heirs
                   equally
                
                 ;
                 or
                 ,
                 
                   let
                   Titius
                   be
                   Heir
                   in
                   one
                   half
                   ,
                   and
                   Maevius
                   and
                   Caius
                   in
                   another
                   half
                   :
                
                 here
                 Caius
                 and
                 Maevius
                 are
                 conjunct
                 in
                 words
                 and
                 matter
                 ;
                 but
                 they
                 are
                 several
                 from
                 Titius
                 ,
                 both
                 as
                 to
                 words
                 and
                 matter
                 .
                 Or
                 in
                 the
                 first
                 case
                 ,
                 Titius
                 and
                 Maevius
                 are
                 joyned
                 in
                 one
                 Sentence
                 ,
                 but
                 separat
                 as
                 to
                 the
                 matter
                 :
                 because
                 their
                 Portions
                 are
                 severed
                 and
                 exprest
                 .
                 But
                 if
                 the
                 Testator
                 say
                 thus
                 ;
                 
                   I
                   leave
                   Titius
                   my
                   dwelling
                   House
                   ,
                
                 and
                 say
                 after
                 ,
                 
                   I
                   leave
                   Maevius
                   the
                   same
                   dwelling
                   House
                   ,
                
                 there
                 is
                 no
                 conjunction
                 of
                 words
                 :
                 because
                 to
                 both
                 severally
                 
                 the
                 same
                 thing
                 is
                 left
                 .
                 In
                 all
                 these
                 Cases
                 there
                 may
                 be
                 Substitutions
                 :
                 we
                 shall
                 then
                 set
                 down
                 the
                 Right
                 of
                 Accrescence
                 in
                 the
                 several
                 Cases
                 thereof
                 .
              
               
                 First
                 ,
                 in
                 the
                 Institution
                 or
                 Substitution
                 of
                 Heirs
                 directly
                 ,
                 there
                 is
                 place
                 for
                 Accrescence
                 ,
                 whether
                 the
                 Co-heirs
                 be
                 conjunct
                 or
                 disjunct
                 .
                 The
                 reason
                 is
                 ,
                 because
                 of
                 that
                 principle
                 of
                 the
                 Civil
                 Law
                 ,
                 that
                 no
                 man
                 can
                 die
                 partly
                 Testat
                 and
                 partly
                 Intestat
                 ,
                 except
                 in
                 Military
                 Testaments
                 .
                 And
                 therefore
                 if
                 any
                 of
                 the
                 Co-heirs
                 will
                 not
                 ,
                 or
                 cannot
                 enter
                 ;
                 the
                 Inheritance
                 accresceth
                 necessarly
                 unto
                 the
                 other
                 Co-heir
                 ,
                 with
                 its
                 own
                 burthen
                 ,
                 whatever
                 it
                 be
                 .
                 Neither
                 can
                 the
                 Heir
                 reject
                 that
                 Portion
                 ,
                 for
                 the
                 same
                 reason
                 :
                 and
                 if
                 he
                 enter
                 before
                 the
                 other
                 Heir
                 be
                 excluded
                 ,
                 he
                 hath
                 no
                 remedy
                 ,
                 and
                 can
                 neither
                 reject
                 the
                 whole
                 nor
                 a
                 part
                 :
                 because
                 he
                 might
                 ,
                 and
                 should
                 have
                 seen
                 to
                 the
                 other's
                 Entry
                 ,
                 with
                 him
                 ,
                 or
                 else
                 he
                 enters
                 on
                 his
                 peril
                 .
                 This
                 takes
                 no
                 place
                 in
                 Legacies
                 ,
                 or
                 〈◊〉
                 ;
                 because
                 in
                 these
                 ,
                 the
                 ground
                 of
                 Law
                 proceeds
                 not
                 .
                 And
                 therefore
                 if
                 any
                 Heretage
                 be
                 ordered
                 to
                 be
                 restored
                 to
                 such
                 persons
                 ,
                 severally
                 in
                 distinct
                 Portions
                 ,
                 if
                 one
                 of
                 them
                 will
                 not
                 ,
                 or
                 cannot
                 accept
                 ,
                 that
                 Portion
                 accresceth
                 not
                 to
                 the
                 other
                 ,
                 but
                 returns
                 to
                 the
                 Heir
                 .
                 And
                 so
                 in
                 Legacies
                 ,
                 if
                 there
                 be
                 a
                 Substitution
                 to
                 any
                 of
                 the
                 Heirs
                 ,
                 the
                 Portion
                 accresceth
                 not
                 :
                 because
                 there
                 is
                 place
                 for
                 the
                 Substitute
                 ,
                 who
                 becomes
                 Co-heir
                 with
                 the
                 other
                 Institute
                 .
                 This
                 Accrescence
                 is
                 so
                 necessary
                 ,
                 that
                 the
                 Testator
                 cannot
                 prohibite
                 it
                 ,
                 because
                 he
                 cannot
                 die
                 tested
                 ,
                 
                   pro
                   parte
                
                 .
                 And
                 therefore
                 
                   provisio
                   hominis
                   ,
                   non
                   tollit
                   provisionem
                   legis
                   ,
                
                 being
                 as
                 to
                 the
                 necessary
                 Requisits
                 ,
                 Essentials
                 ,
                 and
                 Solemnities
                 of
                 Law.
                 
              
               
                 Secondly
                 ,
                 in
                 the
                 Institution
                 or
                 Substitution
                 of
                 Heirs
                 ,
                 or
                 in
                 Legacies
                 ,
                 and
                 〈◊〉
                 ,
                 if
                 there
                 be
                 more
                 Persons
                 ,
                 and
                 some
                 of
                 them
                 joynt
                 as
                 to
                 both
                 matter
                 and
                 words
                 ;
                 the
                 Rights
                 of
                 those
                 so
                 conjunct
                 do
                 accresce
                 ,
                 (
                 if
                 any
                 of
                 the
                 Persons
                 so
                 〈◊〉
                 ,
                 do
                 not
                 ,
                 or
                 cannot
                 accept
                 ,
                 )
                 to
                 the
                 rest
                 of
                 the
                 Conjuncts
                 :
                 and
                 not
                 to
                 those
                 that
                 are
                 disjunct
                 in
                 the
                 matter
                 ,
                 though
                 they
                 be
                 conjunct
                 in
                 the
                 words
                 .
                 As
                 if
                 the
                 Testator
                 say
                 ,
                 
                   Let
                   Titius
                   be
                   my
                   Heir
                
                 ;
                 and
                 thereafter
                 say
                 ,
                 
                   Let
                   Seius
                   and
                   Mavius
                   be
                   my
                   Heirs
                   :
                
                 if
                 Seius
                 or
                 Maevius
                 cannot
                 ,
                 or
                 will
                 not
                 enter
                 ;
                 their
                 Portion
                 accresceth
                 to
                 the
                 other
                 ,
                 and
                 not
                 to
                 Titius
                 .
                 And
                 therefore
                 this
                 Conjunction
                 is
                 called
                 a
                 
                   tacit
                   Substitution
                
                 ,
                 because
                 the
                 Law
                 presumes
                 that
                 the
                 Testator
                 did
                 not
                 inconsideratly
                 ,
                 or
                 in
                 vain
                 ,
                 joyn
                 Seius
                 and
                 Maevius
                 in
                 one
                 Sentence
                 ;
                 and
                 put
                 Titius
                 in
                 another
                 by
                 himself
                 :
                 and
                 so
                 construeth
                 that
                 these
                 two
                 should
                 be
                 more
                 conjunct
                 ,
                 and
                 their
                 Portions
                 accresce
                 to
                 one
                 another
                 ,
                 and
                 not
                 to
                 Titius
                 .
              
               
                 Thirdly
                 ,
                 This
                 proceedeth
                 where
                 the
                 conjunction
                 is
                 only
                 in
                 words
                 ,
                 if
                 there
                 be
                 any
                 disjunct
                 both
                 in
                 matter
                 and
                 words
                 :
                 for
                 then
                 the
                 Conjunction
                 makes
                 the
                 Portions
                 of
                 the
                 Conjuncts
                 to
                 accresce
                 each
                 to
                 other
                 ,
                 and
                 not
                 to
                 those
                 who
                 are
                 wholly
                 disjunct
                 .
                 As
                 if
                 the
                 Testator
                 say
                 ,
                 Let
                 Titius
                 
                   be
                   my
                   Heir
                   in
                   the
                   Half
                   ,
                   and
                   let
                
                 Seius
                 and
                 Mevius
                 
                   be
                   my
                   Heirs
                   equallie
                   in
                   the
                   other
                   Half
                   :
                
                 Here
                 Seius
                 and
                 Mevius
                 are
                 conjunct
                 in
                 words
                 and
                 not
                 in
                 the
                 matter
                 ;
                 because
                 their
                 Portions
                 are
                 severed
                 ,
                 and
                 yet
                 their
                 Portions
                 accresce
                 to
                 other
                 ,
                 and
                 not
                 to
                 Titius
                 ,
                 who
                 is
                 wholly
                 disjunct
                 ;
                 and
                 that
                 from
                 the
                 
                   presumed
                   will
                
                 of
                 the
                 Defunct
                 ,
                 as
                 having
                 consideratly
                 put
                 them
                 in
                 one
                 sentence
                 for
                 that
                 purpose
                 .
                 But
                 this
                 takes
                 place
                 only
                 in
                 Institution
                 and
                 Substitution
                 of
                 Heirs
                 ,
                 that
                 the
                 Testator
                 die
                 not
                 partly
                 testat
                 :
                 but
                 not
                 in
                 Legacies
                 and
                 
                   Fidei
                   commissis
                
                 ;
                 for
                 in
                 these
                 the
                 Portion
                 of
                 the
                 Conjuncts
                 only
                 in
                 words
                 not
                 being
                 accepted
                 ,
                 doth
                 accresce
                 to
                 none
                 ,
                 but
                 returneth
                 to
                 the
                 Heir
                 .
              
               
               
                 Fourthly
                 ,
                 In
                 al
                 ,
                 Cases
                 where
                 there
                 is
                 conjunction
                 in
                 the
                 matter
                 ,
                 and
                 not
                 in
                 words
                 ,
                 there
                 is
                 place
                 to
                 Accrescence
                 .
                 As
                 if
                 the
                 Testator
                 say
                 ,
                 
                   I
                   leave
                   my
                   dwelling
                   House
                   to
                
                 Titius
                 ,
                 
                   I
                   desire
                   my
                   Heir
                   to
                   restore
                   the
                   same
                   dwelling
                   House
                   to
                
                 Mevius
                 ;
                 the
                 Portion
                 of
                 either
                 Party
                 not
                 accepting
                 ,
                 accresceth
                 to
                 the
                 other
                 ,
                 and
                 returneth
                 not
                 to
                 the
                 Heir
                 .
                 But
                 if
                 the
                 Testator
                 say
                 ,
                 
                   I
                   leave
                   my
                   House
                   to
                
                 Titius
                 ,
                 
                   I
                   leave
                   the
                   same
                   House
                   to
                
                 Seius
                 and
                 Mevius
                 ,
                 either
                 indefinitly
                 ,
                 or
                 expressing
                 their
                 Portions
                 ;
                 Seius
                 and
                 Mevius
                 their
                 Portions
                 accresce
                 each
                 to
                 other
                 ,
                 and
                 not
                 to
                 Titius
                 :
                 because
                 if
                 they
                 and
                 Titius
                 be
                 conjoyned
                 in
                 matter
                 only
                 ,
                 yet
                 they
                 are
                 also
                 conjoyned
                 in
                 word
                 ;
                 and
                 so
                 the
                 more
                 Conjunctions
                 prevail
                 ,
                 by
                 the
                 
                   presumed
                   Will
                
                 of
                 the
                 Defunct
                 .
              
               
                 This
                 kind
                 of
                 Accrescence
                 is
                 called
                 by
                 the
                 Doctors
                 ,
                 
                   jus
                   non
                   decrescendi
                
                 :
                 because
                 each
                 party
                 being
                 provided
                 to
                 the
                 whole
                 ,
                 which
                 cannot
                 be
                 effectual
                 :
                 therefore
                 
                   concursu
                   partes
                   faciunt
                
                 ,
                 and
                 the
                 Deed
                 is
                 made
                 effectual
                 to
                 them
                 in
                 part
                 equally
                 ;
                 if
                 the
                 Will
                 of
                 the
                 Defunct
                 appear
                 by
                 the
                 Provision
                 ,
                 not
                 to
                 take
                 away
                 the
                 former
                 wholly
                 ,
                 as
                 in
                 many
                 Cases
                 it
                 falleth
                 out
                 .
                 And
                 therefore
                 in
                 this
                 Accrescence
                 ,
                 if
                 any
                 burthen
                 be
                 adjected
                 ,
                 if
                 that
                 Party
                 accept
                 not
                 ,
                 his
                 Portion
                 aceresceth
                 to
                 the
                 other
                 ,
                 without
                 that
                 burthen
                 :
                 because
                 the
                 other
                 enjoys
                 his
                 own
                 Right
                 ,
                 which
                 was
                 total
                 ,
                 and
                 becomes
                 now
                 effectual
                 as
                 to
                 the
                 whole
                 :
                 the
                 impediment
                 that
                 retrenched
                 it
                 ,
                 being
                 wholly
                 taken
                 off
                 .
                 But
                 in
                 all
                 other
                 Conjunctions
                 ,
                 the
                 Portion
                 accresceth
                 with
                 its
                 burthen
                 .
                 And
                 therefore
                 the
                 accrescing
                 Portion
                 ,
                 as
                 being
                 special
                 ,
                 may
                 be
                 rejected
                 in
                 Legacies
                 ,
                 and
                 
                   Fidei
                   commissis
                
                 :
                 but
                 it
                 cannot
                 be
                 rejected
                 in
                 Institutions
                 or
                 Substitutions
                 ,
                 lest
                 the
                 Testator
                 should
                 be
                 intestat
                 in
                 part
                 .
                 But
                 
                   in
                   jure
                   non
                   decrescendi
                
                 ,
                 when
                 Portions
                 accresce
                 ,
                 amongst
                 those
                 that
                 are
                 conjoyned
                 in
                 the
                 matter
                 only
                 ;
                 the
                 Accrescence
                 is
                 necessary
                 ,
                 and
                 the
                 Portion
                 accrescing
                 cannot
                 be
                 rejected
                 :
                 because
                 it
                 befalleth
                 by
                 one
                 integral
                 Right
                 ,
                 which
                 either
                 must
                 be
                 accepted
                 wholly
                 ,
                 or
                 rejected
                 wholly
                 :
                 and
                 therein
                 
                   approbans
                   non
                   reprobat
                
                 ,
                 no
                 man
                 can
                 both
                 approve
                 ,
                 and
                 disapprove
                 ,
                 of
                 the
                 same
                 individual
                 thing
                 .
              
               
                 28.
                 
                 The
                 Law
                 and
                 Customs
                 of
                 Scotland
                 have
                 reduced
                 the
                 matter
                 of
                 Testaments
                 ,
                 and
                 Succession
                 in
                 Moveables
                 ,
                 much
                 nearer
                 to
                 natural
                 Equity
                 ,
                 and
                 made
                 it
                 much
                 shorter
                 and
                 plainer
                 than
                 the
                 
                   Roman
                   Law.
                
                 For
                 first
                 ,
                 the
                 
                   Civil
                   Law
                
                 did
                 lay
                 the
                 greatest
                 weight
                 ,
                 upon
                 the
                 free
                 power
                 of
                 testing
                 :
                 which
                 our
                 Law
                 hath
                 so
                 far
                 abridged
                 ,
                 that
                 all
                 Contracts
                 ,
                 Pactions
                 ,
                 and
                 Provisions
                 in
                 relation
                 to
                 the
                 Heretage
                 of
                 Persons
                 living
                 ,
                 are
                 valide
                 and
                 ordinary
                 ,
                 in
                 Contracts
                 of
                 Marriage
                 &c.
                 
                 And
                 even
                 
                   pactum
                   corvinum
                
                 ,
                 in
                 the
                 worst
                 sense
                 ,
                 is
                 valide
                 :
                 as
                 when
                 one
                 ,
                 being
                 provided
                 by
                 Contract
                 of
                 Marriage
                 to
                 be
                 a
                 Bairn
                 in
                 the
                 House
                 ,
                 sells
                 that
                 Portion
                 in
                 the
                 Lifetime
                 of
                 the
                 Contracter
                 .
                 Which
                 was
                 sustained
                 ,
                 6.
                 of
                 Julie
                 1630.
                 
                 Mr.
                 
                   James
                   Aikenhead
                
                 ,
                 contra
                 Bothwel
                 .
                 So
                 an
                 Obligement
                 to
                 leave
                 a
                 Legacy
                 ,
                 was
                 found
                 valide
                 ,
                 and
                 to
                 stand
                 as
                 an
                 irrevocable
                 Legacy
                 :
                 yet
                 only
                 to
                 be
                 taken
                 out
                 of
                 the
                 Defunct's
                 part
                 of
                 his
                 free
                 Goods
                 .
                 13.
                 of
                 Januarie
                 1631.
                 
                 Houstoune
                 contra
                 Houstoune
                 .
              
               
                 29.
                 
                 Secondly
                 ;
                 Not
                 only
                 may
                 the
                 power
                 of
                 testing
                 ,
                 be
                 restricted
                 by
                 Paction
                 ;
                 but
                 is
                 actually
                 restricted
                 by
                 Law
                 ,
                 to
                 extend
                 to
                 no
                 immoveable
                 or
                 heretable
                 Right
                 :
                 which
                 cannot
                 be
                 alienate
                 ,
                 or
                 affected
                 upon
                 Death-bed
                 ,
                 or
                 ,
                 which
                 is
                 equiparat
                 ,
                 by
                 Testament
                 ,
                 though
                 the
                 Testator
                 were
                 in
                 his
                 
                   liege
                   pousty
                
                 ,
                 or
                 perfect
                 Health
                 .
                 And
                 that
                 on
                 good
                 considerations
                 :
                 because
                 Persons
                 are
                 ordinarly
                 and
                 still
                 presumed
                 to
                 be
                 weak
                 ,
                 when
                 affected
                 with
                 Sickness
                 ,
                 and
                 so
                 not
                 fit
                 to
                 alienat
                 or
                 affect
                 things
                 of
                 their
                 greatest
                 concernment
                 ,
                 as
                 their
                 Lands
                 ,
                 Heretage
                 ,
                 &c.
                 
                 And
                 because
                 it
                 is
                 the
                 great
                 interest
                 of
                 Persons
                 ,
                 to
                 be
                 free
                 of
                 all
                 importunities
                 when
                 they
                 come
                 to
                 their
                 Death-bed
                 .
                 At
                 which
                 time
                 they
                 
                 are
                 only
                 capable
                 of
                 their
                 Deads
                 part
                 ,
                 which
                 is
                 seldom
                 〈◊〉
                 and
                 so
                 they
                 cannot
                 affect
                 their
                 Lands
                 ,
                 nor
                 can
                 they
                 further
                 dispose
                 of
                 their
                 Goods
                 ,
                 upon
                 the
                 Solicitation
                 of
                 Church-men
                 ,
                 which
                 is
                 very
                 powerful
                 in
                 the
                 Popish
                 Church
                 ,
                 where
                 Indulgences
                 and
                 Prayers
                 for
                 the
                 Dead
                 ,
                 to
                 bring
                 them
                 out
                 of
                 Purgatory
                 ,
                 are
                 believed
                 ,
                 and
                 cannot
                 but
                 be
                 forcible
                 upon
                 dying
                 Men
                 who
                 then
                 are
                 more
                 concerned
                 for
                 the
                 safety
                 of
                 their
                 Souls
                 ,
                 than
                 preservation
                 of
                 their
                 Estates
                 .
                 And
                 every
                 where
                 ,
                 the
                 pressing
                 Desires
                 of
                 Wives
                 for
                 themselves
                 ,
                 or
                 for
                 such
                 of
                 their
                 Children
                 as
                 they
                 most
                 affect
                 ,
                 or
                 of
                 Children
                 ,
                 Relations
                 ,
                 and
                 Friends
                 ,
                 may
                 have
                 great
                 impression
                 upon
                 the
                 Sick
                 for
                 preserving
                 their
                 Peace
                 and
                 Quiet
                 .
                 So
                 there
                 remains
                 nothing
                 testable
                 ,
                 but
                 moveable
                 Rights
                 .
                 What
                 Rights
                 are
                 moveable
                 ,
                 and
                 what
                 heretable
                 ,
                 see
                 in
                 the
                 beginning
                 of
                 the
                 
                   Title
                   ,
                   Rights
                   Real
                
                 ,
                 which
                 shall
                 not
                 be
                 here
                 repeted
                 .
                 Thence
                 it
                 is
                 ,
                 that
                 there
                 is
                 a
                 total
                 Separation
                 of
                 the
                 Succession
                 in
                 heritable
                 Rights
                 ,
                 which
                 are
                 only
                 competent
                 to
                 Heirs
                 ;
                 and
                 in
                 moveable
                 Rights
                 ,
                 as
                 to
                 which
                 because
                 they
                 were
                 intrusted
                 to
                 Prelats
                 ,
                 and
                 their
                 Officials
                 ,
                 as
                 being
                 presumed
                 most
                 careful
                 of
                 Widows
                 and
                 Orphans
                 ,
                 and
                 that
                 the
                 Will
                 of
                 Defuncts
                 should
                 be
                 effectual
                 ,
                 who
                 did
                 appoint
                 or
                 confirm
                 Persons
                 to
                 execute
                 the
                 Defunct's
                 Will
                 :
                 the
                 Persons
                 so
                 appointed
                 ,
                 or
                 confirmed
                 ,
                 were
                 called
                 Executors
                 ,
                 and
                 the
                 whole
                 moveable
                 Rights
                 of
                 Defuncts
                 ,
                 whether
                 tested
                 on
                 ,
                 or
                 from
                 the
                 intested
                 ,
                 are
                 comprehended
                 in
                 Executory
                 .
              
               
                 30.
                 
                 The
                 whole
                 interest
                 of
                 Executory
                 with
                 us
                 ,
                 is
                 in
                 the
                 Office
                 of
                 the
                 Executor
                 ;
                 the
                 Division
                 of
                 the
                 Communion
                 of
                 Goods
                 ,
                 betwixt
                 Man
                 and
                 Wife
                 ,
                 (
                 whereby
                 the
                 Relict
                 hath
                 her
                 Part
                 ;
                 )
                 the
                 Saccession
                 of
                 Children
                 ,
                 and
                 nearest
                 of
                 Kin
                 ;
                 or
                 Legacies
                 .
                 There
                 is
                 with
                 us
                 ,
                 properly
                 ,
                 no
                 Institution
                 or
                 Substitution
                 of
                 Heirs
                 .
                 for
                 albeit
                 the
                 Nomination
                 of
                 Executors
                 ,
                 be
                 in
                 the
                 Defuncts
                 power
                 ,
                 in
                 the
                 first
                 place
                 ;
                 and
                 doth
                 resemble
                 the
                 Institution
                 of
                 Heirs
                 ,
                 and
                 may
                 receive
                 Substitutions
                 ,
                 in
                 the
                 same
                 way
                 ;
                 yet
                 is
                 it
                 not
                 properly
                 a
                 Succession
                 ,
                 but
                 rather
                 an
                 Offce
                 ,
                 which
                 therefore
                 hath
                 a
                 part
                 of
                 the
                 Goods
                 .
                 Executors
                 are
                 Heirs
                 
                   in
                   mobililus
                
                 ,
                 and
                 when
                 Heirs
                 only
                 are
                 exprest
                 ,
                 Executors
                 are
                 comprehended
                 ,
                 
                   quoad
                   mobilia
                
                 .
                 If
                 there
                 be
                 Nomination
                 of
                 Executors
                 ,
                 with
                 a
                 material
                 Legacy
                 to
                 another
                 ,
                 it
                 is
                 a
                 fideicommissiry
                 Succession
                 ,
                 to
                 be
                 restored
                 to
                 the
                 universal
                 Legatar
                 .
                 And
                 Executors
                 dative
                 have
                 also
                 a
                 fideicommissary
                 Succession
                 ,
                 which
                 they
                 must
                 restore
                 to
                 the
                 Wife
                 ,
                 and
                 nearest
                 of
                 Kin
                 of
                 the
                 Defunct
                 .
                 So
                 must
                 Executors
                 nominat
                 ,
                 not
                 being
                 also
                 universal
                 Legatars
                 ,
                 and
                 being
                 strangers
                 :
                 retaining
                 only
                 a
                 third
                 of
                 Dead's
                 part
                 to
                 themselves
                 ,
                 for
                 executing
                 their
                 Office.
                 The
                 greatest
                 power
                 of
                 Defuncts
                 ,
                 either
                 by
                 Testament
                 ,
                 or
                 otherwayes
                 ,
                 is
                 the
                 power
                 of
                 legating
                 by
                 particular
                 or
                 universal
                 Legacies
                 .
                 The
                 interest
                 of
                 the
                 Wife
                 is
                 not
                 so
                 much
                 a
                 Succession
                 ,
                 as
                 a
                 Division
                 ,
                 of
                 that
                 Communion
                 of
                 moveable
                 Rights
                 ,
                 which
                 the
                 Law
                 stateth
                 betwixt
                 the
                 Husband
                 and
                 her
                 
                   stante
                   matrimonio
                
                 ,
                 and
                 which
                 is
                 dissolved
                 by
                 the
                 Dissolution
                 of
                 the
                 Marriage
                 :
                 and
                 so
                 she
                 taketh
                 her
                 share
                 of
                 the
                 free
                 Goods
                 by
                 way
                 of
                 Division
                 .
              
               
                 31.
                 
                 The
                 Succession
                 in
                 Moveables
                 from
                 the
                 intestat
                 ,
                 belongeth
                 to
                 the
                 nearest
                 of
                 Kin
                 ;
                 who
                 are
                 the
                 Defunct's
                 whole
                 Agnats
                 ,
                 male
                 or
                 female
                 ,
                 being
                 the
                 Kinsmen
                 of
                 the
                 Defunct's
                 Father's
                 side
                 ,
                 of
                 the
                 nearest
                 Degree
                 ,
                 without
                 primogeniture
                 or
                 Right
                 of
                 Representation
                 :
                 wherein
                 those
                 joyned
                 to
                 the
                 Defunct
                 by
                 both
                 Bloods
                 ,
                 do
                 exclude
                 the
                 Agnats
                 by
                 one
                 Blood.
                 
              
               
                 32.
                 
                 The
                 Line
                 of
                 Succession
                 in
                 Moveables
                 ,
                 is
                 first
                 ,
                 the
                 nearest
                 Descendents
                 ,
                 male
                 or
                 female
                 ,
                 in
                 the
                 same
                 Degree
                 ,
                 equally
                 ;
                 whether
                 Sons
                 or
                 Daughters
                 ,
                 without
                 Right
                 of
                 Representation
                 .
                 So
                 that
                 if
                 the
                 Defunct
                 ,
                 the
                 time
                 of
                 his
                 Deceass
                 
                 had
                 two
                 Daughters
                 ,
                 though
                 he
                 had
                 an
                 Oye
                 by
                 a
                 Son
                 ;
                 the
                 Daughters
                 will
                 exclude
                 the
                 Oye
                 ,
                 albeit
                 the
                 Defunct
                 had
                 nothing
                 but
                 Moveables
                 .
              
               
                 The
                 next
                 Degree
                 of
                 the
                 nearest
                 of
                 Kin
                 is
                 ,
                 Brothers
                 and
                 Sisters
                 german
                 :
                 and
                 failing
                 these
                 ,
                 Brothers
                 or
                 Sisters
                 by
                 the
                 Father's
                 side
                 only
                 ,
                 or
                 their
                 nearest
                 Descendents
                 of
                 the
                 same
                 Degree
                 ,
                 without
                 Right
                 of
                 Representation
                 .
              
               
                 As
                 to
                 the
                 third
                 Degree
                 of
                 Succession
                 in
                 Moveables
                 ,
                 failing
                 Descendents
                 ,
                 and
                 Brothers
                 and
                 Sisters
                 ,
                 and
                 their
                 Descendents
                 ;
                 the
                 Question
                 is
                 ,
                 Whether
                 the
                 Father
                 surviving
                 ,
                 will
                 exclude
                 his
                 own
                 Brother
                 ,
                 or
                 if
                 there
                 be
                 any
                 place
                 for
                 Ascendents
                 ,
                 in
                 the
                 Succession
                 of
                 Moveables
                 ?
                 Such
                 Cases
                 occur
                 rarely
                 :
                 and
                 I
                 have
                 not
                 observed
                 it
                 debated
                 ,
                 or
                 decyded
                 .
                 It
                 is
                 but
                 of
                 late
                 since
                 the
                 like
                 Case
                 hath
                 fallen
                 in
                 the
                 Succession
                 of
                 Heirs
                 ,
                 and
                 Heritable
                 Rights
                 :
                 wherein
                 our
                 Custom
                 hath
                 according
                 to
                 the
                 course
                 of
                 the
                 Law
                 of
                 Nature
                 ,
                 found
                 the
                 Father
                 to
                 be
                 Heir
                 to
                 his
                 Son
                 ,
                 and
                 not
                 the
                 Father-brother
                 ,
                 or
                 any
                 of
                 his
                 Descendents
                 ;
                 and
                 in
                 that
                 have
                 differed
                 from
                 the
                 Custom
                 of
                 England
                 .
                 And
                 there
                 is
                 no
                 reason
                 why
                 ,
                 if
                 the
                 Question
                 should
                 occurr
                 ,
                 that
                 the
                 like
                 should
                 not
                 be
                 done
                 in
                 Moveables
                 .
              
               
                 The
                 next
                 Degree
                 is
                 ,
                 the
                 Father's
                 Brethren
                 and
                 Sisters
                 german
                 ;
                 which
                 failing
                 ,
                 the
                 Father's
                 Brethren
                 and
                 Sisters
                 by
                 the
                 same
                 Grand-father
                 ,
                 and
                 their
                 Descendents
                 ,
                 in
                 the
                 next
                 Degree
                 .
                 In
                 all
                 which
                 both
                 Bloods
                 exclude
                 one
                 Blood.
                 And
                 if
                 there
                 be
                 no
                 Agnat
                 or
                 Kinsfolk
                 found
                 ,
                 who
                 can
                 instruct
                 their
                 propinquity
                 of
                 Blood
                 ;
                 the
                 Goods
                 become
                 caduciary
                 ,
                 and
                 confiscat
                 ,
                 and
                 belong
                 to
                 the
                 King
                 ,
                 as
                 
                   ultimus
                   haeres
                
                 ;
                 who
                 ,
                 and
                 his
                 Donatar
                 ,
                 have
                 the
                 same
                 interest
                 ,
                 that
                 the
                 nearest
                 of
                 Kin
                 would
                 have
                 had
                 .
                 
                   Vide
                   Title
                   ,
                   Confiscation
                
                 ,
                 Section
                 
                   Ultimus
                   hares
                
                 .
              
               
                 Children
                 
                   in
                   familia
                
                 ,
                 have
                 not
                 only
                 the
                 common
                 Right
                 ,
                 as
                 nearest
                 of
                 Kin
                 ;
                 but
                 have
                 their
                 
                   legittime
                   Portion
                
                 ,
                 called
                 the
                 Bairns
                 part
                 :
                 in
                 which
                 their
                 Father
                 cannot
                 by
                 Testament
                 ,
                 Legacy
                 ,
                 or
                 Donation
                 
                   '
                   mortis
                   causâ
                
                 ,
                 prejudge
                 them
                 ;
                 or
                 by
                 any
                 other
                 Deed
                 ,
                 on
                 Death-bed
                 .
              
               
                 By
                 the
                 Premises
                 it
                 appears
                 that
                 the
                 whole
                 power
                 of
                 Defuncts
                 ,
                 as
                 to
                 Succession
                 in
                 their
                 Moveables
                 ,
                 is
                 to
                 nominate
                 Executors
                 and
                 give
                 Legacies
                 .
              
               
                 33.
                 
                 The
                 Nomination
                 of
                 Executors
                 ,
                 is
                 properly
                 called
                 a
                 Testament
                 ,
                 Additions
                 thereto
                 ,
                 or
                 Alterations
                 thereof
                 ,
                 are
                 Codicils
                 .
                 Legacies
                 may
                 be
                 left
                 ,
                 whether
                 there
                 be
                 Testaments
                 or
                 not
                 ;
                 and
                 either
                 in
                 the
                 Testament
                 ,
                 Codicils
                 ,
                 or
                 apart
                 :
                 but
                 all
                 is
                 ambulatory
                 during
                 the
                 Defunct's
                 Life
                 ,
                 and
                 may
                 be
                 taken
                 away
                 expresly
                 ,
                 or
                 implicitely
                 ,
                 by
                 posterior
                 or
                 derogatory
                 Deeds
                 ;
                 unless
                 the
                 Defunct
                 be
                 obliged
                 by
                 Contract
                 ,
                 
                   inter
                   vivos
                
                 ,
                 not
                 to
                 alter
                 the
                 same
                 .
                 In
                 which
                 case
                 Contract
                 and
                 Paction
                 ,
                 doth
                 so
                 far
                 over-rule
                 the
                 power
                 of
                 testing
                 ;
                 that
                 posterior
                 Deeds
                 whether
                 expresly
                 ,
                 or
                 implicitely
                 altering
                 ,
                 would
                 be
                 ineffectual
                 ,
                 like
                 to
                 that
                 Obligement
                 ,
                 
                   to
                   leave
                   a
                   Legacy
                
                 ,
                 which
                 was
                 found
                 an
                 effectual
                 Legacy
                 without
                 further
                 Solemnity
                 .
                 January
                 30.
                 1631.
                 
                 Houstoun
                 contra
                 Houstoun
                 .
              
               
                 34.
                 
                 The
                 effect
                 of
                 Testaments
                 being
                 so
                 small
                 ,
                 the
                 Solemnities
                 thereof
                 are
                 no
                 other
                 ,
                 than
                 what
                 are
                 requisit
                 to
                 accomplish
                 any
                 other
                 Writ
                 .
                 For
                 two
                 Witnesses
                 suffice
                 ,
                 and
                 if
                 the
                 Testament
                 be
                 holograph
                 ,
                 it
                 is
                 valid
                 .
                 Or
                 if
                 the
                 Testator
                 cannot
                 ,
                 or
                 be
                 not
                 able
                 through
                 Sickness
                 ,
                 to
                 write
                 ,
                 a
                 Testament
                 will
                 be
                 sufficient
                 by
                 a
                 Notar
                 and
                 two
                 Witnesses
                 :
                 notwithstanding
                 the
                 Act
                 of
                 Parliament
                 
                 1579.
                 cap.
                 8.
                 requiring
                 to
                 Writs
                 of
                 importance
                 ,
                 two
                 Notars
                 and
                 four
                 Witnesses
                 ;
                 which
                 holds
                 not
                 in
                 Testaments
                 ,
                 though
                 containing
                 matter
                 of
                 great
                 importance
                 .
                 18.
                 of
                 January
                 1623.
                 
                 Bog
                 contra
                 
                   Robert
                   Hepburn
                
                 .
                 Yea
                 Ministers
                 are
                 authorized
                 as
                 Notars
                 ,
                 in
                 the
                 case
                 of
                 Testaments
                 .
                 Par.
                 1584.
                 cap.
                 133.
                 
                 The
                 reason
                 here
                 of
                 is
                 ;
                 because
                 Ministers
                 are
                 ordinarly
                 with
                 sick
                 Persons
                 the
                 time
                 of
                 their
                 Death
                 .
              
               
                 Nuncupative
                 Testaments
                 are
                 not
                 of
                 force
                 in
                 Scotland
                 .
                 For
                 though
                 Legacies
                 left
                 within
                 an
                 hundred
                 pounds
                 ,
                 may
                 be
                 nuncupative
                 ,
                 without
                 Writ
                 ;
                 yet
                 the
                 Nomination
                 will
                 not
                 so
                 subsist
                 ,
                 nor
                 be
                 respected
                 by
                 the
                 Commissaries
                 .
                 And
                 therefore
                 a
                 verbal
                 Testament
                 ,
                 taking
                 away
                 a
                 formal
                 Legacy
                 ,
                 subscrived
                 but
                 by
                 initial
                 Letters
                 ;
                 was
                 not
                 sustained
                 ,
                 though
                 made
                 at
                 Sea
                 ,
                 and
                 so
                 in
                 a
                 Case
                 of
                 necessity
                 :
                 and
                 not
                 admitted
                 to
                 be
                 proven
                 by
                 Witnesses
                 in
                 the
                 Ship.
                 Feb.
                 18.
                 1631.
                 
                 Houstoun
                 contra
                 Houstoun
                 .
              
               
                 35.
                 
                 The
                 effect
                 of
                 Testaments
                 is
                 not
                 greater
                 ,
                 though
                 made
                 in
                 England
                 ,
                 the
                 Testator
                 residing
                 there
                 :
                 and
                 so
                 extends
                 not
                 to
                 an
                 Heretable
                 Sum
                 due
                 in
                 Scotland
                 ,
                 left
                 in
                 Legacy
                 by
                 the
                 Testator
                 ,
                 being
                 a
                 
                   Scots-man
                   .
                   July
                
                 3.
                 1634.
                 
                 Melvil
                 contra
                 
                   Drummond
                   .
                   Hope
                
                 Testaments
                 ,
                 Purves
                 contra
                 Chisholm
                 .
                 Executors
                 of
                 Collonel
                 Henrison
                 ibid.
                 Neither
                 do
                 nuncupative
                 Testaments
                 of
                 Scots-men
                 ,
                 though
                 residing
                 ,
                 
                   animo
                   remanendi
                
                 ,
                 abroad
                 ,
                 and
                 dying
                 there
                 ;
                 have
                 any
                 effect
                 with
                 us
                 :
                 albeit
                 nuncupative
                 Testaments
                 be
                 valid
                 according
                 to
                 the
                 Law
                 and
                 Custom
                 of
                 that
                 Place
                 .
                 For
                 albeit
                 the
                 Custom
                 of
                 the
                 Place
                 ,
                 may
                 supply
                 the
                 Solemnity
                 of
                 any
                 Writs
                 ,
                 or
                 Evidents
                 ,
                 for
                 instructing
                 a
                 Right
                 ;
                 as
                 Writs
                 made
                 abroad
                 by
                 Nottaries
                 ,
                 and
                 Tabellions
                 ,
                 are
                 valid
                 ,
                 though
                 not
                 done
                 according
                 to
                 the
                 Law
                 of
                 Scotland
                 ,
                 which
                 requires
                 two
                 Notars
                 and
                 four
                 Witnesses
                 ,
                 in
                 Writs
                 of
                 importance
                 :
                 yet
                 the
                 Custom
                 of
                 those
                 Places
                 cannot
                 constitute
                 any
                 Right
                 of
                 Succession
                 ,
                 not
                 allowed
                 by
                 the
                 Law
                 of
                 Scotland
                 .
                 And
                 therefore
                 
                   William
                   Schaw
                
                 ,
                 Factor
                 and
                 Residenter
                 in
                 London
                 ,
                 having
                 lived
                 and
                 died
                 there
                 ,
                 in
                 the
                 House
                 of
                 one
                 
                   Mary
                   Lewins
                
                 ,
                 who
                 had
                 confirmed
                 ,
                 in
                 England
                 ,
                 a
                 nuncupative
                 Testament
                 ,
                 whereby
                 he
                 had
                 designed
                 her
                 as
                 Executrix
                 and
                 Legatrix
                 ;
                 and
                 the
                 nearest
                 of
                 Kin
                 of
                 the
                 said
                 William
                 ,
                 having
                 confirmed
                 themselves
                 Executors
                 to
                 him
                 ,
                 in
                 Scotland
                 ,
                 and
                 the
                 competition
                 being
                 betwixt
                 them
                 :
                 the
                 Lords
                 preferred
                 the
                 Executors
                 confirmed
                 in
                 Scotland
                 ,
                 and
                 had
                 no
                 respect
                 to
                 the
                 nuncupative
                 Testament
                 ,
                 as
                 having
                 no
                 effect
                 by
                 the
                 Law
                 of
                 
                   Scotland
                   .
                   January
                
                 19.
                 1665.
                 
                 Schaw
                 contra
                 Lewins
                 .
              
               
                 36.
                 
                 The
                 like
                 Solemnities
                 will
                 be
                 sufficient
                 for
                 Codicils
                 and
                 Legacies
                 .
                 A
                 nuncupative
                 Legacy
                 within
                 an
                 hundred
                 pounds
                 ,
                 is
                 probable
                 by
                 Witnesses
                 .
                 November
                 24.
                 1609.
                 
                 Russel
                 contra
                 July
                 7.
                 1629.
                 
                 Wallace
                 contra
                 Mure.
                 Where
                 a
                 greater
                 Legacy
                 ,
                 left
                 by
                 word
                 ,
                 restricted
                 to
                 an
                 hundred
                 pounds
                 ,
                 was
                 found
                 so
                 probable
                 .
              
               
                 37.
                 
                 The
                 power
                 of
                 Testing
                 is
                 competent
                 to
                 all
                 Persons
                 ,
                 who
                 have
                 the
                 use
                 of
                 Reason
                 ,
                 though
                 Minors
                 ,
                 having
                 Curators
                 not
                 consenting
                 :
                 Wives
                 cled
                 with
                 Husbands
                 ,
                 without
                 their
                 consent
                 ;
                 Persons
                 interdicted
                 ,
                 without
                 consent
                 of
                 the
                 Interdicters
                 :
                 but
                 not
                 to
                 Pupils
                 ,
                 Idiots
                 ,
                 furious
                 Persons
                 in
                 their
                 Furiosity
                 :
                 neither
                 to
                 Bastards
                 ,
                 not
                 having
                 lawful
                 Issue
                 ,
                 or
                 
                   testamenti
                   factionem
                
                 ,
                 by
                 the
                 Kings
                 Gift
                 ;
                 as
                 in
                 the
                 former
                 Case
                 ,
                 Wallace
                 contra
                 Mure.
                 Vide
                 
                   Tit.
                   Confiscation
                   §
                   .
                   Bastardry
                
                 .
              
               
                 38.
                 
                 Legacies
                 are
                 either
                 particular
                 or
                 universal
                 ,
                 general
                 or
                 special
                 .
                 Universal
                 Legacies
                 are
                 when
                 the
                 whole
                 Moveables
                 ,
                 in
                 so
                 far
                 as
                 is
                 in
                 the
                 Defunct's
                 
                 disposal
                 ,
                 and
                 not
                 left
                 by
                 particular
                 Legacies
                 ,
                 is
                 legat
                 .
                 and
                 so
                 it
                 is
                 
                   legalum
                   per
                   universitatem
                
                 ,
                 and
                 like
                 to
                 the
                 Succession
                 of
                 an
                 Heir
                 .
              
               
                 Special
                 Legacies
                 are
                 ,
                 where
                 some
                 Individual
                 is
                 left
                 ,
                 as
                 such
                 a
                 Horse
                 ,
                 Cloaths
                 ,
                 &c.
                 or
                 such
                 a
                 Sum
                 due
                 by
                 such
                 a
                 Person
                 :
                 whereby
                 the
                 Property
                 is
                 stated
                 in
                 the
                 Legatar
                 ,
                 and
                 at
                 most
                 ,
                 but
                 the
                 Possession
                 or
                 Custody
                 in
                 the
                 Executor
                 .
                 And
                 therefore
                 the
                 Legatar
                 may
                 pursue
                 for
                 Delivery
                 ,
                 or
                 Payment
                 of
                 the
                 special
                 Legacy
                 ,
                 against
                 the
                 Havers
                 or
                 Debitors
                 :
                 but
                 he
                 must
                 call
                 the
                 Executor
                 ,
                 that
                 his
                 interest
                 may
                 be
                 preserved
                 ;
                 least
                 the
                 Debts
                 exhaust
                 even
                 the
                 special
                 Legacy
                 .
                 Upon
                 which
                 consideration
                 ,
                 the
                 Lords
                 sustained
                 not
                 a
                 Pursuit
                 upon
                 a
                 special
                 Legacy
                 ,
                 leaving
                 a
                 Sum
                 due
                 by
                 such
                 a
                 Person
                 ,
                 in
                 such
                 a
                 Bond
                 ,
                 pursued
                 against
                 the
                 Debitor
                 ;
                 the
                 Executor
                 not
                 being
                 called
                 .
                 March
                 9.
                 1627.
                 
                 Forrester
                 contra
                 Clerk
                 And
                 before
                 ,
                 the
                 Pursuit
                 against
                 the
                 Debitor
                 ,
                 at
                 the
                 Legatar's
                 instance
                 ,
                 was
                 simply
                 repelled
                 ;
                 not
                 being
                 against
                 the
                 Executor
                 .
                 February
                 4.
                 1623.
                 
                 Laird
                 of
                 Balnamoon
                 contra
                 Balcomie
                 .
                 Yet
                 Process
                 was
                 sustained
                 at
                 the
                 instance
                 of
                 the
                 universal
                 Legatar
                 ,
                 against
                 the
                 Debitor
                 ,
                 the
                 Executor
                 being
                 also
                 called
                 .
                 Here
                 there
                 was
                 Malversation
                 betwixt
                 the
                 Executor
                 and
                 Debitors
                 .
                 But
                 ordinarly
                 ,
                 Legatars
                 have
                 no
                 immediat
                 Action
                 ,
                 against
                 the
                 Debitors
                 of
                 the
                 Defunct
                 ;
                 but
                 only
                 against
                 his
                 Executor
                 ,
                 
                   Hope
                   ,
                   Legacy
                   ,
                   Ballantine
                
                 contra
                 Mr.
                 
                   John
                   Eliot
                
                 .
              
               
                 Legacies
                 may
                 be
                 left
                 ,
                 not
                 only
                 in
                 Testaments
                 ,
                 or
                 Codicils
                 ;
                 but
                 where
                 there
                 is
                 none
                 :
                 or
                 where
                 there
                 is
                 in
                 Contract
                 ;
                 ,
                 Letters
                 ,
                 or
                 Tickets
                 apart
                 ;
                 though
                 the
                 Legacies
                 were
                 not
                 in
                 the
                 Confirmation
                 .
                 December
                 1.
                 1629.
                 
                 Executors
                 of
                 Sir
                 
                   William
                   Scot
                
                 contra
                 
                   Arthur
                   Rae
                
                 .
              
               
                 39.
                 
                 Legacies
                 ,
                 and
                 Donations
                 in
                 contemplation
                 of
                 Death
                 ,
                 or
                 done
                 on
                 Death
                 bed
                 ,
                 albeit
                 as
                 
                   inter
                   vivos
                
                 ;
                 yet
                 being
                 of
                 Moveables
                 ,
                 as
                 Bonds
                 ,
                 Assignations
                 ,
                 or
                 Gifts
                 of
                 Money
                 ,
                 or
                 Goods
                 on
                 Death-bed
                 :
                 have
                 the
                 like
                 effect
                 ,
                 and
                 are
                 only
                 effectual
                 ,
                 as
                 to
                 the
                 Defuncts
                 free
                 Goods
                 at
                 his
                 disposal
                 ,
                 which
                 is
                 called
                 the
                 Dead's
                 part
                 .
                 And
                 if
                 the
                 whole
                 Legacies
                 ,
                 exceed
                 Dead
                 's
                 part
                 of
                 the
                 free
                 Geere
                 ;
                 regularly
                 they
                 are
                 abated
                 proportionally
                 .
                 Wherein
                 there
                 is
                 no
                 preference
                 ,
                 nor
                 Priviledge
                 granted
                 to
                 Legacies
                 left
                 
                   ad
                   pias
                   causas
                
                 :
                 as
                 for
                 building
                 of
                 a
                 Kirk
                 ,
                 delivered
                 by
                 the
                 Defunct
                 long
                 ere
                 he
                 dyed
                 ;
                 which
                 suffered
                 proportionable
                 Defalcation
                 with
                 the
                 ordinary
                 Legacies
                 ,
                 July
                 8.
                 1630.
                 
                 Doctor
                 Monro
                 contra
                 Executors
                 of
                 
                   William
                   Scot.
                
                 But
                 if
                 the
                 Defunct
                 express
                 his
                 Will
                 ,
                 to
                 leave
                 a
                 Legacy
                 without
                 Defalcation
                 ;
                 it
                 will
                 not
                 be
                 defalked
                 with
                 the
                 other
                 Legacies
                 .
              
               
                 40.
                 
                 Whether
                 a
                 special
                 Legacy
                 ,
                 without
                 such
                 express
                 Will
                 of
                 the
                 Defunct
                 ,
                 will
                 be
                 abated
                 proportionally
                 with
                 other
                 Legacies
                 ;
                 I
                 have
                 not
                 observed
                 oft
                 decyded
                 .
                 But
                 I
                 conceive
                 it
                 will
                 not
                 bear
                 proportional
                 Deduction
                 :
                 because
                 though
                 not
                 the
                 express
                 ,
                 yet
                 the
                 tacit
                 and
                 presumed
                 Will
                 of
                 the
                 Defunct
                 seems
                 to
                 be
                 so
                 .
                 Else
                 why
                 should
                 he
                 leave
                 that
                 Legacy
                 more
                 specially
                 ,
                 than
                 the
                 rest
                 ?
                 Which
                 is
                 more
                 clear
                 in
                 things
                 left
                 in
                 Legacy
                 ;
                 as
                 when
                 a
                 Horse
                 ,
                 Sword
                 ,
                 Cloaths
                 &c.
                 are
                 left
                 ;
                 and
                 the
                 other
                 Legacies
                 are
                 not
                 special
                 :
                 there
                 seems
                 no
                 reason
                 ,
                 upon
                 failing
                 of
                 the
                 other
                 Legacies
                 ,
                 to
                 burthen
                 the
                 special
                 Legacies
                 ;
                 abated
                 they
                 cannot
                 be
                 ,
                 directly
                 ,
                 not
                 being
                 Quantities
                 but
                 Bodies
                 .
                 The
                 same
                 reason
                 is
                 in
                 Sums
                 specially
                 legat
                 :
                 for
                 though
                 it
                 may
                 appear
                 that
                 the
                 Defunct's
                 reason
                 may
                 be
                 ,
                 to
                 leave
                 such
                 a
                 special
                 Debt
                 ,
                 to
                 such
                 a
                 Legatar
                 ,
                 not
                 as
                 a
                 〈◊〉
                 ,
                 but
                 because
                 that
                 Debitor
                 is
                 less
                 solvendo
                 ;
                 yet
                 with
                 that
                 hazard
                 ,
                 the
                 other
                 advantage
                 is
                 consequent
                 ;
                 that
                 as
                 he
                 will
                 get
                 no
                 benefit
                 with
                 the
                 other
                 
                 
                 
                 Legatars
                 ,
                 solie
                 should
                 bear
                 no
                 abatement
                 with
                 them
                 .
                 It
                 was
                 so
                 decyded
                 July
                 21.
                 1665.
                 
                 Spreul
                 contra
                 Murray
                 .
              
               
                 41.
                 
                 Quaeritur
                 ,
                 Whether
                 ,
                 as
                 in
                 the
                 Civil
                 Law
                 ,
                 so
                 with
                 us
                 ,
                 if
                 the
                 Testator
                 leave
                 a
                 special
                 Legacy
                 ,
                 of
                 that
                 which
                 he
                 knows
                 is
                 not
                 his
                 own
                 ;
                 it
                 will
                 be
                 valid
                 
                   quoad
                   valorem
                
                 ?
                 It
                 was
                 found
                 ,
                 that
                 a
                 special
                 Legacy
                 left
                 of
                 an
                 heritable
                 Bond
                 ,
                 which
                 fell
                 not
                 in
                 Executory
                 ,
                 was
                 valid
                 ,
                 to
                 affect
                 the
                 Dead's
                 part
                 of
                 Moveables
                 ,
                 
                   pro
                   tanto
                
                 .
                 22
                 of
                 Januarie
                 1624.
                 
                 Drummond
                 contra
                 Drummond
                 .
              
               
                 A
                 Legacy
                 by
                 a
                 Wife
                 ,
                 ordaining
                 an
                 Executor
                 to
                 discharge
                 a
                 Bond
                 to
                 the
                 Legatar
                 ,
                 was
                 found
                 valid
                 ,
                 and
                 to
                 be
                 made
                 up
                 by
                 the
                 Wife's
                 Executors
                 ;
                 albeit
                 the
                 Half
                 of
                 the
                 Bond
                 belonged
                 to
                 the
                 Husband
                 
                   jure
                   mariti
                
                 :
                 as
                 being
                 
                   legatum
                   rei
                   aliena
                   scienter
                   legatae
                
                 ;
                 and
                 the
                 Wife
                 was
                 presumed
                 to
                 know
                 that
                 common
                 Principle
                 in
                 Law
                 ,
                 and
                 not
                 to
                 be
                 ignorant
                 thereof
                 .
                 18.
                 of
                 June
                 1664.
                 
                 Murray
                 contra
                 Executors
                 of
                 Rutherfoord
                 .
                 It
                 was
                 also
                 so
                 decided
                 ,
                 of
                 a
                 Bond
                 left
                 in
                 Legacy
                 ,
                 which
                 Bond
                 had
                 been
                 assigned
                 by
                 the
                 Defunct
                 to
                 another
                 ,
                 shortly
                 before
                 his
                 Death
                 ,
                 whereof
                 he
                 was
                 presumed
                 not
                 to
                 be
                 ignorant
                 .
                 14.
                 
                 June
                 1664.
                 
                 
                   Alexander
                   Falconer
                
                 contra
                 Mr.
                 
                   John
                   Dowgal
                
                 The
                 like
                 was
                 found
                 of
                 a
                 Legacy
                 ,
                 left
                 by
                 a
                 Defunct
                 ,
                 out
                 of
                 a
                 Sum
                 he
                 had
                 upon
                 such
                 Lands
                 ;
                 which
                 Sum
                 he
                 could
                 not
                 but
                 know
                 was
                 heretable
                 ,
                 and
                 could
                 not
                 be
                 legat
                 :
                 wherethe
                 Executor
                 ,
                 (
                 who
                 was
                 also
                 Heir
                 ,
                 )
                 was
                 decemed
                 to
                 make
                 good
                 the
                 Legacy
                 .
                 2.
                 of
                 December
                 1674.
                 
                 
                   Robert
                   Cranstoun
                
                 contra
                 Brown.
                 Yet
                 a
                 Legacy
                 being
                 special
                 ,
                 bearing
                 such
                 a
                 Bond
                 to
                 be
                 confirmed
                 ,
                 and
                 communicat
                 to
                 the
                 Legatar
                 ;
                 was
                 not
                 found
                 due
                 ,
                 or
                 to
                 be
                 made
                 up
                 :
                 in
                 respect
                 that
                 after
                 the
                 Legacy
                 ,
                 the
                 Defunct
                 made
                 that
                 Bond
                 heretable
                 ,
                 by
                 a
                 superveening
                 Security
                 ,
                 which
                 did
                 import
                 the
                 Revocation
                 of
                 the
                 Legacy
                 .
                 July
                 8.
                 1673.
                 
                 
                   Grizel
                   Edmondstoun
                
                 contra
                 
                   Margaret
                   Primrose
                
                 .
                 But
                 where
                 the
                 Testator
                 gives
                 a
                 special
                 Legacy
                 ,
                 of
                 that
                 which
                 he
                 supposeth
                 to
                 be
                 his
                 own
                 ;
                 he
                 giveth
                 it
                 ,
                 but
                 as
                 he
                 hath
                 it
                 ,
                 without
                 any
                 warrandice
                 ,
                 being
                 meerly
                 gratuitous
                 :
                 and
                 the
                 Executor
                 is
                 not
                 obliged
                 to
                 make
                 it
                 good
                 .
                 As
                 if
                 he
                 legat
                 a
                 Sum
                 ,
                 which
                 he
                 supposeth
                 moveable
                 ,
                 and
                 yet
                 is
                 truely
                 heretable
                 .
                 February
                 21.
                 1663.
                 
                 
                   Anna
                   Wardlaw
                
                 contra
                 Frazer
                 of
                 Kilmundie
                 .
              
               
                 42.
                 
                 Legacies
                 are
                 sometimes
                 left
                 together
                 ,
                 in
                 one
                 Writ
                 ,
                 and
                 sometimes
                 by
                 posterior
                 Writs
                 ,
                 which
                 do
                 not
                 derogat
                 to
                 the
                 prior
                 Legacies
                 ;
                 but
                 all
                 come
                 in
                 together
                 .
                 If
                 they
                 exceed
                 the
                 Defunct's
                 part
                 ,
                 they
                 suffer
                 all
                 ,
                 proportional
                 Abatement
                 ,
                 except
                 such
                 as
                 are
                 special
                 Legacies
                 .
                 For
                 if
                 one
                 Thing
                 ,
                 or
                 Sum
                 be
                 Specially
                 legat
                 to
                 one
                 Person
                 ,
                 and
                 by
                 a
                 posterior
                 Writ
                 ,
                 be
                 legat
                 to
                 another
                 ;
                 the
                 posterior
                 Legacy
                 takes
                 place
                 ,
                 and
                 is
                 a
                 Revocation
                 of
                 the
                 former
                 ;
                 and
                 they
                 do
                 not
                 come
                 in
                 together
                 ,
                 
                   concursu
                   partes
                   facere
                
                 ;
                 as
                 they
                 would
                 do
                 ,
                 if
                 left
                 in
                 one
                 Writ
                 ,
                 by
                 the
                 Roman
                 Law
                 ;
                 and
                 each
                 Legatar
                 would
                 have
                 but
                 a
                 Half.
                 But
                 we
                 have
                 no
                 such
                 Custom
                 ,
                 or
                 Style
                 ,
                 to
                 legat
                 the
                 same
                 thing
                 intirely
                 ,
                 to
                 different
                 Persons
                 ,
                 in
                 the
                 same
                 Writ
                 .
                 And
                 if
                 that
                 should
                 happen
                 ,
                 it
                 is
                 like
                 ,
                 that
                 the
                 posterior
                 Legacy
                 ,
                 though
                 in
                 the
                 same
                 Writ
                 ,
                 would
                 exclude
                 the
                 prior
                 ;
                 as
                 an
                 alteration
                 of
                 the
                 Testator's
                 mind
                 ,
                 while
                 his
                 Testament
                 was
                 a
                 framing
                 :
                 for
                 it
                 is
                 ordinary
                 in
                 the
                 same
                 Writ
                 ,
                 to
                 alter
                 prior
                 Clauses
                 ,
                 by
                 posterior
                 .
                 There
                 is
                 also
                 this
                 Exception
                 ,
                 of
                 the
                 Consistency
                 of
                 Legacies
                 ,
                 left
                 at
                 diverse
                 times
                 ,
                 that
                 the
                 Assignations
                 ,
                 as
                 
                   inter
                   vivos
                
                 ,
                 on
                 Death-bed
                 ,
                 have
                 only
                 the
                 effect
                 of
                 Legacies
                 .
                 Yet
                 posterior
                 Assignations
                 ,
                 though
                 not
                 special
                 ,
                 but
                 generally
                 ,
                 out
                 of
                 so
                 much
                 of
                 the
                 Defunct's
                 Means
                 ,
                 are
                 preferable
                 to
                 prior
                 general
                 Assignations
                 .
                 July
                 21.
                 1676.
                 
                 Trails
                 contra
                 Gordoun
                 .
                 And
                 Bonds
                 of
                 Provision
                 to
                 Children
                 ,
                 on
                 Death-bed
                 ,
                 though
                 they
                 have
                 but
                 the
                 effect
                 of
                 Legacies
                 ;
                 yet
                 they
                 do
                 not
                 
                 come
                 in
                 with
                 prior
                 Legacies
                 ,
                 to
                 suffer
                 a
                 proportional
                 Abatement
                 ,
                 but
                 are
                 preferred
                 thereto
                 .
                 December
                 14.
                 1676.
                 
                 
                   Katharin
                   Mitchel
                
                 contra
                 Litlejohn
                 .
                 And
                 a
                 Defunct
                 having
                 ,
                 on
                 Death-bed
                 ,
                 given
                 Assignation
                 to
                 one
                 of
                 his
                 Children
                 ,
                 to
                 some
                 of
                 his
                 Bonds
                 ,
                 and
                 thereafter
                 by
                 his
                 Testament
                 ,
                 nominat
                 that
                 Child
                 ,
                 and
                 an
                 other
                 his
                 Executors
                 ,
                 and
                 universal
                 Legatars
                 ;
                 the
                 universal
                 Legacy
                 ,
                 was
                 not
                 found
                 to
                 take
                 away
                 the
                 prior
                 Assignation
                 :
                 though
                 the
                 same
                 was
                 not
                 delivered
                 ,
                 nor
                 did
                 contain
                 a
                 Claūse
                 ,
                 dispensing
                 with
                 Delivery
                 ;
                 but
                 that
                 Child
                 had
                 both
                 the
                 Assignation
                 ,
                 and
                 the
                 Half
                 of
                 the
                 remainder
                 of
                 Dead's
                 part
                 .
                 January
                 29.
                 1677.
                 
                 Aikman
                 contra
                 Successors
                 of
                 
                   David
                   Boyd
                
                 .
                 A
                 Legacy
                 by
                 a
                 Husband
                 to
                 his
                 Wife
                 ,
                 was
                 found
                 not
                 to
                 be
                 understood
                 ,
                 to
                 be
                 in
                 satisfaction
                 of
                 her
                 Third
                 ,
                 but
                 to
                 be
                 wholly
                 out
                 of
                 the
                 Defunct's
                 Third
                 .
                 January
                 12.
                 1681.
                 
                 Trotter
                 Lady
                 Craigleith
                 contra
                 Rochead
                 Lady
                 Prestoungrange
                 .
                 And
                 a
                 Legacy
                 left
                 ,
                 for
                 building
                 a
                 Bridge
                 ,
                 being
                 a
                 definite
                 Sum
                 ;
                 the
                 Executor
                 having
                 builded
                 the
                 Bridge
                 ,
                 with
                 less
                 Expense
                 ,
                 the
                 superplus
                 was
                 applyed
                 ,
                 to
                 build
                 another
                 Bridge
                 in
                 the
                 same
                 Shire
                 .
                 June
                 18.
                 1678.
                 
                 Commissaries
                 of
                 Berwick
                 Shire
                 contra
                 
                   John
                   Craw.
                
                 
              
               
                 43.
                 
                 Legacies
                 ,
                 Donations
                 in
                 contemplation
                 of
                 Death
                 ,
                 or
                 Deeds
                 on
                 Death-bed
                 ,
                 may
                 affect
                 the
                 Defunct's
                 whole
                 free
                 Moveables
                 ,
                 Debts
                 being
                 deduced
                 ;
                 except
                 only
                 as
                 to
                 the
                 Relict's
                 ,
                 part
                 ,
                 and
                 Bairns
                 part
                 :
                 which
                 were
                 found
                 not
                 to
                 be
                 prejudged
                 by
                 an
                 Assignation
                 to
                 a
                 moveable
                 Sum
                 ,
                 made
                 by
                 the
                 Defunct
                 on
                 Death-bed
                 .
                 July
                 10.
                 1628.
                 
                 Cant
                 contra
                 Edgar
                 .
                 The
                 reason
                 of
                 this
                 limitation
                 on
                 Legacies
                 ,
                 will
                 easily
                 appear
                 ,
                 when
                 the
                 nature
                 of
                 the
                 Relict's
                 part
                 ,
                 and
                 Bairns
                 part
                 shall
                 be
                 considered
                 .
              
               
                 The
                 Relict's
                 part
                 of
                 her
                 Husban'd
                 Executory
                 ,
                 or
                 Moveables
                 ,
                 hath
                 its
                 rise
                 from
                 that
                 Communion
                 of
                 Goods
                 ,
                 betwixt
                 Man
                 and
                 Wife
                 
                   stante
                   matrimonio
                
                 ,
                 of
                 which
                 ,
                 
                   Title
                   Conjugal
                   Obligations
                   ,
                   §
                
                 .
                 12.
                 
              
               
                 The
                 Communion
                 of
                 Goods
                 ,
                 betwixt
                 Husband
                 and
                 Wife
                 ,
                 is
                 competent
                 
                   ipso
                   jure
                
                 ,
                 without
                 Contract
                 ,
                 as
                 a
                 part
                 of
                 that
                 individual
                 Society
                 ,
                 wherein
                 Marriage
                 consists
                 .
                 And
                 therefore
                 by
                 the
                 Dissolution
                 of
                 the
                 Marriage
                 ,
                 the
                 Communion
                 is
                 dissolved
                 .
                 So
                 that
                 if
                 the
                 Husband
                 die
                 first
                 ,
                 the
                 Wife
                 hath
                 her
                 Share
                 of
                 his
                 Executory
                 :
                 and
                 if
                 the
                 Wife
                 die
                 first
                 ,
                 her
                 Executors
                 ,
                 Legatars
                 ,
                 and
                 nearest
                 of
                 Kin
                 ,
                 have
                 a
                 Share
                 of
                 the
                 free
                 Moveables
                 ,
                 the
                 Husband
                 hath
                 ,
                 the
                 time
                 of
                 her
                 Death
                 .
                 In
                 which
                 Children
                 of
                 that
                 Wife
                 though
                 of
                 other
                 Marriages
                 ,
                 will
                 have
                 part
                 of
                 her
                 Share
                 ,
                 with
                 the
                 Children
                 procreat
                 betwixt
                 the
                 present
                 Husband
                 ,
                 and
                 the
                 Wife
                 ,
                 both
                 being
                 in
                 a
                 like
                 propinquity
                 to
                 her
                 .
              
               
                 44.
                 
                 The
                 Bairns
                 part
                 is
                 their
                 Legittima
                 ,
                 or
                 Portion
                 natural
                 :
                 so
                 called
                 ,
                 because
                 it
                 flows
                 from
                 that
                 natural
                 Obligation
                 of
                 Parents
                 ,
                 to
                 provide
                 for
                 their
                 Children
                 .
                 Which
                 is
                 not
                 extended
                 ,
                 to
                 restrain
                 the
                 Parent
                 to
                 dispose
                 of
                 any
                 part
                 of
                 his
                 Means
                 ;
                 but
                 only
                 so
                 ,
                 as
                 to
                 leave
                 a
                 Portion
                 thereof
                 to
                 his
                 Children
                 :
                 which
                 because
                 the
                 Law
                 orders
                 ,
                 and
                 determins
                 ;
                 it
                 is
                 called
                 the
                 Legittime
                 .
              
               
                 The
                 Bairns
                 part
                 is
                 only
                 competent
                 as
                 to
                 the
                 Father's
                 Means
                 ,
                 and
                 is
                 not
                 extended
                 to
                 the
                 Mother
                 ,
                 or
                 Grandfather
                 :
                 nor
                 is
                 extended
                 to
                 any
                 ,
                 but
                 lawful
                 Children
                 .
                 Neither
                 is
                 it
                 extended
                 to
                 all
                 lawful
                 Children
                 ,
                 but
                 only
                 to
                 those
                 who
                 are
                 not
                 
                   for
                   is
                   familiat
                
                 .
                 And
                 it
                 carries
                 a
                 Third
                 of
                 the
                 Defunct's
                 free
                 Moveables
                 ,
                 Debts
                 being
                 deduced
                 ,
                 if
                 his
                 Wife
                 furvived
                 ;
                 and
                 a
                 Half
                 if
                 there
                 was
                 no
                 Relict
                 .
              
               
               
                 45.
                 
                 But
                 here
                 the
                 Question
                 ariseth
                 ,
                 What
                 is
                 
                   For
                   is
                   familiation
                
                 ,
                 whether
                 being
                 actually
                 out
                 of
                 the
                 Family
                 be
                 sufficient
                 ;
                 as
                 if
                 the
                 Child
                 exercise
                 a
                 Trade
                 a
                 part
                 ,
                 or
                 be
                 married
                 ,
                 without
                 the
                 Father's
                 consent
                 ;
                 at
                 least
                 without
                 a
                 Portion
                 or
                 Tocher
                 from
                 the
                 Father
                 ?
                 Or
                 whether
                 it
                 be
                 sufficient
                 that
                 the
                 Child
                 be
                 forisfamiliat
                 ,
                 and
                 provided
                 by
                 the
                 Father
                 ,
                 albeit
                 the
                 said
                 Provision
                 be
                 not
                 accepted
                 expresly
                 
                   in
                   satisfaction
                   of
                   the
                   Portion
                   natural
                   ,
                
                 and
                 Bairns
                 part
                 ?
                 Or
                 whether
                 none
                 be
                 accompted
                 forisfamiliat
                 ,
                 to
                 exclude
                 them
                 from
                 the
                 Bairns
                 part
                 ;
                 unless
                 they
                 discharge
                 the
                 same
                 ,
                 or
                 accept
                 a
                 provision
                 
                   in
                   satisfaction
                   thereof
                
                 ?
                 There
                 be
                 probable
                 reasons
                 for
                 all
                 the
                 three
                 parts
                 :
                 but
                 the
                 main
                 Doubt
                 ,
                 is
                 upon
                 the
                 last
                 two
                 ,
                 Whether
                 Provision
                 be
                 sufficient
                 ,
                 as
                 being
                 presumed
                 ,
                 to
                 be
                 given
                 and
                 accepted
                 ,
                 in
                 satisfaction
                 of
                 the
                 
                   Portion
                   natural
                
                 .
                 So
                 much
                 the
                 rather
                 that
                 in
                 Contracts
                 of
                 Marriage
                 ,
                 Fathers
                 of
                 times
                 use
                 to
                 adject
                 a
                 Clause
                 ,
                 That
                 the
                 Child
                 Contracted
                 shall
                 be
                 
                   a
                   Bairn
                   in
                   the
                   House
                
                 :
                 which
                 would
                 be
                 superfluous
                 ,
                 if
                 the
                 Child
                 would
                 be
                 a
                 Bairn
                 of
                 the
                 House
                 ,
                 unless
                 the
                 Bairns
                 part
                 were
                 expresly
                 discharged
                 .
                 And
                 therefore
                 Tochers
                 ,
                 and
                 Provisions
                 being
                 neither
                 expresly
                 
                   in
                   satisfaction
                
                 of
                 the
                 Bairns
                 part
                 ,
                 nor
                 yet
                 with
                 provision
                 ,
                 
                   That
                   that
                   Child
                   shall
                   be
                   a
                   Bairn
                   in
                   the
                   House
                
                 ;
                 must
                 be
                 holden
                 to
                 be
                 given
                 ,
                 and
                 accepted
                 ,
                 
                   in
                   satisfaction
                   of
                   the
                   Portion
                   natural
                   .
                
                 Which
                 is
                 confirmed
                 by
                 a
                 Decision
                 observed
                 by
                 
                   Dury
                   .
                   February
                
                 1.
                 1622.
                 
                 
                   Janet
                   Eleis
                
                 having
                 pursued
                 the
                 Executors
                 ,
                 af
                 umquhil
                 
                   Patrick
                   Eleis
                
                 her
                 Father
                 ,
                 for
                 her
                 share
                 ,
                 with
                 the
                 rest
                 of
                 the
                 four
                 Bairns
                 ,
                 in
                 the
                 said
                 Patrick's
                 House
                 ;
                 and
                 that
                 by
                 a
                 Clause
                 ,
                 in
                 her
                 Contract
                 of
                 Marriage
                 with
                 
                   John
                   Smith
                
                 ,
                 afterwards
                 Provest
                 of
                 Edinburgh
                 ,
                 providing
                 her
                 to
                 be
                 Portioner
                 ,
                 of
                 her
                 Fathers
                 free
                 Geer
                 ,
                 with
                 the
                 rest
                 of
                 his
                 Bairns
                 ,
                 provided
                 the
                 rest
                 were
                 forisfamiliat
                 ,
                 and
                 provided
                 likeways
                 by
                 their
                 Father
                 .
                 In
                 which
                 Case
                 ,
                 the
                 said
                 Janet
                 was
                 found
                 to
                 have
                 her
                 Share
                 ,
                 albeit
                 two
                 of
                 the
                 Bairns
                 were
                 not
                 married
                 ,
                 but
                 only
                 provided
                 .
                 Whereby
                 it
                 appears
                 ,
                 that
                 the
                 Lords
                 accounted
                 Provision
                 as
                 Forisfamiliation
                 .
                 Yet
                 the
                 contrary
                 opinion
                 is
                 more
                 probable
                 ,
                 viz.
                 That
                 nothing
                 can
                 take
                 away
                 the
                 Bairns
                 Legittime
                 ,
                 unless
                 it
                 be
                 discharged
                 .
                 And
                 that
                 a
                 Presumption
                 ,
                 of
                 accepting
                 a
                 Tocher
                 ,
                 or
                 Portion
                 ,
                 
                   in
                   satisfaction
                
                 ,
                 will
                 not
                 be
                 sufficient
                 ,
                 unless
                 it
                 bear
                 
                   in
                   satisfaction
                   of
                   the
                   Portion
                   natural
                
                 and
                 Bairns
                 part
                 .
                 1.
                 
                 Because
                 the
                 legittime
                 is
                 so
                 strongly
                 founded
                 ,
                 in
                 the
                 Law
                 of
                 Nature
                 ,
                 and
                 positive
                 Law
                 ,
                 that
                 Presumption
                 or
                 Conjecture
                 cannot
                 take
                 it
                 off
                 .
                 2.
                 
                 This
                 is
                 more
                 suitable
                 to
                 the
                 Civil
                 Law
                 ,
                 which
                 we
                 follow
                 in
                 this
                 Case
                 ,
                 whereby
                 the
                 difference
                 betwixt
                 Children
                 ,
                 being
                 emancipat
                 ,
                 or
                 forisfamiliat
                 ,
                 or
                 sui
                 under
                 the
                 paternal
                 power
                 ,
                 and
                 in
                 the
                 Family
                 is
                 taken
                 off
                 as
                 to
                 the
                 Succession
                 and
                 Legittime
                 .
                 And
                 therefore
                 there
                 is
                 introduced
                 
                   collatio
                   bonorum
                
                 ,
                 whereby
                 all
                 that
                 the
                 emancipat
                 or
                 forisfamiliat
                 received
                 from
                 their
                 Father
                 ,
                 must
                 fall
                 in
                 under
                 the
                 Accompt
                 .
                 So
                 their
                 Tochers
                 ,
                 Gifts
                 ,
                 Provisions
                 &c.
                 are
                 imputed
                 in
                 a
                 part
                 of
                 the
                 Legittime
                 ;
                 but
                 are
                 never
                 presumed
                 to
                 be
                 the
                 whole
                 ,
                 unless
                 it
                 were
                 exprest
                 .
                 3.
                 
                 
                   Collatio
                   bonorum
                
                 is
                 ordinary
                 with
                 us
                 ,
                 by
                 which
                 the
                 Tocher
                 of
                 the
                 married
                 Children
                 comes
                 in
                 the
                 Accompt
                 of
                 the
                 Bairns
                 part
                 :
                 which
                 could
                 not
                 take
                 place
                 ,
                 if
                 those
                 Tochers
                 were
                 presumed
                 to
                 be
                 
                   in
                   satisfaction
                
                 of
                 the
                 Bairns
                 part
                 ,
                 unless
                 the
                 Clause
                 
                   to
                   be
                   a
                   Bairn
                   in
                   the
                   House
                   ,
                
                 were
                 expresly
                 added
                 .
                 Which
                 was
                 so
                 found
                 .
                 February
                 27.
                 1627.
                 
                 
                   Janet
                   Ross
                
                 contra
                 
                   Marion
                   Kellie
                
                 .
                 Where
                 the
                 Pursuer
                 being
                 married
                 ,
                 and
                 tochered
                 ;
                 was
                 not
                 excluded
                 from
                 the
                 Bairns
                 part
                 ,
                 there
                 being
                 no
                 other
                 Bairns
                 in
                 the
                 Family
                 .
                 Yet
                 there
                 was
                 a
                 Wife
                 in
                 the
                 Family
                 ,
                 and
                 so
                 the
                 Executory
                 was
                 tripartite
                 .
                 Neither
                 was
                 the
                 Pursuer
                 made
                 to
                 bring
                 in
                 her
                 Portion
                 ,
                 
                   collatione
                   bonorum
                
                 .
                 But
                 here
                 the
                 Contract
                 bare
                 ,
                 that
                 the
                 Tocher
                 was
                 
                   in
                   satisfaction
                
                 of
                 that
                 Daughter
                 's
                 right
                 
                   to
                   her
                   Mother's
                   Third
                
                 ,
                 who
                 was
                 her
                 Father's
                 first
                 Wife
                 .
              
               
               
                 If
                 then
                 it
                 be
                 urged
                 ,
                 that
                 the
                 Clause
                 ,
                 
                   to
                   be
                   a
                   Bairn
                   in
                   the
                   House
                   ,
                
                 signifies
                 nothing
                 :
                 It
                 is
                 answered
                 ,
                 that
                 the
                 Clause
                 may
                 be
                 
                   propter
                   majorem
                   evidentam
                   &
                   securitatem
                
                 .
                 But
                 also
                 as
                 to
                 the
                 clearing
                 of
                 this
                 Question
                 ,
                 Whether
                 that
                 Clause
                 hath
                 not
                 this
                 effect
                 ,
                 that
                 that
                 Child
                 should
                 not
                 only
                 come
                 in
                 ,
                 to
                 have
                 a
                 Share
                 of
                 the
                 
                   Portion
                   natural
                
                 ,
                 with
                 the
                 Bairns
                 of
                 the
                 Family
                 ;
                 as
                 if
                 that
                 Clause
                 had
                 not
                 been
                 adjected
                 ,
                 but
                 the
                 Child
                 had
                 come
                 in
                 ,
                 only
                 
                   provisione
                   legis
                
                 .
                 In
                 which
                 Case
                 ,
                 the
                 Child
                 forisfomiliat
                 behoved
                 to
                 have
                 brought
                 in
                 the
                 Tocher
                 ,
                 or
                 Portion
                 ,
                 
                   collatione
                   bonorum
                
                 :
                 but
                 when
                 the
                 Child
                 comes
                 in
                 also
                 
                   provisione
                   hominis
                
                 ,
                 the
                 effect
                 is
                 ,
                 that
                 it
                 be
                 without
                 Collation
                 .
                 Which
                 is
                 so
                 much
                 the
                 more
                 evident
                 ,
                 that
                 oftimes
                 Children
                 are
                 provided
                 to
                 be
                 
                   Bairns
                   of
                   the
                   House
                
                 ,
                 after
                 the
                 rest
                 are
                 likewise
                 provided
                 .
                 So
                 that
                 when
                 that
                 Condition
                 is
                 not
                 adjected
                 ,
                 the
                 meaning
                 is
                 ,
                 that
                 without
                 consideration
                 of
                 the
                 Tocher
                 ,
                 or
                 former
                 Provision
                 ,
                 the
                 Children
                 by
                 that
                 Clause
                 should
                 have
                 equal
                 share
                 .
                 It
                 was
                 so
                 found
                 
                   Spots
                   .
                   Test.
                   Elizabeth
                   Carsen
                
                 contra
                 Agnes
                 and
                 
                   Marion
                   Carsens
                
                 .
              
               
                 46.
                 
                 Collation
                 then
                 hath
                 only
                 place
                 amongst
                 Children
                 ,
                 where
                 it
                 is
                 not
                 prohibite
                 ,
                 expresly
                 ,
                 or
                 implicitely
                 ,
                 by
                 the
                 Father
                 ,
                 providing
                 that
                 Child
                 to
                 be
                 a
                 Bairn
                 in
                 the
                 House
                 .
                 But
                 Collation
                 hath
                 no
                 place
                 as
                 to
                 the
                 Wife
                 :
                 because
                 Tochers
                 in
                 such
                 Provisions
                 ,
                 being
                 as
                 
                   inter
                   vivos
                
                 ,
                 of
                 its
                 own
                 nature
                 ,
                 it
                 is
                 no
                 part
                 of
                 the
                 Executory
                 ;
                 but
                 is
                 done
                 by
                 the
                 Husband
                 
                   in
                   〈◊〉
                   potestate
                
                 ,
                 who
                 is
                 
                   dominus
                   omnium
                   bonorum
                
                 ,
                 at
                 least
                 hath
                 
                   plenam
                   administrationem
                
                 ,
                 notwithstanding
                 the
                 Communion
                 of
                 Goods
                 in
                 the
                 Wife
                 :
                 But
                 Collatio
                 is
                 only
                 a
                 Remedy
                 introduced
                 in
                 Law
                 ,
                 to
                 keep
                 Equality
                 amongst
                 Children
                 ,
                 who
                 have
                 an
                 equal
                 Interest
                 in
                 their
                 Father
                 and
                 his
                 Moveables
                 :
                 but
                 it
                 is
                 not
                 introduced
                 ,
                 to
                 keep
                 an
                 Equality
                 betwixt
                 the
                 Wife
                 ,
                 and
                 them
                 .
                 Neither
                 doth
                 it
                 design
                 an
                 Equality
                 in
                 all
                 things
                 ,
                 but
                 in
                 Provisions
                 ,
                 or
                 Tochers
                 ,
                 in
                 Money
                 ;
                 which
                 must
                 be
                 accompted
                 to
                 those
                 who
                 got
                 the
                 same
                 .
                 But
                 Land
                 disponed
                 to
                 a
                 second
                 Son
                 for
                 
                   Love
                   and
                   Favour
                
                 ,
                 not
                 bearing
                 
                   for
                   his
                   Portion
                
                 or
                 
                   in
                   satisfaction
                
                 thereof
                 ,
                 was
                 not
                 found
                 to
                 exclude
                 him
                 from
                 his
                 share
                 of
                 the
                 Bairns
                 part
                 ,
                 with
                 his
                 Sister
                 :
                 nor
                 to
                 require
                 him
                 to
                 collate
                 what
                 he
                 got
                 in
                 
                   Land.
                   January
                
                 14.
                 1677.
                 
                 Duke
                 and
                 Dutches
                 of
                 Balcleugh
                 contra
                 Earl
                 of
                 Tweedale
                 .
              
               
                 Hence
                 ariseth
                 another
                 Branch
                 of
                 the
                 former
                 Question
                 ,
                 Whether
                 if
                 all
                 the
                 Children
                 be
                 forisfamiliat
                 and
                 provided
                 ;
                 but
                 have
                 not
                 discharged
                 their
                 Portion
                 natural
                 ,
                 or
                 Bairns
                 part
                 ,
                 or
                 accepted
                 the
                 provision
                 in
                 satisfaction
                 thereof
                 :
                 If
                 in
                 that
                 case
                 they
                 will
                 have
                 access
                 to
                 a
                 Portion
                 natural
                 ,
                 in
                 prejudice
                 of
                 the
                 Relict
                 and
                 Legatars
                 ?
                 I
                 say
                 ,
                 if
                 they
                 be
                 all
                 provided
                 ,
                 because
                 if
                 some
                 be
                 in
                 the
                 Family
                 unmarried
                 and
                 unprovided
                 ,
                 the
                 Relict
                 and
                 Legatars
                 will
                 be
                 no
                 more
                 prejudged
                 ,
                 if
                 all
                 the
                 Bairns
                 come
                 in
                 ,
                 or
                 only
                 some
                 of
                 them
                 ,
                 because
                 many
                 ,
                 or
                 few
                 ,
                 they
                 will
                 have
                 all
                 the
                 Bairns
                 part
                 and
                 no
                 more
                 .
                 The
                 former
                 Case
                 ,
                 Ross
                 contra
                 Kelly
                 ,
                 seems
                 to
                 bring
                 in
                 the
                 Children
                 ,
                 though
                 all
                 forisfamiliat
                 ,
                 to
                 a
                 Legittime
                 with
                 the
                 Relict
                 :
                 because
                 there
                 was
                 but
                 one
                 Child
                 ,
                 and
                 she
                 married
                 ,
                 and
                 tochered
                 .
                 Only
                 it
                 is
                 observed
                 ,
                 that
                 her
                 Provision
                 was
                 
                   in
                   satisfaction
                   of
                   her
                   Mother's
                   part
                   :
                
                 so
                 that
                 albeit
                 she
                 was
                 married
                 ,
                 yet
                 it
                 appears
                 that
                 she
                 was
                 not
                 provided
                 ,
                 
                   ex
                   bonis
                   paternis
                
                 ,
                 but
                 only
                 
                   ex
                   bonis
                   maternis
                
                 .
                 And
                 therefore
                 it
                 remains
                 yet
                 unclear
                 :
                 and
                 there
                 seems
                 much
                 reason
                 that
                 the
                 Wifes
                 interest
                 being
                 a
                 division
                 of
                 her
                 Communion
                 of
                 Goods
                 ,
                 she
                 should
                 not
                 devide
                 with
                 them
                 who
                 are
                 out
                 of
                 the
                 Family
                 and
                 provided
                 ,
                 unless
                 they
                 had
                 a
                 Provision
                 
                   to
                   be
                   Bairns
                   in
                   the
                   Family
                   .
                
                 By
                 the
                 common
                 Practick
                 also
                 ,
                 Commissaries
                 divide
                 Executory
                 in
                 two
                 ,
                 where
                 there
                 is
                 a
                 Wife
                 ,
                 and
                 the
                 whole
                 Children
                 married
                 ,
                 and
                 so
                 presumed
                 to
                 be
                 provided
                 .
                 It
                 was
                 so
                 found
                 where
                 there
                 was
                 but
                 one
                 Child
                 married
                 and
                 provided
                 ,
                 though
                 not
                 exprest
                 
                   in
                   satisfaction
                
                 .
                 But
                 the
                 Child
                 was
                 admitted
                 to
                 a
                 Third
                 ,
                 offering
                 to
                 confer
                 .
                 February
                 18.
                 1663.
                 
                 Dumhar
                 
                 of
                 Hemprigs
                 contra
                 Frazer
                 And
                 where
                 a
                 Defunct
                 had
                 only
                 two
                 Daughters
                 ,
                 besides
                 his
                 Heir
                 ,
                 the
                 one
                 in
                 her
                 Contract
                 of
                 Marriage
                 ,
                 getting
                 a
                 Tocher
                 
                   in
                   full
                   satisfaction
                   of
                   her
                   Portion
                   natural
                   and
                   Bairns
                   part
                
                 ;
                 and
                 the
                 other
                 in
                 her
                 Contract
                 ,
                 being
                 provided
                 
                   to
                   be
                   a
                   Bairn
                   in
                   the
                   House
                   ,
                
                 was
                 found
                 to
                 have
                 the
                 whole
                 Right
                 to
                 the
                 Bairns
                 part
                 ,
                 and
                 to
                 the
                 Deads
                 part
                 ,
                 and
                 Office
                 of
                 Executory
                 ,
                 excluding
                 the
                 other
                 :
                 who
                 was
                 found
                 to
                 succeed
                 to
                 no
                 part
                 ,
                 as
                 being
                 renounced
                 in
                 favour
                 of
                 her
                 Father
                 ,
                 and
                 returning
                 back
                 from
                 him
                 by
                 his
                 Succession
                 ;
                 but
                 that
                 it
                 accresced
                 to
                 the
                 other
                 ,
                 though
                 she
                 was
                 not
                 Executrix
                 nominat
                 ,
                 but
                 dative
                 .
                 And
                 therefore
                 the
                 Confirmation
                 of
                 her
                 ,
                 sole
                 Executrix
                 ,
                 was
                 sustained
                 .
                 January
                 27.
                 1680.
                 
                 
                   Agnes
                   Sandielands
                
                 contra
                 
                   Rachel
                   Sandielands
                
                 .
              
               
                 There
                 is
                 an
                 other
                 considerable
                 difference
                 ,
                 betwixt
                 the
                 condition
                 of
                 the
                 Wife
                 and
                 Children
                 ,
                 introduced
                 by
                 the
                 Act
                 of
                 Parliament
                 1641.
                 revived
                 Par.
                 1661.
                 cap.
                 32.
                 whereby
                 Bonds
                 and
                 Provisions
                 bearing
                 Clause
                 of
                 Annualrent
                 ,
                 which
                 before
                 were
                 heritable
                 ,
                 and
                 so
                 fell
                 not
                 within
                 Executory
                 ;
                 now
                 are
                 moveable
                 ,
                 as
                 to
                 the
                 Bairns
                 ,
                 nearest
                 of
                 Kin
                 ,
                 Executors
                 ,
                 and
                 Legatars
                 ,
                 only
                 excluding
                 the
                 Relict
                 :
                 and
                 are
                 disposeable
                 by
                 Legacy
                 ,
                 or
                 Nomination
                 ,
                 and
                 at
                 the
                 Defunct's
                 disposal
                 ,
                 by
                 Testament
                 ,
                 or
                 any
                 Deed
                 on
                 Death-bed
                 .
                 And
                 they
                 are
                 exhaustible
                 by
                 Debts
                 of
                 the
                 same
                 nature
                 ,
                 which
                 Debts
                 of
                 that
                 nature
                 ,
                 do
                 not
                 exhaust
                 the
                 Relicts
                 part
                 :
                 which
                 is
                 inferred
                 by
                 a
                 necessary
                 consequence
                 from
                 the
                 foresaid
                 Act
                 of
                 Parliament
                 1641.
                 
                 For
                 seing
                 thereby
                 Wives
                 have
                 no
                 Share
                 of
                 their
                 Husband's
                 Bonds
                 bearing
                 Annualrent
                 ;
                 as
                 they
                 have
                 not
                 the
                 benefit
                 ,
                 so
                 they
                 ought
                 not
                 to
                 be
                 burthened
                 with
                 such
                 Bonds
                 :
                 unless
                 the
                 Husband
                 or
                 Wife
                 die
                 before
                 the
                 Term
                 of
                 Payment
                 of
                 the
                 Annualrent
                 ;
                 or
                 that
                 the
                 Bonds
                 become
                 moveable
                 ,
                 simpliciter
                 ,
                 by
                 a
                 Charge
                 ,
                 or
                 Pursuit
                 for
                 Payment
                 thereof
                 ,
                 whereby
                 the
                 Creditor's
                 mind
                 is
                 presumed
                 to
                 make
                 the
                 Sum
                 simply
                 moveable
                 .
                 In
                 which
                 Case
                 ,
                 the
                 Wife
                 hath
                 both
                 the
                 benefit
                 and
                 burthen
                 of
                 such
                 Bonds
                 in
                 her
                 Share
                 ,
                 July
                 14.
                 1664.
                 
                 
                   Elizabeth
                   Scrymgeour
                
                 contra
                 Murrays
                 .
              
               
                 Yet
                 the
                 Wife
                 hath
                 her
                 Share
                 of
                 the
                 Annualrent
                 of
                 all
                 Bonds
                 ,
                 though
                 heritable
                 ,
                 due
                 before
                 Dissolution
                 of
                 the
                 Marriage
                 :
                 but
                 no
                 Share
                 of
                 the
                 said
                 Annualrents
                 after
                 ,
                 nor
                 of
                 the
                 Stock
                 .
                 June
                 24.
                 1663.
                 
                   inter
                   eosdem
                
                 .
                 In
                 this
                 Case
                 ,
                 a
                 Bond
                 being
                 payable
                 to
                 the
                 Husband
                 and
                 Wife
                 ,
                 the
                 longest
                 Liver
                 of
                 them
                 two
                 ,
                 but
                 bearing
                 no
                 Annualrent
                 ;
                 the
                 Relict
                 was
                 found
                 to
                 have
                 her
                 option
                 either
                 to
                 lift
                 the
                 whole
                 ,
                 and
                 re-imploy
                 it
                 ,
                 for
                 her
                 Liferent
                 use
                 ;
                 or
                 to
                 have
                 the
                 Half
                 of
                 the
                 Stock
                 ,
                 seing
                 it
                 bare
                 no
                 Annualrent
                 :
                 but
                 not
                 to
                 have
                 both
                 the
                 Annualrent
                 of
                 the
                 whold
                 ,
                 and
                 the
                 Half
                 of
                 the
                 Stock
                 .
                 But
                 Bonds
                 which
                 exclude
                 Executors
                 ,
                 are
                 heritable
                 
                   quoad
                   creditorem
                
                 :
                 but
                 moveable
                 
                   quoad
                   debitorem
                
                 .
                 Because
                 the
                 Creditor
                 excludes
                 his
                 Executor
                 :
                 whereas
                 the
                 Debitor's
                 Executor
                 is
                 not
                 excluded
                 ,
                 but
                 lyable
                 .
                 But
                 Bonds
                 bearing
                 Clause
                 of
                 Infeftment
                 are
                 simply
                 heritable
                 ,
                 both
                 as
                 to
                 the
                 Debitor
                 ,
                 and
                 Creditor
                 :
                 for
                 by
                 these
                 ,
                 the
                 mind
                 of
                 the
                 Creditor
                 appears
                 ,
                 to
                 exclude
                 all
                 others
                 but
                 his
                 Heir
                 ,
                 except
                 as
                 to
                 the
                 bygone
                 Annualrents
                 .
              
               
                 48.
                 
                 Heirs
                 are
                 excluded
                 from
                 the
                 Bairns
                 part
                 ,
                 though
                 in
                 the
                 Family
                 ;
                 because
                 of
                 their
                 Provision
                 by
                 the
                 Heritage
                 :
                 except
                 two
                 Cases
                 .
                 First
                 ,
                 if
                 the
                 Heir
                 renounce
                 the
                 Heritage
                 ,
                 in
                 favour
                 of
                 the
                 remanent
                 Bairns
                 :
                 for
                 then
                 the
                 Heir
                 is
                 not
                 to
                 be
                 in
                 worse
                 case
                 than
                 they
                 ;
                 but
                 they
                 come
                 in
                 
                   pari
                   passu
                
                 ,
                 both
                 in
                 heritable
                 and
                 moveable
                 Rights
                 ,
                 which
                 is
                 a
                 kind
                 of
                 
                   collatio
                   bonorum
                
                 :
                 which
                 will
                 hold
                 when
                 there
                 is
                 no
                 Bonds
                 but
                 heritable
                 Bonds
                 .
              
               
               
                 49.
                 
                 Secondly
                 ,
                 If
                 there
                 be
                 but
                 one
                 Child
                 
                   in
                   familia
                
                 ,
                 and
                 so
                 both
                 Heir
                 and
                 Executor
                 ;
                 that
                 Child
                 hath
                 not
                 only
                 the
                 Heritage
                 ,
                 but
                 the
                 whole
                 Bairns
                 part
                 ,
                 and
                 so
                 abates
                 the
                 Relict's
                 part
                 ,
                 and
                 Dead's
                 part
                 .
                 
                   Nic.
                   Division
                   of
                   testaments
                   ,
                   Kennedy
                
                 contra
                 his
                 
                   Father's
                   Relict
                
                 .
                 The
                 like
                 without
                 Collation
                 of
                 the
                 Heritage
                 .
                 January
                 12.
                 1681.
                 
                 
                   Catharine
                   Trotter
                
                 Lady
                 Craigleith
                 contra
                 Rochead
                 Lady
                 Prestoungrange
                 .
              
               
                 50.
                 
                 In
                 the
                 Division
                 of
                 Executory
                 ,
                 respect
                 is
                 had
                 to
                 the
                 time
                 of
                 the
                 Defunct's
                 Death
                 ,
                 as
                 to
                 the
                 Relict
                 and
                 Children
                 ,
                 though
                 before
                 Confirmation
                 ,
                 or
                 any
                 one's
                 owning
                 of
                 the
                 Succession
                 .
                 For
                 then
                 if
                 there
                 be
                 a
                 Wise
                 surviving
                 ,
                 and
                 Children
                 ,
                 the
                 Exeentory
                 is
                 tripartite
                 ,
                 whether
                 the
                 Bairns
                 be
                 of
                 the
                 same
                 Marriage
                 ,
                 or
                 some
                 other
                 Marriage
                 .
                 As
                 was
                 found
                 in
                 the
                 former
                 Case
                 .
                 June
                 17.
                 1631.
                 
                 Chapman
                 contra
                 Gibson
                 .
                 In
                 which
                 Case
                 ,
                 there
                 was
                 but
                 one
                 Bairn
                 ,
                 who
                 if
                 the
                 Father
                 had
                 been
                 dead
                 ,
                 would
                 have
                 been
                 Heir
                 .
                 The
                 like
                 .
                 July
                 18.
                 1624.
                 
                 Henrieson
                 contra
                 Sanders
                 .
                 So
                 the
                 Wife
                 and
                 Children
                 surviving
                 ,
                 transmit
                 their
                 Parts
                 to
                 their
                 nearest
                 of
                 Kin
                 
                   ipso
                   jure
                
                 .
                 And
                 Legatars
                 have
                 Right
                 to
                 ,
                 and
                 do
                 transmit
                 Legacies
                 ,
                 to
                 their
                 Executors
                 ,
                 though
                 they
                 have
                 not
                 insisted
                 or
                 recovered
                 them
                 in
                 their
                 own
                 Life
                 :
                 unless
                 the
                 Legatar
                 die
                 before
                 the
                 Testator
                 ,
                 (
                 for
                 then
                 the
                 Legacy
                 is
                 not
                 due
                 ,
                 )
                 or
                 that
                 the
                 Legacy
                 be
                 conditional
                 ,
                 and
                 the
                 Legatar
                 die
                 before
                 the
                 Condition
                 be
                 purified
                 .
                 And
                 if
                 any
                 of
                 the
                 Children
                 ,
                 who
                 survive
                 the
                 Defunct
                 ,
                 die
                 before
                 Confirmation
                 ,
                 they
                 transmit
                 .
              
               
                 51.
                 
                 Yea
                 the
                 nearest
                 of
                 Kin
                 ,
                 surviving
                 ,
                 transmit
                 their
                 Right
                 by
                 the
                 Act
                 of
                 Parliament
                 1540.
                 cap.
                 120.
                 
                 Whereby
                 it
                 is
                 clear
                 that
                 the
                 nearest
                 of
                 Kin
                 have
                 a
                 proper
                 Right
                 ,
                 and
                 not
                 solly
                 by
                 the
                 Office
                 of
                 Executory
                 .
                 But
                 it
                 is
                 more
                 clear
                 by
                 the
                 Act
                 of
                 Parliament
                 1617.
                 cap.
                 14.
                 which
                 maketh
                 
                   jus
                   agnationis
                
                 ,
                 to
                 the
                 nearest
                 of
                 Kin
                 ,
                 due
                 by
                 the
                 Executors
                 ,
                 though
                 the
                 nearest
                 of
                 Kin
                 be
                 not
                 confirmed
                 Executors
                 ,
                 and
                 so
                 have
                 Interest
                 only
                 by
                 the
                 Office.
                 And
                 so
                 it
                 was
                 found
                 amongst
                 the
                 Executors
                 of
                 umquhil
                 
                   Patrick
                   Bell
                
                 in
                 Glasgow
                 ,
                 whose
                 three
                 Sisters
                 having
                 confirmed
                 his
                 Testament
                 ,
                 one
                 of
                 them
                 was
                 found
                 to
                 transmit
                 her
                 Share
                 to
                 her
                 Children
                 ,
                 though
                 she
                 died
                 before
                 Execution
                 .
                 For
                 the
                 Son
                 of
                 that
                 Sister
                 was
                 found
                 to
                 have
                 his
                 Share
                 ,
                 albeit
                 the
                 Office
                 of
                 Executory
                 accresced
                 to
                 the
                 two
                 Sisters
                 surviving
                 ,
                 and
                 with
                 the
                 Office
                 ,
                 the
                 Third
                 of
                 Dead's
                 part
                 .
                 Feb.
                 11.
                 1662.
                 
                 The
                 like
                 was
                 found
                 since
                 betwixt
                 Dame
                 
                   Agnes
                   Maxwel
                
                 and
                 the
                 Earl
                 of
                 Wintoun
                 .
                 And
                 after
                 full
                 Debate
                 ,
                 it
                 hath
                 been
                 determined
                 ,
                 that
                 the
                 Jnterest
                 of
                 the
                 nearest
                 of
                 Kin
                 ,
                 is
                 only
                 extended
                 to
                 those
                 who
                 are
                 
                   existent
                   nearest
                   of
                   Kin
                
                 the
                 time
                 of
                 the
                 Confirmation
                 of
                 the
                 Defunct's
                 Testament
                 ,
                 which
                 is
                 
                   aditio
                   haereditatis
                   mobilium
                
                 .
                 And
                 the
                 Executor
                 is
                 
                   haeres
                   fideicommissarius
                
                 ,
                 who
                 must
                 restore
                 to
                 the
                 Relicts
                 and
                 Bairns
                 ,
                 their
                 part
                 of
                 the
                 free
                 Geer
                 ,
                 Debts
                 deduced
                 ;
                 and
                 to
                 the
                 nearest
                 of
                 Kin
                 ,
                 whether
                 Bairns
                 or
                 any
                 other
                 ,
                 
                   in
                   proximo
                   gradu
                
                 ,
                 the
                 time
                 of
                 Confirmation
                 ,
                 the
                 Deads
                 part
                 ,
                 the
                 Legacies
                 deduced
                 :
                 reserving
                 to
                 the
                 Executors
                 nominat
                 ,
                 if
                 they
                 have
                 no
                 proper
                 interest
                 ,
                 a
                 Third
                 of
                 the
                 Dead's
                 part
                 ,
                 unexhausted
                 by
                 Legacies
                 .
                 So
                 that
                 the
                 Executor
                 
                   adit
                   haereditatem
                
                 ,
                 not
                 for
                 himself
                 only
                 ,
                 but
                 for
                 all
                 Parties
                 having
                 interest
                 .
                 Which
                 is
                 suitable
                 to
                 the
                 Entry
                 of
                 Heirs
                 in
                 heritable
                 Rights
                 :
                 and
                 whereby
                 
                   jus
                   sanguinis
                
                 ,
                 of
                 the
                 nearest
                 of
                 Kin
                 ,
                 is
                 not
                 prejudged
                 ;
                 seing
                 immediatly
                 after
                 the
                 Defunct's
                 Death
                 ,
                 Edicts
                 may
                 be
                 served
                 ,
                 and
                 the
                 nearest
                 of
                 Kin
                 will
                 be
                 confirmed
                 Executor
                 ,
                 if
                 a
                 Nomination
                 be
                 not
                 produced
                 .
                 And
                 though
                 any
                 of
                 the
                 nearest
                 of
                 Kin
                 ,
                 should
                 die
                 before
                 a
                 Confirmation
                 can
                 be
                 expede
                 ;
                 it
                 is
                 an
                 
                   extraordinary
                   contingencie
                
                 ,
                 which
                 Law
                 regardeth
                 not
                 .
                 And
                 the
                 Act
                 of
                 Parliament
                 1617.
                 which
                 establisheth
                 the
                 Right
                 of
                 the
                 nearest
                 of
                 Kin
                 ,
                 by
                 making
                 Executors
                 comptable
                 to
                 them
                 ,
                 presupposeth
                 a
                 Confirmation
                 ,
                 
                 before
                 the
                 interest
                 of
                 the
                 nearest
                 of
                 Kin
                 be
                 established
                 .
                 But
                 though
                 the
                 Executor
                 die
                 ,
                 before
                 the
                 Testament
                 be
                 execute
                 ,
                 there
                 must
                 be
                 an
                 Executor
                 
                   ad
                   non
                   executa
                
                 ,
                 who
                 will
                 be
                 comptable
                 to
                 those
                 ,
                 who
                 were
                 nearest
                 of
                 Kin
                 ,
                 the
                 time
                 of
                 the
                 first
                 Confirmation
                 .
                 And
                 if
                 any
                 of
                 them
                 die
                 ,
                 before
                 they
                 attain
                 their
                 Share
                 ;
                 their
                 Bairns
                 or
                 nearest
                 of
                 Kin
                 will
                 have
                 no
                 Right
                 ,
                 till
                 they
                 confirm
                 the
                 Testament
                 of
                 the
                 nearest
                 of
                 Kin
                 deceassed
                 ,
                 and
                 give
                 up
                 an
                 Inventary
                 ,
                 of
                 what
                 will
                 be
                 due
                 to
                 the
                 Defunct's
                 nearest
                 of
                 Kin
                 ,
                 by
                 the
                 Executors
                 of
                 the
                 prior
                 Defunct
                 .
                 Neither
                 will
                 the
                 Share
                 of
                 any
                 Bairn
                 ,
                 or
                 nearest
                 of
                 Kin
                 ,
                 deceassing
                 without
                 Children
                 ,
                 belong
                 to
                 the
                 Surviver
                 
                   jure
                   accrescendi
                
                 :
                 who
                 will
                 not
                 represent
                 them
                 passivè
                 ,
                 and
                 be
                 lyable
                 to
                 the
                 Debts
                 .
                 And
                 therefore
                 must
                 be
                 confirmed
                 as
                 Executors
                 to
                 them
                 :
                 and
                 thereby
                 have
                 both
                 an
                 active
                 and
                 passive
                 Title
                 .
                 All
                 which
                 was
                 found
                 .
                 Feb.
                 14.
                 1677.
                 
                 Duke
                 and
                 Dutchess
                 of
                 Balcleugh
                 contra
                 Earl
                 of
                 Tweeddale
                 .
              
               
                 52.
                 
                 By
                 the
                 premisses
                 it
                 is
                 evident
                 how
                 Executory
                 is
                 to
                 be
                 divided
                 ,
                 what
                 Dead
                 's
                 part
                 is
                 ,
                 and
                 how
                 it
                 may
                 be
                 affected
                 with
                 Legacies
                 ,
                 or
                 Deeds
                 of
                 the
                 Defunct
                 in
                 Testament
                 ,
                 or
                 on
                 Death-bed
                 .
                 For
                 first
                 ,
                 all
                 Persons
                 who
                 have
                 no
                 Wife
                 ,
                 or
                 Children
                 unforisfamiliat
                 ,
                 without
                 Husband
                 ,
                 (
                 and
                 Wives
                 ,
                 though
                 they
                 have
                 Children
                 )
                 have
                 the
                 whole
                 disposal
                 of
                 the
                 Executory
                 :
                 and
                 may
                 leave
                 Legacies
                 ,
                 and
                 Donations
                 of
                 their
                 moveable
                 Estates
                 ,
                 and
                 do
                 other
                 Deeds
                 on
                 Death-bed
                 ,
                 equivalent
                 to
                 their
                 free
                 Goods
                 :
                 so
                 that
                 Dead's
                 part
                 is
                 the
                 whole
                 .
                 But
                 if
                 the
                 Defunct
                 had
                 a
                 Wife
                 ,
                 and
                 Children
                 unforisfamiliat
                 ,
                 then
                 the
                 Executory
                 is
                 tripartite
                 :
                 and
                 Dead's
                 part
                 is
                 a
                 Third
                 ,
                 the
                 Wife's
                 part
                 is
                 a
                 Third
                 ,
                 and
                 the
                 Bairns
                 part
                 a
                 Third
                 .
                 But
                 if
                 the
                 Defunct
                 have
                 a
                 Wife
                 and
                 no
                 Children
                 unforisfamiliat
                 ,
                 the
                 Executory
                 is
                 bipartite
                 :
                 the
                 Dead's
                 part
                 is
                 a
                 Half
                 ,
                 and
                 the
                 Wife's
                 part
                 another
                 Half.
                 Or
                 if
                 he
                 have
                 Children
                 unforisfamiliat
                 ,
                 and
                 no
                 Wife
                 ,
                 the
                 Executory
                 is
                 also
                 bipartite
                 :
                 and
                 in
                 either
                 Case
                 ,
                 his
                 Legacies
                 ,
                 or
                 Deeds
                 on
                 Death-bed
                 ,
                 may
                 be
                 equivalent
                 to
                 the
                 Half
                 of
                 his
                 free
                 Geer
                 .
                 And
                 if
                 the
                 Commissaries
                 by
                 error
                 or
                 mistake
                 make
                 the
                 Division
                 otherwayes
                 ,
                 none
                 are
                 prejudged
                 thereby
                 ,
                 who
                 are
                 not
                 called
                 ,
                 and
                 compearing
                 :
                 but
                 may
                 summarly
                 ,
                 without
                 Reduction
                 of
                 the
                 Confirmation
                 ,
                 be
                 admitted
                 to
                 claim
                 their
                 Share
                 .
                 Which
                 was
                 so
                 found
                 .
                 Feb.
                 27.
                 1627.
                 
                 
                   Janet
                   Ross
                
                 contra
                 
                   Marion
                   Kello
                
                 .
              
               
                 Children
                 have
                 a
                 threefold
                 interest
                 in
                 their
                 Father's
                 Executory
                 .
                 First
                 ,
                 their
                 Bairns
                 part
                 ,
                 wherein
                 their
                 Father
                 cannot
                 prejudge
                 them
                 .
                 Secondly
                 ,
                 their
                 interest
                 in
                 Dead's
                 part
                 ,
                 whereby
                 they
                 have
                 Title
                 to
                 the
                 Office
                 of
                 Executory
                 ,
                 if
                 the
                 Defunct
                 nominat
                 none
                 .
                 Or
                 thirdly
                 ,
                 if
                 he
                 die
                 ,
                 they
                 have
                 all
                 that
                 is
                 free
                 of
                 Dead's
                 part
                 ,
                 not
                 exhausted
                 by
                 Legacy
                 ,
                 or
                 by
                 the
                 Executor's
                 Allowance
                 ,
                 for
                 his
                 Administration
                 ;
                 which
                 is
                 the
                 Third
                 of
                 the
                 Dead's
                 part
                 .
                 And
                 that
                 ,
                 when
                 he
                 nominats
                 Executors
                 :
                 unless
                 they
                 be
                 also
                 
                   universal
                   Legatars
                
                 ;
                 or
                 though
                 the
                 Children
                 appear
                 not
                 ,
                 to
                 claim
                 their
                 Office
                 ,
                 when
                 Executors
                 dative
                 are
                 confirmed
                 by
                 the
                 Commissaries
                 .
              
               
                 53.
                 
                 This
                 interest
                 is
                 common
                 to
                 all
                 other
                 nearest
                 of
                 Kin.
                 This
                 is
                 clear
                 by
                 the
                 Act
                 of
                 Parliament
                 1617.
                 cap.
                 14.
                 as
                 to
                 Executors
                 nominat
                 ,
                 that
                 the
                 nearest
                 of
                 Kin
                 may
                 pursue
                 them
                 ,
                 for
                 the
                 free
                 Geer
                 ;
                 even
                 for
                 Dead's
                 part
                 ,
                 except
                 a
                 Third
                 to
                 the
                 Executors
                 for
                 their
                 Administration
                 .
                 So
                 that
                 if
                 they
                 have
                 any
                 Legacy
                 ,
                 it
                 is
                 imputed
                 as
                 a
                 part
                 of
                 the
                 Third
                 ,
                 and
                 the
                 Executor
                 nominat
                 ,
                 hath
                 not
                 both
                 ,
                 separatim
                 :
                 and
                 he
                 hath
                 but
                 the
                 Third
                 of
                 Dead's
                 part
                 ,
                 Debts
                 and
                 Legacies
                 being
                 deduced
                 .
                 So
                 that
                 if
                 there
                 be
                 an
                 universal
                 Legacy
                 to
                 another
                 ,
                 the
                 Executor
                 nominat
                 hath
                 nothing
                 .
                 November
                 29.
                 1626.
                 
                 Forsyth
                 contra
                 
                   Forsyth
                   .
                   July
                
                 9.
                 1631.
                 
                 Wilson
                 contra
                 Tinto
                 .
                 Where
                 the
                 reason
                 is
                 rendered
                 ,
                 because
                 
                 before
                 the
                 Act
                 of
                 Parliament
                 1617.
                 
                 Defuncts
                 might
                 exhaust
                 all
                 their
                 Dead's
                 part
                 by
                 Legacies
                 :
                 and
                 that
                 Act
                 was
                 not
                 to
                 better
                 Executors
                 ,
                 but
                 to
                 restrict
                 them
                 .
                 The
                 like
                 January
                 15.
                 1674.
                 
                 Pattoun
                 contra
                 Leishman
                 .
                 The
                 like
                 
                   Spots
                   .
                   Executors
                
                 of
                 Moncrief
                 contra
                 Moncrief
                 .
                 And
                 seing
                 the
                 said
                 Act
                 bears
                 ,
                 Strangers
                 being
                 nominat
                 ,
                 shall
                 have
                 but
                 a
                 Third
                 of
                 the
                 Dead's
                 part
                 ;
                 therefore
                 the
                 Wife
                 will
                 have
                 no
                 more
                 but
                 her
                 Third
                 .
                 Or
                 if
                 one
                 of
                 the
                 Children
                 should
                 be
                 nominat
                 ,
                 or
                 the
                 nearest
                 of
                 Kin
                 :
                 for
                 none
                 of
                 these
                 are
                 Strangers
                 ,
                 and
                 so
                 have
                 nothing
                 for
                 their
                 Administration
                 ,
                 but
                 their
                 Expenses
                 .
                 November
                 28.
                 1676.
                 
                 
                   John
                   Ker
                
                 contra
                 
                   Jean
                   Ker.
                
                 But
                 concerning
                 Executors
                 dative
                 ,
                 this
                 Statute
                 gives
                 them
                 no
                 Share
                 of
                 Dead's
                 part
                 .
              
               
                 54.
                 
                 The
                 order
                 of
                 Confirmation
                 is
                 ,
                 that
                 the
                 Commissaries
                 having
                 emitted
                 Edicts
                 ,
                 affixed
                 on
                 the
                 Church-door
                 ,
                 where
                 the
                 Defunct
                 died
                 ,
                 calling
                 all
                 Persons
                 having
                 interest
                 ,
                 to
                 confirm
                 ;
                 then
                 ,
                 according
                 as
                 Parties
                 compear
                 ,
                 and
                 compete
                 ,
                 they
                 prefer
                 the
                 greatest
                 interest
                 .
                 First
                 ,
                 the
                 Executor
                 nominat
                 ,
                 then
                 the
                 nearest
                 of
                 Kin.
                 Thirdly
                 ,
                 the
                 Relict
                 ,
                 Legatars
                 ,
                 and
                 Creditors
                 :
                 and
                 all
                 failing
                 ,
                 the
                 Procurator
                 fiscal
                 ,
                 or
                 such
                 who
                 are
                 surrogat
                 by
                 him
                 ;
                 who
                 enjoyed
                 the
                 whole
                 Dead's
                 part
                 ,
                 till
                 their
                 Right
                 were
                 reduced
                 ,
                 on
                 a
                 better
                 Title
                 .
                 But
                 since
                 ,
                 not
                 only
                 the
                 Wife
                 and
                 Bairns
                 ,
                 who
                 may
                 call
                 all
                 Executors
                 to
                 accompt
                 ,
                 for
                 their
                 parts
                 ,
                 but
                 also
                 the
                 nearest
                 of
                 Kin
                 ,
                 have
                 been
                 admitted
                 ,
                 to
                 call
                 the
                 ordinary
                 Executors
                 dative
                 to
                 an
                 accompt
                 ,
                 without
                 Reduction
                 .
                 But
                 before
                 the
                 said
                 Statute
                 ,
                 all
                 Executors
                 had
                 the
                 whole
                 profit
                 of
                 Dead's
                 part
                 ,
                 as
                 the
                 Narrative
                 of
                 it
                 bears
                 .
                 And
                 yet
                 of
                 old
                 ,
                 it
                 appears
                 the
                 Executors
                 had
                 litle
                 benefit
                 ,
                 if
                 there
                 was
                 any
                 Debt
                 ,
                 heritable
                 ,
                 or
                 moveable
                 :
                 for
                 they
                 only
                 were
                 lyable
                 for
                 a
                 year
                 :
                 and
                 thereafter
                 to
                 find
                 Caution
                 to
                 relieve
                 the
                 Heretor
                 ,
                 Par.
                 1503.
                 cap.
                 76.
                 
                 But
                 these
                 Executors
                 dative
                 have
                 not
                 a
                 Third
                 of
                 Dead's
                 part
                 ,
                 for
                 their
                 Administration
                 ,
                 though
                 they
                 be
                 Strangers
                 :
                 for
                 the
                 Statute
                 gives
                 that
                 only
                 to
                 Executors
                 nominat
                 ,
                 being
                 Strangers
                 .
                 But
                 the
                 Fiscal
                 ,
                 by
                 the
                 Trust
                 committed
                 to
                 Bishops
                 to
                 have
                 a
                 care
                 of
                 Defunct's
                 Executory
                 ,
                 and
                 the
                 Quota
                 ,
                 which
                 is
                 the
                 twentieth
                 penny
                 of
                 free
                 Geer
                 ,
                 should
                 execute
                 the
                 Executory
                 ,
                 where
                 none
                 are
                 nominat
                 by
                 the
                 Defunct
                 .
                 And
                 therefore
                 ,
                 Executors
                 dative
                 are
                 his
                 Assigneys
                 ,
                 surrogat
                 in
                 place
                 of
                 the
                 Fiscal
                 .
                 November
                 28.
                 1676.
                 
                 
                   John
                   Ker
                
                 contra
                 
                   Jean
                   Ker.
                
                 
              
               
                 This
                 interest
                 of
                 Children
                 ,
                 as
                 
                   nearest
                   of
                   Kin
                
                 ,
                 is
                 never
                 taken
                 away
                 ;
                 unlese
                 they
                 renunce
                 or
                 discharge
                 ,
                 not
                 only
                 the
                 
                   Bairns
                   part
                
                 ,
                 or
                 Portion
                 natural
                 ,
                 but
                 all
                 that
                 they
                 may
                 succeed
                 to
                 ,
                 by
                 their
                 Father's
                 Death
                 .
              
               
                 To
                 come
                 now
                 to
                 the
                 Office
                 of
                 Executory
                 ,
                 and
                 what
                 power
                 Executors
                 have
                 activè
                 ,
                 and
                 how
                 far
                 they
                 are
                 lyable
                 passive
                 ;
                 we
                 must
                 distinguish
                 Executors
                 .
                 They
                 are
                 either
                 nominat
                 ,
                 or
                 dative
                 ,
                 constitute
                 by
                 the
                 Commissaries
                 :
                 and
                 these
                 are
                 preferred
                 according
                 to
                 their
                 several
                 interests
                 in
                 the
                 Executory
                 .
                 And
                 these
                 who
                 are
                 Creditors
                 of
                 the
                 Defunct
                 ,
                 preferred
                 
                   hoc
                   nomine
                
                 ,
                 are
                 called
                 
                   Executors
                   Creditors
                
                 .
                 Executors
                 are
                 also
                 principal
                 ,
                 or
                 
                   ad
                   ommissa
                   ,
                   &
                   malè
                   appretiata
                
                 ;
                 or
                 
                   ad
                   non
                   executa
                
                 .
                 And
                 all
                 these
                 may
                 be
                 either
                 Sole
                 Executors
                 or
                 Co-executors
                 .
              
               
                 All
                 Executors
                 are
                 obliged
                 ,
                 to
                 give
                 up
                 Inventary
                 upon
                 Oath
                 ,
                 bearing
                 that
                 they
                 have
                 omitted
                 nothing
                 known
                 to
                 them
                 ,
                 nor
                 have
                 misapretiat
                 the
                 same
                 ;
                 and
                 must
                 find
                 Caution
                 ,
                 to
                 make
                 the
                 Executory
                 foorthcoming
                 ,
                 to
                 all
                 Parties
                 having
                 interest
                 .
                 They
                 use
                 also
                 to
                 protest
                 ,
                 that
                 what
                 further
                 comes
                 to
                 their
                 Knowledge
                 ,
                 they
                 may
                 〈◊〉
                 or
                 add
                 to
                 the
                 Inventary
                 :
                 which
                 they
                 may
                 still
                 do
                 ,
                 
                 before
                 another
                 do
                 Diligence
                 ,
                 to
                 confirm
                 a
                 Dative
                 
                   ad
                   omissa
                   ,
                   &
                   malè
                   appretiata
                
                 ;
                 or
                 before
                 they
                 be
                 pursued
                 for
                 Super-intromission
                 .
              
               
                 55.
                 
                 An
                 Executor
                 nominat
                 in
                 England
                 ,
                 was
                 admitted
                 to
                 pursue
                 in
                 Scotland
                 ,
                 upon
                 a
                 Confirmation
                 there
                 ,
                 without
                 Inventary
                 :
                 in
                 respect
                 of
                 the
                 Custom
                 there
                 ,
                 not
                 to
                 make
                 Inventary
                 .
                 Feb.
                 16.
                 1627.
                 
                 Lawson
                 contra
                 
                   Bartholemew
                   Kello
                
                 .
                 But
                 in
                 that
                 Case
                 ,
                 an
                 Executor
                 dative
                 ,
                 confirmed
                 in
                 Scotland
                 ,
                 having
                 found
                 Caution
                 ,
                 was
                 preferred
                 to
                 the
                 Executor
                 nominat
                 and
                 confirmed
                 in
                 
                   England
                   .
                   Spots
                   .
                   Executors
                   ,
                   inter
                   eosdem
                   .
                
              
               
                 An
                 Executor
                 being
                 decerned
                 ,
                 though
                 not
                 confirmed
                 ,
                 may
                 pursue
                 not
                 only
                 the
                 Defunct's
                 Wife
                 and
                 Bairns
                 ,
                 to
                 give
                 up
                 Inventary
                 ;
                 but
                 also
                 Strangers
                 .
                 Novemb.
                 11.
                 1609.
                 
                 Heriot
                 contra
                 Heriot
                 .
                 But
                 till
                 he
                 be
                 confirmed
                 ,
                 or
                 have
                 Licence
                 ,
                 he
                 cannot
                 pursue
                 for
                 
                   Payment
                   .
                   Decemb.
                
                 12.
                 1622.
                 
                 Cathcart
                 contra
                 Cuninghame
                 .
              
               
                 56.
                 
                 Executors
                 intending
                 to
                 confirm
                 ,
                 use
                 to
                 get
                 a
                 Licence
                 to
                 pursue
                 :
                 which
                 ordinarly
                 bears
                 ,
                 
                   excludendo
                   sententiam
                
                 .
                 Which
                 was
                 sustained
                 ,
                 though
                 general
                 ,
                 to
                 pursue
                 for
                 all
                 the
                 Defunct's
                 Debts
                 ,
                 naming
                 none
                 .
                 
                   Hope
                   ,
                   Executors
                   ,
                   Farquhar
                
                 contra
                 Law.
                 But
                 the
                 Obtainer
                 must
                 be
                 first
                 decerned
                 Executor
                 :
                 for
                 till
                 an
                 Edict
                 be
                 served
                 ,
                 and
                 an
                 Executor
                 confirmed
                 ,
                 there
                 can
                 be
                 no
                 Title
                 given
                 to
                 pursue
                 .
                 Yet
                 before
                 Confirmation
                 ,
                 the
                 Licence
                 may
                 be
                 granted
                 .
              
               
                 If
                 the
                 Decreet
                 be
                 extracted
                 ,
                 on
                 such
                 Licence
                 ,
                 before
                 Confirmation
                 ,
                 the
                 Decreet
                 is
                 null
                 .
                 
                   Hope
                   ,
                   Executors
                   ,
                   John
                   Aitkin
                
                 contra
                 
                   Richardson
                   .
                   Nicol.
                   de
                   acquirenda
                   &
                   amittenda
                   hereditate
                   ,
                   Janet
                   Tweedie
                
                 contra
                 
                   Magdalen
                   Lawson
                
                 .
                 Licences
                 use
                 not
                 to
                 be
                 granted
                 ,
                 after
                 the
                 principal
                 Confirmation
                 :
                 and
                 therefore
                 was
                 not
                 sustained
                 as
                 a
                 Title
                 .
                 December
                 14.
                 1621.
                 
                 Haliday
                 contra
                 Yet
                 it
                 was
                 sustained
                 ,
                 for
                 pursuing
                 a
                 Debt
                 particularly
                 exprest
                 therein
                 ,
                 being
                 
                   dubii
                   juris
                   .
                   January
                
                 21.
                 1624.
                 
                 Carnousie
                 contra
                 The
                 like
                 where
                 the
                 Licence
                 was
                 granted
                 to
                 a
                 Creditor
                 surrogat
                 as
                 Executor
                 Creditor
                 ,
                 
                   ad
                   omissa
                   .
                   June
                
                 30.
                 1665.
                 
                 Stevenson
                 contra
                 
                   Crawford
                   .
                   Feb.
                
                 21.
                 1668.
                 
                 Scot
                 of
                 Clerkingtoun
                 contra
                 Lady
                 Clerkingtoun
                 .
              
               
                 Executors
                 confirmed
                 ,
                 have
                 Right
                 to
                 call
                 for
                 ,
                 and
                 uplift
                 all
                 the
                 Defunct's
                 Moveables
                 confirmed
                 .
                 The
                 Executors
                 of
                 a
                 Donatar
                 ofa
                 Liferent
                 Escheat
                 ,
                 was
                 found
                 to
                 have
                 Right
                 to
                 the
                 Bygones
                 of
                 that
                 Liferent
                 ,
                 before
                 the
                 Donatar's
                 Death
                 :
                 and
                 his
                 Heir
                 to
                 the
                 Profits
                 of
                 the
                 Liferent
                 ,
                 after
                 the
                 Donatar's
                 Death
                 ,
                 albeit
                 there
                 was
                 no
                 Declarator
                 in
                 his
                 Life
                 .
                 January
                 28.
                 1671.
                 
                 Keiry
                 contra
                 Nicolson
                 .
                 But
                 Sums
                 secured
                 by
                 a
                 condition
                 in
                 a
                 Reversion
                 ,
                 that
                 no
                 Redemption
                 should
                 be
                 
                   till
                   these
                   Sums
                   were
                   payed
                
                 ,
                 (
                 where
                 the
                 Disposition
                 was
                 not
                 granted
                 for
                 these
                 sums
                 ,
                 as
                 the
                 Cause
                 thereof
                 ,
                 )
                 though
                 they
                 affect
                 the
                 Ground
                 disponed
                 ,
                 yet
                 remain
                 a
                 moveable
                 Right
                 ,
                 befalling
                 to
                 Executors
                 .
                 Feb.
                 18.
                 1676.
                 
                 
                   Thomas
                   Wauch
                
                 contra
                 Doctor
                 Jameson
                 .
              
               
                 57.
                 
                 It
                 useth
                 to
                 be
                 controverted
                 ,
                 betwixt
                 the
                 Heir
                 and
                 Executor
                 ,
                 about
                 the
                 Rents
                 of
                 Lands
                 ,
                 and
                 others
                 ,
                 which
                 run
                 according
                 to
                 the
                 legal
                 Terms
                 .
                 So
                 if
                 the
                 Heretor
                 ,
                 or
                 Liferenter
                 ,
                 survive
                 Whitsunday
                 and
                 Martinmasse
                 ;
                 their
                 Executors
                 have
                 that
                 whole
                 year
                 ,
                 albeit
                 it
                 be
                 Victual
                 payable
                 at
                 Candlemasse
                 .
                 because
                 the
                 last
                 legal
                 Term
                 is
                 Martinmasse
                 .
                 And
                 it
                 was
                 so
                 decided
                 ,
                 even
                 in
                 the
                 Case
                 of
                 a
                 Miln
                 .
                 Feb.
                 21.
                 1635.
                 
                 Laird
                 of
                 Westnisbet
                 contra
                 Laird
                 of
                 Swintoun
                 .
                 The
                 like
                 was
                 found
                 ,
                 albeit
                 the
                 Entry
                 of
                 the
                 Tenent
                 was
                 at
                 Whitsunday
                 and
                 the
                 conventional
                 Terms
                 of
                 Payment
                 of
                 the
                 Miln
                 Rent
                 ,
                 were
                 ,
                 the
                 first
                 Half
                 at
                 Candlemasse
                 ,
                 
                 and
                 the
                 second
                 at
                 Whitsunday
                 ;
                 That
                 Liferenter
                 surviving
                 Martinmasse
                 ,
                 being
                 the
                 last
                 legal
                 Term
                 ,
                 had
                 the
                 Rent
                 of
                 the
                 Miln
                 ,
                 both
                 payable
                 at
                 Candlemasse
                 and
                 Whitsunday
                 ,
                 after
                 that
                 
                   Martinmasse
                   .
                   July
                
                 20.
                 1671.
                 
                 Guthry
                 contra
                 Mackerstoun
                 .
                 But
                 if
                 they
                 live
                 only
                 till
                 Whitsunday
                 ,
                 then
                 their
                 Executors
                 have
                 the
                 Half
                 of
                 the
                 Rent
                 ,
                 Victual
                 ,
                 or
                 Mony
                 :
                 if
                 they
                 live
                 till
                 the
                 Term-day
                 ,
                 though
                 they
                 die
                 that
                 Day
                 ,
                 their
                 Executors
                 have
                 that
                 Term
                 wherein
                 they
                 died
                 .
                 It
                 was
                 so
                 found
                 ,
                 that
                 the
                 Defunct
                 dying
                 on
                 Martinmasse-day
                 ,
                 at
                 eleven
                 hours
                 ,
                 his
                 Executors
                 had
                 that
                 whole
                 Years
                 Rent
                 .
                 
                   Hope
                   ,
                   Executors
                   ,
                   Tenents
                
                 of
                 Merchistoun
                 contra
                 Napeir
                 .
                 The
                 like
                 ,
                 where
                 the
                 Defunct
                 died
                 on
                 Marlinmasse-day
                 in
                 the
                 afternoon
                 ,
                 the
                 Executor
                 got
                 that
                 whole
                 Year
                 .
                 16.
                 of
                 February
                 1642.
                 
                 Lady
                 Bruntoun
                 Relict
                 of
                 the
                 Bishop
                 of
                 Galloway
                 contra
                 
                   his
                   Executors
                
                 .
              
               
                 58.
                 
                 Executors
                 have
                 also
                 Right
                 to
                 Steelbow
                 Goods
                 ,
                 without
                 prejudice
                 to
                 the
                 Tenent's
                 Tack
                 thereof
                 ,
                 to
                 continue
                 
                   till
                   it
                   were
                   expired
                   .
                   Decemb.
                
                 4.
                 1638.
                 
                 Countess
                 of
                 Westmorland
                 contra
                 Countess
                 of
                 
                   Hume
                   .
                   January
                
                 28.
                 1642.
                 
                 
                   Patrick
                   Dundass
                
                 contra
                 
                   George
                   Brown.
                   June
                
                 1681.
                 
                 Mackanlay
                 contra
                 Laird
                 of
                 Ardincaple
                 .
                 As
                 to
                 other
                 particulars
                 ,
                 it
                 will
                 appear
                 what
                 Rights
                 are
                 moveable
                 ,
                 Title
                 
                   Real
                   Rights
                
                 .
              
               
                 59.
                 
                 Co
                 executors
                 cannot
                 pursue
                 ,
                 unless
                 the
                 rest
                 be
                 concurring
                 ,
                 or
                 called
                 .
                 March
                 8.
                 1634.
                 contra
                 Lag
                 .
                 Yet
                 if
                 any
                 of
                 the
                 Executors
                 confirmed
                 will
                 not
                 concur
                 ,
                 and
                 contribute
                 equal
                 Pains
                 and
                 Expense
                 ;
                 the
                 Pursuit
                 will
                 be
                 sustained
                 without
                 him
                 :
                 and
                 he
                 may
                 be
                 excluded
                 by
                 a
                 Process
                 before
                 the
                 Commissaries
                 on
                 that
                 ground
                 .
                 June
                 29.
                 1629.
                 
                 Young
                 contra
                 Murray
                 .
                 But
                 when
                 Co-executors
                 have
                 ohtained
                 Sentence
                 ,
                 and
                 so
                 execute
                 the
                 Testament
                 ,
                 every
                 one
                 may
                 pursue
                 for
                 their
                 Shares
                 ,
                 severally
                 ,
                 without
                 concourse
                 or
                 calling
                 the
                 rest
                 .
                 January
                 25.
                 1665.
                 
                 
                   William
                   Menzies
                
                 contra
                 Laird
                 of
                 Drum.
                 
              
               
                 One
                 Executor
                 cannot
                 discharge
                 a
                 Debt
                 ,
                 wholly
                 :
                 seing
                 the
                 other
                 Executors
                 have
                 equal
                 Share
                 in
                 all
                 .
                 March
                 17.
                 1630.
                 
                 Semple
                 contra
                 Mackie
                 and
                 Dobbie
                 .
                 Yet
                 this
                 Debitor
                 alledging
                 ,
                 that
                 the
                 Executors
                 pursuing
                 ,
                 had
                 received
                 their
                 full
                 Share
                 ;
                 it
                 was
                 sustained
                 .
                 March
                 24.
                 1680.
                 
                   inter
                   eosdem
                
                 .
                 An
                 Executor's
                 Discharge
                 was
                 sustained
                 ,
                 though
                 the
                 Executor
                 dyed
                 before
                 the
                 Testament
                 was
                 registrat
                 ,
                 he
                 having
                 confirmed
                 ,
                 made
                 Faith
                 ,
                 and
                 found
                 Caution
                 .
                 
                   Hope
                   ,
                   Executors
                   ,
                   Elizabeth
                   Lawson
                
                 contra
                 Lady
                 Humby
                 .
              
               
                 Amongst
                 Co-executors
                 the
                 Office
                 accresceth
                 to
                 the
                 Survivers
                 ,
                 who
                 are
                 in
                 the
                 same
                 case
                 as
                 if
                 the
                 defunct
                 Executor
                 had
                 not
                 been
                 named
                 .
                 Only
                 in
                 so
                 far
                 as
                 the
                 Testament
                 was
                 execute
                 before
                 that
                 Executor's
                 Death
                 ,
                 his
                 Share
                 is
                 transmitted
                 to
                 his
                 Executors
                 ,
                 and
                 accresceth
                 not
                 :
                 but
                 is
                 transmitted
                 
                   cum
                   onere
                   debitorum
                   defuncti
                   pro
                   rata
                   .
                
                 And
                 it
                 seems
                 the
                 defunct
                 Executors
                 ,
                 being
                 Strangers
                 ,
                 should
                 have
                 only
                 a
                 share
                 of
                 a
                 Third
                 of
                 
                   Dead's
                   part
                
                 ,
                 so
                 far
                 as
                 execute
                 in
                 their
                 Life
                 :
                 seing
                 that
                 benefit
                 followeth
                 the
                 Office
                 ,
                 and
                 should
                 be
                 proportionable
                 to
                 the
                 effect
                 ,
                 and
                 charge
                 thereof
                 .
              
               
                 60.
                 
                 Assignations
                 granted
                 by
                 Executors
                 ,
                 have
                 only
                 the
                 effect
                 of
                 Procuratories
                 ,
                 and
                 ceass
                 by
                 the
                 Death
                 of
                 the
                 Debitor
                 :
                 unless
                 they
                 have
                 attained
                 effect
                 by
                 
                   Sentence
                   ,
                   or
                   Satisfaction
                
                 ,
                 whereby
                 alone
                 the
                 Testament
                 can
                 be
                 execute
                 .
                 And
                 if
                 all
                 the
                 Executors
                 die
                 before
                 the
                 Testament
                 be
                 execute
                 ,
                 in
                 so
                 far
                 as
                 it
                 is
                 not
                 execute
                 ,
                 the
                 Goods
                 remain
                 
                   in
                   bonis
                   〈◊〉
                
                 :
                 and
                 the
                 Assigny
                 cannot
                 pursue
                 ,
                 but
                 there
                 must
                 be
                 an
                 Executor
                 
                   ad
                   non
                   executa
                
                 .
                 But
                 if
                 the
                 Testament
                 was
                 execute
                 by
                 the
                 Executor
                 ,
                 by
                 obtaining
                 Decreet
                 for
                 the
                 Sum
                 assigned
                 ;
                 the
                 
                 Assignation
                 is
                 effectual
                 ,
                 after
                 the
                 Executor's
                 Death
                 :
                 or
                 if
                 the
                 Assigny
                 obtain
                 sentence
                 or
                 Satisfaction
                 in
                 the
                 Executor's
                 life
                 .
                 For
                 in
                 either
                 of
                 these
                 Cases
                 ,
                 the
                 Testament
                 is
                 execute
                 as
                 to
                 that
                 part
                 .
              
               
                 61.
                 
                 If
                 all
                 the
                 Executors
                 be
                 dead
                 ,
                 and
                 any
                 part
                 of
                 the
                 Testament
                 unexecute
                 ;
                 then
                 there
                 is
                 place
                 for
                 Executors
                 
                   ad
                   non
                   executa
                
                 .
                 A
                 Testament
                 is
                 execute
                 when
                 the
                 Debt
                 is
                 established
                 in
                 the
                 person
                 of
                 the
                 Executor
                 active
                 ,
                 and
                 the
                 Debitor
                 passivè
                 ;
                 either
                 by
                 new
                 Security
                 ,
                 or
                 by
                 Decreet
                 :
                 or
                 otherways
                 ,
                 when
                 it
                 is
                 discharged
                 ,
                 or
                 assigned
                 to
                 a
                 party
                 interessed
                 in
                 the
                 Executory
                 .
                 But
                 Litiscontestation
                 doth
                 not
                 execute
                 the
                 Testament
                 .
                 Feb.
                 20.
                 1627.
                 
                 Duke
                 of
                 Lennox
                 contra
                 
                   Alexander
                   Weyms
                
                 .
                 But
                 the
                 Execution
                 of
                 the
                 Testament
                 ,
                 doth
                 not
                 establish
                 the
                 full
                 Property
                 of
                 the
                 Goods
                 in
                 the
                 Executor
                 ,
                 leaving
                 only
                 an
                 Action
                 against
                 him
                 ,
                 to
                 the
                 Defunct's
                 Creditors
                 :
                 but
                 he
                 continues
                 as
                 Administrator
                 .
                 And
                 therefore
                 in
                 competition
                 betwixt
                 the
                 Creditors
                 of
                 the
                 Defunct
                 ,
                 and
                 the
                 proper
                 Creditors
                 of
                 the
                 Executor
                 affecting
                 the
                 Sums
                 or
                 Goods
                 which
                 were
                 the
                 Defunct's
                 ,
                 by
                 Arrestment
                 ;
                 the
                 Defunct's
                 Creditors
                 ,
                 without
                 respect
                 of
                 Diligence
                 ,
                 are
                 always
                 preferred
                 to
                 the
                 Executor's
                 proper
                 Creditors
                 .
                 July
                 8.
                 1664.
                 
                 
                   William
                   Veatch
                
                 contra
                 Lord
                 
                   Lee.
                   December
                
                 16.
                 1674.
                 
                 Kelhead
                 contra
                 lrving
                 and
                 
                   Borthwick
                   .
                   December
                
                 16.
                 1675.
                 
                 Crediiors
                 of
                 
                   James
                   Mastertoun
                
                 and
                 
                   Eleis
                   Thin
                
                 .
                 Neither
                 doth
                 the
                 Executors
                 Delinquency
                 or
                 Rebellion
                 confiscat
                 further
                 than
                 their
                 own
                 Interest
                 in
                 the
                 Executory
                 ,
                 but
                 not
                 the
                 Interest
                 of
                 Creditors
                 ,
                 Legatars
                 ,
                 Wife
                 ,
                 or
                 Bairns
                 :
                 albeit
                 the
                 Executor
                 have
                 execute
                 the
                 Testament
                 by
                 Decreets
                 .
                 December
                 21.
                 1671.
                 
                 Mr.
                 
                   Arthur
                   Gordoun
                
                 contra
                 Laird
                 of
                 Drum.
                 
              
               
                 But
                 it
                 may
                 appear
                 ,
                 that
                 seing
                 now
                 the
                 nearest
                 of
                 Kin
                 surviving
                 ,
                 transmit
                 their
                 part
                 of
                 the
                 Executory
                 to
                 their
                 Executors
                 ,
                 though
                 they
                 die
                 
                   testamento
                   non
                   executo
                
                 ;
                 there
                 should
                 be
                 no
                 need
                 of
                 Executors
                 
                   ad
                   non
                   executa
                
                 :
                 but
                 the
                 Executors
                 of
                 the
                 Wife
                 ,
                 Bairns
                 ,
                 and
                 other
                 nearest
                 of
                 Kin
                 ,
                 might
                 confirm
                 the
                 same
                 in
                 their
                 Testament
                 ,
                 and
                 not
                 in
                 the
                 first
                 Defunct's
                 Testament
                 ;
                 not
                 being
                 
                   in
                   bonis
                   primi
                   defuncti
                
                 ,
                 but
                 secundi
                 ,
                 being
                 transmitted
                 to
                 his
                 Successors
                 .
                 But
                 this
                 is
                 not
                 consequent
                 ,
                 or
                 consonant
                 to
                 our
                 Custom
                 .
                 And
                 therefore
                 ,
                 to
                 clear
                 this
                 difficulty
                 ,
                 advert
                 ,
                 that
                 though
                 the
                 Right
                 to
                 the
                 Goods
                 ,
                 be
                 in
                 the
                 nearest
                 of
                 Kin
                 surviving
                 ;
                 yet
                 the
                 administration
                 and
                 possession
                 is
                 in
                 the
                 Executor
                 .
                 And
                 therefore
                 ,
                 the
                 Goods
                 are
                 still
                 said
                 to
                 be
                 
                   in
                   bonis
                   defuncti
                
                 ,
                 till
                 they
                 be
                 established
                 in
                 another's
                 person
                 ,
                 active
                 ,
                 by
                 execution
                 .
                 So
                 that
                 their
                 Goods
                 remain
                 
                   in
                   bonis
                   primi
                   defuncti
                
                 ,
                 though
                 all
                 his
                 Executors
                 die
                 ,
                 as
                 well
                 as
                 one
                 ,
                 and
                 are
                 not
                 
                   in
                   bonis
                
                 of
                 the
                 nearest
                 of
                 Kin
                 ,
                 who
                 have
                 but
                 an
                 Obligation
                 on
                 the
                 Executor
                 ,
                 or
                 
                   jus
                   ad
                   rem
                
                 ,
                 whereby
                 the
                 Goods
                 are
                 still
                 said
                 to
                 be
                 
                   in
                   bonis
                   defuncti
                
                 .
                 So
                 that
                 all
                 the
                 Executors
                 of
                 the
                 Defunct
                 dying
                 ,
                 there
                 should
                 be
                 a
                 Confirmation
                 
                   ad
                   non
                   executa
                
                 :
                 yet
                 if
                 the
                 nearest
                 of
                 Kin
                 die
                 ,
                 there
                 may
                 be
                 another
                 Confirmation
                 of
                 his
                 Executots
                 to
                 establish
                 the
                 Right
                 of
                 the
                 nearest
                 of
                 Kin
                 in
                 their
                 person
                 ;
                 to
                 the
                 effect
                 his
                 Executors
                 may
                 pursue
                 the
                 first
                 Defunct's
                 Executor
                 
                   ad
                   non
                   executa
                
                 .
                 In
                 the
                 same
                 way
                 as
                 if
                 the
                 first
                 Executor
                 had
                 been
                 alive
                 ,
                 and
                 the
                 nearest
                 of
                 Kin
                 had
                 died
                 before
                 execution
                 ;
                 the
                 Executors
                 of
                 the
                 nearest
                 of
                 Kin
                 ,
                 behoved
                 to
                 confirm
                 his
                 Right
                 ,
                 and
                 thereupon
                 representing
                 the
                 nearest
                 of
                 Kin
                 ,
                 pursue
                 the
                 Executor
                 of
                 the
                 first
                 Defunct
                 ,
                 as
                 the
                 nearest
                 of
                 Kin
                 himself
                 could
                 have
                 done
                 .
                 If
                 it
                 be
                 objected
                 ,
                 that
                 there
                 is
                 no
                 Representation
                 
                   in
                   mobilibus
                
                 :
                 the
                 answer
                 is
                 ,
                 that
                 this
                 is
                 to
                 be
                 understood
                 at
                 the
                 time
                 of
                 the
                 Defunct's
                 Death
                 ;
                 whereby
                 those
                 only
                 who
                 survive
                 ,
                 have
                 Right
                 
                   per
                   capita
                
                 ,
                 and
                 not
                 the
                 Descendents
                 of
                 those
                 who
                 died
                 before
                 the
                 Defunct
                 .
                 But
                 if
                 all
                 survive
                 ,
                 the
                 Right
                 is
                 in
                 all
                 ,
                 and
                 transmitted
                 ,
                 not
                 by
                 Right
                 of
                 Representation
                 ,
                 but
                 as
                 
                   jus
                   quaesitum
                
                 ,
                 to
                 their
                 immediat
                 Predecessors
                 .
                 And
                 though
                 the
                 Office
                 will
                 belong
                 only
                 to
                 those
                 ,
                 who
                 are
                 alive
                 the
                 time
                 of
                 the
                 Confirmation
                 ,
                 
                 in
                 the
                 nearest
                 Degree
                 to
                 the
                 Defunct
                 ;
                 yet
                 the
                 nearest
                 of
                 Kin
                 to
                 those
                 who
                 survived
                 the
                 Defunct
                 ,
                 and
                 died
                 before
                 Confirmation
                 ,
                 will
                 get
                 the
                 Share
                 of
                 their
                 surviving
                 Parent
                 ,
                 as
                 to
                 the
                 Bairns
                 part
                 or
                 Relicts
                 part
                 :
                 because
                 these
                 are
                 not
                 properly
                 Succession
                 .
              
               
                 But
                 as
                 to
                 the
                 Deads
                 part
                 ,
                 which
                 befalleth
                 to
                 the
                 nearest
                 of
                 Kin
                 
                   jure
                   agnationis
                
                 ,
                 it
                 is
                 conveyed
                 by
                 a
                 proper
                 Succession
                 to
                 the
                 nearest
                 of
                 Kin
                 :
                 wherein
                 Children
                 unforisfamiliat
                 ,
                 succeed
                 as
                 nearest
                 of
                 Kin
                 ,
                 and
                 so
                 are
                 lyable
                 to
                 the
                 Legacies
                 ,
                 and
                 Deeds
                 of
                 the
                 Defunct
                 on
                 Death-bed
                 ,
                 as
                 to
                 the
                 Deads
                 part
                 ;
                 but
                 not
                 as
                 to
                 their
                 Bairns
                 part
                 .
                 And
                 therefore
                 Bairns
                 surviving
                 their
                 Father
                 ,
                 though
                 they
                 die
                 before
                 Confirmation
                 ,
                 they
                 transmit
                 their
                 Bairns
                 part
                 ,
                 but
                 not
                 Deads
                 part
                 ,
                 unless
                 they
                 also
                 survive
                 the
                 Confirmation
                 ;
                 that
                 being
                 
                   aditio
                   haereditatis
                   in
                   mobilibus
                
                 .
              
               
                 62.
                 
                 Executors
                 
                   ad
                   omissa
                   ,
                   &
                   malè
                   appretiata
                   ,
                
                 ought
                 to
                 call
                 the
                 principal
                 Executor
                 to
                 their
                 Confirmation
                 :
                 else
                 their
                 Confirmations
                 are
                 null
                 .
                 February
                 14.
                 1622.
                 
                 Bain
                 contra
                 March
                 12.
                 1631.
                 
                 Duff
                 contra
                 Alves
                 .
                 But
                 this
                 holds
                 not
                 in
                 Executors
                 Creditors
                 
                   ad
                   omissa
                   .
                   June
                
                 28.
                 1623.
                 
                 White
                 contra
                 These
                 having
                 a
                 more
                 favourable
                 interest
                 ,
                 for
                 satisfying
                 their
                 own
                 Debt
                 .
              
               
                 It
                 may
                 be
                 questioned
                 here
                 ,
                 Whether
                 those
                 things
                 can
                 be
                 called
                 
                   malè
                   appretiata
                
                 ,
                 which
                 are
                 pretiat
                 by
                 the
                 Defunct
                 himself
                 ?
                 Doubtless
                 
                   modica
                   differentia
                
                 is
                 not
                 to
                 be
                 regarded
                 :
                 but
                 if
                 the
                 Price
                 be
                 considerably
                 to
                 the
                 lesion
                 of
                 Creditors
                 ,
                 Legatars
                 ,
                 or
                 others
                 ,
                 as
                 being
                 a
                 Half
                 ,
                 or
                 Third
                 within
                 the
                 just
                 Price
                 ,
                 they
                 may
                 be
                 repretiat
                 .
                 Feb.
                 1.
                 1662.
                 
                 Belshes
                 contra
                 Otherways
                 it
                 stands
                 :
                 though
                 both
                 the
                 Quantity
                 and
                 Price
                 were
                 known
                 to
                 be
                 greater
                 ,
                 the
                 Difference
                 not
                 being
                 exorbitant
                 .
                 Feb.
                 2.
                 1672.
                 
                 
                   Agnes
                   Nimmo
                
                 contra
                 
                   William
                   Martin
                
                 .
                 And
                 Executors
                 are
                 comptable
                 ,
                 according
                 to
                 the
                 ordinary
                 Prices
                 :
                 seing
                 
                   id
                   non
                   agebatur
                
                 by
                 the
                 Price
                 ,
                 to
                 gift
                 to
                 the
                 Executor
                 ;
                 unless
                 it
                 had
                 been
                 exprest
                 that
                 the
                 Price
                 
                   should
                   not
                   be
                   questioned
                
                 .
                 And
                 then
                 it
                 is
                 as
                 a
                 Legacy
                 to
                 the
                 Executor
                 ,
                 and
                 to
                 be
                 imputed
                 in
                 part
                 of
                 the
                 Benefit
                 of
                 his
                 Office
                 :
                 and
                 prejudges
                 none
                 ,
                 but
                 Legatars
                 .
                 For
                 the
                 Defunct
                 can
                 do
                 no
                 Deed
                 on
                 Death-bed
                 ,
                 or
                 in
                 Testament
                 ,
                 further
                 than
                 extends
                 to
                 the
                 Dead's
                 part
                 .
                 An
                 Executor
                 
                   ad
                   omissa
                
                 pursuing
                 the
                 principal
                 Executrix
                 ,
                 who
                 deponed
                 that
                 she
                 had
                 confirmed
                 her
                 Husband's
                 Corns
                 ,
                 by
                 an
                 Estimat
                 thereof
                 ,
                 in
                 the
                 Barn-yard
                 ,
                 by
                 skilled
                 Men
                 ;
                 but
                 that
                 it
                 had
                 arisen
                 some
                 Bolls
                 higher
                 :
                 and
                 that
                 she
                 had
                 confirmed
                 a
                 part
                 of
                 a
                 Sum
                 ,
                 contained
                 in
                 a
                 Bond
                 granted
                 to
                 her
                 Husbands
                 ,
                 because
                 she
                 knew
                 the
                 rest
                 was
                 payed
                 :
                 she
                 was
                 found
                 lyable
                 ,
                 not
                 according
                 to
                 the
                 Estimat
                 ,
                 but
                 according
                 to
                 the
                 Quantitie
                 the
                 Corns
                 arose
                 to
                 ;
                 and
                 for
                 the
                 whole
                 Sum
                 contained
                 in
                 the
                 Bond
                 :
                 unless
                 she
                 produced
                 the
                 Bond
                 ,
                 that
                 the
                 Executor
                 
                   ad
                   omissa
                
                 might
                 proceed
                 thereon
                 for
                 the
                 rest
                 ;
                 or
                 otherways
                 ,
                 that
                 she
                 proved
                 that
                 part
                 she
                 omitted
                 ,
                 was
                 payed
                 by
                 the
                 Debitor
                 :
                 and
                 that
                 her
                 oath
                 of
                 Knowledge
                 could
                 neither
                 exoner
                 the
                 Debitor
                 ,
                 nor
                 her Self
                 .
                 November
                 6.
                 1679.
                 
                 
                   Alexander
                   Bruce
                
                 contra
                 
                   Anna
                   Douglas
                
                 .
                 And
                 an
                 Executor
                 was
                 made
                 to
                 depone
                 ,
                 upon
                 the
                 Goods
                 ,
                 Quantities
                 and
                 Prices
                 ,
                 in
                 the
                 Inventary
                 ,
                 at
                 the
                 instance
                 of
                 an
                 Executor
                 
                   ad
                   omissa
                
                 ,
                 notwithstanding
                 the
                 principal
                 Executor's
                 Oath
                 at
                 the
                 Confirmation
                 .
                 July
                 18.
                 1667.
                 
                 
                   Jean
                   Ker
                
                 contra
                 
                   John
                   Kiv.
                
                 
              
               
                 63.
                 
                 Executors
                 Creditors
                 must
                 instruct
                 their
                 Debt
                 before
                 the
                 Commissaries
                 .
                 And
                 therefore
                 if
                 they
                 have
                 no
                 Writ
                 to
                 instruct
                 it
                 ,
                 they
                 may
                 pursue
                 the
                 nearest
                 of
                 Kin
                 
                   cognitionis
                   causâ
                
                 .
                 And
                 having
                 obtained
                 Decreet
                 ,
                 it
                 will
                 instruct
                 
                 their
                 interest
                 ,
                 to
                 get
                 Confirmation
                 as
                 Executors
                 Creditors
                 :
                 which
                 being
                 done
                 they
                 need
                 not
                 instruct
                 their
                 Debt
                 to
                 the
                 Defunct's
                 Debitors
                 ,
                 or
                 others
                 ,
                 but
                 the
                 Confirmation
                 is
                 sufficient
                 ;
                 the
                 Debt
                 being
                 but
                 the
                 ground
                 ,
                 on
                 which
                 the
                 Commissaries
                 preferred
                 them
                 to
                 be
                 Executors
                 
                   dalive
                   .
                   Spots
                   .
                   Testament
                   ,
                   James
                   Reid
                
                 contra
                 
                   James
                   Lochier
                
                 .
                 So
                 that
                 no
                 Objection
                 against
                 their
                 Title
                 or
                 Debt
                 ,
                 or
                 that
                 they
                 are
                 satisfied
                 by
                 the
                 Executory
                 or
                 otherwise
                 ,
                 will
                 exclude
                 them
                 :
                 as
                 that
                 the
                 Debt
                 was
                 a
                 Bond
                 on
                 Death-bed
                 ,
                 though
                 proponed
                 by
                 other
                 Executors
                 Creditors
                 ,
                 confirming
                 within
                 some
                 dayes
                 after
                 .
                 Feb.
                 16.
                 1628.
                 
                 Creditors
                 of
                 
                   Adam
                   Marshal
                
                 contra
                 Byres
                 .
                 And
                 therefore
                 ,
                 they
                 may
                 confirm
                 ,
                 and
                 uplift
                 much
                 more
                 than
                 the
                 Debt
                 due
                 to
                 them
                 :
                 but
                 are
                 lyable
                 for
                 the
                 superplus
                 .
                 But
                 their
                 Confirmation
                 prejudgeth
                 not
                 other
                 Creditors
                 ,
                 who
                 used
                 Diligence
                 before
                 the
                 Confirmation
                 .
              
               
                 64.
                 
                 So
                 much
                 for
                 the
                 Office
                 ,
                 Power
                 ,
                 and
                 Interest
                 of
                 Executors
                 activè
                 .
                 Let
                 us
                 now
                 consider
                 their
                 Duty
                 and
                 Burthen
                 passivè
                 .
                 And
                 that
                 is
                 ,
                 first
                 ,
                 All
                 Executors
                 are
                 lyable
                 for
                 Diligence
                 in
                 executing
                 the
                 Testament
                 ,
                 but
                 not
                 all
                 equally
                 :
                 for
                 those
                 who
                 have
                 a
                 profitable
                 Office
                 ,
                 are
                 lyable
                 for
                 more
                 Diligence
                 ,
                 than
                 these
                 who
                 have
                 not
                 ;
                 as
                 Executors
                 nominat
                 ,
                 where
                 Dead
                 's
                 part
                 is
                 not
                 exhausted
                 with
                 Legacies
                 ,
                 are
                 most
                 obliged
                 for
                 exact
                 Diligence
                 .
                 But
                 if
                 there
                 be
                 an
                 universal
                 Legatar
                 ,
                 whereby
                 the
                 Executor
                 hath
                 no
                 benefit
                 ,
                 the
                 Executor
                 is
                 only
                 lyable
                 
                   quoad
                   dolum
                   &
                   latam
                   culpam
                
                 ,
                 and
                 for
                 
                   supine
                   negligence
                
                 ;
                 but
                 not
                 to
                 use
                 Horning
                 and
                 Poinding
                 ,
                 but
                 to
                 assign
                 when
                 ever
                 the
                 Legatar
                 insisteth
                 .
                 June
                 11.
                 1629.
                 
                 Nivine
                 contra
                 Hogs
                 .
                 The
                 like
                 as
                 to
                 a
                 special
                 Legacie
                 ,
                 whereof
                 the
                 Executor
                 had
                 no
                 benefit
                 ,
                 and
                 the
                 Legatar
                 might
                 have
                 pursued
                 for
                 it
                 himself
                 .
                 December
                 2.
                 1628.
                 
                 Port
                 contra
                 Morison
                 .
              
               
                 The
                 ordinary
                 Diligence
                 required
                 of
                 Executors
                 ,
                 is
                 Sentence
                 and
                 registrat
                 Horning
                 against
                 the
                 Defunct's
                 Debitors
                 :
                 but
                 how
                 soon
                 this
                 must
                 be
                 dispatched
                 ,
                 is
                 according
                 to
                 the
                 difficulty
                 and
                 length
                 of
                 the
                 Process
                 ,
                 
                   quod
                   est
                   in
                   arbitrio
                   judicis
                
                 .
                 Executors
                 are
                 lyable
                 in
                 the
                 first
                 place
                 ,
                 to
                 the
                 Defunct's
                 Creditors
                 ,
                 
                   secundûm
                   vires
                   inventarii
                
                 ,
                 and
                 no
                 further
                 .
                 And
                 that
                 not
                 only
                 to
                 the
                 Creditors
                 ,
                 to
                 whom
                 moveable
                 Debts
                 are
                 due
                 :
                 but
                 also
                 to
                 the
                 Creditors
                 in
                 heritable
                 Debts
                 or
                 Obligements
                 prestable
                 by
                 the
                 Executor
                 ,
                 not
                 consisting
                 
                   in
                   facto
                
                 proper
                 to
                 Heirs
                 ,
                 as
                 to
                 dispone
                 Land
                 ,
                 &c.
                 December
                 14.
                 1609.
                 
                 Gray
                 contra
                 
                   Craig
                   .
                   February
                
                 24.
                 1627.
                 
                 Carnagie
                 contra
                 
                   Lermonth
                   .
                   Hope
                   ,
                   Executors
                   ,
                   Adam
                
                 contra
                 Gray
                 .
                 And
                 so
                 were
                 found
                 lyable
                 ,
                 to
                 imploy
                 a
                 Sum
                 on
                 Land
                 or
                 Annualrent
                 for
                 a
                 Wife
                 's
                 Liferent-use
                 .
                 
                   Hope
                   ,
                   Executors
                   ,
                   John
                   Tran
                
                 contra
                 
                   James
                   Jackson
                   .
                   February
                
                 17.
                 1632.
                 
                 Kincade
                 contra
                 Yeoman
                 .
                 Where
                 the
                 Executor
                 was
                 not
                 only
                 found
                 lyable
                 to
                 imploy
                 the
                 Sum
                 ,
                 but
                 to
                 pay
                 the
                 Annualrent
                 of
                 it
                 .
                 March
                 12.
                 1622.
                 
                 Sir
                 
                   William
                   Fairly
                
                 contra
                 Executors
                 of
                 Fairly
                 .
                 And
                 also
                 for
                 Warrandice
                 of
                 an
                 Infeftment
                 ,
                 being
                 liquidat
                 .
                 July
                 22.
                 1630.
                 
                 Salmond
                 contra
                 Orre
                 .
                 And
                 an
                 Executor
                 was
                 found
                 lyable
                 to
                 pay
                 a
                 Creditor
                 of
                 the
                 Defunct
                 ,
                 the
                 Price
                 of
                 Lands
                 sold
                 to
                 the
                 Defunct
                 by
                 a
                 Minute
                 :
                 without
                 restricting
                 the
                 Creditor
                 to
                 the
                 Heir
                 ,
                 who
                 only
                 would
                 get
                 the
                 Right
                 of
                 the
                 Land
                 by
                 the
                 Minute
                 ,
                 which
                 remained
                 incomplete
                 ;
                 or
                 without
                 causing
                 the
                 Creditor
                 dispone
                 the
                 Land
                 to
                 the
                 Executor
                 ,
                 in
                 lieu
                 of
                 the
                 Moveables
                 exhausted
                 by
                 the
                 Price
                 :
                 reserving
                 to
                 the
                 Executor
                 Relief
                 against
                 the
                 Heir
                 as
                 accords
                 .
                 July
                 1.
                 1662.
                 
                 
                   William
                   Baillie
                
                 contra
                 
                   Margaret
                   Henrison
                
                 .
                 And
                 generally
                 Creditors
                 have
                 their
                 option
                 ,
                 to
                 pursue
                 the
                 Heirs
                 or
                 Executors
                 of
                 their
                 defunct
                 Debitors
                 .
                 Yet
                 Executors
                 were
                 not
                 found
                 lyable
                 for
                 an
                 annual
                 Payment
                 for
                 Years
                 after
                 the
                 Defunct's
                 Death
                 ,
                 but
                 only
                 his
                 Heir
                 .
                 Febrnary
                 5.
                 1675.
                 
                 Mr.
                 
                   Ninian
                   Hill
                
                 contra
                 Maxwell
                 .
                 But
                 if
                 there
                 had
                 
                 been
                 no
                 heretable
                 Right
                 to
                 affect
                 ,
                 the
                 Executor
                 would
                 have
                 been
                 found
                 lyable
                 .
              
               
                 It
                 was
                 long
                 dubious
                 ,
                 whether
                 Executors
                 Creditors
                 were
                 lyable
                 for
                 any
                 Diligence
                 ,
                 seing
                 they
                 confirmed
                 for
                 Payment
                 of
                 〈◊〉
                 own
                 Debts
                 ,
                 and
                 therefore
                 were
                 only
                 obliged
                 to
                 assign
                 to
                 Creditors
                 after
                 the
                 Executors
                 themselves
                 were
                 satisfied
                 ;
                 or
                 at
                 least
                 that
                 they
                 had
                 sufficient
                 time
                 to
                 recover
                 Satisfaction
                 .
                 Till
                 the
                 Lords
                 by
                 Act
                 of
                 Sederunt
                 of
                 the
                 5.
                 of
                 March
                 1679.
                 declared
                 Executors
                 Creditors
                 ,
                 lyable
                 for
                 what
                 they
                 confirm
                 ,
                 as
                 other
                 Executors
                 dative
                 :
                 but
                 that
                 they
                 are
                 not
                 〈◊〉
                 to
                 confirm
                 the
                 whole
                 Inventary
                 .
                 And
                 that
                 they
                 might
                 have
                 Licence
                 to
                 pursue
                 ,
                 to
                 find
                 out
                 the
                 most
                 solvent
                 Deb
                 of
                 their
                 defunct
                 Debitors
                 ,
                 making
                 Faith
                 that
                 they
                 doubted
                 of
                 the
                 
                   existency
                   〈◊〉
                
                 ,
                 or
                 〈◊〉
                 of
                 these
                 Debts
                 ;
                 and
                 finding
                 Caution
                 to
                 confirm
                 what
                 they
                 found
                 good
                 Debt
                 .
                 And
                 that
                 other
                 Executors
                 might
                 be
                 confirmed
                 
                   ad
                   omissi
                
                 ,
                 who
                 should
                 be
                 lyable
                 to
                 all
                 Parties
                 as
                 principal
                 Executors
                 .
                 The
                 reason
                 whereof
                 was
                 ,
                 because
                 the
                 Means
                 of
                 Orphans
                 ,
                 might
                 be
                 neglected
                 by
                 the
                 Confirmation
                 of
                 Executors
                 Creditors
                 ,
                 who
                 were
                 obliged
                 to
                 give
                 up
                 ,
                 and
                 confirm
                 a
                 full
                 Inventary
                 upon
                 oath
                 ,
                 though
                 far
                 exceeding
                 their
                 own
                 Debt
                 ,
                 whereby
                 other
                 Executors
                 that
                 were
                 obliged
                 to
                 Diligence
                 ,
                 were
                 excluded
                 and
                 hindered
                 .
              
               
                 Executors
                 Creditors
                 ,
                 are
                 lyable
                 for
                 the
                 Defunct's
                 priviledged
                 Debts
                 :
                 as
                 funeral
                 Expenses
                 ,
                 Servants
                 Fees
                 for
                 a
                 Year
                 or
                 a
                 Term
                 as
                 the
                 Servants
                 〈◊〉
                 〈◊〉
                 :
                 which
                 are
                 preferable
                 to
                 the
                 Executors
                 Creditors
                 own
                 Debt
                 .
                 Nov.
                 25.
                 1680.
                 
                 
                   David
                   Crawford
                
                 contra
                 Huttoun
                 .
              
               
                 65.
                 
                 But
                 the
                 Executors
                 have
                 Relief
                 of
                 all
                 heritable
                 Debts
                 against
                 the
                 Heir
                 ,
                 as
                 the
                 Heir
                 hath
                 of
                 moveable
                 Debts
                 against
                 the
                 Executor
                 .
                 July
                 30.
                 1630.
                 
                 Carnousie
                 contra
                 
                   Meldrunt
                   .
                   December
                
                 11.
                 1632.
                 
                 
                   Geills
                   Shaw
                
                 contra
                 Shaw.
                 
              
               
                 66.
                 
                 Executors
                 may
                 not
                 prefer
                 one
                 Creditor
                 to
                 another
                 :
                 and
                 so
                 may
                 not
                 make
                 voluntary
                 Payment
                 ,
                 but
                 upon
                 Sentence
                 without
                 Colinsion
                 .
                 And
                 if
                 before
                 Payment
                 any
                 other
                 Creditor
                 use
                 Citation
                 ,
                 they
                 may
                 not
                 pay
                 securely
                 ,
                 till
                 in
                 〈◊〉
                 Double-poynding
                 the
                 Creditors
                 be
                 called
                 ,
                 and
                 dispute
                 their
                 preference
                 .
                 December
                 2.
                 1628.
                 
                 Lyel
                 contra
                 
                   Hepburn
                   .
                   December
                
                 16.
                 1629.
                 
                 White
                 contra
                 Relict
                 of
                 the
                 Master
                 of
                 
                   Jedburgh
                   .
                   July
                
                 8.
                 1634.
                 
                 Dame
                 
                   Margaret
                   Prestoun
                
                 contra
                 Executors
                 of
                 Hepburn
                 .
                 Unless
                 the
                 Creditor
                 citing
                 ,
                 pass
                 from
                 that
                 Instance
                 .
                 December
                 4.
                 1623.
                 
                 Rochead
                 contra
                 Manderstoun
                 .
              
               
                 And
                 therefore
                 the
                 ordinary
                 Defence
                 is
                 ,
                 That
                 the
                 Executor
                 is
                 exhausted
                 by
                 Payment
                 ,
                 made
                 upon
                 Sentences
                 before
                 intenting
                 of
                 the
                 Pursuer's
                 Cause
                 .
                 Yet
                 if
                 the
                 Executor
                 have
                 payed
                 ,
                 he
                 may
                 alledge
                 ,
                 That
                 the
                 Creditor
                 to
                 whom
                 he
                 hath
                 payed
                 ,
                 had
                 done
                 more
                 timous
                 Diligence
                 ,
                 and
                 so
                 was
                 preferable
                 :
                 in
                 which
                 case
                 he
                 will
                 be
                 heard
                 as
                 that
                 Creditor
                 were
                 competing
                 .
                 And
                 Executors
                 may
                 pay
                 Creditors
                 whose
                 Debts
                 are
                 acknowledged
                 in
                 Testament
                 ,
                 without
                 Process
                 ,
                 if
                 the
                 same
                 be
                 payed
                 before
                 intenting
                 of
                 any
                 other
                 Creditor's
                 Pursuit
                 :
                 but
                 after
                 Citation
                 Debts
                 may
                 not
                 be
                 payed
                 ,
                 though
                 given
                 up
                 by
                 the
                 Defunct
                 in
                 Testament
                 .
                 March
                 31.
                 1624.
                 
                 Lady
                 Curriehill
                 contra
                 Laird
                 of
                 
                   Curriehill
                   ,
                   Nicol.
                   de
                   haereditariis
                   actionibus
                   .
                
                 March
                 28.
                 1627.
                 contra
                 Anderson
                 .
                 Neither
                 may
                 the
                 Executor
                 pay
                 any
                 other
                 Debt
                 ,
                 though
                 before
                 Citation
                 ,
                 in
                 prejudice
                 of
                 the
                 Debts
                 in
                 the
                 Defunct's
                 Testament
                 ,
                 which
                 puts
                 the
                 Executor
                 
                   in
                   mala
                   fide
                
                 ,
                 and
                 in
                 necessity
                 to
                 suspend
                 on
                 Double-poynding
                 ,
                 
                 though
                 these
                 Debitors
                 testamentary
                 insist
                 not
                 .
                 March
                 8.
                 1631.
                 
                 Duff
                 contra
                 
                   Alves
                   .
                   Nicol.
                   de
                   haereditariis
                   actionibus
                   .
                   March
                
                 28.
                 1631.
                 
                 Scougal
                 contra
                 Horseburgh
                 .
                 Yea
                 Executors
                 may
                 not
                 safely
                 pay
                 any
                 Creditor
                 of
                 the
                 Defunct
                 ,
                 not
                 being
                 a
                 testamentary
                 or
                 priviledged
                 one
                 ,
                 but
                 upon
                 Sentence
                 .
                 Otherwise
                 Executors
                 might
                 before
                 any
                 Pursuit
                 prefer
                 what
                 Creditors
                 they
                 pleased
                 .
                 June
                 7.
                 1677.
                 
                 Andrew
                 contra
                 Anderson
                 .
              
               
                 67.
                 
                 But
                 because
                 Creditors
                 ,
                 Relict
                 ,
                 Bairns
                 ,
                 or
                 Legatars
                 ,
                 may
                 pursue
                 the
                 Executor
                 immediatly
                 after
                 the
                 Confirmation
                 ,
                 before
                 Executors
                 can
                 do
                 Diligence
                 ;
                 therefore
                 they
                 cannot
                 be
                 decerned
                 to
                 pay
                 :
                 but
                 either
                 time
                 will
                 be
                 granted
                 to
                 do
                 Diligence
                 ;
                 or
                 the
                 Executor
                 will
                 be
                 liberat
                 ,
                 upon
                 granting
                 Assignation
                 to
                 parts
                 of
                 the
                 Inventary
                 .
                 Wherein
                 the
                 Creditors
                 will
                 be
                 first
                 preferred
                 ,
                 and
                 next
                 the
                 Relict
                 ,
                 Bairns
                 ,
                 and
                 Legatars
                 .
              
               
                 68.
                 
                 And
                 because
                 Creditors
                 at
                 distance
                 ,
                 may
                 be
                 excluded
                 ,
                 not
                 knowing
                 of
                 the
                 Defunct's
                 Death
                 ;
                 therefore
                 the
                 Lords
                 by
                 Act
                 of
                 
                   Sederunt
                   .
                   February
                
                 28.
                 
                 〈◊〉
                 .
                 did
                 declare
                 ,
                 That
                 all
                 Creditors
                 of
                 Defuncts
                 ,
                 using
                 legal
                 Diligence
                 ,
                 at
                 any
                 time
                 within
                 
                   half
                   a
                   Year
                
                 ,
                 of
                 the
                 Defuncts
                 Death
                 ,
                 by
                 confirming
                 themselves
                 Executors
                 Creditors
                 ,
                 or
                 by
                 Citation
                 of
                 the
                 Defunct's
                 Executors
                 ,
                 or
                 vitious
                 Intromettors
                 with
                 their
                 Goods
                 ;
                 shall
                 all
                 come
                 in
                 
                   pari
                   passu
                
                 ,
                 without
                 respect
                 of
                 the
                 prioritie
                 or
                 posterioritie
                 of
                 their
                 Diligence
                 .
                 Whereunto
                 it
                 is
                 necessarly
                 consequent
                 ,
                 that
                 all
                 Decreets
                 against
                 Executors
                 ,
                 within
                 six
                 Moneths
                 of
                 the
                 Defuncts
                 Death
                 ,
                 except
                 for
                 
                   priviledged
                   Debts
                
                 ,
                 ought
                 to
                 bear
                 
                   Superceeding
                   execution
                
                 for
                 seven
                 Moneths
                 at
                 least
                 ,
                 after
                 the
                 Defunct's
                 Death
                 :
                 that
                 in
                 the
                 seventh
                 Month
                 Executors
                 may
                 suspend
                 upon
                 Double-poinding
                 ,
                 all
                 Decreets
                 against
                 them
                 within
                 six
                 Moneths
                 of
                 the
                 Defunct's
                 Death
                 .
                 To
                 the
                 effect
                 all
                 the
                 Creditors
                 may
                 come
                 in
                 joyntly
                 ,
                 if
                 they
                 exceed
                 not
                 the
                 Inventary
                 :
                 and
                 if
                 they
                 do
                 exceed
                 ,
                 they
                 must
                 suffer
                 proportional
                 Abatement
                 .
                 But
                 if
                 the
                 Inventary
                 exceed
                 all
                 the
                 Debts
                 ,
                 the
                 Relict
                 ,
                 and
                 Bairns
                 ,
                 will
                 have
                 their
                 Shares
                 ,
                 of
                 what
                 is
                 free
                 :
                 and
                 Dead's
                 part
                 will
                 be
                 applyed
                 to
                 the
                 Legatars
                 ,
                 who
                 if
                 their
                 Legacies
                 exceed
                 ,
                 must
                 suffer
                 proportional
                 abatement
                 ;
                 but
                 if
                 they
                 be
                 less
                 ,
                 the
                 Remainder
                 will
                 belong
                 to
                 the
                 Children
                 or
                 other
                 nearest
                 of
                 Kin.
                 
              
               
                 69.
                 
                 After
                 the
                 six
                 Moneths
                 are
                 run
                 from
                 the
                 Defunct's
                 Death
                 ,
                 and
                 all
                 Debts
                 ,
                 recovered
                 in
                 that
                 time
                 ,
                 are
                 fatisfied
                 ;
                 Creditors
                 pursuing
                 thereafter
                 ,
                 are
                 preferable
                 ,
                 according
                 to
                 the
                 Sentences
                 recovered
                 by
                 them
                 ,
                 without
                 collusion
                 .
                 As
                 if
                 the
                 Executor
                 defend
                 against
                 one
                 ,
                 and
                 not
                 another
                 ;
                 or
                 that
                 after
                 Process
                 before
                 the
                 Lords
                 ,
                 other
                 Creditors
                 prevent
                 them
                 by
                 prior
                 Sentences
                 before
                 inferior
                 Courts
                 :
                 the
                 first
                 Citation
                 will
                 be
                 preferable
                 ,
                 if
                 they
                 have
                 not
                 been
                 negligent
                 .
              
               
                 70.
                 
                 If
                 the
                 Executor
                 make
                 payment
                 ,
                 
                   bona
                   fide
                
                 ,
                 to
                 the
                 Relict
                 ,
                 Bairns
                 ,
                 or
                 Legatars
                 of
                 the
                 Defunct
                 ,
                 before
                 intenting
                 of
                 any
                 Creditors
                 Cause
                 ;
                 he
                 will
                 be
                 secure
                 ,
                 against
                 Creditors
                 intenting
                 posterior
                 Process
                 :
                 for
                 he
                 could
                 not
                 hinder
                 the
                 Payment
                 of
                 these
                 ,
                 upon
                 unknown
                 Creditors
                 .
                 But
                 voluntary
                 Payment
                 ,
                 without
                 Sentence
                 at
                 the
                 instance
                 of
                 the
                 Relict
                 ,
                 Bairns
                 ,
                 and
                 Legatars
                 ,
                 will
                 not
                 secure
                 him
                 .
                 By
                 the
                 Roman
                 Law
                 Legatars
                 were
                 obliged
                 to
                 find
                 
                   cautionem
                   mucianam
                
                 ,
                 obliging
                 them
                 to
                 refound
                 their
                 Legacies
                 ,
                 in
                 case
                 posterior
                 Creditors
                 did
                 pursue
                 .
                 
                   l.
                   si
                   cujus
                   es
                   ff
                   .
                   de
                   jure
                   deliberandi
                   ,
                
                 which
                 hath
                 not
                 been
                 accustomed
                 with
                 us
                 .
                 But
                 there
                 is
                 competent
                 to
                 such
                 Creditors
                 ,
                 Action
                 of
                 Repetition
                 ,
                 against
                 the
                 Relict
                 ,
                 Bairns
                 ,
                 or
                 Legatars
                 ,
                 which
                 will
                 be
                 instructed
                 by
                 the
                 Discharge
                 to
                 the
                 Executors
                 .
              
               
               
                 71.
                 
                 Testaments
                 or
                 Confirmations
                 are
                 execute
                 ,
                 when
                 the
                 Inventary
                 is
                 established
                 in
                 the
                 person
                 of
                 the
                 Executor
                 ,
                 either
                 by
                 obtaining
                 payment
                 Bond
                 or
                 Decreet
                 .
                 Yet
                 thereby
                 the
                 Executor
                 becomes
                 not
                 to
                 have
                 the
                 full
                 Propertie
                 of
                 the
                 Defunct's
                 Goods
                 and
                 Debts
                 so
                 established
                 :
                 but
                 he
                 remains
                 Fideicommissarie
                 ,
                 and
                 is
                 obliged
                 to
                 restore
                 .
                 Yea
                 the
                 Decreet
                 ,
                 or
                 Bonds
                 granted
                 to
                 him
                 for
                 the
                 Defunct's
                 Estate
                 ,
                 may
                 be
                 affected
                 for
                 Debts
                 due
                 by
                 the
                 Defunct
                 .
                 And
                 in
                 Competitions
                 betwixt
                 the
                 Creditors
                 of
                 the
                 Defunct
                 ,
                 and
                 the
                 Creditors
                 of
                 the
                 Executor
                 ,
                 the
                 Defunct's
                 Creditors
                 are
                 preferable
                 :
                 though
                 the
                 Creditors
                 of
                 the
                 Executor
                 
                   proprio
                   nomine
                
                 ,
                 have
                 done
                 more
                 Diligence
                 .
                 And
                 for
                 the
                 same
                 cause
                 the
                 Rebellion
                 of
                 the
                 Executor
                 or
                 his
                 Delinquency
                 doth
                 not
                 confiscat
                 the
                 Executory
                 ,
                 although
                 established
                 in
                 his
                 person
                 by
                 Decreets
                 ,
                 in
                 prejadice
                 of
                 the
                 Defuncts
                 Creditors
                 ;
                 but
                 only
                 the
                 Executors
                 own
                 Interest
                 therein
                 .
                 December
                 21.
                 1671.
                 
                 Mr.
                 
                   Arthur
                   Gordoun
                
                 contra
                 Laird
                 of
                 Drum.
                 
              
               
                 72.
                 
                 But
                 Executors
                 may
                 safely
                 pay
                 
                   funeral
                   Expenses
                
                 ,
                 comprehending
                 Medicaments
                 to
                 the
                 Defunct
                 :
                 because
                 these
                 have
                 a
                 Priviledge
                 ,
                 from
                 the
                 common
                 Obligation
                 of
                 Humanity
                 to
                 bury
                 the
                 Dead
                 ;
                 and
                 therefore
                 are
                 preferable
                 to
                 all
                 other
                 Debts
                 of
                 the
                 Defunct
                 ,
                 and
                 so
                 may
                 be
                 payed
                 at
                 any
                 time
                 .
                 Decem.
                 16.
                 1674.
                 
                 Kelhead
                 contra
                 Irving
                 and
                 Borthwick
                 .
                 Item
                 Servants-fees
                 for
                 a
                 Year
                 or
                 Term
                 as
                 they
                 are
                 hired
                 ,
                 and
                 a
                 Term's
                 House-maill
                 or
                 Cures
                 to
                 the
                 Defunct
                 on
                 Death-bed
                 ,
                 have
                 the
                 like
                 Priviledge
                 .
              
               
                 73.
                 
                 Arrestment
                 was
                 found
                 
                   habilis
                   modus
                
                 ,
                 to
                 put
                 the
                 Executor
                 
                   in
                   mala
                   fide
                
                 to
                 pay
                 other
                 Creditors
                 ,
                 not
                 calling
                 the
                 Arrester
                 ,
                 who
                 being
                 a
                 Cautioner
                 ,
                 arrested
                 all
                 Sums
                 in
                 the
                 Executor's
                 hands
                 due
                 to
                 the
                 Creditor
                 ,
                 though
                 he
                 had
                 not
                 used
                 Diligence
                 thereupon
                 to
                 make
                 foorthcoming
                 .
                 June
                 14.
                 1625.
                 
                 
                   Andrew
                   Couper
                
                 contra
                 Lady
                 Haltoun
                 .
                 Yet
                 without
                 legal
                 Diligence
                 or
                 Intimation
                 ,
                 exhausting
                 as
                 aforesaid
                 was
                 not
                 found
                 relevant
                 against
                 a
                 Creditor
                 ,
                 whom
                 the
                 Executor
                 had
                 acknowledged
                 ypaying
                 Annualrent
                 to
                 him
                 .
                 
                   Spots
                   .
                   Executors
                   ,
                   Janet
                   Telfer
                
                 contra
                 Moffat
                 .
                 The
                 Executory
                 is
                 likewise
                 exhausted
                 ,
                 by
                 Debt
                 due
                 to
                 the
                 Executor
                 himself
                 ,
                 without
                 any
                 Process
                 but
                 meerly
                 by
                 exception
                 of
                 Compensation
                 ,
                 though
                 he
                 be
                 not
                 confirmed
                 Executor
                 
                   qua
                   creditor
                
                 ,
                 but
                 Executor
                 otherwise
                 .
              
               
                 74.
                 
                 The
                 Defunct's
                 Debitor
                 will
                 not
                 get
                 Compensation
                 ,
                 upon
                 an
                 Assignation
                 to
                 any
                 Debt
                 of
                 the
                 Defunct's
                 taken
                 after
                 the
                 Defunct's
                 Deceass
                 ,
                 whereby
                 that
                 Debitor
                 would
                 be
                 preferred
                 to
                 other
                 Debitors
                 doing
                 Diligence
                 .
                 Feb.
                 8.
                 1662.
                 
                 
                   Thomas
                   Crawford
                
                 contra
                 Earl
                 of
                 
                   Murray
                   .
                   Feb.
                
                 14.
                 1662.
                 
                 Children
                 of
                 Mouswell
                 contra
                 Lawrie
                 of
                 Maxwelstoun
                 .
                 And
                 likewise
                 ,
                 if
                 the
                 Executor
                 had
                 payed
                 a
                 Debt
                 ,
                 for
                 which
                 he
                 or
                 his
                 Predicessor
                 was
                 Cautioner
                 for
                 the
                 Defunct
                 ,
                 whereof
                 the
                 Terms
                 were
                 past
                 before
                 Payment
                 ,
                 (
                 though
                 without
                 Process
                 )
                 it
                 may
                 be
                 allowed
                 :
                 but
                 not
                 for
                 Cautionry
                 ,
                 not
                 payed
                 before
                 intenting
                 of
                 another
                 Creditor's
                 Cause
                 .
                 Januarie
                 26.
                 1628
                 
                 Adie
                 contra
                 Gray
                 .
              
               
                 75.
                 
                 The
                 old
                 Custome
                 was
                 ,
                 that
                 Executors
                 behoved
                 to
                 get
                 Exoneration
                 before
                 the
                 Commissaries
                 ,
                 calling
                 the
                 Creditors
                 and
                 all
                 having
                 interest
                 ,
                 and
                 compting
                 to
                 them
                 .
                 And
                 it
                 was
                 not
                 relevant
                 to
                 alledge
                 Exhaustine
                 ,
                 by
                 Exception
                 ,
                 but
                 there
                 behoved
                 to
                 be
                 a
                 Deereet
                 of
                 Exoneration
                 obtained
                 ,
                 which
                 is
                 the
                 only
                 sull
                 and
                 general
                 Liberation
                 .
                 But
                 it
                 is
                 not
                 valid
                 against
                 Creditors
                 having
                 out
                 the
                 Executor
                 
                   in
                   mila
                   fide
                
                 ,
                 as
                 being
                 Creditors
                 testamentarie
                 ,
                 or
                 〈◊〉
                 by
                 the
                 Executor
                 ,
                 or
                 using
                 Citation
                 or
                 
                   Arresiment
                   .
                   June
                
                 14.
                 1625.
                 
                 
                 
                   Andrew
                   Couper
                
                 contra
                 Lady
                 Haltoun
                 .
                 Neither
                 is
                 Exoneration
                 valid
                 being
                 general
                 ,
                 not
                 containing
                 a
                 particular
                 Accompt
                 .
                 March
                 10.
                 1632.
                 
                 Lady
                 〈◊〉
                 contra
                 Haddo
                 .
              
               
                 76.
                 
                 But
                 now
                 for
                 a
                 long
                 time
                 ,
                 the
                 Lords
                 have
                 been
                 accustomed
                 to
                 admit
                 the
                 Exception
                 of
                 Exhausting
                 ,
                 albeit
                 there
                 hath
                 not
                 been
                 a
                 Decreet
                 of
                 exoneration
                 obtained
                 .
                 For
                 instructing
                 Exhausting
                 ,
                 Executors
                 may
                 found
                 upon
                 Payment
                 of
                 the
                 priviledged
                 Debts
                 at
                 any
                 time
                 :
                 upon
                 the
                 Expense
                 of
                 Confirmation
                 :
                 upon
                 Debts
                 due
                 to
                 themselves
                 ,
                 before
                 Confirmation
                 ;
                 but
                 not
                 upon
                 Debts
                 assigned
                 to
                 them
                 after
                 Corfirmation
                 :
                 upon
                 Payment
                 of
                 testamentary
                 Debts
                 ,
                 after
                 six
                 Moneths
                 ,
                 though
                 without
                 Process
                 :
                 upon
                 Payment
                 of
                 other
                 Debts
                 thereafter
                 ,
                 according
                 to
                 the
                 priority
                 of
                 Diligence
                 :
                 upon
                 Absolvitors
                 of
                 Debts
                 due
                 to
                 the
                 Defunct
                 in
                 the
                 Inventary
                 :
                 upon
                 Diligence
                 by
                 Process
                 or
                 Execution
                 for
                 recovery
                 of
                 the
                 Defunct's
                 Debts
                 not
                 recovered
                 :
                 and
                 upon
                 Expenses
                 of
                 Process
                 or
                 Execution
                 ;
                 seing
                 Executors
                 get
                 no
                 Expenses
                 modified
                 against
                 the
                 Defunct's
                 Debitors
                 ,
                 who
                 are
                 not
                 obliged
                 to
                 pay
                 ,
                 without
                 Sentence
                 .
                 All
                 which
                 being
                 allowed
                 ,
                 if
                 any
                 thing
                 in
                 the
                 Inventary
                 remain
                 unrecovered
                 ;
                 the
                 Executors
                 will
                 either
                 get
                 time
                 to
                 do
                 further
                 Diligence
                 ,
                 or
                 will
                 be
                 liberat
                 ,
                 granting
                 Assignations
                 to
                 the
                 Creditors
                 according
                 to
                 their
                 Diligence
                 .
              
               
                 Executors
                 are
                 not
                 obliged
                 
                   to
                   make
                   faith
                
                 on
                 the
                 Defunct's
                 Debts
                 ,
                 except
                 in
                 so
                 far
                 as
                 may
                 concern
                 the
                 Executor
                 ,
                 without
                 prejudice
                 to
                 Creditors
                 ,
                 Legatars
                 ,
                 Wife
                 ,
                 Bairns
                 ,
                 and
                 nearest
                 of
                 Kin.
                 
                   Spots
                   .
                   Executors
                   .
                   Monteith
                
                 contra
                 
                   Katharine
                   Smith
                   .
                   March
                
                 6.
                 1627.
                 
                 Scot
                 contra
                 
                   Cockburn
                   .
                   March
                
                 13.
                 1627.
                 
                 Ker
                 contra
                 Lady
                 Covingtoun
                 .
                 And
                 therefore
                 they
                 cannot
                 exoner
                 themselves
                 by
                 Decreet
                 ,
                 upon
                 their
                 Oath
                 or
                 holding
                 them
                 as
                 confess'd
                 ,
                 without
                 having
                 other
                 probation
                 which
                 may
                 be
                 taken
                 off
                 by
                 the
                 Executors
                 
                   Oath
                   .
                   Nicol.
                   hic
                   ,
                   Bell
                
                 contra
                 Gib
                 .
              
               
                 Executors
                 are
                 not
                 conveenable
                 Severallie
                 nor
                 lyable
                 
                   in
                   solidum
                
                 but
                 
                   pro
                   virili
                   parte
                
                 :
                 unless
                 they
                 have
                 intrometted
                 with
                 as
                 much
                 as
                 will
                 satisfie
                 the
                 Debt
                 in
                 question
                 .
                 July
                 22.
                 1630.
                 
                 Salmond
                 contra
                 
                   Orre
                   .
                   July
                
                 23.
                 1625.
                 
                 Mr.
                 
                   Peter
                   Ewat
                
                 contra
                 
                   Atkin.
                   July
                
                 12.
                 1626.
                 
                 Turnbull
                 contra
                 
                   Mathison
                   .
                   Hope
                   ,
                   Legacies
                   ,
                   Mackmichael
                
                 contra
                 Mackwharie
                 .
              
               
                 If
                 any
                 of
                 the
                 Executors
                 be
                 dead
                 ,
                 the
                 Office
                 accresceth
                 to
                 the
                 Survivers
                 :
                 and
                 they
                 are
                 lyable
                 and
                 conveenable
                 alone
                 .
                 But
                 if
                 the
                 deceased
                 have
                 intrometted
                 with
                 ,
                 or
                 done
                 Diligence
                 for
                 any
                 part
                 ;
                 in
                 so
                 far
                 as
                 the
                 Testament
                 was
                 execute
                 before
                 the
                 Executor's
                 death
                 ,
                 it
                 liberats
                 the
                 Survivers
                 ,
                 and
                 the
                 Pursuers
                 must
                 have
                 access
                 to
                 those
                 representing
                 the
                 deceassed
                 .
                 But
                 for
                 what
                 is
                 wanting
                 through
                 negligence
                 of
                 the
                 whole
                 Executors
                 ,
                 the
                 Survivers
                 are
                 lyable
                 .
                 And
                 so
                 where
                 the
                 deceassed
                 had
                 intrometted
                 with
                 their
                 Share
                 ,
                 the
                 Survivers
                 were
                 only
                 found
                 lyable
                 for
                 their
                 own
                 parts
                 .
                 
                   Hope
                   ,
                   Legacles
                   ,
                   Haliday
                
                 contra
                 
                   Halidly
                   .
                   July
                
                 16.
                 1628.
                 
                 Peacock
                 contra
                 
                   Peacock
                   .
                   July
                
                 23.
                 1625.
                 
                 Atkin
                 contra
                 Mr.
                 
                   Peter
                   Ewat
                
                 .
              
               
                 Executors
                 are
                 lyable
                 for
                 the
                 Inventary
                 ,
                 without
                 necessity
                 for
                 any
                 to
                 prove
                 that
                 they
                 intrometted
                 therewith
                 :
                 which
                 is
                 presumed
                 ,
                 unless
                 the
                 Executor
                 show
                 his
                 Diligence
                 ,
                 and
                 how
                 he
                 was
                 excluded
                 .
                 Which
                 was
                 sustained
                 as
                 to
                 the
                 Moveables
                 of
                 the
                 Defunct
                 ,
                 consirmed
                 by
                 an
                 Executor
                 Creditor
                 .
                 Februarie
                 7.
                 1679.
                 
                 Pearson
                 of
                 Kippen-Ross
                 contra
                 
                   James
                   Wright
                
                 .
                 And
                 likewayes
                 an
                 Executor
                 was
                 foundly
                 able
                 for
                 Sums
                 confirmed
                 ,
                 due
                 by
                 Bonds
                 whereof
                 the
                 Dates
                 
                 were
                 exprest
                 in
                 the
                 Confirmation
                 :
                 which
                 were
                 presumed
                 payed
                 ,
                 seing
                 the
                 Bonds
                 were
                 not
                 produced
                 .
                 Januarie
                 29.
                 1681.
                 
                 Gray
                 contra
                 Brown.
                 
              
               
                 Executors
                 are
                 to
                 be
                 confirmed
                 
                   ubi
                   defunctus
                   habuit
                   domicilium
                
                 :
                 and
                 these
                 who
                 have
                 Houses
                 or
                 Residence
                 
                   in
                   divers
                   Commissariots
                
                 ,
                 the
                 chief
                 Residence
                 is
                 the
                 Domicile
                 ,
                 and
                 that
                 Commissary
                 only
                 confirms
                 the
                 whole
                 ,
                 though
                 in
                 other
                 Jurisdictions
                 .
                 June
                 25.
                 1611.
                 
                 Laird
                 of
                 Abercrombie
                 contra
                 The
                 Wife
                 's
                 Domicile
                 follows
                 her
                 Husband
                 's
                 :
                 and
                 though
                 she
                 resided
                 several
                 Months
                 in
                 another
                 Comissariot
                 and
                 died
                 there
                 ,
                 yet
                 her
                 Testament
                 was
                 confirmed
                 where
                 her
                 Husband
                 resided
                 .
                 July
                 23.
                 1622.
                 
                 Procurator-fiscal
                 contra
                 Lady
                 Gordoun
                 .
                 But
                 as
                 to
                 Defuncts
                 residing
                 out
                 of
                 the
                 Countrey
                 ,
                 their
                 Testaments
                 are
                 confirmed
                 at
                 Edinburgh
                 ,
                 Yet
                 if
                 they
                 die
                 in
                 Edinburgh
                 ,
                 or
                 else
                 where
                 ,
                 not
                 
                   animo
                   remanendi
                
                 ;
                 their
                 Testaments
                 are
                 not
                 to
                 be
                 confirmed
                 at
                 Edinburgh
                 ,
                 but
                 where
                 they
                 had
                 their
                 Domicile
                 .
                 So
                 albeit
                 a
                 Defunct
                 had
                 dwelt
                 in
                 Edinburgh
                 half
                 a
                 year
                 ,
                 in
                 a
                 House
                 taken
                 for
                 a
                 year
                 and
                 furnished
                 for
                 himfelf
                 ;
                 it
                 was
                 found
                 that
                 his
                 Testament
                 behoved
                 to
                 beconfirmed
                 in
                 the
                 Countrey
                 :
                 because
                 he
                 had
                 his
                 principal
                 Domicile
                 there
                 with
                 some
                 Children
                 and
                 Servants
                 ,
                 and
                 attended
                 only
                 at
                 Edinburgh
                 on
                 Law
                 Affairs
                 .
                 
                   Procurator-fiscal
                   of
                   the
                   Commissariot
                   of
                
                 Edinburgh
                 
                   contra
                   the
                   Relict
                   and
                   Children
                   of
                   the
                   deceass'd
                   Earl
                   of
                
                 Panmoore
                 .
              
            
             
               
               
                 TITLE
                 XXXI
                 .
                 Vitious
                 Intromission
                 .
              
               
                 
                   1.
                   
                   Vitious
                   Intromission
                   onlie
                   a
                   passive
                   and
                   no
                   active
                   Title
                   ,
                   even
                   against
                   other
                   vitious
                   Intromettors
                   ,
                   without
                   Assignation
                   from
                   the
                   Creditor
                   .
                
                 
                   2.
                   
                   Vitious
                   Intromission
                   is
                   the
                   〈◊〉
                   etensive
                   passive
                   Title
                   ,
                   reaching
                   onlie
                   those
                   who
                   might
                   〈◊〉
                   Defunct
                   ,
                   but
                   all
                   other
                   〈◊〉
                   mettors
                   .
                
                 
                   3.
                   
                   The
                   reason
                   of
                   the
                   large
                   extent
                   of
                   Title
                   .
                
                 
                   4.
                   
                   All
                   vitious
                   Intromettors
                   are
                   〈◊〉
                   
                     in
                     solidum
                  
                   ,
                   and
                   conveena
                   〈◊〉
                   verally
                   .
                
                 
                   5.
                   
                   Whether
                   vitious
                   Intromission
                   be
                   competent
                   by
                   Exception
                   ?
                
                 
                   6.
                   
                   Vitious
                   Intromission
                   sustained
                   generally
                   ,
                   without
                   the
                   Pursuer's
                   Condescendence
                   .
                
                 
                   7.
                   
                   Vitious
                   Intromission
                   is
                   onlie
                   competent
                   to
                   Creditors
                   .
                
                 
                   8.
                   
                   How
                   far
                   vitious
                   intromssion
                   must
                   be
                   universal
                   .
                
                 
                   9.
                   
                   Vitious
                   Intromission
                   is
                   excluded
                   ,
                   if
                   Executors
                   were
                   confirmed
                   before
                   Citation
                   ,
                   though
                   after
                   the
                   Intromission
                   .
                
                 
                   10.
                   
                   Whether
                   Executors
                   Creditors
                   ,
                   being
                   confirmed
                   ,
                   exclude
                   〈◊〉
                   Intromission
                   pursued
                   thereafter
                   .
                
                 
                   11.
                   
                   How
                   far
                   Confirmation
                   of
                   Executors
                   although
                   after
                   Citation
                   ,
                   excludes
                   vitious
                   Intromission
                   .
                
                 
                   12.
                   
                   Super-Intromission
                   .
                
                 
                   13.
                   
                   Vuious
                   Intromission
                   how
                   far
                   excluded
                   by
                   Gift
                   of
                   Escheat
                   and
                   Declarator
                   .
                
                 
                   14.
                   
                   Vitious
                   Intromission
                   is
                   excluded
                   ,
                   by
                   anie
                   colourable
                   Title
                   ,
                   though
                   defective
                   .
                
                 
                   15.
                   
                   The
                   Cusiom
                   of
                   England
                   as
                   to
                   Intromission
                   .
                
                 
                   16.
                   
                   Vitious
                   Intromission
                   
                     sapit
                     delictum
                  
                   ,
                   and
                   is
                   onlie
                   competent
                   against
                   Intrometters
                   themselves
                   during
                   their
                   lise
                   .
                
                 
                   17.
                   
                   How
                   far
                   vitious
                   Intromission
                   is
                   excluded
                   by
                   acquiring
                   
                     bona
                     fide
                  
                   ?
                
              
               
               
                 
                   VITIOUS
                   Intromission
                
                 is
                 only
                 a
                 Passive
                 Title
                 ,
                 making
                 the
                 Intrometter
                 lyable
                 to
                 all
                 the
                 Defunct's
                 Debts
                 ,
                 passive
                 :
                 but
                 is
                 not
                 an
                 active
                 Title
                 ,
                 whereby
                 the
                 Intrometter
                 can
                 call
                 and
                 pursue
                 activè
                 .
                 For
                 thereupon
                 there
                 is
                 no
                 ordinary
                 Action
                 competent
                 at
                 the
                 instance
                 of
                 the
                 Intrometter
                 ,
                 against
                 his
                 Complices
                 ,
                 for
                 mutual
                 Relief
                 :
                 but
                 the
                 Intrometter
                 paying
                 ,
                 must
                 only
                 make
                 use
                 of
                 the
                 Creditor's
                 name
                 to
                 give
                 him
                 a
                 Title
                 ,
                 upon
                 the
                 Creditor's
                 Assignation
                 ;
                 which
                 will
                 necessitat
                 the
                 other
                 Intrometters
                 to
                 satisfie
                 but
                 only
                 
                   pro
                   rata
                
                 ,
                 they
                 alledging
                 that
                 it
                 is
                 to
                 the
                 behoose
                 of
                 another
                 Intrometter
                 ,
                 whose
                 part
                 at
                 least
                 must
                 be
                 abated
                 .
              
               
                 2.
                 
                 This
                 is
                 the
                 largest
                 passive
                 Title
                 ,
                 extending
                 not
                 only
                 to
                 those
                 who
                 have
                 relation
                 to
                 the
                 Defunct
                 ,
                 and
                 have
                 a
                 Title
                 to
                 be
                 his
                 Heir
                 or
                 Successor
                 in
                 moveables
                 ;
                 but
                 to
                 any
                 Stranger
                 intrometting
                 without
                 any
                 interest
                 :
                 whereas
                 
                   gestio
                   pro
                   haerede
                
                 ,
                 and
                 Successor
                 
                   titulo
                   lucrativo
                   post
                   contractum
                   debitum
                
                 ,
                 can
                 be
                 incident
                 to
                 none
                 but
                 apparent
                 Heirs
                 ,
                 
                   qui
                   precipiunt
                   haereditatem
                
                 .
                 But
                 not
                 only
                 the
                 Children
                 and
                 nearest
                 of
                 Kin
                 intrometting
                 ,
                 are
                 lyable
                 
                   in
                   solidum
                
                 for
                 the
                 Defunct's
                 whole
                 Debts
                 ,
                 but
                 any
                 other
                 Person
                 having
                 no
                 legal
                 interest
                 of
                 Succession
                 .
                 Which
                 is
                 peculiar
                 to
                 this
                 and
                 no
                 other
                 Nation
                 ,
                 and
                 not
                 without
                 ground
                 .
              
               
                 3.
                 
                 The
                 rise
                 and
                 reason
                 of
                 this
                 passive
                 Title
                 is
                 ,
                 because
                 Moveables
                 are
                 more
                 easily
                 abstracted
                 from
                 Creditors
                 of
                 Defuncts
                 ,
                 than
                 their
                 Lands
                 ,
                 or
                 Profits
                 thereof
                 ,
                 which
                 every
                 one
                 will
                 not
                 attain
                 without
                 a
                 Title
                 ,
                 at
                 least
                 without
                 being
                 apparent
                 Heir
                 therein
                 .
                 But
                 if
                 Defuncts
                 Moveables
                 might
                 be
                 medled
                 with
                 without
                 Confirmation
                 ,
                 or
                 making
                 Inventary
                 upon
                 Oath
                 ,
                 and
                 no
                 further
                 hazard
                 than
                 single
                 R
                 eitution
                 ;
                 there
                 would
                 never
                 be
                 a
                 Confirmation
                 :
                 but
                 both
                 Creditors
                 and
                 Orphans
                 would
                 be
                 highly
                 prejudged
                 by
                 abstracting
                 and
                 concealling
                 the
                 Moveables
                 of
                 Defuncts
                 .
                 And
                 to
                 remedy
                 this
                 ,
                 our
                 Law
                 hath
                 introduced
                 this
                 passive
                 Title
                 ,
                 that
                 without
                 Confirmation
                 or
                 other
                 Title
                 ,
                 the
                 Medler
                 shall
                 be
                 lyable
                 
                   in
                   solidum
                
                 to
                 Creditors
                 .
              
               
                 4.
                 
                 
                   Vitious
                   Intromission
                
                 is
                 so
                 far
                 extended
                 ,
                 that
                 one
                 Intrometter
                 may
                 be
                 conveened
                 singly
                 
                   in
                   solidum
                
                 ,
                 and
                 his
                 alledging
                 other
                 Intrometters
                 will
                 not
                 liberat
                 him
                 
                   pro
                   tanto
                   .
                   July
                
                 12.
                 1628.
                 
                 Moristoun
                 contra
                 Laird
                 of
                 Frendraught
                 .
                 But
                 where
                 more
                 persons
                 (
                 viz.
                 two
                 )
                 were
                 conveened
                 together
                 as
                 Vitious
                 Intrometters
                 ,
                 and
                 the
                 Probation
                 instructed
                 that
                 both
                 intrometted
                 ;
                 they
                 were
                 not
                 found
                 lyable
                 
                   in
                   solidum
                
                 ,
                 but
                 equallie
                 ,
                 without
                 consideration
                 of
                 the
                 proportion
                 of
                 their
                 Intromission
                 .
                 November
                 16.
                 1626.
                 
                 
                   James
                   Chalmers
                
                 contra
                 Marshal
                 and
                 White
                 .
              
               
                 5.
                 
                 Whether
                 Vitious
                 Intromission
                 be
                 competent
                 by
                 Exception
                 ,
                 or
                 only
                 by
                 Action
                 ,
                 is
                 not
                 yet
                 come
                 the
                 length
                 of
                 a
                 current
                 Custom
                 .
                 But
                 there
                 are
                 Decisions
                 
                 favouring
                 either
                 side
                 .
                 As
                 if
                 any
                 person
                 pursue
                 the
                 Executor
                 Heir
                 or
                 Cautioner
                 of
                 a
                 Defunct
                 ,
                 the
                 Question
                 is
                 ,
                 Whether
                 they
                 may
                 except
                 ,
                 That
                 the
                 Pursuer
                 is
                 Vitious
                 Intrometter
                 with
                 the
                 Defuncts
                 Goods
                 ,
                 and
                 thereby
                 is
                 lyable
                 to
                 pay
                 his
                 Debts
                 ,
                 and
                 so
                 is
                 Debitor
                 aswell
                 as
                 Creditor
                 ,
                 &
                 
                   confusu
                   ne
                   tollitur
                   obligatio
                
                 ?
                 It
                 was
                 decided
                 
                   affirmativè
                   ,
                   Hope
                   ,
                   Exception
                   .
                   Lindsay
                
                 contra
                 Douglass
                 :
                 but
                 it
                 was
                 decided
                 
                   negativè
                   ,
                   November
                
                 20.
                 1630.
                 
                 Pride
                 contra
                 Thomson
                 .
                 And
                 the
                 Negative
                 seems
                 more
                 favourable
                 ,
                 not
                 to
                 extend
                 this
                 burthensom
                 and
                 odious
                 passive
                 Title
                 
                   ultra
                   〈◊〉
                
                 .
                 And
                 therefore
                 Vitious
                 Intromission
                 may
                 alwayes
                 be
                 purged
                 by
                 Confirmation
                 ,
                 before
                 intenting
                 of
                 the
                 Pursuer's
                 Cause
                 .
                 To
                 which
                 it
                 is
                 more
                 consonant
                 that
                 they
                 who
                 alledge
                 Vitious
                 Intromission
                 ,
                 should
                 not
                 be
                 permitted
                 to
                 except
                 but
                 pursue
                 :
                 that
                 before
                 the
                 Pursuit
                 the
                 Intrometter
                 may
                 have
                 liberty
                 to
                 purge
                 .
                 It
                 was
                 so
                 found
                 in
                 the
                 Case
                 of
                 an
                 Assigny
                 pursuing
                 ,
                 against
                 whom
                 the
                 Debitor
                 pursued
                 alledged
                 ,
                 That
                 the
                 Assigny
                 could
                 be
                 in
                 no
                 better
                 case
                 than
                 the
                 Cedent
                 who
                 was
                 Vitious
                 Intrometter
                 with
                 the
                 Debitor's
                 Moveables
                 ,
                 and
                 so
                 was
                 both
                 Debitor
                 and
                 Creditor
                 .
                 Januarie
                 20.
                 1671.
                 
                 Captain
                 Ramsay
                 contra
                 
                   William
                   Henrison
                
                 .
              
               
                 6.
                 
                 Vitious
                 Intromission
                 was
                 also
                 sustained
                 generally
                 ,
                 without
                 necessity
                 to
                 the
                 Pursuer
                 to
                 condescend
                 on
                 Particulars
                 :
                 seing
                 the
                 Libel
                 bare
                 the
                 Defender
                 to
                 be
                 
                   universal
                   Intrometter
                
                 with
                 the
                 Defunct's
                 Moveables
                 ,
                 which
                 is
                 the
                 ordinary
                 Stile
                 of
                 this
                 passive
                 Title
                 .
                 In
                 which
                 Case
                 the
                 Defender
                 was
                 found
                 obliged
                 to
                 condescend
                 upon
                 particular
                 Moveables
                 which
                 were
                 the
                 Debitor's
                 ,
                 and
                 intrometted
                 with
                 by
                 him
                 by
                 a
                 Title
                 .
                 Januarie
                 20.
                 1630.
                 
                 Adamson
                 contra
                 Ireland
                 .
                 But
                 if
                 the
                 Pursuit
                 be
                 against
                 the
                 Defender
                 as
                 
                   Vitious
                   Intrometter
                
                 ,
                 he
                 ought
                 to
                 condescend
                 upon
                 the
                 special
                 Intromission
                 ;
                 unless
                 he
                 refer
                 it
                 to
                 the
                 Defender's
                 Oath
                 ,
                 who
                 knows
                 his
                 own
                 Intromission
                 and
                 must
                 either
                 adject
                 a
                 Quality
                 where
                 competent
                 ,
                 or
                 propone
                 a
                 Defense
                 ,
                 to
                 purge
                 the
                 Vitiositie
                 .
              
               
                 7.
                 
                 This
                 passive
                 Title
                 being
                 so
                 large
                 ,
                 wants
                 not
                 its
                 own
                 Limitations
                 and
                 Exceptions
                 .
                 As
                 first
                 ,
                 it
                 is
                 only
                 effectual
                 to
                 Creditors
                 ,
                 and
                 not
                 to
                 Legatars
                 ,
                 or
                 any
                 other
                 Party
                 ,
                 who
                 cannot
                 pursue
                 upon
                 this
                 ground
                 ,
                 nor
                 for
                 any
                 further
                 than
                 is
                 truely
                 intrometted
                 with
                 ,
                 in
                 those
                 Cases
                 where
                 these
                 can
                 pursue
                 Intrometters
                 ,
                 as
                 in
                 
                   special
                   Legacies
                
                 ,
                 &c.
                 
              
               
                 8.
                 
                 The
                 Intromission
                 must
                 be
                 universal
                 :
                 not
                 that
                 the
                 Intrometter
                 must
                 medle
                 with
                 all
                 the
                 Defunct's
                 Moveables
                 ,
                 but
                 must
                 medle
                 
                   quasi
                   prr
                   universitatem
                
                 ,
                 because
                 Heritage
                 is
                 
                   per
                   universitatem
                
                 .
                 And
                 he
                 that
                 medles
                 with
                 a
                 Flock
                 of
                 Sheep
                 ,
                 medles
                 
                   per
                   universitatem
                
                 :
                 yet
                 many
                 of
                 the
                 Flock
                 may
                 be
                 medled
                 with
                 by
                 others
                 ,
                 but
                 what
                 remains
                 being
                 still
                 the
                 Flock
                 ,
                 he
                 is
                 only
                 said
                 to
                 medle
                 with
                 the
                 Flock
                 .
                 And
                 so
                 Intremission
                 with
                 one
                 thing
                 ,
                 or
                 some
                 small
                 thing
                 will
                 not
                 infer
                 this
                 passive
                 Title
                 ,
                 to
                 make
                 the
                 Intrometter
                 lyable
                 .
                 So
                 a
                 Relict
                 was
                 not
                 found
                 lyable
                 
                   in
                   solidum
                
                 ,
                 as
                 having
                 intrometted
                 with
                 the
                 Crop
                 of
                 five
                 Bolls
                 of
                 Corn
                 ,
                 eating
                 of
                 four
                 or
                 five
                 Sheep
                 ,
                 and
                 detaining
                 in
                 her
                 possession
                 thretty
                 more
                 ;
                 not
                 upon
                 the
                 accompt
                 of
                 her
                 being
                 Relict
                 ,
                 or
                 of
                 necessary
                 Intromission
                 ,
                 but
                 for
                 that
                 her
                 Intromission
                 was
                 not
                 
                   Universal
                   .
                   December
                
                 5.
                 1623.
                 
                 Scot
                 contra
                 Levingstoun
                 .
                 But
                 if
                 universal
                 Intromission
                 be
                 libelled
                 ,
                 though
                 the
                 Probation
                 be
                 not
                 so
                 ample
                 ,
                 yet
                 if
                 it
                 reach
                 Particulars
                 of
                 diver
                 Kinds
                 ,
                 and
                 these
                 of
                 moment
                 ;
                 it
                 was
                 found
                 enough
                 .
                 Januarie
                 12.
                 1623.
                 
                 Bruce
                 contra
                 Where
                 fewer
                 Kinds
                 of
                 less
                 value
                 proven
                 ,
                 were
                 found
                 sufficient
                 
                   reo
                   absente
                
                 .
                 And
                 Vitious
                 Intromission
                 was
                 inserred
                 ,
                 by
                 the
                 Son
                 of
                 a
                 Wright's
                 continuing
                 to
                 work
                 with
                 
                 his
                 Father's
                 Tools
                 .
                 June
                 15.
                 1625.
                 
                 Laird
                 of
                 Abercairnie
                 contra
                 Nicol.
                 This
                 was
                 for
                 a
                 year
                 's
                 Rent
                 due
                 by
                 the
                 Defunct
                 to
                 his
                 Master
                 .
                 But
                 vitious
                 Intromission
                 was
                 not
                 〈◊〉
                 by
                 the
                 Servants
                 of
                 a
                 Coal-heugh
                 continuing
                 to
                 use
                 the
                 Instruments
                 of
                 the
                 Coal-work
                 for
                 some
                 time
                 ,
                 without
                 determining
                 whether
                 those
                 Instruments
                 were
                 moveable
                 or
                 not
                 :
                 but
                 the
                 Heir
                 was
                 not
                 found
                 Vitious
                 Intrometter
                 thereby
                 .
                 June
                 9.
                 1680.
                 
                 
                   William
                   Brain
                
                 contra
                 the
                 Earl
                 of
                 Lothian
                 .
              
               
                 9.
                 
                 It
                 seems
                 to
                 be
                 on
                 this
                 ground
                 ,
                 that
                 it
                 is
                 a
                 legal
                 Desense
                 against
                 Vitious
                 Intromission
                 ,
                 to
                 alledge
                 ,
                 That
                 there
                 are
                 Executors
                 confirmed
                 to
                 the
                 Defunct
                 ;
                 whether
                 it
                 be
                 the
                 Intrometter
                 ,
                 or
                 any
                 other
                 ,
                 though
                 the
                 Intrometter
                 derive
                 no
                 Right
                 from
                 these
                 Executors
                 ,
                 nor
                 had
                 no
                 Warrant
                 of
                 Intromission
                 .
                 Because
                 Executors
                 being
                 Universal
                 Intrometters
                 ,
                 there
                 cannot
                 be
                 more
                 Universal
                 Intrometters
                 severally
                 :
                 and
                 therefore
                 there
                 cannot
                 be
                 both
                 Executors
                 ,
                 and
                 other
                 Universal
                 Vitious
                 Intrometters
                 .
                 And
                 albeit
                 more
                 persons
                 may
                 be
                 conveened
                 as
                 Vitious
                 Universal
                 Intrometters
                 ,
                 yet
                 one
                 or
                 other
                 of
                 them
                 must
                 be
                 understood
                 to
                 be
                 sole
                 Vitious
                 Intrometter
                 ;
                 or
                 otherwise
                 that
                 they
                 all
                 joyn
                 in
                 Universal
                 Intromission
                 .
              
               
                 Confirmation
                 of
                 Executors
                 was
                 found
                 sufficient
                 to
                 elide
                 Vitious
                 Intromission
                 ,
                 albeit
                 after
                 the
                 Intromission
                 the
                 Intrometter
                 caused
                 a
                 person
                 wholly
                 insolvent
                 be
                 confirmed
                 and
                 find
                 a
                 Cautioner
                 insolvendo
                 ,
                 and
                 the
                 Intrometter
                 payed
                 the
                 Quote
                 ,
                 and
                 was
                 at
                 all
                 the
                 Expense
                 .
                 July
                 28.
                 1620.
                 
                 Tenent
                 contra
                 Tenent
                 .
                 Spots
                 .
                 
                   Universal
                   Intrometters
                   .
                   Stevenson
                
                 contra
                 Paterson
                 .
              
               
                 10.
                 
                 Some
                 have
                 questioned
                 ,
                 Whether
                 Confirmation
                 of
                 Executors
                 Creditors
                 could
                 purge
                 Vitious
                 Intromission
                 ,
                 seing
                 Creditors
                 do
                 only
                 confirm
                 for
                 their
                 own
                 satisfaction
                 ,
                 and
                 not
                 to
                 execute
                 the
                 Defunct's
                 Executory
                 ,
                 and
                 so
                 need
                 confirm
                 no
                 more
                 than
                 will
                 satisfied
                 themselves
                 .
                 But
                 I
                 have
                 not
                 observed
                 it
                 repelled
                 ,
                 nor
                 is
                 the
                 difference
                 convincing
                 .
                 For
                 albeit
                 Executors
                 Creditors
                 confirm
                 to
                 their
                 own
                 behoofe
                 ,
                 yet
                 are
                 they
                 universal
                 Intrometters
                 ,
                 and
                 must
                 confirm
                 all
                 they
                 know
                 ,
                 and
                 so
                 make
                 Inventary
                 :
                 albeit
                 their
                 interest
                 to
                 be
                 Executors
                 ,
                 be
                 but
                 
                   qua
                   Creditors
                
                 .
                 And
                 albeit
                 they
                 be
                 not
                 lyable
                 for
                 so
                 exact
                 Diligence
                 as
                 others
                 ,
                 it
                 was
                 found
                 relevant
                 to
                 exclude
                 Vitious
                 Intromission
                 ,
                 That
                 an
                 Executor
                 Creditor
                 was
                 confirmed
                 .
                 June
                 20.
                 1629.
                 
                 Douglass
                 contra
                 
                   Touris
                   .
                   January
                
                 20.
                 1663.
                 
                 Stevenson
                 contra
                 Ker
                 and
                 others
                 .
                 The
                 matter
                 may
                 be
                 more
                 dubious
                 now
                 ,
                 since
                 the
                 late
                 Act
                 of
                 Sederunt
                 ,
                 whereby
                 Executors
                 Creditors
                 are
                 not
                 obliged
                 to
                 confirm
                 all
                 they
                 know
                 ,
                 or
                 make
                 faith
                 on
                 the
                 Inventary
                 ;
                 but
                 so
                 much
                 as
                 they
                 think
                 may
                 secure
                 their
                 Debts
                 :
                 and
                 therefore
                 other
                 Executors
                 may
                 be
                 confirmed
                 .
                 So
                 that
                 the
                 danger
                 and
                 inconveniency
                 of
                 Vitious
                 Intromission
                 remains
                 ,
                 and
                 Executors
                 Creditors
                 so
                 confirming
                 ,
                 are
                 not
                 Universal
                 Intrometters
                 .
                 And
                 therefore
                 it
                 is
                 like
                 ,
                 that
                 by
                 such
                 Confirmation
                 Vitious
                 Intromission
                 with
                 Moveables
                 not
                 confirmed
                 ,
                 will
                 not
                 be
                 excluded
                 by
                 such
                 Confirmation
                 .
              
               
                 11.
                 
                 Confirmation
                 of
                 Executors
                 regularly
                 ,
                 is
                 not
                 relevant
                 to
                 purge
                 vitious
                 Intromission
                 ,
                 whether
                 by
                 the
                 Intrometter
                 ,
                 or
                 others
                 ,
                 in
                 so
                 far
                 as
                 concerns
                 those
                 Creditors
                 ,
                 who
                 had
                 used
                 Citation
                 and
                 Diligence
                 against
                 the
                 vitious
                 Intrometters
                 before
                 Confirmation
                 ,
                 whose
                 Sentences
                 are
                 drawn
                 back
                 to
                 their
                 Citation
                 :
                 especially
                 
                   si
                   non
                   sint
                   in
                   mora
                
                 ,
                 and
                 so
                 
                   est
                   jus
                   iis
                   quaesitum
                
                 ,
                 at
                 least
                 inchoatum
                 ,
                 before
                 Confirmation
                 .
                 Decem.
                 12.
                 1609.
                 
                 Durtie
                 contra
                 Clerk.
                 
              
               
               
                 But
                 this
                 must
                 be
                 limited
                 thus
                 .
                 If
                 the
                 Creditor
                 hath
                 used
                 Citation
                 shortly
                 after
                 the
                 Defunct's
                 Death
                 ,
                 there
                 being
                 no
                 competent
                 time
                 to
                 confirm
                 ,
                 neither
                 any
                 time
                 limited
                 in
                 Law
                 other
                 than
                 year
                 and
                 day
                 ,
                 after
                 which
                 the
                 Executor
                 must
                 be
                 comptable
                 to
                 relieve
                 the
                 Heir
                 :
                 therefore
                 unless
                 the
                 Intrometter
                 were
                 meerly
                 praedo
                 having
                 no
                 interest
                 ,
                 as
                 neither
                 being
                 Wife
                 ,
                 Bairn
                 ,
                 nearest
                 of
                 Kin
                 ,
                 or
                 having
                 a
                 Disposition
                 without
                 delivery
                 ;
                 it
                 is
                 sufficient
                 to
                 confirm
                 after
                 the
                 intenting
                 of
                 the
                 Creditor's
                 Cause
                 ,
                 being
                 within
                 year
                 and
                 day
                 .
                 In
                 which
                 case
                 the
                 Intrometter
                 confirming
                 will
                 be
                 lyable
                 
                   secundum
                   vires
                   inventarii
                
                 ,
                 albeit
                 only
                 conveened
                 as
                 Intrometter
                 ,
                 not
                 as
                 Executor
                 :
                 without
                 necessity
                 of
                 a
                 new
                 Process
                 .
                 It
                 was
                 so
                 found
                 in
                 the
                 Case
                 of
                 the
                 Defunct's
                 Son
                 ,
                 who
                 intrometting
                 ,
                 and
                 being
                 cited
                 ,
                 yet
                 confirming
                 within
                 year
                 and
                 day
                 ;
                 was
                 but
                 lyable
                 as
                 Executor
                 .
                 January
                 24.
                 1628.
                 
                 Aldie
                 contra
                 Gray
                 .
                 Hope
                 
                   Executors
                   ,
                   Bald
                
                 contra
                 
                   Hamiltoun
                   .
                   Spots
                   .
                   eod
                   .
                   Thomson
                
                 contra
                 Laird
                 of
                 
                   Rentoun
                   .
                   Jan.
                
                 28.
                 1663.
                 
                 
                   Margaret
                   Stevenson
                
                 contra
                 Ker
                 and
                 others
                 .
              
               
                 12.
                 
                 The
                 Exception
                 of
                 Confirmation
                 of
                 Executors
                 is
                 elided
                 ,
                 by
                 alledging
                 That
                 the
                 Intrometter
                 ,
                 though
                 having
                 confirmed
                 ,
                 yet
                 hath
                 fraudently
                 concealed
                 some
                 part
                 of
                 the
                 Goods
                 and
                 Means
                 ,
                 not
                 put
                 in
                 the
                 Inventary
                 .
                 Which
                 
                   Super-intromission
                   dolosè
                
                 ,
                 is
                 relevant
                 to
                 elide
                 Confirmation
                 .
                 Hope
                 
                   Executors
                   ,
                   Raeside
                
                 contra
                 Cathcart
                 .
                 Spots
                 .
                 
                   eod
                   .
                   Cleiland
                
                 contra
                 Baillie
                 .
                 Which
                 holdeth
                 ,
                 if
                 the
                 Intromission
                 were
                 before
                 the
                 Confirmation
                 :
                 but
                 if
                 it
                 was
                 after
                 ,
                 it
                 useth
                 not
                 now
                 to
                 be
                 sustained
                 ,
                 till
                 the
                 Creditor
                 confirm
                 as
                 Executor
                 
                   dative
                   ad
                   omissa
                
                 ,
                 that
                 the
                 Quote
                 be
                 not
                 lost
                 .
                 July
                 8.
                 1676.
                 
                 Irving
                 contra
                 Forbess
                 of
                 Tolquhon
                 .
              
               
                 Super-intromission
                 was
                 also
                 sustained
                 without
                 a
                 Dative
                 
                   ad
                   omissa
                
                 ,
                 to
                 elide
                 Exhausting
                 proponed
                 by
                 an
                 Executor
                 .
                 Jan.
                 14.
                 1639.
                 
                 
                   Margaret
                   Inglis
                
                 contra
                 
                   〈◊〉
                   Bell.
                
                 
              
               
                 13.
                 
                 When
                 Defuncts
                 die
                 at
                 the
                 Horn
                 ,
                 Declarator
                 of
                 their
                 Escheat
                 hath
                 the
                 same
                 effect
                 to
                 exclude
                 Vitious
                 Intromission
                 as
                 the
                 Confirmation
                 of
                 their
                 Executors
                 ;
                 not
                 only
                 competent
                 to
                 the
                 Donatar
                 intrometting
                 ,
                 but
                 to
                 any
                 other
                 Intrometter
                 :
                 for
                 both
                 being
                 Universal
                 Titles
                 ,
                 reaching
                 the
                 Defunct's
                 Moveables
                 ,
                 every
                 Intrometter
                 there
                 with
                 is
                 lyable
                 .
                 Decem.
                 15.
                 1638.
                 
                 Ogilvie
                 contra
                 And
                 a
                 Gift
                 of
                 the
                 Escheat
                 obtained
                 by
                 the
                 Intrometter
                 ,
                 albeit
                 after
                 the
                 Intromission
                 ,
                 being
                 before
                 Citation
                 at
                 the
                 instance
                 of
                 the
                 Creditor
                 pursuing
                 ;
                 was
                 found
                 relevant
                 to
                 exclude
                 Vitious
                 Intromission
                 :
                 because
                 the
                 Donatar
                 needs
                 no
                 Declarator
                 for
                 what
                 was
                 in
                 his
                 Possession
                 ,
                 
                   Nicol.
                   de
                   haereditariis
                   actionibus
                   ,
                   Moodie
                
                 contra
                 Hay
                 of
                 Fourlands
                 .
                 But
                 if
                 the
                 Gift
                 were
                 taken
                 before
                 the
                 Defunct's
                 Death
                 ,
                 if
                 it
                 be
                 simulat
                 ,
                 by
                 the
                 Defuncts
                 retaining
                 Possession
                 during
                 his
                 Life
                 ;
                 it
                 will
                 annull
                 the
                 Gift
                 and
                 Declarator
                 ,
                 and
                 exclude
                 the
                 Defense
                 thereupon
                 :
                 as
                 was
                 found
                 in
                 the
                 foresaid
                 Case
                 ,
                 Ogilvie
                 contra
              
               
                 Nor
                 will
                 a
                 Gift
                 and
                 Declarator
                 be
                 sufficient
                 against
                 any
                 Creditor
                 pursuing
                 the
                 Intrometter
                 ,
                 the
                 Gift
                 being
                 
                   post
                   motam
                   litem
                
                 .
                 Or
                 though
                 the
                 Gift
                 was
                 
                   ante
                   motam
                   litem
                
                 ,
                 it
                 will
                 only
                 defend
                 the
                 Donatar
                 intrometting
                 ,
                 or
                 those
                 deriving
                 Right
                 from
                 him
                 :
                 but
                 not
                 other
                 Intrometters
                 ,
                 as
                 Had.
                 observes
                 ,
                 but
                 expresseth
                 not
                 the
                 Parties
                 .
                 Jan.
                 25.
                 1611.
                 
                 And
                 as
                 was
                 found
                 in
                 the
                 Case
                 of
                 the
                 Intrometter's
                 obtaining
                 a
                 Gift
                 
                   ante
                   motam
                   litem
                
                 ,
                 though
                 after
                 his
                 Intromission
                 :
                 although
                 Citation
                 was
                 used
                 before
                 Declarator
                 .
                 July
                 17.
                 1635.
                 
                 Lord
                 Johnstoun
                 contra
                 
                   Johnstoun
                   .
                   Jan.
                
                 22.
                 1675.
                 
                 Chalmers
                 contra
                 
                   Agnes
                   Gordoun
                
                 .
                 And
                 Vitious
                 Intromission
                 was
                 elided
                 by
                 an
                 Heir's
                 Intromission
                 with
                 his
                 Father's
                 Moveables
                 ,
                 having
                 obtained
                 a
                 Gift
                 as
                 soon
                 as
                 was
                 possible
                 ,
                 his
                 Father
                 having
                 died
                 Rebel
                 in
                 Sepemb
                 .
                 and
                 the
                 Gift
                 being
                 obtained
                 in
                 Novemb.
                 so
                 soon
                 as
                 the
                 Exchequer
                 sat
                 ,
                 albeit
                 the
                 Gift
                 was
                 after
                 Citation
                 .
                 January
                 8.
                 1680.
                 
                 
                   John
                   Urquhart
                
                 contra
                 
                   Arthur
                   Delgarno
                
                 .
                 Yea
                 if
                 the
                 Intrometter
                 did
                 intromet
                 by
                 Right
                 or
                 Warrant
                 from
                 the
                 Donatar
                 ,
                 whose
                 Gift
                 was
                 
                   ante
                   motam
                   litem
                
                 albeit
                 before
                 Declarator
                 ,
                 it
                 is
                 sufficient
                 .
                 As
                 was
                 found
                 by
                 a
                 Tolerance
                 from
                 the
                 Donatar
                 .
                 
                   Nicol.
                   de
                   haereditarits
                   actionibus
                   
                   Cairncross
                
                 contra
                 Crookshank
                 .
                 And
                 by
                 a
                 Warrant
                 from
                 the
                 Donatar
                 .
                 July
                 4.
                 1665.
                 
                 Mr.
                 
                   Walter
                   Innes
                
                 contra
                 
                   George
                   Watt.
                
                 But
                 it
                 is
                 not
                 relevant
                 to
                 alledge
                 ,
                 That
                 the
                 Defunct
                 died
                 at
                 the
                 Horn
                 ,
                 and
                 thereby
                 had
                 no
                 Moveables
                 ,
                 which
                 were
                 become
                 escheat
                 to
                 the
                 King.
                 Feb.
                 7.
                 1662.
                 
                 Gray
                 contra
                 Dalgarne
                 .
              
               
                 14.
                 
                 Vitious
                 Intromission
                 is
                 also
                 restricted
                 to
                 the
                 
                   single
                   value
                
                 ,
                 when
                 it
                 is
                 by
                 vertue
                 of
                 a
                 Disposition
                 from
                 the
                 Defunct
                 ,
                 albeit
                 the
                 Disposition
                 was
                 found
                 null
                 by
                 Reply
                 ,
                 as
                 done
                 in
                 defraud
                 of
                 Creditors
                 ,
                 by
                 a
                 Husband
                 to
                 his
                 Wife
                 .
                 June
                 16.
                 1671.
                 
                 Bonar
                 contra
                 Lady
                 Couper
                 .
                 And
                 a
                 Disposition
                 of
                 Moveables
                 ,
                 with
                 an
                 Instrument
                 of
                 Possession
                 ,
                 being
                 for
                 
                   a
                   cause
                   onerous
                
                 ,
                 granted
                 while
                 the
                 Defunct
                 was
                 on
                 Death-bad
                 though
                 there
                 was
                 no
                 natural
                 Possession
                 till
                 after
                 his
                 Death
                 ;
                 wassustained
                 to
                 purge
                 Vitious
                 Intromission
                 .
                 July
                 6.
                 1664.
                 
                 
                   Alexander
                   Brown
                
                 contra
                 Lawson
                 .
                 But
                 a
                 Disposition
                 of
                 Moveables
                 ,
                 where
                 the
                 disponer
                 retained
                 Possession
                 during
                 his
                 Life
                 ,
                 was
                 not
                 sustained
                 .
                 
                   Nicol.
                   de
                   haereditariis
                   actionibus
                   ,
                   Strachan
                
                 cont
                 .
                 Scot.
                 The
                 like
                 where
                 the
                 Disposition
                 was
                 to
                 the
                 Defunct's
                 Son's
                 Wife
                 :
                 seing
                 the
                 Defunct
                 retained
                 Possession
                 for
                 a
                 considerable
                 time
                 ;
                 his
                 Son
                 and
                 his
                 Wife
                 being
                 with
                 him
                 in
                 Family
                 June
                 28.
                 1632.
                 
                 Dalrymple
                 of
                 Waterside
                 contra
                 Laird
                 of
                 Closeburn
                 .
                 So
                 that
                 such
                 Dispositions
                 ,
                 if
                 the
                 Defunct
                 live
                 long
                 after
                 
                   retenta
                   possessione
                
                 ,
                 are
                 not
                 sufficient
                 ,
                 as
                 in
                 the
                 last
                 two
                 Cases
                 .
                 But
                 if
                 the
                 Disposition
                 were
                 shortly
                 before
                 the
                 Defunct's
                 Death
                 ,
                 that
                 his
                 continuing
                 in
                 Possession
                 would
                 not
                 〈◊〉
                 simulation
                 or
                 frand
                 ,
                 the
                 same
                 would
                 purge
                 the
                 Vitious
                 Intromission
                 ,
                 at
                 least
                 restrict
                 〈◊〉
                 to
                 the
                 
                   single
                   value
                
                 .
              
               
                 15.
                 
                 By
                 the
                 Law
                 and
                 Custom
                 of
                 England
                 ,
                 Vitious
                 Intromission
                 with
                 a
                 Defunct's
                 Moveables
                 doth
                 only
                 extend
                 to
                 the
                 
                   single
                   value
                
                 .
                 And
                 therefore
                 Intromission
                 being
                 made
                 in
                 England
                 ,
                 was
                 extended
                 no
                 further
                 here
                 .
                 July
                 26.
                 1619.
                 
                 Lord
                 Dingwal
                 contra
                 Wanderson
                 .
              
               
                 16.
                 
                 Vitious
                 Intromission
                 being
                 
                   penal
                   ,
                   sapiens
                   naturam
                   delicti
                
                 ,
                 is
                 not
                 to
                 be
                 sustained
                 against
                 any
                 as
                 representing
                 the
                 Intrometter
                 ,
                 when
                 there
                 is
                 no
                 Action
                 intented
                 against
                 him
                 in
                 his
                 own
                 life
                 :
                 after
                 which
                 ,
                 no
                 other
                 can
                 be
                 able
                 to
                 clear
                 the
                 Title
                 of
                 his
                 Intromission
                 with
                 moveableGoods
                 
                   quae
                   transeunt
                   per
                   commercium
                
                 ,
                 and
                 so
                 the
                 Defunct
                 might
                 have
                 bought
                 them
                 
                   bona
                   fide
                   .
                   July
                
                 10.
                 1666.
                 
                 Cranstoun
                 contra
                 Wilkison
                 .
                 And
                 for
                 the
                 same
                 reason
                 
                   Behaving
                   as
                   Heir
                
                 by
                 Intromission
                 with
                 Heirship-moveable
                 ,
                 is
                 not
                 sustained
                 after
                 the
                 Intrometter's
                 Death
                 ,
                 as
                 hath
                 been
                 observed
                 in
                 that
                 Title
                 ;
                 though
                 there
                 can
                 be
                 less
                 pretence
                 of
                 Commerce
                 in
                 that
                 case
                 .
                 Yet
                 though
                 Decreet
                 were
                 not
                 obtained
                 before
                 the
                 Intrometter's
                 Death
                 ,
                 if
                 Litiscontestation
                 were
                 made
                 against
                 him
                 compearing
                 ,
                 when
                 it
                 was
                 proper
                 to
                 him
                 to
                 purge
                 his
                 Intromission
                 by
                 any
                 competent
                 Defense
                 ;
                 if
                 the
                 same
                 were
                 proven
                 after
                 his
                 Death
                 ,
                 it
                 might
                 overtake
                 his
                 Successors
                 :
                 unless
                 the
                 Intromission
                 had
                 been
                 simply
                 referred
                 to
                 his
                 Oath
                 ;
                 for
                 then
                 dying
                 before
                 he
                 gave
                 his
                 Oath
                 ,
                 his
                 Successors
                 could
                 not
                 be
                 lyable
                 ,
                 because
                 he
                 might
                 either
                 have
                 qualified
                 or
                 denyed
                 his
                 Intromission
                 .
              
               
                 17.
                 
                 Vitious
                 Intromission
                 is
                 simply
                 excluded
                 by
                 those
                 who
                 acquire
                 ,
                 by
                 way
                 of
                 Commerce
                 
                   bona
                   fide
                
                 ,
                 for
                 a
                 just
                 Price
                 :
                 albeit
                 in
                 some
                 Cases
                 Executors
                 may
                 recover
                 Defuncts
                 Goods
                 reivendicatione
                 .
                 But
                 where
                 
                   bona
                   fides
                
                 doth
                 not
                 appear
                 ,
                 but
                 Collusion
                 or
                 Fraud
                 ,
                 the
                 buying
                 of
                 Defuncts
                 Goods
                 will
                 not
                 be
                 sustained
                 .
                 As
                 was
                 found
                 in
                 the
                 Case
                 of
                 a
                 Party
                 deponing
                 that
                 he
                 bought
                 a
                 Defunct's
                 Goods
                 within
                 ten
                 dayes
                 after
                 the
                 Defunct's
                 Death
                 ,
                 when
                 he
                 knew
                 there
                 could
                 be
                 no
                 Confirmation
                 of
                 the
                 same
                 ,
                 or
                 lawful
                 Title
                 thereto
                 :
                 albeit
                 he
                 deponed
                 that
                 the
                 Seller
                 had
                 a
                 Disposition
                 from
                 the
                 Defunct
                 ,
                 but
                 which
                 he
                 did
                 not
                 produce
                 ,
                 and
                 his
                 Oath
                 was
                 not
                 found
                 to
                 prove
                 it
                 ,
                 but
                 the
                 Acquisition
                 was
                 found
                 to
                 be
                 a
                 Collusion
                 ,
                 the
                 Buyer
                 being
                 the
                 Defunct's
                 Goodson
                 ,
                 pretending
                 to
                 buy
                 from
                 a
                 Stranger
                 .
                 Nov.
                 29.
                 1679.
                 
                 Irving
                 contra
                 Kilpatrick
                 .